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PUBLIC PARTICIPATION IN
CONSTITUTION DRAFTING:
COMPARATIVE STATE PRACTICE
Legal Memorandum
2012
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PUBLIC PARTICIPATION IN CONSTITUTION DRAFTING:
COMPARATIVE STATE PRACTICE
Executive Summary
The purpose of this memorandum is to identify and analyze, through
comparative state practice, methods to facilitate public participation in the
constitution drafting process. A participatory constitutional process emphasizesthe importance of public participation in the constitutional drafting process as a
means to promote legitimacy and encourage citizen engagement in government.
Public participation refers both to the publics passive receipt of information
regarding the constitution through educational efforts, and the publics active
involvement in meetings and consultations. The constitution drafting body mayfactor input obtained through these meetings into the draft and final
constitutions.
States may employ a variety of methods to reach and include members of
the public, from community meetings and workshops, to radio and television
programming, to fliers and pamphlets, to social networking sites. Utilizing non-print forms of communication and taking steps to translate printed information
into numerous relevant languages can enable a state to reach a larger proportion
of its population, thereby increasing the level of overall participation in theprocess.
States may find soliciting input from the public at multiple stages of the
constitution drafting process useful. States can invite written submissions and
obtain oral testimony at public meetings, and develop questionnaires to identify
key constitutional issues important to the population. States may also
encourage alternative information sources and widespread representation inpublic discussions to prevent perceptions of bias. Organizing public responses
in a database can help the constitution drafting body to meaningfully considerthe publics views.
Public participation in the process can yield many benefits. Importantly,
the perception that the constitutional drafting body satisfactorily included thepublic in the process may enhance peoples acceptance of and sense of
ownership in the new constitution.
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PUBLIC PARTICIPATION IN CONSTITUTION DRAFTING:
COMPARATIVE STATE PRACTICE
Statement of Purpose
The purpose of this memorandum is to identify and analyze, through
comparative state practice, methods to facilitate public participation in the
constitution drafting process.
Introduction
States may emphasize public participation in the constitutional drafting
process as a means to promote legitimacy and encourage citizen engagement ingovernment. Typically, the process comprises a public education phase and a
public consultation phase. At the public education stage, the government seeks
to educate citizens about the role of a constitution, constitutional processes, andhow they may participate in public consultation efforts. In the public
consultation phase, the government encourages state-wide dialogue on
constitutional issues through solicitation for feedback from the public, and may
then synthesize such comments and incorporate them into the constitution.
Initiatives to educate the populace about constitutional changes may take
a wide variety of forms: community meetings, workshops, radio and televisionprograms, telephone hotlines, email, websites, songs and poems, theatre
performances, cartoons, fliers, pamphlets, and newsletters. Translating the
information presented to the public into as many local languages as possibleallows the communications to reach a greater percentage of the population.
Furthermore, non-printed forms of communication can help deliver information
to illiterate segments of society.
Public meetings can function as both an educational platform and as
effective means for the gathering of public feedback regarding a constitution.States may find it useful to solicit input in the form of written submissions, oral
testimony obtained at public meetings, or questionnaires about key
constitutional issues. A database that organizes public comments may assist the
constitution drafting body in effectively considering and incorporating the
publics views. The publics general perception that the constitution draftingbody adequately included them in the process may enhance peoples sense of
ownership in and support for the new constitution.
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Television and Radio Programming
Television and radio programs can serve as effective means of
communicating information regarding the constitution and constitutional issues
to the public. Many states develop programs, broadcast at varying intervals andfrequencies, to educate and involve their respective populaces in the constitution
drafting process. Radio programming can be particularly effective at providing
access to rural populations that otherwise are difficult to engage.1 These forms
of media can reach large portions of a states citizenry, and a state can enhance
this reach further by translating the information presented into all the languages
used throughout a state.2
South Africa
While emerging from apartheid, South Africas constitutional assembly
faced difficulties in promoting public participation in the drafting process of the
1996 Constitution.3 However, the assembly still implemented a successful
public participation process that observers praised as crucial to the successful
transition from the oppressive policies of the apartheid-era to genuine
democracy.4 South Africas constitutional assembly employed a number of
methods to engage the public in the constitution drafting process, including a
state-wide media campaign that many regard as one of the most successful stateefforts to inform and involve the public.
5 Whenever possible, the government
translated information into all the states languages.6 According to estimates,these educational efforts reached 73% of the South African population.
7
The South African constitutional assembly used television programming,among other means, to help promote public awareness of the constitutional
process. Authorities broadcast a total of 25 television programs for six months
1Commonwealth Human Rights Initiative,Promoting a Culture of Constitutionalism and Democracy in
Commonwealth Africa: Recommendations to Commonwealth Heads of Government, 21 (1999), available athttp://www.humanrightsinitiative.org/publications/const/constitutionalism_booklet_1999.pdf.2Hassen Ebrahim, THE SOUL OF ANATION:CONSTITUTION-MAKING IN SOUTH AFRICA, chapter 13 (2000),
available at http://www.sahistory.org.za/pages/library-resources/onlinebooks/soul-of-nation-
constitution/chapter13.htm.3Hassen Ebrahim, THE SOUL OF ANATION:CONSTITUTION-MAKING IN SOUTH AFRICA, chapter 13 (2000),
available at http://www.sahistory.org.za/pages/library-resources/onlinebooks/soul-of-nation-
constitution/chapter13.htm.4Vivien Hart,Democratic Constitution Making, UNITED STATES INSTITUTE OF PEACE,7(July 2003), available
at http://www.usip.org/files/resources/sr107.pdf.5Jeremy Sarkin, The Drafting of South Africas Final Constitution From a Human Rights Perspective, 47 No. 1
The American Journal of Comparative Law 67, 71 (Winter 1999).6Specifically, the draft constitution was translated into all 11 official languages of South Africa. Jeremy Sarkin,
The Drafting of South Africas Final Constitution From a Human Rights Perspective, 47 No. 1 The AmericanJournal of Comparative Law 67, 70 (Winter 1999).7Vivien Hart,Democratic Constitution Making, UNITED STATES INSTITUTE OF PEACE,7(July 2003).
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in 1995 and 12 programs in three months in 1996.8 In these programs,
representatives from civil society groups debated multiparty panels of
constitutional assembly members regarding important aspects of the
constitution.9 Topics covered in these debates included the bill of rights,
separation of powers, the state anthem and flag, freedom of expression,traditional authorities, and the death penalty.
10 These televised debates proved
to be an effective educational tool, as 76% of the programs viewers said they
had learned from the program.11
The South African constitutional assembly also involved the publicthrough radio programming.
12 This proved to be a particularly effective
mechanism for public involvement because of its capacity to reach people in
urban and rural areas. The radio programming consisted of a weekly, hour-long
radio talk show, in which constitutional experts appeared as guests to educate tothe public.13 Eight different radio stations broadcast the weekly program in
eight different languages.14
These radio programs were quite popular and
reached ten to twelve million people each week.15
Radio functioned as an
important way to overcome the challenge of disseminating information to South
Africas large rural population, many of whom were illiterate and did not have
access to print media.16
Rwanda
Rwanda also used television and radio programs to inform its citizens ofproposed constitutional changes. For instance, the constitutional commission
broadcast a live talk show on public television and radio.17
The objective of the
four-hour program was to explain the draft constitution to the public before the
commission submitted it for a referendum eight days later. Members of the
8Hassen Ebrahim, THE SOUL OF ANATION:CONSTITUTION-MAKING IN SOUTH AFRICA, chapter 13 (2000),
available at http://www.sahistory.org.za/pages/library-resources/onlinebooks/soul-of-nation-
constitution/chapter13.htm.9Commonwealth Human Rights Initiative,Promoting a Culture of Constitutionalism and Democracy in
Commonwealth Africa: Recommendations to Commonwealth Heads of Government, 21 (1999), available athttp://www.humanrightsinitiative.org/publications/const/constitutionalism_booklet_1999.pdf.10
Hassen Ebrahim, THE SOUL OF ANATION:CONSTITUTION-MAKING IN SOUTH AFRICA, chapter 13 (2000).11
Hassen Ebrahim, Constitution-Making in South Africa: A Case Study, 19, n. 27 (July 9, 1999), available at
http://www.dastuur.org/eng/index.php?option=com_docman&task=doc_download&gid=76&Itemid=15912
Jeremy Sarkin, The Drafting of South Africas Final Constitution From a Human Rights Perspective, 47 No. 1
The American Journal of Comparative Law 67, 71 (Winter 1999).13
Commonwealth Human Rights Initiative,Promoting a Culture of Constitutionalism and Democracy in
Commonwealth Africa: Recommendations to Commonwealth Heads of Government, 21 (1999).14Commonwealth Human Rights Initiative,Promoting a Culture of Constitutionalism and Democracy inCommonwealth Africa: Recommendations to Commonwealth Heads of Government, 21 (1999).15
Commonwealth Human Rights Initiative,Promoting a Culture of Constitutionalism and Democracy in
Commonwealth Africa: Recommendations to Commonwealth Heads of Government, 21 (1999).16
Hassen Ebrahim, THE SOUL OF ANATION:CONSTITUTION-MAKING IN SOUTH AFRICA, chapter 13 (2000).17Angela M. Banks, Challenging Political Boundaries in Post-Conflict States, 29 UNIVERSITY OF
PENNSYLVANIA JOURNAL OF INTERNATIONAL LAW105, 126 (2007).
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constitutional commission, representatives of the national assembly, and thepresident of the electoral commission all participated in the program, and
Rwandans could use free telephone lines to call in and provide feedback on the
draft constitution.18
Rwandas public outreach program helped lead to broad
participation in the constitutional process: An estimated 90% of the populationvoted in the constitutional referendum, with 93% voting in favor of its
adoption.19
This result is a testament to the governments careful planning and
devotion of considerable time and resources to implementing the process, which
most observers consider a success.20
Eritrea
Eritreas constitutional commission likewise employed radio
programming, along with other non-print forms of communication, as a meansto reach members of its population to educate them about the new constitution.21
Radio in Eritrea was particularly effective in disseminating information to rural
communities and to its illiterate citizens, who comprise about 20% of thepopulace.
22 Eritreas constitutional commission utilized these radio programs
along with other forms of non-printed communication like songs, poetry, oral
recitations of short stories, and plays, to educate citizens on their rights and
duties, the limits on the governments power, and responsibilities the
government owes its citizens.23
Many view the public education campaign inEritrea as one of the most effective in the world at accomplishing its goals.
24
Lessons Learned
Radio and television can serve as effective means of communicatinginformation regarding the constitution drafting process to the public,
particularly when illiteracy rates are high. It is typically more beneficial to
establish regularized television and radio programs, as opposed to only sporadic
or infrequent programming, in order to build audience loyalty and engagement
with the constitutional issues.25
Such programs can become popular and
18Priscilla Yachat Ankut, The Role of Constitution-Building Processes in Democratization, INTERNATIONAL
IDEA, 18 (2005), available at http://www.idea.int/cbp/upload/CBP-Rwanda.pdf.19
Vivien Hart,Democratic Constitution Making, UNITED STATES INSTITUTE OF PEACE, 9 (July 2003), available
at http://www.usip.org/files/resources/sr107.pdf.20
SeeUnited States Institute of Peace,Iraqs Constitutional Process: Shaping a Vision for the States Future, 8
(Feb. 2005), available at http://www.usip.org/files/resources/sr132.pdf.21Bereket H. Selassie, Creating a Constitution for Eritrea, 9 JOURNAL OF DEMOCRACY164, 168 (1998).22
Bereket H. Selassie, Creating a Constitution for Eritrea, 9 JOURNAL OF DEMOCRACY164, 168 (1998).23
Bereket H. Selassie, Creating a Constitution for Eritrea, 9 JOURNAL OF DEMOCRACY164, 168 (1998).24
See United States Institute of Peace,Iraqs Constitutional Process: Shaping a Vision for the States Future, 8
(Feb. 2005).25Vivien Hart,Democratic Constitution Making, UNITED STATES INSTITUTE OF PEACE,7(July 2003), available
at http://www.usip.org/files/resources/sr107.pdf.
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stimulate dialogue and public input in the constitution drafting process.26
Translating the programming into as many relevant languages as practicable
will enlarge the scope of people receiving the information and demonstrate a
states commitment to a more inclusive drafting process.27
Newsletters, Plays, and Social Networking
Beyond television and radio programming, states can utilize other
methods to engage members of the public in the constitution drafting process.
Such methods may include telephone hotlines, email, official websites, songsand poems, theatre performances, cartoons, fliers, pamphlets, newsletters, or
social networking websites. States may find some forms of non-printed
communications advantageous in reaching reach illiterate members of the
population.
South Africa
South Africas constitutional assembly successfully employed a number
of methods other than radio and television to engage the public in the
constitution drafting process. For instance, the constitutional assemblypublished and disseminated free newsletters called Constitutional Talk (the
same name used for the radio and television programs), which educated the
public about issues related to the drafting process.28
Typically, the newsletter
was produced twice a month and roughly eight pages long.29 It was distributedto 160,000 people, with 100,000 of the copies distributed state-wide through
taxicab stands and the other 60,000 sent directly to subscribers.30
This
newsletter proved to be a valuable resource for South Africans who were
interested in following the constitution drafting process closely.31
Another novel method of reaching people was the Constitutional Talktelephone line. This service allowed individuals to call a telephone hotline to
26See Hassen Ebrahim, THE SOUL OF ANATION:CONSTITUTION-MAKING IN SOUTH AFRICA, chapter 13 (2000),
available at http://www.sahistory.org.za/pages/library-resources/onlinebooks/soul-of-nation-
constitution/chapter13.htm (discussing the Constitutional Assemblys use of television programming).27
SeeCommonwealth Human Rights Initiative,Promoting a Culture of Constitutionalism and Democracy in
Commonwealth Africa: Recommendations to Commonwealth Heads of Government, 21 (1999), available at
http://www.humanrightsinitiative.org/publications/const/constitutionalism_booklet_1999.pdf.28
Hassen Ebrahim, THE SOUL OF ANATION:CONSTITUTION-MAKING IN SOUTH AFRICA, chapter 13 (2000),
available at http://www.sahistory.org.za/pages/library-resources/onlinebooks/soul-of-nation-
constitution/chapter13.htm.29
Commonwealth Human Rights Initiative,Promoting a Culture of Constitutionalism and Democracy in
Commonwealth Africa: Recommendations to Commonwealth Heads of Government, 21 (1999).30
Vivien Hart,Democratic Constitution Making, UNITED STATES INSTITUTE OF PEACE,7(July 2003).31
Commonwealth Human Rights Initiative,Promoting a Culture of Constitutionalism and Democracy inCommonwealth Africa: Recommendations to Commonwealth Heads of Government, 21 (1999), available at
http://www.humanrightsinitiative.org/publications/const/constitutionalism_booklet_1999.pdf.
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listen to a briefing on current constitutional and political discussions.32
Thehotline was available in five languages, and callers could also leave messages
registering their comments or requesting additional information. 10,000 people
took advantage of the Constitutional Talk telephone line.33
The South African constitutional assembly also employed comic strips,
cartoons, and posters encouraging its citizens participation in the constitutional
process. For instance, the government distributed one million copies of a
human rights comic to all schools and adult literacy organizations.34
The
government also engaged in an advertising campaign to promote public
awareness. One memorable slogan from the campaign was Youve made yourmark, [n]ow have your say.
35 This advertising campaign utilized newspapers
and billboards, as well.36
The constitutional assembly also created a website, which was one of the
first of its kind, to serve as a clearinghouse for information related to the
constitution drafting process.37
The constitutional assembly partnered with theUniversity of Cape Town, which maintained the site.
38 The website offered
visitors a database of minutes, drafts, opinions, and submissions of the
Constitutional Assembly.39
Observers viewed the project as a successful
vehicle to reach members of the public.40
Employing a wide array of media enabled the South African
constitutional assembly to reach a broad range of its population withinformation regarding the new constitution.
41 Observers praised as successful
32Hassen Ebrahim, THE SOUL OF ANATION:CONSTITUTION-MAKING IN SOUTH AFRICA, chapter 13 (2000),
available at http://www.sahistory.org.za/pages/library-resources/onlinebooks/soul-of-nation-
constitution/chapter13.htm.33
Commonwealth Human Rights Initiative,Promoting a Culture of Constitutionalism and Democracy inCommonwealth Africa: Recommendations to Commonwealth Heads of Government, 21 (1999).34
Hassen Ebrahim, THE SOUL OF ANATION:CONSTITUTION-MAKING IN SOUTH AFRICA, chapter 13 (2000).35
Jeremy Sarkin, The Drafting of South Africas Final Constitution From a Human Rights Perspective, 47 No. 1
The American Journal of Comparative Law 67, 71 (Winter 1999).36
Hassen Ebrahim, THE SOUL OF ANATION:CONSTITUTION-MAKING IN SOUTH AFRICA, chapter 13 (2000).37Commonwealth Human Rights Initiative,Promoting a Culture of Constitutionalism and Democracy inCommonwealth Africa: Recommendations to Commonwealth Heads of Government, 21 (1999).38
Commonwealth Human Rights Initiative,Promoting a Culture of Constitutionalism and Democracy in
Commonwealth Africa: Recommendations to Commonwealth Heads of Government, 21 (1999).39
Commonwealth Human Rights Initiative,Promoting a Culture of Constitutionalism and Democracy in
Commonwealth Africa: Recommendations to Commonwealth Heads of Government, 21 (1999).40
Commonwealth Human Rights Initiative,Promoting a Culture of Constitutionalism and Democracy in
Commonwealth Africa: Recommendations to Commonwealth Heads of Government, 21 (1999).41Vivien Hart,Democratic Constitution Making, UNITED STATES INSTITUTE OF PEACE,7(July 2003), available
at http://www.usip.org/files/resources/sr107.pdf.
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information about the new constitution.48
Authorities employed songs, poetry,oral recitations of short stories, and plays translated into numerous Eritrean
dialects.49
The government staged competitions for writers and artists to
participate in creating these communication vehicles. These means of
communication required substantial investment of resources by the government,but generally produced positive results.
50 The commission also used mobile
theaters to provide information to communities.51
In addition to non-printed media, the constitutional commission used
various printed forms of communication as part of the public education
campaign. For instance, the commission developed pamphlets detailingconstitutional issues and distributed them to the public.
52 Furthermore, the
commission translated the Universal Declaration of Human Rights and the
International Covenants on Civil and Political Rights and on Social, Economic,and Cultural Rights into multiple Eritrean vernaculars as part of the educational
campaign.53
In all, these communication efforts reached approximately a half
million Eritreans and bolstered public opinion regarding the constitutiondrafting process.
54
Iceland
Following Icelands economic meltdown in 2008, the Icelandicgovernment decided to undertake constitutional reform with direct public
participation.55 In 2010, the government held elections to select 25 citizens tosit on the Constitutional Council, which has the mandate of drafting revisions to
the constitution to submit to the Parliament.56
The Council has recently decided
to use modern social networking websites to promote greater publicparticipation in the constitutional reformation process. For instance, it has
created profiles and webpages on Facebook,57
Twitter,58
Flikr,59
and YouTube60
48Bereket H. Selassie, Creating a Constitution for Eritrea, 9 JOURNAL OF DEMOCRACY164, 168 (1998).
49Bereket H. Selassie, Creating a Constitution for Eritrea, 9 JOURNAL OF DEMOCRACY164, 168 (1998).
50
Andrew Reynolds, THE ARCHITECTURE OF DEMOCRACY:CONSTITUTIONAL DESIGN,CONFLICTMANAGEMENT,AND DEMOCRACY364 (2002).51
Vivien Hart,Democratic Constitution Making, UNITED STATES INSTITUTE OF PEACE,7(July 2003), available
at http://www.usip.org/files/resources/sr107.pdf.52
Bereket H. Selassie, Creating a Constitution for Eritrea, 9 JOURNAL OF DEMOCRACY164, 168 (1998).53
Bereket H. Selassie, Creating a Constitution for Eritrea, 9 JOURNAL OF DEMOCRACY164, 168 (1998).54
Bereket H. Selassie, Creating a Constitution for Eritrea, 9 JOURNAL OF DEMOCRACY164, 168 (1998).55
Associated Press,Iceland to Elect Citizens Panel to Rewrite Constitution (Nov. 26, 2010), available at
http://www.guardian.co.uk/world/2010/nov/26/iceland-elect-citizens-rewrite-constitution. 56Associated Press,Iceland to Elect Citizens Panel to Rewrite Constitution (Nov. 26, 2010); Official Websiteof the Constitutional Council, The Role of the Constitutional Council(2011), available at
http://stjornlagarad.is/english/. 57
Stjrnlagar!,FACEBOOK, available at https://www.facebook.com/Stjornlagarad (last visited Jun. 28, 2011).58
Stjrnlagar!, TWITTER, available at http://twitter.com/#!/stjornlagarad (last visited Jun. 28, 2011).59Stjrnlagar!s Photostream, FLICKR, available at http://www.flickr.com/photos/stjornlagarad/ (last visited
Jun. 28, 2011).
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to present draft versions of Icelands new constitution to the public.61
TheConstitutional Council is also streaming all of its public meetings live on its
own website62
and posting interviews with Council members on its YouTube
page.63
Two-thirds of Icelands population is on Facebook and internet access
is widespread, so the Councils use of social networking is a logical means ofencouraging direct public participation in the states constitutional review.
64
The Constitutional Council plans to send a final draft to Icelands
parliament for debate and approval by August 2011.65
Since the states
constitutional review process is still underway, the effectiveness of this
innovative use of social networking remains to be seen.
Lessons Learned
Like radio and television, novel forms of communication may prove
crucial in allowing a state to reach illiterate or harder to reach segments of the
public and to promote the participation of this population in the constitutiondrafting process. These may include newsletters and pamphlets; call-in
telephone information lines; seminars and workshops; comic strips, posters, and
cartoons; websites; and theater, songs, poetry, and literature. Translation of the
information into as many of the languages used in the state as resources and
time permit is important for their effectiveness.66
Broader translation allows alarger proportion of the public access to the constitution drafting process and
facilitates meaningful participation. A creative advertising campaign, includingdevices such as catch-phrases and slogans, can help spark public interest and
60Stjrnlagar!s Channel, YOUTUBE, available at http://www.youtube.com/stjornlagarad (last visited Jun. 28,
2011).61
Official Website of the Constitutional Council, The Publics Participation in the Work Process (2011),
available at http://stjornlagarad.is/english/; Julia Zabley,Iceland Drafting New Constitution Using Website,
Social Media, JURIST (Jun. 10, 2011), available at http://jurist.org/paperchase/2011/06/iceland-drafting-new-
constitution-using-website-social-media.php.62Official Website of the Constitutional Council,Homepage: Video (2011), available at http://stjornlagarad.is;
The Stream, Crowdsourcing a Constitution in Iceland, AL JAZEERA(Jun. 23, 2011), available at
http://stream.aljazeera.com/story/crowdsourcing-a-constitution.63
Stjrnlagar!s Channel, YOUTUBE, available at http://www.youtube.com/stjornlagarad (last visited Jun. 28,
2011); Haroon Siddique,Mob Rule: Iceland Crowdsources its Next Constitution, THE GUARDIAN, Jun. 9, 2011,
available at http://www.guardian.co.uk/world/2011/jun/09/iceland-crowdsourcing-constitution-facebook.64
Alda Sigmundsdottir, Tech-savvy Iceland Online for New Constitution,THE ASSOCIATED PRESS (Jun. 9,
2011), available at http://www.washingtontimes.com/news/2011/jun/9/tech-savvy-iceland-online-for-new-
constitution/.65
Alda Sigmundsdottir, Tech-savvy Iceland Online for New Constitution,THE ASSOCIATED PRESS(Jun. 9,
2011).66
SeeHassen Ebrahim, THE SOUL OF ANATION:CONSTITUTION-MAKING IN SOUTH AFRICA, chapter 13 (2000),
available at http://www.sahistory.org.za/pages/library-resources/onlinebooks/soul-of-nation-constitution/chapter13.htm (stating that the draft constitution, radio programs, and informational pamphlets were
all translated into multiple languages).
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engagement in the process.67
Furthermore, the use of popular social networkingwebsites can be used as tools for instant public participation in a familiar
forum.68
Public Meetings
Conducting a series of town meetings can serve as an effective way to
facilitate the participation of citizens from around the state in the constitution
drafting process. Public meetings can function as both an educational platform
and an effective means of gathering public feedback regarding the constitution.
A state may choose to organize such meetings around specific topics, or to keepthe subject matter general. Regardless, states may find it helpful to encourage
widespread representation in these public sessions in order to avoid perceptions
that participation is not free and broad-based.
Rwanda
In Rwanda, the constitutional commission developed an action plan for
drafting the constitution that included separate phases for educating the public
about the process, and consulting with the public concerning the constitutions
content.69
Accordingly, members of the constitutional commission and trained
assistants visited various provinces and met with the public over the course ofsix months.
70 Through these consultations, the commission was able to explain
important aspects of the constitution, generate constructive feedback, andencourage people to submit their views for the commissions consideration.
71
To facilitate and focus discussions on key, potentially controversialissues, the constitutional commission formulated a questionnaire for Rwandans
to complete.72
The questionnaire comprised 60 questions addressing an array of
issues to be addressed in the constitution, including land, marriage, and
67SeeJeremy Sarkin, The Drafting of South Africas Final Constitution From a Human Rights Perspective, 47
No. 1 The American Journal of Comparative Law 67, 71 (Winter 1999) (noting the Constitutional Assemblys
use of slogans and publicity campaigns received widespread praise).68
See Haroon Siddique,Mob Rule: Iceland Crowdsources its Next Constitution, THE GUARDIAN, Jun. 9, 2011,
available athttp://www.guardian.co.uk/world/2011/jun/09/iceland-crowdsourcing-constitution-facebook (noting
that through Facebook, a computer literate population can be involved in constitution drafting from the very
beginning of the process).69
Priscilla Yachat Ankut, The Role of Constitution-Building Processes in Democratization, INTERNATIONAL
IDEA, 17 (2005), available at http://www.idea.int/cbp/upload/CBP-Rwanda.pdf.70
Vivien Hart,Democratic Constitution Making, UNITED STATES INSTITUTE OF PEACE,7(July 2003), available
at http://www.usip.org/files/resources/sr107.pdf.71
Angela M. Banks, Challenging Political Boundaries in Post-Conflict States, 29 UNIVERSITY OF
PENNSYLVANIA JOURNAL OF INTERNATIONAL LAW105, 119 (2007).72Angela M. Banks, Challenging Political Boundaries in Post-Conflict States, 29 UNIVERSITY OF
PENNSYLVANIA JOURNAL OF INTERNATIONAL LAW105, 124 (2007).
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divorce.73
For the sizeable illiterate population in Rwanda, the commissionsmembers and staff convened public meetings and discussions related to the
questionnaires. In order to organize the publics responses, the commission
established a database and a weighted scoring system to analyze the
submissions received.74
After drafting the constitution, the constitutional commission also
organized a three-day seminar attended by 800 Rwandans, members of the
diaspora, and international experts.75
The commission then presented the draft
constitution to the general public through a series of additional meetings.76
The
budget for these consultative activities amounted to seven million U.S. dollars.77
Foreign states provided logistical support to Rwanda for conference and
trainings and helped procure items to facilitate the participation process, such as
vehicles and computers.
78
Rwanda carefully planned the public participationprocess and tried to avoid political divisions in the participation process.79
The
government also devoted considerable time and resources to implementing the
process, which most consider a success.80
South Africa
South Africas public participation strategy was quite comprehensive and
included extensive public meetings. The constitutional assembly conductedsector-specific hearings with the participation of groups of civil society
organizations, including, for instance, business, labor, women, traditionalauthorities, and youth.
81 Close to 600 civil society organizations participated in
these public hearings.82
73Priscilla Yachat Ankut, The Role of Constitution-Building Processes in Democratization, INTERNATIONAL
IDEA, 17 (2005), available at http://www.idea.int/cbp/upload/CBP-Rwanda.pdf.74
Priscilla Yachat Ankut, The Role of Constitution-Building Processes in Democratization, INTERNATIONAL
IDEA, 17-18 (2005). For more details on the scoring methodology employed by Rwandas constitutional
commission, see the discussion of Rwanda under the section Inviting Comments.75
Priscilla Yachat Ankut, The Role of Constitution-Building Processes in Democratization, INTERNATIONAL
IDEA, 18 (2005).76Priscilla Yachat Ankut, The Role of Constitution-Building Processes in Democratization, INTERNATIONALIDEA, 18-20 (2005).77
Vivien Hart,Democratic Constitution Making, UNITED STATES INSTITUTE OF PEACE, 9 (July 2003), available
at http://www.usip.org/files/resources/sr107.pdf.78
Wellars Gasamagera, The Constitution Making Process in Rwanda: Lessons to be Learned, 7 (June 2007),
available at http://unpan1.un.org/intradoc/groups/public/documents/un/unpan026620.pdf.79
Vivien Hart,Democratic Constitution Making, UNITED STATES INSTITUTE OF PEACE, 9 (July 2003).80
See United States Institute of Peace,Iraqs Constitutional Process: Shaping a Vision for the States Future, 8
(Feb. 2005), available at http://www.usip.org/files/resources/sr132.pdf.81
The Constitutional Assembly: Annual Report 1996, SOUTH AFRICAN CONSTITUTIONAL ASSEMBLY,35 (Marion
Sparg ed.) (1996), available at
http://www.polity.org.za/polity/govdocs/constitution/ca/ANREPORT/CA95_96.PDF. 82
The Constitutional Assembly: Annual Report 1996, SOUTH AFRICAN CONSTITUTIONAL ASSEMBLY,35 (MarionSparg ed.) (1996), available at
http://www.polity.org.za/polity/govdocs/constitution/ca/ANREPORT/CA95_96.PDF.
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Beyond these sector-specific hearings, lobby groups, public
demonstrations, and public debates provided platforms for public participation.
Additionally, face-to-face outreach programs allowed the constitutional
assembly to reach individuals who had minimal access to print or electronicmedia and to penetrate rural areas and communities with high illiteracy rates.
83
These outreach programs reached approximately 95,000 people and elicited
close to 1.7 million submissions to the constitutional assembly.84
The public meetings often provided the first opportunity for people to
directly engage with their elected representatives.85
The meetings producedlively discussions and served as platforms for the exchange of ideas and
views.86
Additionally, such meetings provided information to less educated
groups in society and illustrated the fact that constitutional issues affect allmembers of society.87
Uganda
The Ugandan constitution drafting process received praise from the
international community, as well as Ugandan citizens, for the levels of public
participation it entailed. The Ugandan constitutional committee conducted
numerous public meetings to gather input from the general population.Specifically, over the course of almost three years, the committee conducted
district seminars, in which groups of its members attended two-day seminars inall the states districts.
88 Over 10,000 people attended these seminars, including
district officials, local government council executives, county and sub-county
leaders, community leaders, and heads of schools and religious organizations.89
The constitutional committee also convened two-day seminars for a range
of government employeesincluding police, army, and prison personneland
for civil society organizationsincluding educational institutions, womens
83Catherine Barnes & Eldred De Klerk, South Africas Multi-Party Constitutional Negotiation Process,
CONCILIATION RESOURCES(2002), available at http://www.c-r.org/our-work/accord/public-
participation/southafrica-multiparty-process.php.84
Most of the 1.7 million submissions were petition signatures. Catherine Barnes & Eldred De Klerk, South
Africas Multi-Party Constitutional Negotiation Process, CONCILIATION RESOURCES(2002), available at
http://www.c-r.org/our-work/accord/public-participation/southafrica-multiparty-process.php.85
Hassen Ebrahim, THE SOUL OF ANATION:CONSTITUTION-MAKING IN SOUTH AFRICA, chapter 13 (2000),
available at http://www.sahistory.org.za/pages/library-resources/onlinebooks/soul-of-nation-
constitution/chapter13.htm.86
Hassen Ebrahim, THE SOUL OF ANATION:CONSTITUTION-MAKING IN SOUTH AFRICA, chapter 13 (2000).87
Hassen Ebrahim, THE SOUL OF ANATION:CONSTITUTION-MAKING IN SOUTH AFRICA, chapter 13 (2000).88
Devra C. Moehler, DISTRUSTING DEMOCRATS:OUTCOMES OF PARTICIPATORY CONSTITUTION MAKING55
(2008).89Devra C. Moehler, DISTRUSTING DEMOCRATS:OUTCOMES OF PARTICIPATORY CONSTITUTION MAKING55
(2008).
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groups, youth organizations, professional associations, and political parties.90
Civil society organizations also conducted meetings and had committee
members speak at them.91
The committee members participated in educational
forum discussions in every sub-county, and subsequently returned to each of the
sub-counties to obtain oral and written feedback on the constitution.92
Amongthe participatory activities, such as seminars, meetings, and submitting
comments, roughly half of Ugandas citizens participated in an average of one-
and-a-half activities, 35% did not participate in any activities, and 13% engaged
in three or more activities.93
Despite the public participation that occurred in this context, some arguedthat the process was tainted and not as fair as it initially appeared. Specifically,
critics accused the constitutional committee of presenting biased questions that
produced submissions that favored the government in power, and criticized thegovernment for limiting the free exchange of ideas by banning political party
activity.94
Moreover, due to the lack of alternative sources of information
regarding the constitution, some observers argue that political elitesperspectives greatly influenced much of the populations views.
95
Albania
In the 1998 Albanian constitutional process, the government supportedcreation of a nongovernmental body known as the Administrative Center, which
organized multiple public sessions to discuss constitutional issues.96 Thesessions each covered separate issues, including legislative power, executive
power, judicial power, human rights, and local government. The Administrative
Center then convened members of the parliamentary constitution drafting groupwith local and foreign experts to discuss the constitutional concerns identified
during the sessions.97
The discussions were then broadcast as a three-part
90
Devra C. Moehler, DISTRUSTING DEMOCRATS:OUTCOMES OF PARTICIPATORY CONSTITUTION MAKING56(2008).91
Devra C. Moehler, DISTRUSTING DEMOCRATS:OUTCOMES OF PARTICIPATORY CONSTITUTION MAKING56
(2008).92
Oliver Furley & James Katalikawe, Constitutional Reform in Uganda: The New Approach, 96 AFRICAN
AFFAIRS243, 249 (1997).93
Devra C. Moehler,Participation and Support for the Constitution in Uganda, 44 JOURNAL OF MODERN
AFRICAN STUDIES275, 286 (2006).94
Devra C. Moehler,Participation and Support for the Constitution in Uganda, 44 JOURNAL OF MODERN
AFRICAN STUDIES275, 282 (2006).95
Devra C. Moehler,Participation and Support for the Constitution in Uganda, 44 JOURNAL OF MODERN
AFRICAN STUDIES275, 276 (2006).96
United States Institute of Peace,Iraqs Constitutional Process: Shaping a Vision for the States Future, 5-6
(Feb. 2005), available at http://www.usip.org/files/resources/sr132.pdf.97United States Institute of Peace,Iraqs Constitutional Process: Shaping a Vision for the States Future, 8
(Feb. 2005).
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program on public television.98
Albanias efforts to engage the public and include their feedback had a
direct effect on the outcome of the constitution drafting process. The
Administrative Center indexed and organized public comments it received, inorder to facilitate their consideration by the constitution drafting body.
99
Ultimately, the drafting body accepted over fifty proposed changes from the
hundreds it received, which directly affected over 45 articles of the draft
constitution.100
It revised the constitution draft to incorporate these changes and
the public further participated in a referendum to approve the new
constitution.101
The Administrative Center effectively organized and conductedits public education and consultation processes, which led to an increased push
for greater democracy in Albania.102
Lessons Learned
A state may find it useful to take steps to promote as free a flow ofinformation as possible through mechanisms that promote public participation,
such as public meetings.103
This includes making alternative sources of
information available, to the extent practicable. These steps will enable the
population to form informed opinions and provide educated feedback, and may
counter a perception that political officials are skewing the process orsuppressing opposing views.
104
Moreover, a state may find it useful to encourage widespread
representation in these public meetings. By only permitting certain groups to
participate, particularly only groups that support the presiding government, astate may undermine the legitimacy of the constitution drafting process and the
resulting constitution.105
Holding numerous public meetings, throughout the
98United States Institute of Peace,Iraqs Constitutional Process: Shaping a Vision for the States Future, 8
(Feb. 2005).99
Scott N. Carlson, The Drafting Process for the 1998 Albanian Constitution, inFRAMING THE STATE IN TIMESOF TRANSITION: CASE STUDIES IN CONSTITUTION MAKING, 311, 317 (Laurel E. Miller, ed., with Louis Aucoin,
2010).100
Scott N. Carlson, The Drafting Process for the 1998 Albanian Constitution, inFRAMING THE STATE IN TIMES
OF TRANSITION: CASE STUDIES IN CONSTITUTION MAKING, 311, 317 (Laurel E. Miller, ed., with Louis Aucoin,
2010).101
United States Institute of Peace,Iraqs Constitutional Process: Shaping a Vision for the States Future, 8
(Feb. 2005).102
See United States Institute of Peace,Iraqs Constitutional Process: Shaping a Vision for the States Future, 8
(Feb. 2005).103
See Devra C. Moehler,Participation and Support for the Constitution in Uganda, 44 JOURNAL OF MODERN
AFRICAN STUDIES275, 282 (2006).104
SeeDevra C. Moehler,Participation and Support for the Constitution in Uganda, 44 JOURNAL OF MODERN
AFRICAN STUDIES275, 276, 282 (2006).105SeeDevra C. Moehler,Participation and Support for the Constitution in Uganda, 44 JOURNAL OF MODERN
AFRICAN STUDIES275, 282 (2006).
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state, and open to all members of the public, can serve to prevent the perceptionthat the state is not allowing for free, broad-based participation.
106
Inviting Comments
Soliciting comments from the public on a draft constitution allows the
public to provide feedback for the constitution drafting body to evaluate and
synthesize into the draft or final version of the constitution. Including the
public in this way gives the public a sense of ownership over the constitution,
which can increase popular support for the document and the government.107
A
state may choose to solicit written submissions, obtain oral testimony at publicmeetings, or develop a meaningful questionnaire to identify constitutional issues
the public views as particularly important.
Rwanda
Rwandas constitutional commission solicited input from the generalpublic in numerous ways. In addition to using the 60-question survey
distributed to the population to facilitate discussions during public meetings, the
constitutional commission also utilized them as a method to obtain feedback on
the new constitution.108
Furthermore, the commission created free telephone
lines, email addresses, and a website through which the public could submitcomments.
109 Submissions received by civil society groups were useful in
providing the commission with information that reflected the interests of broadsegments of the public.
In order to organize the responses made by the public, the constitutionalcommission established a database and a weighted scoring system to analyze
the submissions received. Under this grading system, the commission accorded
a score of four points to in-depth written submissions from groups, a score of
three points to submissions from interest groups, and a score of two points for
expert opinions expressed on particular issues.110
The commission compiled
and summarized all the information it received in a booklet, which it thendistributed to the public, reflecting back to the people the issues they wanted the
106See Hassen Ebrahim, THE SOUL OF ANATION:CONSTITUTION-MAKING IN SOUTH AFRICA, chapter 13 (2000),
available at http://www.sahistory.org.za/pages/library-resources/onlinebooks/soul-of-nation-
constitution/chapter13.htm.107
Vivien Hart,Democratic Constitution Making, UNITED STATES INSTITUTE OF PEACE, 4 (July 2003), available
at http://www.usip.org/files/resources/sr107.pdf.108
Priscilla Yachat Ankut, The Role of Constitution-Building Processes in Democratization, INTERNATIONAL
IDEA, 20 (2005), available at http://www.idea.int/cbp/upload/CBP-Rwanda.pdf.109
Priscilla Yachat Ankut, The Role of Constitution-Building Processes in Democratization, INTERNATIONAL
IDEA, 18 (2005).110Priscilla Yachat Ankut, The Role of Constitution-Building Processes in Democratization, INTERNATIONAL
IDEA, 17-18 (2005).
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new constitution to address.111
During the subsequent two months, thecommission drafted the constitution, and then allowed three more months to
receive comments from the public.112
Despite the significant efforts of the constitutional commission to consultwith and include the public in the constitution drafting process, some believed
that the nearly unanimous affirmation of the constitution in the referendum
resulted from political pressure and intimidation, as well as from the
mobilization of certain ethnic populations.113
Allegations also existed that only
members of the Rwandan Patriotic Front and its supporters participated in the
public meetings conducted by the commission.114
Nonetheless, Rwanda went toextensive lengths to include public opinion by obtaining, organizing, and
attempting to incorporate comments at multiple stages of the drafting process.
South Africa
The South African constitutional process called for public commentaryon multiple drafts and an ongoing dialogue that reinforced an atmosphere of
negotiation and cooperation.115
The constitutional assembly advertised in major
newspapers inviting submissions from the public, and administered workshops
to obtain public comments.116
The constitutional assembly encouraged all
members of the public to provide input on the new constitution by submittingwritten comments, providing oral statements at public meetings, calling the
Constitutional Talk telephone hotline, or using the Internet.117 Theconstitutional assembly received nearly two million submissions from
individuals, advocacy and interest groups, and professional associations
(although a majority of these were signatures on petitions).118
The Assemblys secretariat sorted the publics submissions by subject
area and then sent them to experts from each thematic constitutional committee.
111Priscilla Yachat Ankut, The Role of Constitution-Building Processes in Democratization, INTERNATIONAL
IDEA, 18 (2005).112Priscilla Yachat Ankut, The Role of Constitution-Building Processes in Democratization, INTERNATIONALIDEA, 18 (2005).113
Priscilla Yachat Ankut, The Role of Constitution-Building Processes in Democratization, INTERNATIONAL
IDEA, 20 (2005).114
Rally for the Return of Refugees and Democracy in Rwanda,RDR Rejects Undemocratic Making of the New
Constitution for Rwanda(March 18, 2002), available at http://www.inshuti.org/rdr38.htm.115
Vivien Hart,Democratic Constitution Making, UNITED STATES INSTITUTE OF PEACE,8(July 2003), available
at http://www.usip.org/files/resources/sr107.pdf.116
Catherine Barnes & Eldred De Klerk, South Africas Multi-Party Constitutional Negotiation Process,
CONCILIATION RESOURCES(2002), available at http://www.c-r.org/our-work/accord/public-
participation/southafrica-multiparty-process.php.117
Catherine Barnes & Eldred De Klerk, South Africas Multi-Party Constitutional Negotiation Process,
CONCILIATION RESOURCES(2002).118Vivien Hart,Democratic Constitution Making, UNITED STATES INSTITUTE OF PEACE,7(July 2003), available
at http://www.usip.org/files/resources/sr107.pdf.
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These experts then compiled the submissions and created summary reports forconsideration by the constitutional assemblys thematic committees.
119 From
these, the assembly developed a working draft of the constitution, which
included alternate formulations of contentious provisions and provided
associated explanatory notes.120
In addition, the draft unambiguously reflectedthe views and submissions made by the public. The assembly distributed five
million copies of the working draft in a tabloid format, upon which it then
solicited additional public comments.121
South Africans submitted 250,000
comments on the draft, and the Assemblys staff once again summarized these
comments.122
The staff then matched the summaries to the corresponding
articles in the constitution to facilitate the Assemblys consideration of them.123
South Africans initially expressed concern as to the extent to which the
drafters would actually take seriously the ideas and views submitted by thepublic and whether the Assembly would incorporate them into the new
constitution.124
The Assembly constructed the first draft in such a way that it
unambiguously reflected the publics submissions, and the revised draft notedwho had made a particular submission, which provisions of the draft that the
submission affected, and reports by the experts who addressed the
submission.125
Then, the Assembly sent a copy of the draft to each individual or
group who made a submission.126
Through such efforts, South Africas
constitutional assembly sought to meaningfully engage the public in the draftingprocess and address the voluminous input it received.
Zimbabwe
Zimbabwes experience illustrates how incomplete public participation,through the exclusion of the public from key phases and the presence of undue
political pressure, can undermine the constitution drafting process. In
appearance, Zimbabwes constitutional commission seemed to allow for
relatively extensive public participation in the form of education and
119
Catherine Barnes & Eldred De Klerk, South Africas Multi-Party Constitutional Negotiation Process,CONCILIATION RESOURCES, (2002).120
Commonwealth Human Rights Initiative,Promoting a Culture of Constitutionalism and Democracy in
Commonwealth Africa: Recommendations to Commonwealth Heads of Government, 22 (1999), available at
http://www.humanrightsinitiative.org/publications/const/constitutionalism_booklet_1999.pdf.121
Commonwealth Human Rights Initiative,Promoting a Culture of Constitutionalism and Democracy in
Commonwealth Africa: Recommendations to Commonwealth Heads of Government, 22 (1999).122
Catherine Barnes & Eldred De Klerk, South Africas Multi-Party Constitutional Negotiation Process,
CONCILIATION RESOURCES(2002).123
Catherine Barnes & Eldred De Klerk, South Africas Multi-Party Constitutional Negotiation Process,
CONCILIATION RESOURCES(2002).124
Hassen Ebrahim, THE SOUL OF ANATION:CONSTITUTION-MAKING IN SOUTH AFRICA, chapter 13 (2000),
available at http://www.sahistory.org.za/pages/library-resources/onlinebooks/soul-of-nation-
constitution/chapter13.htm.125Hassen Ebrahim, THE SOUL OF ANATION:CONSTITUTION-MAKING IN SOUTH AFRICA, chapter 13 (2000).
126Hassen Ebrahim, THE SOUL OF ANATION:CONSTITUTION-MAKING IN SOUTH AFRICA, chapter 13 (2000).
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consultation. During the consultation phase, the commission receivedapproximately 7,000 written comments.
127 Furthermore, authorities conducted
more than 4,000 public meetings statewide to discuss constitutional issues,
which engaged an estimated half million Zimbabweans.128
Authorities also
conducted a multi-lingual media campaign, scientific polling, and aninternational conference.
129
However, there was a widespread belief even by some constitutional
commission members, that the draft constitution did not reflect the views of the
public, including views conveyed through submitted comments.130
The
commission did not allow for any public comment on the draft constitution, andinstead sent it directly to President Mugabe.
131 President Mugabe did not allow
any amendments but swiftly submitted the draft constitution to a referendum,
where it was rejected by a vote of 54% to 46%.
132
A survey reported that nearlyhalf of the no voters felt that the people rejected the new constitution because
it did not adequately reflect the views of the public.133
As Zimbabwe
demonstrates, important aspects of a successful constitution drafting process, interms of increasing the probability of the publics acceptance of the new
constitution, are both public participation in and public perception of the
drafting process.
Nigeria
Nigeria had two distinct constitution drafting processes in 1979 and thenin 1999, and when compared to each other they illustrate the role and value of
public participation. In the 1979 process, a constitutional commission created
by the military government issued a draft constitution.134
For the next 12months, the public intensely debated the draft, though the military government
largely limited the submission of substantive comments to its supporters.135
While the commission did not employ formal consultative mechanisms to
engage the public at large, the military government did adopt the constitution in
127Vivien Hart,Democratic Constitution Making, UNITED STATES INSTITUTE OF PEACE,9(July 2003), available
at http://www.usip.org/files/resources/sr107.pdf.128
Vivien Hart,Democratic Constitution Making, UNITED STATES INSTITUTE OF PEACE,9(July 2003).129
Vivien Hart,Democratic Constitution Making, UNITED STATES INSTITUTE OF PEACE,9(July 2003).130
David Pottie,Zimbabwe: Constitutional Referendum in Zimbabwe, ELECTORAL INSTITUTE FOR THE
SUSTAINABILITY OF DEMOCRACY IN AFRICA (EISA) (2000), available at
http://www.eisa.org.za/WEP/zim2000pottie.htm.131
Vivien Hart,Democratic Constitution Making, UNITED STATES INSTITUTE OF PEACE,9(July 2003).132
Vivien Hart,Democratic Constitution Making, UNITED STATES INSTITUTE OF PEACE,9(July 2003).133
Vivien Hart,Democratic Constitution Making, UNITED STATES INSTITUTE OF PEACE,9(July 2003).134
Kirsti Samuels, Constitution Building Processes and Democratization: A Discussion of Twelve Case Studies,
INTERNATIONAL IDEA, 20 (2007), available at
http://www.idea.int/cbp/upload/IDEA%20CBP%20Comparative%20paper%20by%20Kirsti%20Samuels.pdf.135Kirsti Samuels, Constitution Building Processes and Democratization: A Discussion of Twelve Case Studies,
INTERNATIONAL IDEA, 20 (2007).
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a climate of public debate.136
Despite some of the lack of opportunities forpublic participation, Nigerians accepted this constitution due to the high level of
discourse existing at the public level, even without facilitation by the
government.137
However, during the 1999 constitution drafting process the military
government simply imposed a new constitution on the public without
consultation or debate.138
The public was widely critical of this constitution,
viewing it as a product of the ruling military government and its undemocratic
tendencies.139
The drafting process in 1979 created the publics expectation of
the opportunity to participate in future process, and the governments exclusionof the public in 1999 did not satisfy this expectation.
140
Iceland
Icelands Constitutional Council is currently inviting comments on its
constitution drafting process by posting interactive drafts of the constitutiononline. The Council frequently posts updated drafts on its Facebook page.
141
Any Facebook user may comment on these updates, and almost all postings are
written in Icelandic.142
The Constitutional Council also allows for comments
and public discussions of the comments on its official website, and the website
links new posts and discussions to Facebook.143
Additionally, theConstitutional Council has posted an English language copy of the draft
constitution on its website, which also allows for comments on the draft andcontributions to its translation in English.
144 The Council has done this in hopes
of broader public participation because two-thirds of Icelanders use Facebook,
and online communication is a familiar forum for much of Icelandspopulation.
145
136Kirsti Samuels, Constitution Building Processes and Democratization: A Discussion of Twelve Case Studies,
INTERNATIONAL IDEA, 20-21 (2007).137
SeeKirsti Samuels, Constitution Building Processes and Democratization: A Discussion of Twelve Case
Studies, INTERNATIONAL IDEA, 20-21 (2007).138Julius O. Ihonvbere,How to Make an Undemocratic Constitution: The Nigerian Example, 21 THIRD WORLD
QUARTERLY343, 348-49 (2000).139
Kirsti Samuels, Constitution Building Processes and Democratization: A Discussion of Twelve Case Studies,
INTERNATIONAL IDEA, 21 (2007).140
Kirsti Samuels, Constitution Building Processes and Democratization: A Discussion of Twelve Case Studies,
INTERNATIONAL IDEA, 21 (2007).141
Haroon Siddique,Mob Rule: Iceland Crowdsources its Next Constitution, THE GUARDIAN(Jun. 9, 2011),
available at http://www.guardian.co.uk/world/2011/jun/09/iceland-crowdsourcing-constitution-facebook.142
Stjrnlagar!,FACEBOOK, https://www.facebook.com/Stjornlagarad (last visited Jun. 28, 2011).143
Official Website of the Constitutional Council,Innsend Erindi: Senda Inn Erindi(2011), available at
http://stjornlagarad.is/erindi/ 144
EtherPad: Icelandconstitution, TELECOMIX COMMUNICATIONS AGENCY, available at
http://pad.telecomix.org/icelandconstitution (last visited Jun. 28, 2011).145Haroon Siddique,Mob Rule: Iceland Crowdsources its Next Constitution, THE GUARDIAN(Jun. 9, 2011),
available at http://www.guardian.co.uk/world/2011/jun/09/iceland-crowdsourcing-constitution-facebook.
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Lessons Learned
In order to promote public engagement and involvement, states may
invite comments from the public on the constitution drafting process before,during, and after the creation of a draft constitution. Enabling and incorporating
public feedback helps allow the public to feel as though they participated in
creating their own governance framework in a meaningful way.146
Using
popular social networking websites can further encourage helpful public
discussion on drafts in a timely manner.147
Excluding the public from
participating at this juncture may cause the public to reassert its power throughthe only recourses it perceives as availablesuch as rejecting the entire
constitution at the referendum stage or resisting its implementation.148
Both
results can promote instability in statesparticularly those emerging fromconflict.
Implications of Public Participation in the Constitution Drafting Process
A critical component of a successful constitution drafting process, in
terms of the perceived legitimacy of the resulting instrument, is the level of
public education, consultation and participation. Generally, the public may be
more likely to accept a constitution created through a genuinely participatoryprocess, even if the final constitution does not comprehensively reflect the
comments submitted by the public.149 The Rwandan Constitution did notincorporate all the input from the public but because of the array of mechanisms
that provided for public participation, a high level of support for the constitution
exists among Rwandans.150
Alternatively, the Nigerian public had very negativeperceptions of the 1999 Nigerian Constitution due to absence of meaningful
forms of public participation, viewing it as a continuation of military rule.151
The failure to provide adequate time for public education and
consultation can manifest perceptions of intentional exclusion in the process and
146Vivien Hart,Democratic Constitution Making, UNITED STATES INSTITUTE OF PEACE,9(July 2003), available
at http://www.usip.org/files/resources/sr107.pdf.147
See Haroon Siddique,Mob Rule: Iceland Crowdsources its Next Constitution, THE GUARDIAN, Jun. 9, 2011,
available at http://www.guardian.co.uk/world/2011/jun/09/iceland-crowdsourcing-constitution-facebook
(quoting a Constitutional Council member on the usefulness of the Facebook page).148
Vivien Hart,Democratic Constitution Making, UNITED STATES INSTITUTE OF PEACE,9(July 2003).149
SeeKirsti Samuels, Constitution Building Processes and Democratization: A Discussion of Twelve Case
Studies, INTERNATIONAL IDEA, 23 (2007), available at
http://www.idea.int/cbp/upload/IDEA%20CBP%20Comparative%20paper%20by%20Kirsti%20Samuels.pdf.150
Kirsti Samuels, Constitution Building Processes and Democratization: A Discussion of Twelve Case Studies,
INTERNATIONAL IDEA, 26 (2007).151Kirsti Samuels, Constitution Building Processes and Democratization: A Discussion of Twelve Case Studies,
INTERNATIONAL IDEA, 26 (2007).
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adverse feelings towards the product of the drafting process.152
Such perceivedor actual exclusion may lead people to reject the new constitution outright,
either at the referendum or implementation stage.153
Additionally, the careful organization of public comments may facilitatethe efficient utilization and incorporation of the information by the constitution
drafting body.154
Having insufficient capacity or an inadequate technique for
the meaningful integration of this information may prevent the drafting body
from incorporating the comments into the text of the constitution, which may
lead to public dissatisfaction with the new constitution.155
Conversely, effective
collation and synthesis of responses received from the public both promotes theincorporation of such comments in the constitution and instills in the public a
sense of ownership of the constitution.156
Conclusion
Public participation in the constitution drafting process can enhance theperceived legitimacy and acceptance of the resulting instrument. A state may
select from a wide variety of methods to promote participation during the
process. Specifically, states may utilize television and radio programming,
songs, theater, newsletters, and other means of communication to educate and
engage the public. Public meetings can serve as an educational platform and aneffective mechanism in which to gather public feedback regarding the
constitution. States can also solicit public input by inviting public comment inmultiple ways, and then incorporate the comments they receives into the
constitution, promoting legitimacy and confidence in the governing structure the
document produces.
152United States Institute of Peace,Iraqs Constitutional Process: Shaping a Vision for the States Future, 9-10
(Feb. 2005), available at http://www.usip.org/files/resources/sr132.pdf.153
Vivien Hart,Democratic Constitution Making, UNITED STATES INSTITUTE OF PEACE,9(July 2003).154
SeeUnited States Institute of Peace,Iraqs Constitutional Process: Shaping a Vision for the States Future, 9
(Feb. 2005), available at http://www.usip.org/files/resources/sr132.pdf.155
SeeUnited States Institute of Peace,Iraqs Constitutional Process: Shaping a Vision for the States Future, 9(Feb. 2005).156
Bereket H. Selassie, Creating a Constitution for Eritrea, 9 JOURNAL OF DEMOCRACY164, 168 (1998).