Constitution Making process Introduction Basic elements of constitutional making process Interim arrangements Public participation Constitutional commission Adoption of the constitution Arafat Ali Arafat Ali

Introduction To enact a constitution is a special and rare political activity in the course of a state. Its success or failure has profound and lasting consequences for the state and its people. Consequently, the process of drafting a constitution and the manner of organizing such a process are very important and sensitive issues. Traditionally, the drafting process of a new constitution was placed into the hands of national elites, requiring the people's consent only at the stage of final ratification.

Introduction … But over the past twenty years, an approach of "new constitutionalism" has emerged, which is focused on "participatory constitution making". This new approach is characterized by more transparency and by broad based public participation. As a result, today, the legitimacy of a constitutional process and the constitution itself is measured by the degree to which the process is participatory, open, democratic, socially inclusive, and transparent, and where those drafting the constitution are democratically legitimized and accountable.

Basic elements of constitutional process There are many different ways of organizing a constitution making process. And each state or nation has applied its own special and unique way. But generally, a constitutional process may be characterized by four phases: (1) the preparatory phase; (2) the constitutional drafting phase; (3) the public consultation phase; and (4) the final review and adoption phase.

* Legal experts and advisors * A broad array of stakeholders Preparation * Agreement on basic principles * Initial public consultation * establishment of a constitutional commission. Drafting * Legal experts and advisors * A broad array of stakeholders * Initial draft of the constitution Public consultation * Nation wide education and reception of public comments and suggestions * participation by all groups Final review and adoption * A review for necessary revisions, amendments. * Approval and adoption of the final text via national referendum process.

Interim Arrangements The constitutional process is often facilitated by the establishment of interim arrangements. While this has taken a variety of forms, the essential features of such interim arrangements may be characterized as follows: (1) the clarification of basic legal rules and governmental structures during the interim period; (2) a clear demarcation from the past and the removal of elements that are clearly objectionable or repressive.

Public Participation and Ownership There is a clearly emerging trend today for providing for more direct participation by the population in the constitution making process, in the form of civic education and popular consultation. It can serve to include a broader range of civil society groups by providing an opportunity for them to impact on the constitutional process as well as on the political process. Thus, the constitutional process can provide a forum for national dialogue and education regarding issues and decisions that are vital to the future direction of the country.

Constitutional Commissions Many constitution making processes recently involved the establishment of a constitutional commission, as in Eritrea, Ethiopia, Uganda, Kenya or Rwanda. In most of these cases, commissions have been called upon to also conduct civic education in connection with the constitution making processes. Moreover, the commissions consulted the respective populations as to which issues the citizens deemed to be crucial for the processes.

Constitutional Commissions Ultimately, the commissions compiled drafts of the constitution which took into account these consultations as well as other drafts and submissions from political parties, individuals, and non governmental organizations. These constitutional commissions were usually appointed by the executive or elected or appointed by a constituent assembly. In the ideal case these commissions should be relatively small in size, but still fairly representative in order to include the various political parties and religious, racial, and ethnic groups within the society.

Adoption of the Constitution In many cases, the constitution was adopted by a constituent assembly elected for that purpose only, and in several cases the constitution had to be adopted by a two thirds vote of that body. South Africa, Cambodia, and east Timor are examples. In other cases, the constitution was adopted simply by the existing parliament (Fiji, for example). In Columbia, the constitution was adopted by presidential decree, and in Rwanda, the constitution was adopted by popular referendum.

Adoption of the Constitution The adoption by a popular referendum suggests the highest form of democratic legitimacy. But this only holds true if broad public participation also took place during the drafting period. Only if the people know what they are voting on and if they had previously had the opportunity to influence the content of the future constitution, would the objectives of a participatory constitutional process be achieved.

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