Constitution-Building Bodies and the Sequencing of Public Participation A Comparison of Seven Empirical Cases

Abstract

Constitution-building is one of the most salient aspects of transitional processes, from war to peace or from authoritarian rule, in terms of establishing and strengthening democracy. This paper is part of a research project that aims to identify the circumstances under which constitution-building can strengthen democracy after violent conflict and during transitions from authoritarian rule. Previous research has indicated that the actions and relations of political elites from opposing political parties when making the constitution has bearing on the state of democracy post promulgation, but that the careful sequencing of public participation in the process can be of relevance as well. This paper conducts a systematic analysis of seven empirical cases and focuses the investigation to the type of constitution-building body that has been employed and to during what stage of the process the general public have been invited to participate. It concludes that popularly elected constitution-building bodies tend to include a broad range of political parties and that they, additionally, tend to have rules of procedure that encourage compromise and negotiation, whereas appointed bodies are dominated by one single party or one single person and do not have rules of procedure that necessitate compromise. The paper also discusses the potential need for political elites to have negotiated a number of baseline constitutional principles prior to inviting the general public to get involved in the constitution-building process, and concludes that this is an area of research in need of further in-depth empirical case-studies.

Participatory Constitution-Building in Nepal – A Comparison of the 2008-2012 and the 2013-2015 Process

“…As far as these ambitions are concerned, the two Nepalese constitution-building processes that have been the focus of attention in this article provide insights that actually build on, and verify, previous research. A recent study (Saati, 2017b) has shown that when it comes to the issue of how to sequence public participation and political elite negotiations in the context of constitution-building, there are other empirical cases that have also opted for the same sequencing pattern as the 2013-2015 Nepalese constitution-building process. That is, to employ a two-pronged set-up in which the first phase is strictly limited to political elite negotiations and bargaining, whereas the second phase is open to the public to participate.…”

“…That is, to employ a two-pronged set-up in which the first phase is strictly limited to political elite negotiations and bargaining, whereas the second phase is open to the public to participate. The South African constitution-building process that resulted in the adoption of the 1996 constitution, and the Tunisian process that resulted in the promulgation of the 2014 constitution, both followed this set-up, and have both been heralded for i) involving their respective citizenries, and ii) being able to produce constitutions agreed upon, and respected by, all major political parties (Saati 2017b, Ebrahim & Miller, 2010Filali-Ansary, 2014;The Carter Center, 2014). Perhaps two-pronged constitution-building processes that follow this specific logic provide some form of baseline template that post-conflict states can consider when they set out to write new constitutions?…”

“…It appears that, without some baseline agreement amongst political elites concerning fundamental constitutional principles, there is not much that public participation in the making of the constitution can accomplish (Saati, 2017b). One must bear in mind that constitution-building processes, particularly in the aftermath of war, are conducted in contexts where political institutions are, by and large, nonexistent, and in contexts where interpersonal trust is low, at best.…”

“…public participation and political elite negotiations, are both important in the context of constitution-building, and that scholars and peacebuilding practitioners need to properly understand and analyze how, and during which stages, the public on the one hand and the political elites on the other hand, can and should be involved in the making of the new constitution. Building on the findings of a recent study (Saati, 2017b) in which tentative conclusions relating to the Tunisian and South African participatory constitution-building processes are discussed, I argue that a case can be made for the careful sequencing of events in constitution-building processes, particularly when it comes to when the general public may be included, so that a constitution can de facto be produced, and democratization with a long perspective in mind, facilitated.…”

Negotiating the Post-Revolution Constitution for Tunisia – Members of the National Constituent Assembly Share Their Experiences

“…As regards constitution-making in post-authoritarian and post-conflict contexts, the importance of it cannot be emphasised enough or too many times (see e.g. the work of Saati, 2015, Saati, 2017a, Banks, 2007, Samuels, 2006, Miller, 2010, Brandt et al 2011, Bâli & Lerner 2017. The constitution stipulates the rules of the political game, and actors in states where political space for the opposition has been partly, or entirely, closed during an authoritarian regime will now see an opportunity to have their voices heard, and values considered, when the founding laws of the country are being drafted anew.…”