How are Constitutions Made?
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How are Constitutions Made?

October 11, 2019

The Arab Spring, the end of Apartheid in South Africa, the fall of the Berlin Wall When the war ends, when a nation reaches crisis point, when the dictator falls It is at times such as these that the call for a new constitution is at its loudest Constitution-making has high stakes Difficult and far-reaching decisions must be made about the direction the country is to take So we should take special care in designing the process But we can’t just rush ahead and start writing The first step may be to think about where
we have come from Where we are going and how we would like to get there It can be a lengthy process – often taking several years The road may be long and winding,
but we should avoid shortcuts Because the journey involves building agreement and trust It is as important as the destination itself That’s why it is crucial to plan the
route in advance and make sure everyone is on board So how do we design the process? Who writes the constitution and how do they do it? Most constitutions claim to be made by “we, the people” Millions of people might adopt a Constitution in a national vote But how do millions of people write with a single pen? The actual writing of that Constitution is
entrusted to a constitution-making body This can take many forms It may be an elected or appointed group of people, small or large Benin’s constitution-making body was a national conference of almost 500 members while Kenya used a committee of just nine experts Spain’s constitution was written by a seven member parliamentary committee and Tunisia elected over 200 people to a constituent assembly This body will do the hard work of drafting
and negotiating a Constitution Disagreements are likely, and debates will
be heated The most difficult thing is not putting words on the page but building the consensus that allows different groups to come together and agree on a Constitution
that truly reflects the needs and aspirations of the people So, whatever type of constitution-making body is chosen the process must include opposition groups as well as the government Women as well as men The poor as well as the rich Young and old and minority ethnic, religious or linguistic communities as well as the cultural majority Either all of these voices must be included in the constitution-making body or the body must reach out and take heed of all these voices “We, the people” means all of us So, the constitution-making body needs to
engage the public in a national debate In Kenya drafts were circulated on the internet and in newspapers In South Africa over 1000 public consultations were held countrywide In Tunisia people watched debates on TV and discussed the issues on social media To do its work the constitution-making body needs financial and technical support from government, civil society and often, the international community But crucially, it must stay independent from anti-democratic or illicit special interests Once the final draft is ready the new constitution can then be adopted in “the name of the people.” Typically this happens by referendum or through a special majority vote of elected representatives It is at this great symbolic moment that the constitution becomes “ours” But we haven’t reached the end of the road yet The process continues beyond just approving the text of a Constitution If it is to be more than just words on a page the new Constitution must be implemented Institutions must be created, elections held, appointments made Laws and policies must be brought into line with the Constitution so that it can bring real change to people’s lives If the process has been legitimate and inclusive and if people feel they are the authors of
the Constitution the Constitution will defend and protect democracy for generations to come

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