2 Making and the Right to Take Part in a Public Affair

Vivien Hart

onstitution making is a contest over hand seem more just, but on the other be less the distribution, redistribution, and controlled. limitation of power. The making or The International Covenant on Civil remakingC of a constitution is of particular and Political Rights (ICCPR), which came significance in divided and conflicted socie­ into force in 1976, declared a right to take ties, where the process frequently is part of part in public affairs. If this general right to peacemaking and nation-building endeav- democratic governance is taken to extend to ors. Traditionally, negotiating a constitution constitution making, then the only issue for © Copyrightwas the province of political by leaders the who Endowmentdiscussion—no small issue—is how of best to held power or claimed it. Drafting the con- implement the right through practices that thestitutional United text was expert States work. The public Instituteare fair, efficient, andof effective. Peace This chapter was, at most, drawn in only to give consent explains that the first part of this proposi- to the final version. In a significant change, tion, that participation is a requirement of it is now widely assumed that whatever the a constitution-making process, has only re- axes of conflict, the constitutional outcome cently gained recognition in international will be more sustainable if those who experi- law, and that the law remains in need of fur- enced past injustices are involved in creating ther clarification and development in impor- new solutions. The widening and deepening tant respects. Legal justifications matter, not of public participation characteristic of many least as a resource for disadvantaged mem- recent processes have involved power sharing bers of the polity, and it is therefore worth- with a general public that extends to groups while to substantiate the case for a legal right that were previously excluded: women, mi- to participation, as this chapter aims to do. norities, the poor, and the otherwise margin- But constitution making is an inherently po- alized. The resulting process may on the one litical as well as legal process. It is not sur-

20 Framing the State in Times of Transition 21

prising, then, that the emergence of a legal stitution making, however, is still widely as- right to participation has been paralleled by sumed to be a prior condition for, rather than the emergence of normative political criteria a part of, governance, and so may remain be- for participation, along with considerable ex- yond the reach of the right to participate in perimentation with participatory practices. governance. Political practice has reinforced and even In parallel with such developments in run ahead of the development of the law. international law, a philosophical argument The discussion that follows gives attention to has developed favoring a right to participate the legal, normative, and practical aspects of in constitution making. This has asserted the democratic constitution making, all of which importance of democratic in a are involved in the realization of the high as- world of multiple and intersecting nations, pirations of the right to participate. cultures, and conflicts. James Tully, a leading exponent of this view, asks why the consti- tution is seemingly the “one area of mod- A Continuing Debate ern politics that has not been democratised Once the ICCPR came into force, and as over the last three hundred years.”4 From legal thinking about the right to his perspective, a dominant tradition defin- developed, constitution making was at first ing constitutional matters as outside of and ignored in favor of traditional assumptions above normal politics, the province of an ex- about its distinctive nature as a process stand- pert elite, is the fairy-tale emperor with no ing above and apart from the everyday busi- clothes. Constitution making is the founda- ness of governance. The right to democracy tion of democratic governance. Why should acquired a strong interpretation, but only in the people not share in making the constitu- relation to the day-to-day activities of vot- tions that govern them, and have their moral ing and office holding. In 1992, in his clas- claim to participate bolstered by a legal right sic article “The emerging right to democratic that all are bound to respect? governance,” Thomas M. Franck identified a In the recent unprecedented era of consti- change in the concept of democracy found in tution making, political actors also have taken international law, from aspiration to entitle- up the issue of participation. Constitution- © Copyrightment, political vision to “normative by the rule of Endowmentmaking processes involving experiments of in the international system.”1 As a result of this public participation have multiplied.5 The 2 thearticle, United much effort has beenStates devoted to de- Institutemillion public submissions of toPeace ’s fining an applicable standard for what con- constitutional assembly have set a standard stitutes a democracy. The focus has continued for constitution makers, unmatched as yet in to be on procedure—on, for example: free other nations.6 Even the 2004 Transitional and fair ; the rights of candidates, Administrative Law for Iraq, itself written political parties, and other organizations to without public participation, mandated in- engage in the political sphere; and activities formed public debate in the constitutional that allow for codes, remedies, and enforce- process.7 ment as befits a rule of the international sys- No amount of intellectual or practical tem.2 Progress has allowed Franck, revisiting innovation necessarily creates a “normative the topic in this volume with coauthor Arun rule of the international system,” a right in K. Thiruvengadam, to find the right now es- international law to take part in the making tablished as a clear “general requirement of of constitutions. But Franck and Thiruveng- public participation in governance.”3 Con- adam now determine that there is “a growing 22 Vivien Hart

convergence around universal principles of tion making does not diminish the signifi- legitimate governance and these are tending cance of holding a legal right, and not just a to be applicable also to the process of consti- political desire, to participate in constitution tution drafting.”8 This chapter suggests that making. Rights are aspirations and resources evidence of various kinds allows us to go fur- as well as entitlements.12 Aspirations will no ther than this cautious conclusion. In legal doubt be pursued by every political means, developments, the right granted in Article but political means are mightily reinforced 25 of the ICCPR “to take part in the con- when a defined and potentially enforceable duct of public affairs” has been interpreted entitlement exists alongside. Thus, this chap- as extending to the making of constitutions.9 ter argues for a dual perspective, lawyerly re- International, regional, and national charters finement alongside political development as of rights have embodied increasingly expan- essential counterparts. To clarify the present sive guarantees of access to every aspect of state of both law and practice, I first review democratic governance, leading, by impli- both international and national textual pro- cation or deliberate design, toward includ- visions and judicial rulings that clarify both ing constitution making as governance. The the scope and limits of the ICCPR’s promise. Canadian Supreme Court ruling of 1998 on Next, the recent practice of participation is the Reference re Secession of Quebec, influen- discussed. Finally, I conclude that in princi- tial beyond its borders, has made dialogue ple, in law, and in practice, a right indeed ex- over constitutional matters an obligation of ists. The public has a right to take part in the the state and citizens.10 In parallel, political foundational affair of constitution making, theory and action provide both trenchant ar- and the powerful interests that will always be guments and a body of practice that support involved in the process must recognize and public involvement as a requisite of demo- respect that right. cratic constitution making. Yet both the authority and the merits of Textual Promises the right to participate in constitution mak- ing remain contested, unsurprisingly, when International Instruments the exercise of power and its legitimacy are The right to participate in public life was first ©at stake. Copyright How might the issue best by be taken the articulated Endowment in UN documents. Article 21of of forward to contribute constructively to the the declaratory UN Declaration of Human practice of constitution making? If the legal Rights of 1948 and especially Article 25 of regimethe is all,United then a more firmly States established the Institute enforceable ICCPR, adopted of inPeace 1966 and legal entitlement can serve advocates of par- entered into force in 1976, establish rights ticipation. Political scientist Tony Evans has to participate in public affairs, vote, and have argued critically that such a legal approach so access to public service.13 Article 25 declares dominates the field that inad- the rights: equacies are naturally taken to require only (a) To take part in the conduct of public af- more lawyerly “refining, polishing, and elabo- fairs, directly or through freely chosen rating accepted norms and standards, in an representatives; attempt to make the regime more elegant, so- (b) To vote and to be elected at genuine peri- phisticated, imposing, and magisterial.”11 But odic elections which shall be by universal establishing a firm legal basis would also be a and shall be held by secret , guaranteeing the free expression of the will politically significant move, fortifying a moral of the electors; claim with an applicable right. The present (c) To have access, on general terms of equality, (relative) legal reticence regarding constitu- to public service in his country. Framing the State in Times of Transition 23

This language weights the right to demo- cratic system. Nevertheless, the protocol “says cratic governance toward the “historically- nothing about non-electoral participation,” bounded form of governance in modern offering, in this respect, a narrower concep- states (i.e., )”—that is, to- tion of democracy than that of the potentially ward a procedural, representative, electoral expansive “take part” clause of the ICCPR.18 model.14 This was the model of democracy Later international conventions show a for the post–World War II world, understood progressive tendency to develop a broader to embrace the making of policy but not con- paradigm, becoming more specific about stitutions. The ICCPR set the stage for the both the arenas of participation and fair electoral preoccupations of the predominant conditions of access.19 Article 5 (c) of the international human rights approach to the 1965 Convention on the Elimination of All topic, leaving openings to participatory for- Forms of Racial Discrimination defines “po- tune in such open-ended wording as “take litical rights, in particular the rights to par- part” and “public affairs.” ticipate in elections—to vote and to stand The Council of Europe, formed in 1949, for —on the basis of universal and was another early and influential rights- equal suffrage, to take part in the Govern- ­making body.15 In Europe, according to ment as well as in the conduct of public af- Henry J. Steiner, a right to participation fairs at any level and to have equal access was controversial. Following a debate about to public service.”20 The Convention on the whether “political rights stood outside the Elimination of All Forms of Discrimina- tradition of human rights, and hence out- tion Against Women of 1979 guarantees the side the proper scope of the European Con- right for women “on equal terms with men” vention,” it was decided that the European to participate “in the formulation of govern- Convention on Human Rights (ECHR) of ment policy and the implementation thereof 1950 should contain no such right.16 Even and to hold public office and perform all with the addition of the First Protocol to the public functions at all levels of ” ECHR in 1952, the limited meaning of par- and “to participate in non-governmental or- ticipation for the framers of rights regimes ganizations and associations concerned with in the immediate postwar years was clear. the public and political life of the country.”21 © CopyrightAccording to the First Protocol, by “the the High EndowmentThe European Framework Convention of for Contracting Parties undertake to hold free the Protection of National Minorities (1995, elections at reasonable intervals by secret bal- Articles 15 and 17) further promises that thelot, underUnited conditions which States will ensure the Institute“the Parties shall create of the conditionsPeace neces- free expression of the opinion of the people sary for the effective participation of persons in the choice of the legislature.”17 belonging to national minorities in cultural, Steiner has compared the drafting discus- social and economic life and in public affairs, sions of the ECHR protocol with those of in particular those affecting them,” and that ICCPR Article 25. He points out that those “the Parties undertake not to interfere with negotiating the 1952 protocol could assume a the right of persons belonging to national Western European democracy, where “condi- minorities to participate in the activities of tions” meant electoral choice through a plural- non-governmental organisations, both at the istic or multiparty system. The ICCPR draft- national and international levels.”22 While ers, on the other hand, had included a good none of these refers specifically to constitu- many supporters of one-party states. Plural- tion making, they cumulatively create a set ism had been a bone of contention, and they of conditions for meaningful participation in failed to make it a requirement for a demo- any aspect of public and political affairs. 24 Vivien Hart

Regional Charters the concept of democracy “to a significantly advanced reciprocal contract of peoples with Recent regional rights instruments have also 28 progressively expanded the definition of par- .” Section II recognizes a pen- ticipation. Several important examples can umbra of civil and political rights that sup- be cited. The African Charter on Human and port genuine participation, including work- Peoples’ Rights of 1981 (the Banjul Charter) ers’ rights, and the rights to seek redress, repeats the ICCPR Article 25 language with to be free from discrimination, and to enjoy an added emphasis on “strict equality.”23 The respect for diversity. In language from the Commonwealth’s Harare Declaration (1991) UN’s Vienna Declaration of 1993, the charter also endorses the “universality, indivisibility recognizes “the individual’s inalienable right 29 to participate by means of free and demo- and interdependence” of human rights. Sec- cratic political processes in framing the soci- tion III goes further: Article 11 again echoes ety in which he or she lives,” a form of words the Vienna Declaration in pronouncing that surely applicable to constitution making.24 “democracy and social and economic devel- The Asian Charter of Rights (1998) builds opment are interdependent and are mutually reinforcing.”30 Social rights are integrally as- into its text an understanding, which has sociated with the right to democracy in this developed elsewhere in legal and theoreti- charter. The traditional procedural elements cal discussions, that the right to participate of good electoral practice are also included, depends upon the existence of a panoply of with the addition in Article 6 that supporting rights such as and assembly: it is the right and responsibility of all citizens to participate in decisions relating to their own The state, which claims to have the primary re- development. This is also a necessary condition sponsibility for the development and well-being for the full and effective exercise of democracy. of the people, should be humane, open and ac- Promoting and fostering diverse forms of par- countable. The corollary of the respect for hu- ticipation strengthens democracy.31 man rights is a tolerant and pluralistic system, in which people are free to express their views The OAS charter also contains language and to seek to persuade others and in which concerning the necessary framework of “con- the rights of minorities are respected. People stitutional order,” the “constitutional subor- ©must Copyright participate in public affairs, throughby the thedination” Endowment of state institutions, and fundamen of- electoral and other decision-making and imple- tal freedoms and human rights “embodied in menting processes, free from racial, religious or gender discriminations.25 the respective constitutions of states” as well the United Statesas Institutein international instruments. of32 PeaceIn this re- The twenty-eight articles of theter- In­ spect, the charter reflects the contemporary American Democratic Charter (2001) of era of attention to constitutionalism. Indeed, the Organization of American States (OAS) this document may imply, though it does not take the right to participation to new levels develop, regional requirements for a constitu- of both normative and practical specifica- tion-making process in its assertion that “an tion.26 The charter was itself forged by an un- unconstitutional alteration of the constitu- precedentedly participatory process, with the tional regime” is a sanctionable offense under views of civil-society organizations invited the charter.33 and, to their surprise, taken into account.27 The effect of the above regional instru- Article 1—“the peoples of the Americas ments—and of national constitutions, dis- have a right to democracy and their govern- cussed below—may extend beyond their own ments have an obligation to promote and territorial scope, even to states that are not defend it”—has been described as lifting yet signatories to the relevant treaties. As Framing the State in Times of Transition 25

Franck and Thiruvengadam observe, their to run for office and to vote in free and fair adoption contributes to creating a “universal elections fulfilled the definition of democracy customary norm” that “reflects the common dominant through much of the late twentieth practice of states.”34 The international cir- century, famously declared by Joseph Schum- culation of rights and constitutional clauses peter as an “institutional arrangement for ar- has been a familiar story since the earliest riving at political decisions in which individ- studies of the influence of the United States uals acquire the power to decide by means of Constitution or the Westminster model.35 In a competitive struggle for the people’s vote.”38 new environments, some have simply gath- Whether the “institutional arrangement,” or ered dust or their meanings have been trans- constitution, preexisted democratic politics, formed, yet, in the shorter or longer term, the or must be made democratically, became an formal legal ground they create may equally issue once the concept of democracy came be a political stimulus and support for the under scrutiny by theorists of “deliberative development of new or improved practice. democracy.”39 Their ideas fit well with the concurrent rise of debate about a “new con- stitutionalism” that envisaged constitution National Constitutions making as an open-ended and inclusive con- Including the right to participate in national versation.40 It is a natural step from the con- constitutions is important for symbolism junction of such ideas to the expansion of the or for symmetry with international instru- democratic content of “taking part” and the ments, but also for a practical reason. Schol- logical assumption that constitution making ars have noted that the silences of constitu- is a “public affair.” New national charters and tions as well as their express recognition of constitutions gradually have built stronger values or identities carry a symbolic message understandings of the terms of Article 25 (a) about the priorities of regimes.36 A national onto the traditional procedural foundation. right to participation says something about Among the examples mentioned below, the character of the constitutional regime some constitutions remain more tradition- and about its commitment to meeting inter- ally procedural, concentrating on electoral national standards. More practically, posses- systems, while others expand the idea of © Copyrightsion of a national right gives bymembers the of the Endowmentparticipation, giving additional substance of to polity faced with resistance to or neglect of the “take part” clause. Illustrating the tradi- their input the best chance of enforcement. tional approach of procedural constitutional- theNations United may be bound States by their ratifica- Instituteism, South Africa’s 1996of constitutionPeace lacks tion of the ICCPR, but enforcing the treaty the phrase “right to participate,” but makes through the judicial process of the Human , regular elections, and a Rights Commission is cumbersome and slow multiparty system of government a “Found- and must follow the exhaustion of domestic ing Provision.”41 A bill of rights follows the remedies.37 When constitutions inscribe the ICCPR, containing the rights to free elec- right to participate, they bring enforcement toral choice; to form, participate in, and cam- home to channels within the nation. paign for political parties; to regular, free, and As noted earlier, a preoccupation with fair elections; and to vote for and stand for electoral systems and procedures, required by public office.42 Like other recent examples of ICCPR Article 25, clauses (b) and (c), has this procedural approach, East Timor’s con- tended to overshadow the ill-defined possi- stitution declares, more expansively than the bilities of clause (a), contained in the words South African text but without development of “take part” and “public affairs.” The rights of the ICCPR promise, that “every citizen 26 Vivien Hart

has the right to participate in the political life text spells out in some detail both electoral and in the public affairs of the country, ei- provisions and the “people’s means of partic- ther directly or through democratically elected ipating in the exercise of their sovereignty: representatives.”43 the vote, the plebiscite, the , the Some constitutions, however, offer more popular consultation, the open town coun- specific guarantees. In optimistic experi- cil meeting, the legislative and the ments, several African states have gone fur- recall of officials.”47 Colombia had incor- ther than South Africa in acknowledging porated several of these practices into its new norms of participation. Among textual constitution-making process. The process promises, the constitution of makes was initiated by acts of popular sovereignty: it the “right and duty of all citizens . . . to take a referendum and election of a constitutional an active part in public life,” while Ethiopian assembly empowered to write a new consti- citizens are assured that their “sovereignty tution, which Colombia’s Supreme Court shall be expressed through their representa- deemed to create a legitimate override of the tives elected in accordance with this Consti- prior constitution.48 Peru in 1993 placed the tution and through their direct democratic right to participate among its “fundamental participation.”44 Imposing a positive duty on personal rights.”49 Ecuador (1998) and Ven- the state, the Ugandan constitution declares ezuela (1999) enumerated political rights, that “the State shall be based on democratic Venezuela echoing decades of debates about principles, which empower and encourage the basic criteria for democratic governance the active participation of all citizens at all by declaring as a fundamental principle that levels in their own governance.”45 “Direct its government “shall always be democratic, democratic participation” takes Ethiopia be- participatory, elective, decentralized, alterna- yond the traditional electoral guarantees, but tive, responsible and pluralist.”50 its promise is probably impossible ever to Too few of the above regimes have lived up realize in practice and so vague in any case to their paper promises. But with or without as to have value only as a rhetorical flag for participatory practices to draft their consti- waving. Angola and Uganda have introduced tutions—and Venezuela for one was notable more substantial ideas of duty and obligation. for the lack of general public participation— ©Citizens Copyright with a duty to take part byand states the each Endowment enumeration of rights to participate of with an obligation to empower them to do in more than periodic elections contributes so enter a relationship much closer than that to defining a more generous norm for “tak- offeredthe byUnited free and fair elections.States Further- ing Institute part.” As and when “publicof affairs”Peace fully more, when Uganda speaks of “all levels in embraces constitution making, this increas- their own governance,” it is possible to read a ingly generous norm sets the standards for literal meaning of every structural level from participation. local to national. In a state that had created a Thomas Franck’s original terminology of process with a rare degree of public involve- the “emergence” of a right amply conveys the ment, it is plausible that such language could process of accretion. In neither law nor prac- also embrace every level, from micropolicy tice does a single authoritative moment mark decisions to macroconstitutional politics.46 the arrival of a right within the field of con- New constitutions also have elaborated stitution making, and none of the documents political rights in Central and South Amer- discussed above explicitly declares such a ica. The 1991 Colombia constitution aspires right. These texts do, first, extend the concept to “ensure its members . . . a legal, demo- of “taking part” as an act and even an obli- cratic and participatory framework.” This gation of sovereignty and . They Framing the State in Times of Transition 27

bring the concept directly into national pur- member of the UN Committee on Human view rather than leaving it as an obligation at Rights (UNCHR) during the drafting of a one remove in an international treaty, they re- formal comment on Article 25, with the ob- quire governments to respect and even facili- servation that “a general comment was unde- tate participation, and they specify expected niably stronger when grounded in the Com- practices in addition to elections. Second, mittee’s jurisprudence.”52 A handful of cases with increasing specificity, these texts require addressing the right to participate in consti- the conditions that make authentic participa- tution making conveys a mixed message of tion possible—equality, freedom from dis- both potential and limits. crimination and state interference, tolerance, and civil and social rights. Such ever more Marshall v. (1991) idealistic promises build the foundation for claims as of right from within and without Marshall v. Canada—brought in 1986 with the nation, both against regimes that fail in a UNCHR ruling in 1991—pitted lead- their obligations and for inclusion in the pro- ers of the Mikmaq tribal society against the 53 cess of nation building. The opportunities of- Canadian government. The claim was that fered in all these clauses support both lawyers the group’s exclusion from a series of con- and political activists and provide openings to stitutional conferences on changes to the further specify and entrench the right. How Canadian constitution “infringed their right the texts have been used, and with what suc- to take part in the conduct of public affairs, cess the right to participate in constitution in violation of article 25(a) of the Covenant 54 making has been entrenched, is the subject [the ICCPR].” In a crucial statement for of the remainder of this chapter, which looks participation advocates, the UNCHR ruled first at legal and then political events. that at issue in the present case is whether the con- stitutional conferences constituted a ‘conduct of Legal Interpretations public affairs’ . . . [and] the Committee cannot but conclude that they do indeed constitute a Rights on paper remain fine rhetoric until 55 they are taken up, tested, interpreted, and conduct of public affairs. © Copyrightapplied. One route to such by development the is EndowmentFor the Mikmaq people, however, of this was through challenges in the courts. Whether a Pyrrhic victory. They learned that while they theand onUnited what grounds toStates litigate can be a Institutehad the right to participate of Peace in constitution highly political decision as rights campaign- making, there had been no infringement in ers choose the moment to make their claim. their case. Their efforts gained for posterity They hope for affirmative judgments that the most secure—and largely unnoticed56— clarify the sweeping generalizations of con- legal interpretation of the right to participate ventions and constitutions and build a pro- in constitution making, but also established cedural manual for the application of rights. a major limitation on its practical value. The But even negative judgments may contrib- UNCHR ruled that “it is for the legal and ute, warning of limitations and suggesting constitutional system of the State party to new directions. provide for the modalities of such participa- The right to participate has been little pur- tion” and that sued through legal channels, and then prin- Article 25(a) of the Covenant cannot be un- cipally with reference to electoral procedures 51 derstood as meaning that any directly affected and access to public office. The importance group, large or small, has the unconditional right of formal interpretive rulings was noted by a to choose the modalities of participation in pub- 28 Vivien Hart

lic affairs. That, in fact, would be an extrapola- “the difficult issues had proved to be a defini- tion of the right to direct participation by the 57 tion of the concept of the ‘conduct of public citizens, far beyond the scope of Article 25(a). affairs’ and the extent of citizens’ participa- 62 Although the Mikmaq leaders had stated tion in those affairs.” No minutes record that their submissions through an intermedi- how the right to participate in constitution ary body had never even been transmitted to making came to be mentioned, but the draft- negotiators, the UNCHR found the Cana- ers had a precedent in Marshall v. Canada. dian provisions for the representation of “ap- Regardless of how it came there, however, proximately 600 aboriginal groups” by “four the assertion of the right is unqualified. As national associations,” and later by “a ‘panel’ the comment first declares, “Peoples have the of up to 10 aboriginal leaders,” adequate.58 right to freely determine their political status and to enjoy the right to choose the form of The record of judicial deference to political 63 authorities to decide how participation shall their constitution or government.” be carried out remains a difficulty. Then, in enumerating forms and forums of participation, lest there be doubt, there is added: “Citizens also participate directly The UNCHR General Comment (1996) in the conduct of public affairs when they 64 In 1996, the UNCHR issued a General choose or change their constitutions.” Comment parsing the meaning of Article Such a statement from the authoritative 25 of the ICCPR, of which the committee UNCHR may offer the kind of legal peg, so is the guardian. This comment clarifies in a helpful to marginalized citizens, on which statement of general application what the to hang formal claims for participation and Mikmaq people had learned, that constitu- complaints about exclusion. Yet this em- tion making is a public affair under the terms powering declaration is also very limited in of the ICCPR. The comment first expounds more than one respect. A General Comment Article 25 as universal and fundamental: is at one remove from a direct treaty right. It clarifies the general right to democratic Article 25 of the Covenant recognizes and pro- participation, but not the promulgation of a tects the right of every citizen to take part in the conduct of public affairs, the right to vote specific right to participation in the consti- ©and Copyright to be elected, and the right to haveby access thetutional Endowment process. If the only binding text of is to public service. Whatever form of constitution the convention itself, not the comment, then or government is in force, the Covenant requires it is technically the fact, as Franck and Thiru- States to adopt such legislative and other mea- vengadam comment, that thesures as mayUnited be necessary to ensure States that citizens Institute of Peace have an effective opportunity to enjoy the rights since the principal treaty establishing rules per- it protects. Article 25 lies at the core of demo- taining to the lawmaking processes of states— cratic government.59 the way legislators are elected, the public right to be consulted—is not specifically directed to- Henry J. Steiner has commented that “for ward the constitution-drafting process, this can a right regarded as foundational, political par- only be done speculatively, since it is far from ticipation suffers from serious infirmities.”60 clear whether the general terms of the norma- tive structure are implicitly applicable to this He notes the difference between “the rela- particular aspect of governance.65 tively vague and abstract right to take part in the conduct of public affairs or government, Politically, the comment’s speculative sta- and the relatively specific right to vote in tus need not vitiate it for citizens claim- elections.”61 The General Comment begins to ing a share in constitution making. Legally, correct this deficiency. Minutes of a UNCHR however, the distinction between the treaty meeting drafting the comment confirm that and the comment is crucial and potentially Framing the State in Times of Transition 29

a serious limitation for constitution makers tribute to the scanty jurisprudence concern- seeking a rock-solid foundation for claims ing participation in constitution making. A for democratic rights.66 General comments, case brought by the Native Women’s Asso- according to the UNCHR itself, are “in- ciation of Canada (NWAC) in 1994 clari- tended to make the Committee’s experience fied that the unresolved issue is no longer available for the benefit of all States parties, whether participation in constitution mak- so as to promote more effective implementa- ing is a right,72 but rather who decides on tion of the Covenant; . . . [and] to stimulate the modalities of participation, to borrow the activities of States parties and interna- the UNCHR’s terminology, and on their ad- tional organizations in the promotion and equacy in any particular instance. protection of human rights.”67 Nonetheless, In Marshall v. Canada, the UNCHR minority rights lawyer Marcia Rooker notes deferred to state authorities to decide who the importance in her field of “the General participates by right in constitutional nego- Comments of the Committee, which are tiations, and how such participation occurs. quite authoritative and indicate which case The NWAC complained about the same ne- law can be expected.”68 As a middle position, gotiations. The Canadian government had the view of Franck and Thiruvengadam on chosen the four aboriginal associations that General Comment 25 is that “this comment, represented First Nations and funded them though not binding in actual cases before the to prepare their submissions. NWAC argued committee, may indicate a tendency to regard that those organizations were male domi- constitutional drafting as coming within the nated and represented only one view of con- purview of the ICCPR.”69 stitutional reform, favoring male interests; The authority of UNCHR comments has the denial of equal funding to NWAC fur- been particularly questioned when they ex- ther infringed the equality guarantees of the pand rather than merely explain the content Charter of Rights and Freedoms, requiring of clauses of the ICCPR. One type of general that rights, including freedom of expression, comment uncontroversially offers specifica- be available to women and men without dis- tions for mandatory reports by states to the crimination. NWAC argued that, thus, the UNCHR. A second type has been described constitutional negotiations had failed to meet © Copyrightas the “restatement, interpretation, by and the elabo- Endowmentstandards of both symbolic (the presenceof of ration of provisions for the Covenant.”70 The women) and substantive (the articulation of latter attract the critique that they “amount the interests of women) representation, as theto a boldUnited elaboration, an Statesemphatic develop- Institutewell as guarantees of ofgender Peace equality.73 ment of ideas in the Covenant itself, to ‘leg- NWAC won the equality point in the islation by Committee.’”71 To constitutional Federal Court of Appeal, which volunteered traditionalists, including constitution making that it would “paralyze the process to hold in the realm of public affairs might seem an that the freedom of expression encompassed unacceptably “bold elaboration.” For James a right for everyone to sit at the table.”74 It Tully, the Mikmaq leaders, and other advo- lost on all counts in the Supreme Court of cates of participation, the same words would Canada. In particular, the highest court af- be merely a logical clarification. firmed that the preparation of constitutional amendments was not governmental activity of a kind that was required to comply with Canadian Courts (1994 and 1998) the charter’s rights. The tradition of consti- Taking one step backward and one large step tution making in Canada was of intergov- forward, two Canadian decisions also con- ernmental negotiations, and the court stuck 30 Vivien Hart

with this, saying that questions “as to whom ticipate in the political process as voters.”80 federal and provincial governments ought to Beyond such clarification of the “relevant meet with and consult during the develop- aspects of the Constitution in their broad- ment of constitutional amendments” were est sense,” the court could not go: “Within “political questions for which there are no that framework, the workings of the politi- legal or constitutional principles to guide a cal process are complex and can only be re- court in its decision.”75 solved by means of political judgments and Four years later, the Supreme Court of evaluations.”81 Canada advised on the legitimacy of a hypo- thetical unilateral secession by the province of Quebec.76 In the Reference re Secession of Que- The Constitutional Court of South Africa (2006) bec, the court provided a widely noted philo- The legal sources discussed thus far leave to sophical underpinning for Canadian consti- states and citizens to discover what forms of tutionalism.77 Defining democracy as a core political practice can meet both normative Canadian constitutional principle, it recog- standards and the requirement of practical- nized an “obligation to negotiate” over funda- ity for “taking part.” Each defers to exist- mental disagreements. In institutional terms, ing political powers to determine the form of this required that “the system must be capable participation, likely disadvantaging the pow- of reflecting the aspirations of the people.”78 erless in crucial early decisions on process. Because “a functioning democracy required a Specifically noting this deficiency, South continuous process of discussion” and because Africa’s Constitutional Court began to de- “no one has a monopoly on the truth,” there velop criteria for “reasonable” opportunities was a duty to listen to “dissenting voices” and for participation, or at least to set a baseline to seek “to acknowledge and address those for unacceptable practice. In Doctors for Life voices.” The Canadian constitution, the court International v. Speaker of the National As- concluded, “gives expression to this principle sembly and Others and Matatiele Municipal- [of democracy] by conferring a right to ini- ity and Others v. President of the Republic and tiate constitutional change on each partici- Others, handed down in August 2006, the pant,” and imposing “a corresponding duty court considered the positive constitutional ©. . . toCopyright engage in constitutional discussions by thein duty Endowment of legislative bodies to facilitate publicof order to acknowledge and address democratic involvement in the lawmaking process, in- expressions of a desire for change.”79 cluding, in Matatiele, in formulating a con- theTheReference United confirmed that States a right to par- stitutional Institute amendment.82 of In decisions Peace that ticipation in democratic governance includes give an authoritative judicial imprimatur to constitution making. It required that partici- the analysis offered in this chapter—thus pation be an egalitarian dialogue among citi- strengthening the formal status of the right zens and between state and citizens. But the to participate—the court noted “taking part” ways in which a legitimate debate should be as a requirement of international law as well conducted were left unspecified. Instead, the as a foundational principle of the South Af- court relied on the traditional electoral defi- rican constitutional regime.83 South African nition of democracy without interrogating democracy, drawing on African tradition as its adequacy, stating that “historically, this well as international norms, was both repre- Court has interpreted democracy to mean sentative and participatory:84 “The partici- the process of representative and responsible pation by the public on a continuous basis government and the right of citizens to par- provides vitality to the functioning of a rep- Framing the State in Times of Transition 31

resentative democracy,” and the participatory Legal Prospects component “is of special importance to those International law offers both promise and who are relatively disempowered in a coun- problems for the development of the right try like ours where great disparities of wealth 85 to participate in constitution making. Gen- and influence exist.” eral Comment 25 and Marshall v. Canada Given the specific constitutional duty, the confirm that the right exists. The Canadian court asserted its right to review the legis- Reference adds the moral authority of a re- lative process itself, not to specify standard- spected court to the idea of a dialogic process ized modes of facilitating participation, but of constitution making. But in the eyes of to rule on the reasonableness of those modes lawyers, a general comment carries uncertain employed at the discretion of legislatures in 86 authority. And each of these utterances de- any particular instance. Thus, two of the fers to existing political powers to determine three pieces of legislation under review in the form of participation, disadvantaging the Doctors for Life had attracted great public 87 less powerful in crucial early decisions on interest. In such circumstances, it was un- process. Clarifications in international law reasonable to assume that the public could may, however, be a long time in coming. Af- simply approach the legislature as it wished. ter the formulation and pursuit of their case The obligation to facilitate participation re- through Canadian channels, the Mikmaq quired such positive action as the provision people waited five more years for a UNCHR of public meetings and the solicitation of ruling. No cases addressing the constitution- submissions, especially at the most local, and 88 making process are currently in the UN thus most accessible, level. The decision in pipeline. Instead, momentum lies with the Matatiele, closely following the lengthy rea- development of political norms and politi- soning of Doctors for Life, showed perhaps cal experience. Their wide diffusion through an even stronger sensitivity to the context of international institutions and networks may public participation, to the extent of putting throw up further grounds for litigation, as legislatures on notice that mechanisms for has happened in South Africa. In the mean- aiding the public might on occasion extend time, the existing body of law supports the to “providing transportation to and from expectation that participation is a normal © Copyrighthearings or hosting radio programs by inthe multi- Endowmentpart of constitution making and of increases ple languages on an important bill, and may the body of practical experience that informs well go beyond any formulaic requirement of new experiments. thenotice United or hearing.”89 Finally, States Matatiele sum- Institute of Peace marized this important development of the doctrine of “taking part”: Taking Part The nature and the degree of public participa- A commonsense definition of “public affairs” tion that is reasonable in a given case will de- surely includes constitution making, and this pend on a number of factors. These include the nature and importance of the legislation and the definition now finds support in international intensity of its impact on the public. The more law. But we lack an adequate definition of discrete and identifiable the potentially affected what it means to “take part.” Constitution section of the population, and the more intense making traditionally has carried an aura of the possible effect on their interests, the more learning and technical expertise that has dis- reasonable it would be to expect the legislature to be astute to ensure that the potentially af- couraged inexpert participation. Judges have fected part of the population is given a reason- backed away from expansive ideas about tak- able opportunity to have a say.90 ing part, and international legal scholars have 32 Vivien Hart

viewed procedures cautiously. Can require- into manageable packages. Ideally, they fa- ments of process be broadened to allow even cilitate the stable democracy that has been a the most marginal and disadvantaged groups frequently stated goal of both constitutional to be heard and respected, and can standards and electoral design.93 But few would claim be enforced? In considering the phrase “take that party platforms fully represent political part,” the complementarity of the legal and diversity. More likely, they introduce a sys- political aspects of rights becomes most tematic bias against people and ideas that apparent. the political elites undervalue, dislike, or Three principal modes of participation even fear. The effect is to exclude minority or have been used: the election of representa- radical views from electoral decision making, tives to constitution-making bodies; referen- while simplifying the preferences of those dums on draft constitutions; and who do engage.94 of, consultation with, and responsiveness to In contrast, writers on a new, deliberative the public.91 These are not mutually exclusive, constitutionalism expect that constitution although each has its own merits and prob- making will occur amid instability and as- lems. States have chosen to use none, all, or sume that conflict and diversity will be con- any combination of the three. For example, tinuing facts of political life.95 Even if the best during 1994–95, South Africa used the first outcome can only be to agree to continue to and third; Rwanda in 2001 used the second debate disagreement, as the Canadian Su- and third; and the European Union between preme Court recognized, intransigent critics 2001 and 2005 gave token attention to the must be drawn into dialogue. The tentative third, while some EU member states held language of new constitutionalism contrasts ratifying on the completed text. with the decisive intent of an election or ref- erendum. For a Chilean observer, creating a new democracy is “an exercise in optimiza- Electing Representatives tion,” the goal of which is to “seek” measures The two most common modalities for giv- that are “both feasible and most conducive ing the public a voice in constitution mak- to the purpose of contributing to build or re- ing, the election of constituent assemblies construct a just order.”96 James Tully spoke ©and Copyright constitutional conventions, andby refer the- of the Endowment dangerous illusion of attaining a “conof- endums on constitutional texts share all the stitutional settlement in accordance with the strengths and weaknesses of general election comprehensive theory of justice,” suggesting proceduresthe United as the prime means States of fulfilling that Institute “the philosophy and practiceof ofPeace contem- a general democratic right.92 in any of porary constitutionalism offers a mediated these forms does, on the face of it, meet the peace.”97 In such a world of seeking, con- requirement of Article 25 of the ICCPR that tributing to, and mediating, a sole reliance citizens have the right to take part “directly on participation through elections designed or through freely chosen representatives.” A to create winners and losers appears prob- simple, culturally esteemed act is available lematic. To create a constitution that allows to the public. Good practice can be codified the search for the ideal to continue makes a and monitored. But elections offer citizens tough assignment for a process that codifies an agenda set from above: structured choices the judgment of one moment. created by governments, candidates, or, most Despite their limitations, however, elec- commonly, political parties. The classic tions remain at the heart of conceptions of ­political-science definition of the function of democracy. The vote is powerful for its history parties is that they order public preferences and symbolism, and electoral participation Framing the State in Times of Transition 33

in constitution making is the most concrete and affirmative action—cannot be guaran- indicator of accessibility. Voting may be the teed to work as intended, as studies of the only form of participation in politics about high hopes and mixed fortunes of women in which citizens are knowledgeable and expe- proportional elections have shown.100 rienced. Thus the vote, as a means of consent Next, the most balanced system of elec- to the process, its terms, its procedures, or toral representation does not, in itself, en- its outcomes, is part of many participatory sure continuing accountability to the public constitution-making processes. Those who throughout a drafting process, which can be would set standards for taking part must max- expected to throw up new problems, solu- imize the empowering potential of the vote tions, and compromises along the way. The and minimize its imperfections, enabling the constitution-making body may be entrusted representation of complexity, informed deci- to act as it sees fit, required to return to public sion making, and continuing accountability to scrutiny during its proceedings, or required to the electorate. Constitutional reformers thus subject the draft constitution to parliamen- have devoted much attention to the electoral tary, judicial, or electoral review before pro­ aspects of consociationalism, the varieties of mulgation. Whatever the chosen mechanism, proportional representation, and systems of the principle of the accountability of decision cross-community and supermajorities.98 makers does require that the “process is made The drafting of a constitutional text is receptive” and that the public be “regularly inevitably the task of some relatively small informed at every reasonable stage about the group. Full-scale is never a progress of the constitutional process.”101 As practical proposition, although many would can be seen from recent examples, even the go much further than the cautious legal best formal procedures cannot guarantee that ­rulings. The issues for participation through a democratic process ensues. Mechanisms electoral means are not whether the process for representation and accountability have a will involve representation, but the nature habit of inconveniencing powerful interests. and function of the representative body, the In some processes, the mechanisms may be kind and degree of representation, con­ mere facades erected to conceal the exercise straints placed upon representatives, and their of power. For a public ostensibly taking part © Copyrightaccountability to the public, by specifically the for Endowmentby right, however, early procedural of choices constitution-making decisions.99 Who is to regarding representation and accountability be represented within the chosen forum of are both an opportunity for involvement and thelegislature, United constitutional Statesassembly, or com- Institutea necessary baseline forof expectations Peace of their mission? The choices include, descriptively, role. demographic groups in the population, geo- The incidence of key constitution-making graphical regions, or political parties; sub- practices has been recorded for 194 instances stantively, the choices include different views of nations making or revising constitutions of national identity, constitutional purpose or instituting regime changes between 1975 and principles, legal traditions, or key struc- and 2002. In 83 percent of these processes, tural choices, such as federalism or a unitary there was an electoral element in the selec- state. The choice of biases the tion of constitution makers. In some 17 per- outcome, as no system can accommodate all cent of cases, the executive either comprised of these. Even proportional representation— or appointed the main deliberative body. whether with multi- or single-member elec- Constitution making was in the hands of a toral (national or local) districts, lists, simple legislature in 36.6 percent of cases. Legisla- party labels or transferable votes, or quotas tures meeting in special session as constit­ 34 Vivien Hart

uent assemblies were found in 5.7 percent the two conflicted communities and extended of cases. Elected constituent assemblies with the bases of representation. the sole function either of making or ratify- The election of constitution makers can- ing a constitution appeared in 17.9 percent not guarantee effective representation. But, of cases.102 In either of the last two modes, depending on the circumstances of each the electoral mandate knowingly includes polity, elections improve access and can be responsibility for constitution making, pre- designed to maximize the likelihood of this sumptively enabling the electorate to choose beneficial outcome. An elected assembly is between alternative constitutional visions. undoubtedly better than a self-appointed In a recent analysis of peace processes, elite group. Politically, it may be the most Catherine Barnes highlights two examples of that can be won. Especially where the vote what she calls “representative participation” is on the single issue of constitution making, in the negotiation of a new constitutional elections offer the public a chance to take framework in profoundly divided societies.103 part and to express broad preferences. How- Her examples of South Africa and Northern ever, a special election for a one-off body also Ireland illustrate the possibility that while exposes a weakness of accountability if there representative participation is likely to privi- is no chance for the public to punish repre- lege organizationally experienced but not sentatives who fail to fulfill their mandate. In necessarily socially inclusive political parties, an ideal world, negotiations among diverse it can be constructed to mitigate such bias to political parties or among elected delegates some degree. South Africa’s 1994 election was would be responsive and accountable to the primarily a multiparty contest favoring exist- public. But these are contests among power- ing major parties. But the free hand of parties ful interests over the future exercise of power. in the constitution-making assem­bly was cir- Negotiators develop new ideas and face new cumscribed by the Constitutional Principles challenges. Without means to bind delegates of the interim constitution, which had been or call them to be accountable, the public can negotiated in a process that had given all only trust their elected representatives to ob- parties a voice, regardless of size. Represen- serve their wishes. In the typical constitution- tatives of women and minorities also moder- making process of recent years, trust has ©ated Copyrightthe domination of the partisan by electoral the often Endowment been a commodity in short supply of at victors through procedural rules guarantee- any stage. Sometimes the process itself has ing equal membership on working commit- been seen as a means of creating trust, “to tees.the In Northern United Ireland, the 1996States election clarify Institute issues, grasp and articulate of differences,Peace mandated parties to negotiate at multiparty let people speak in their own voice, and ulti- talks and the Peace Forum. The four sectarian mately, build trust and recognition.”105 Look- parties, two on each side, dominated decision ing ahead to implementing the constitution, a making. But while “perhaps not designed participatory process is no automatic guaran- to do so, this [transferable vote] system also tor of respect. But a process from which trust provided opportunities for those outside the remains absent must surely work against the political mainstream to participate.”104 The longer-term legitimacy and sustainability of effect was to bring into the talks a small but constitutionalism. Appropriately constructed crucial number of delegates from three mi- from the overflowing toolbox of elections nor parties, including the Northern Ireland and referendums, the vote will always be an Women’s Coalition, that were unaligned with important mode of public participation. Framing the State in Times of Transition 35

Referendums on Constitutional Texts there is a minimum threshold for voter turn- Referendums on final texts were held in 41.5 out, whether there are distribution require- percent of the 194 cases of modern consti- ments (e.g., for majorities in each region or tution making.106 An increasing frequency province), and finally, whether a referendum might be expected as a right to participation was accompanied by an educational cam- paign or even circulation of the text in all the and a culture of democratic expectations 113 has emerged.107 For example, it was said of languages of the electorate. Failing clarity Canada’s 1992 referendum on the Char- on all these points, as in Zimbabwe in 2000, lottetown Accord that “the very fact that the where official observers reported that “very question was put to the Canadian people as little preparation seemed to have been made a whole represents a new stage in Canadian in advance and virtually nothing was done constitutionalism.”108 But neither numbers of to keep the public informed,” a referendum will inevitably be weakened by “suspicion” of referendums nor their frequency automati- 114 cally equate to a deepening of the public’s plans “to rig the vote.” ability to “take part” constructively. A refer- Rwanda’s constitutional process provides endum may seem as close as the process can a model of a validating referendum. The come to direct democracy, permitting each 2003 referendum was preceded by a two-year voter a public judgement on the outcome. program of education and discussion that But rather than the voicing of complex de- included women, reached into urban and sires and criticisms, the voter is faced with rural areas, and contended with problems of an up or down vote.109 The vote may be seen literacy and multiple languages. Opportuni- as an opportunity for partisan comments on ties were given for learning and feedback, current politics; there may be partisan pres- and changes in drafts were widely circulated sure to vote a certain way. Frequently, refer- before the final popular vote. As a result, the endums have been devices “to be used by the referendum was the culmination of a pro- executive, on issues, timing, and a question longed conversation, not the single point of of its choosing.”110 Governments, Arend access. The result was a resounding 93 per- ­Lijphart has claimed, tend to use a referen- cent vote of approval, with a turnout of at 115 dum “only when they expect to win,” although least 87 percent of eligible voters. © Copyrightin ­constitution-making processes, by this the tactic EndowmentThe experience of referendums of has gen- has by no means always succeeded.111 erally been more ambiguous. Ratification As with the constitution-making process of constitutions by a huge majority in Spain theitself, United the structure of aStates referendum vote, Institute(1978) and a majority of in a low Peace turnout in Po- timing, funding, and accessibility may au- land (1997) followed the completion of elite thenticate or manipulate participation. Ac- negotiations and parliamentary agreements. knowledging the potential power of even a Voters who had been relatively uninvolved nonbinding referendum, such as has been to that point nonetheless endorsed the out- held on constitutional changes in the United comes. Both processes might be declared Kingdom, it has been noted that a result may successful in approving the constitution and be politically obligatory even if not legally permitting its implementation. But neither so.112 But details can undermine the author- electorate showed much enthusiasm for ex- ity of the outcome, such as what majority of ercising the democratic right to “take part.” what group carries the day (e.g., of all regis- The oft-cited function of legitimizing the tered voters or only those voting), whether text, essential if a culture of constitutionalism 36 Vivien Hart

is to support its implementation, may not be posals was completely detached from the achieved merely by casting a vote.116 Albania’s referendum process,” and others as well as 1999 referendum resulted in endorsement by the Mikmaq people and NWAC disliked 90 percent of those voting. This vote followed the deals that had been cut.121 Referendums efforts to enhance education and participa- in France and the Netherlands in April and tion, both before the constitution was drafted May 2005 were expected to ratify the pro- and during the short referendum campaign. posed Constitution of the European Union. But the Albanian public was also conflicted Instead, in voting down the constitution, by intense partisan pressure and disinforma- the referendums were used to protest in one tion campaigns.117 Political pressure was al- case President Chirac’s administration, in 122 most the sole influence in Venezuela’s two the other Dutch immigration policies. In constitutional referenda of 1999. In April, a 2000, the Zimbabwe electorate voted by 54 majority of those voting authorized a con- to 46 percent to reject the proposed consti- stituent assembly, but upward of 60 percent tution. This had been drawn up in an osten- of the electorate abstained. In December a sibly participatory process that was actually majority of those voting approved the text, tightly controlled by the regime and proce- but more than 55 percent of the electorate durally deeply flawed, as noted above. The did not vote. The country was deeply divided Zimbabwe electorate had no other means over President Chavez’s intention to write a of holding the government accountable. The new constitution and the referendums did reason voters most often gave to pollsters for nothing to heal that division.118 a negative vote was that the draft “did not For the purposes of developing the right fully take into account the expressed wishes 123 to “take part,” the most interesting examples of the people.” The public did express its of constitutional referendums may be those view by rejecting the government draft. But that reject the proposed text. If a referendum as an observer mission of the Centre for De- is prime ground for manipulating the public mocracy and Development concluded, through their timing, wording, and proce- The debate about the constitution could have pro- dures, it is also prime ground for voters to vided an opportunity for Zimbabweans to have protest marginalization in a constitutional taken a deeper look more calmly and soberly into © Copyright by the keyEndowment questions that define their body politic andof process, vote from different preferences, or shape their political configuration. . . .This was a manipulate the process themselves and turn missed opportunity to reach a historic settlement itthe into a voteUnited on another political States issue. A Institutethat would constitute the basis of on which Peace the way referendum can be a tool, in Susan Marks’ forward would be charted. Unfortunately, up to the day of voting, the debate degenerated into an terms, for “self-rule on a footing of equality 124 among citizens,” with the unsettling, criti- un-refereed shouting match. cal possibilities that the right to democratic The circumstances differ, but the consistent 119 governance can create. lesson is that taking part in public affairs only In 1992, a Canadian public that had rela- after key decisions have been made is not tively recently “come to aspire to a more adequate participation in democratic gover- democratic form of constitutionalism than nance, and the public knows this. A referen- their forebears” voted 54.2 to 44.8 percent dum can be a means of holding representa- to reject the Charlottetown Accord that was tives to account and creating legitimacy for the product of prolonged intergovernmental the constitution, but only when it is embed- negotiations.120 It was said of this episode ded in a process of continuous and sustained that “the development of constitutional pro- participation. Framing the State in Times of Transition 37

Consultation and Education Who should be considered as part of the A third cluster of participatory modes—ed- public for consultation purposes? Article 25 of the ICCPR is the only article of the con- ucation, consultation, and the free expression 127 of views—may begin to meet criticisms of vention that limits its scope to citizens. voting as a sole mode of participation. Unin- Depending on national citizenship rules, the effect may be to exclude some residents or hibited dialogue and deliberation around the 128 vote can save that act from becoming a purely ­include absentees in consequential ways. token or formal assent to constitutional pro- The structure of representation can itself posals. Education does not, of course, itself exclude or create bias. For example, negotia- constitute participation. But because consti- tions with political parties are the traditional tution making, constitutional law, and con- route and remain the most used channel stitutional practice in older constitutional to reach consensus on a new constitutional have been regarded as arcane framework. Representation therefore has of- specialities, and in many newer nations have ten been seen as a matter of accurately reflect- short or nonexistent histories, broad public ing party strengths. Party negotiations input education in constitutionalism is often an the views of existing power blocs, and party essential preliminary to effective exercise of representation is characteristically oligarchic the right to “take part.” A number of recent and exclusive. Civil-society organizations may constitution-making processes have tried to be, but are not necessarily, more inclusive make direct and sustained participation pos- and less elitist. But many of the economic, sible through these modes.125 social, identity, religious, gender, and class Of the 194 constitution-making processes groups—or indigenous peoples—that form since 1975 recorded in the USIP-sponsored civil societies are less likely to be organized database, 70 included negotiations with vari- and experienced than partisan groups, and ous groups about the constitution-making will often have interests that cut across party 129 procedure. Determining the process itself is lines. Some constitution-making processes where public involvement must start, given have attempted public education and the the propensity of procedures to be exclusion- free expression of views from below through © Copyrightary even before any substantive by discussion. the Endowmentopen access channels, setting a broader of goal Decisions on the time available, selection of for “taking part” than can be met solely by representatives, and requirements of balance, votes and organization-based debate. Of thetransparency, United and ratification States may include Institutetheir nature, such modes of are Peace likely to make or exclude parts of the public. In nearly a for a less orderly and less controlled process. quarter of the cases, all political parties were In the end, perhaps, it is also a process with consulted; in 39.3 percent, only those politi- greater legitimacy, and certainly one that pro- cal parties represented in the legislature were duces a public that will be better informed consulted; and in 22 percent, some but not all when constitution making is succeeded by parties were consulted. Among civil-society implementation.130 categories, in 10.2 percent of these cases, eco- Under the database heading of civic ­edu-­ nomic groups were consulted, in 8.5 percent, cation and popular participation, government- major social groups, and in 10 percent, major funded civic education campaigns were re- identity groups. In 8.3 percent of cases, reli- corded in 35.5 percent of the 194 cases and gious leaders were consulted, while in a mere civic (non-governmental) in at least 4.9 percent of cases did women participate in 10 percent. Education initiatives included these conversations as a recognized group.126 closed meetings among dele­gates, staff, and 38 Vivien Hart

civic leaders in at least 14.5 percent and open wide survey in April 1996 “found that the meetings with citizens in at least 20 percent [constituent assembly] media campaign had of cases in the study. Consultation some- succeeded in reaching 73 percent of all adult times meant polling, but most commonly South Africans (or 18.5 million people).”134 (25 percent of cases) gave citizens and civic Two million public submissions were made. groups opportunities to submit written briefs Twelve million free copies of the ratified or comments. In at least 18 percent of cases, constitution were circulated with a primer, education and consultation were carried to re- You and the Constitution. Statistics, however, mote rural areas, crucial in many new nations. as Christina Murray recalls, “fail to convey In 23.2 percent of cases, there was an oppor- the vitality and energy of the public partici- tunity for public comment on a draft before a pation program.”135 final text was adopted and ratified.131 Vitality and energy have characterized Media campaigns and ad hoc and inde- other recent processes in which creative so- pendent initiatives may be as significant as lutions have been found to the difficulties those of recognized governmental, partisan, involved in opening up the process. Inexpe- civic, or economic organizations. Can there rience, illiteracy, impoverishment, insecurity, be operational standards for a process that is prejudice, and lack of resources challenge by definition open to both formal and infor- many constitution-making processes. Coun- mal involvement? The South African process tries may lack accessible channels of com- between 1992 and 1996, widely hailed as a munication or channels where all feel able model of participatory constitution mak- to speak freely: women to speak without ing, suggests some initial criteria for “taking the shadow of male authority, employees or part.”132 A staged agenda ensured that the estate workers without the oversight of the stakes were never an all or nothing outcome. boss, minorities in their own language, entire An interim constitution operated from 1992. populations without the threat of violence. This included a set of “Constitutional Prin­ However, populations sharing such disad- ciples,”—general propositions about equal- vantages are demeaned by easy assumptions ity, fairness, and democracy, with which it about their ignorance and incapacity. Effec- was hard to disagree and which were binding tive communication to receptive audiences ©on theCopyright structures and rights negotiated by forthe has Endowment proved possible through the inventive of the next constitution. A parliament elected use of printed educational materials that in 1994 on a new inclusive electoral roll dou- are free, in clear prose, and that use pic- bledthe as the United constitutional assembly States and was tures; Institute eye-catching advertisements of Peace placed on bound by the principles. Public submissions buses; street theaters; and the widely avail- were invited. A sequence of committees to able media of radio, text messaging, and the work on drafts, expert consultations, public Internet.136 meetings, provisions for second thoughts, It is considerably more difficult to create and a final surety of vetting by the Constitu- a bottom-up process in the insecure circum- tional Court created trust that power would stances of some recent constitution-making not trump the process. Efforts to inform exercises. Ideally, this requires openness to and widen participation included a weekly genuine and undirected input by the public, radio program with 10 million listeners, a enabling them to create their own agenda, weekly assembly newsletter, Constitutional which will not necessarily replicate that of Talk, with a circulation of 160,000, colorful the experts. The principle was well taken ads on buses, talk lines, and an open phone by a member of the Uganda Constitutional line and Web site.133 An independent nation- Commission (UCC) who recalled that Framing the State in Times of Transition 39

whatever was raised was defended by the UCC participation.” Even to attempt to fulfill its as having a link with the Constitution-Making duty, it had to seek external help, includ- exercise. Women raised issues of domestic vio- ing funds. Its seminars, public assemblies, lence . . . young people raised issues of unem- ployment and drop-out from schools for failure meetings for women and elders, and guid- to pay school fees. Elders raised issues of decay ance sheets were models of their kind, yet in of good morals . . . As some members of the the end there was little open debate, much audience wished to silent [sic] them that their politicking, a boycott by opposition groups, concerns were not constitutional, the UCC drafting decisions made under time pressure members were there to defend them that every in private commission meetings, and key fi- concern of a Ugandan, every experience, every nal determinations reflecting the power of suggestion for the betterment of life and society 137 one party rather than the product of dem- was a key concern for the exercise. ocratic deliberation.142 The South African In practice, the Ugandan process fell short of process appeared to meet just about every this ideal.138 National Resistance Movement criterion of good practice. Yet reactions ran attempts to control the process raised doubts from those who regarded the entire process over whether commissioners who were gov- as a cover for elite negotiation behind closed ernment appointees were as open-minded as doors to sympathizers who were optimistic this account implies and whether the con- if modest: “one goal frequently invoked was cerns of local meetings did receive attention that the new Constitution should be ‘owned’ in the constitutional text. Many proposals by all South Africans.” To African National doubtless fell by the wayside. But some, with Congress negotiator Cyril Ramaphosa, Mur- effective community mobilization, survived. ray reports, “this meant that the Constitution Gender-equity clauses in the Uganda con- should be one which South Africans ‘know’ stitution are attributed to women’s lobbying, and which they ‘feel’ belongs to them.”143 especially to the sustained efforts of the non- Did the immense public relations exercise partisan Women’s Caucus.139 exist only to create a feeling? Few would go Characteristic of many recent processes so far as that, but undeniably the process was is the calling of open meetings, by constitu- driven from above, not below. There was no tional commissioners, as in Uganda, Rwanda, pretense that the public made final decisions © CopyrightMali, or Kenya; local officials, by as in Nicaragua;the Endowmenton detail, and although at first draftingof was or civil-society groups outside of the formal undertaken openly, on “the most controver- process, as with the Citizens’ Constitutional sial issues . . . politicians started engaging theForum United in Fiji.140 International States and national Institutein closed bilateral orof multilateral Peace meetings women’s organizations frequently have tried with their political counterparts.”144 The fi- to tap women’s views to compensate for ex- nal word lay with the Constitutional Court clusionary processes.141 Despite these some- to verify compatibility with the 1993 Con- times heroic efforts, the authenticity of the stitutional Principles. Unlike Rwanda, the participation achieved must be realistically safeguards built in throughout were taken to evaluated in each case. This chapter has been obviate the need for a referendum, and there critical of various types of electoral participa- was none. tion as adequate channels for diverse public From her research in Uganda, Devra opinions. Citizen activity, however, often has Moeh­ler has suggested that the public view for been problematic as well. or against constitutional proposals is unlikely Ethiopia’s constitutional commission was to be spontaneous, but will reflect the position “specifically charged with the duty to - pro of opinion leaders in their communities.145 mote the widest possible opportunities for Even in more open and multiparty negotia- 40 Vivien Hart

tions, including the acclaimed South African nance at the outset . . . to promote ‘human process, a fully free and effective system of development’ . . . to close social and political public participation has yet to be approached. gaps . . . to promote reconciliation and the This remains a field of trial and both error amelioration of widely shared grievances . . . and evolution, ripe for further development. [and] to eliminate discrimination.”146 Advo- But, particularly because the interests of cates of participation often assume that such previously disadvantaged, unorganized, or desirable consequences result from partici- underrepresented groups, such as the poor, patory processes, as in a recent summary by indigenous peoples, and women, may be un- Clarence J. Dias: “International experience in dreamed of or misconstrued by even the most constitution-making has shown that there is a benevolent constitution-making elite, open- clear correlation between the degree of trans- ing the process up is an obligation for demo- parency, inclusiveness and participation and the crats. The idea of a constitutional conversa- sustainability and longevity of the constitu- tion, a dialogue among participants who are tions that result from these processes.”147 equal in standing, equally respected by others, Radical critics of participatory ideals and equally able to contribute regardless of might at this point bring the discussion back formal education or political experience, may to the issue of power, proposing that, after be far from attainment. The potential of dia- all, constitution making is about the pursuit logue for representing diverse and complex of power and constitutions are always instru- opinions must, however, be greater than that ments of domination. Other critics note that of an electoral system. The dialogue that constitutions of long standing were normally proponents of participatory constitutionalism made without the kind of participation that envisage remains open to creative methods is attempted today, and yet have acquired that have, in the best cases, avoided some of legitimacy and observance from politicians the problems of hierarchy, resources, time and publics, while a good many of those limitations, cultural inhibitions, and insecu- cited above as models of participation have rity that threaten spontaneity and respon­ failed in practice. If South Africa is the suc- siveness. Not the least of reasons for mitigat- cess story, then Ethiopia, Eritrea, and other ing these problems is that, increasingly, the nations challenge easy generalization. ©public Copyright expects access to the process. by Even the a TheEndowment widening and deepening ofof public limited participation process or a feeling of participation imply a substantial redistribu- ownership sponsored by community leaders tion of power to a general public and previ- isthe preferable United for the future prospects States of a new ously Institute excluded groups. According of Peace to demo- constitution to a process that frustrates and cratic ideals, such participation is a value in disappoints the population’s expectations. itself. Advocates of participation must take this value and develop ways of “taking part” that yield positive results. The strongest de- Participation and Change fense of the difficult enterprise of participa- In an evaluation of the constitution-making tory constitutionalism, and a guard against process in Ethiopia between 1991 and 1994, such activity generating only frustration, James N.C. Paul made an eloquent case for must be that it makes a difference.148 We do public participation in the “reconstitution” of not yet have enough systematic research into states: “Participation is necessary to ‘legiti- this connection. But some specific positive mate’ the new constitutional order, promote outcomes address the questions of whether awareness, acceptance and assertion of hu- participation leads to change—in the public, man rights and promote democratic gover- the agenda, or the outcome. Framing the State in Times of Transition 41

Evidence of change in the public does not as Scott Carlson describes in this volume, a appear only in numbers, as in high electoral series of modifications to the constitutional turnouts in South Africa or Rwanda, but also text have been attributed to public input. in a sustained and better-informed interest But how many of the 2 million submis- in politics during and after the constitution- sions in South Africa, 61,142 amendments making process. In Uganda, Moehler, whose in , and 100,000 proposals in Colom- research is the most systematic in this field, bia found their way into constitutional texts, has found that involvement in the con­ and how many, left unfulfilled, created new stitution-making process had the indirectly frustrations? There is some evidence of the positive effect of creating informed citizens, incorporation of public demands into new whose enhanced political knowledge and constitutional texts. One of the strongest energy carried over into postconstitution- examples is undoubtedly the introduction of making politics.149 This confirms the - anec constitutional clauses establishing the rights dotal observations of a Ugandan parliamen- of women in general, including a new right to tarian who, despite her disappointment at be free from personal and public violence.154 antidemocratic political developments under The inclusion of previously marginalized the new constitution, remarked recently that women and aboriginal peoples in recent her country’s participative process had been con­stitutional texts provides one of the best an education in politics, rights, and ethical arguments for institutionalizing the right standards. As a consequence, “the Uganda to and practice of participation. Martha I. government is dealing with a very different Morgan reports that even underrepresenta- ‘people’ now from the early 1980s.”150 tion of women in making Colombia’s 1991 An increasing body of practical experi- constitution led to unprecedented “broad ence demonstrates that public participation tri-generational civil and political, social, and can change the constitution-making agenda, collective rights, including not only provi- with potentially the “emancipatory and criti- sions specifically addressing gender equal- cal force” that Susan Marks predicted. Ca- ity but also several other gender-related nadian women organized to write their in- provisions.”155 Andrew Reding observes of terests into the new 1982 Charter of Rights, Nicaragua that the “extent to which the pop- © Copyrightand in so doing, stimulated byother groups the to Endowmentular input in the cabildos [town meetings] of has mobilize, changing the previous concen- been incorporated is striking,” exemplified trated focus on Quebec and language issues by women’s rights at work and in the , theinto aUnited broader agenda ofStates citizenship, gen- Instituterecognition of minority of languages Peace and indig- der, and indigenous peoples’ concerns.151 At enous communal landholding, and social and Brazil’s public hearings, “government minis- citizenship rights.156 Joyce Green is sure that ters, environmentalists, human rights activ- “without the collective activism of women ists, feminists, associations, unions, and of Aboriginal peoples, neither would landlords, Indians, street urchins, prostitutes, be explicitly protected in the [Canadian] homosexuals, and maids” spoke out, and Constitution,” and itemizes crucial clauses 61,142 amendments to the draft constitu- unimagined at the start but included in the tion were proposed.152 In Colombia, 1,580 outcome.157 The impact of women in Uganda working groups came up with 100,000 pro- has already been noted, while Cathi Alber- posals. Open town meetings in Nicaragua tyn observes that in South Africa, “what raised issues missing in constitutional drafts was perhaps unexpected was the extent to but subsequently incorporated—women’s is- which women were written into the heart of sues again being an example.153 In Albania, the democratic process,” attributing this to 42 Vivien Hart

their early mobilization to gain a voice in a Is agreement on basic standards of good constitution-making process that might have practice possible, as a guide to processes and been expected to center on race.158 More gen- a marker for monitors? These are lead is- erally, one certain reason recent constitutions sues for any future agenda for securing more have incorporated social rights is the pres- firmly the right to participate in constitution sure exerted for their inclusion by dispro- making. portionately deprived, and even in previous Part of the agenda concerns legal proce- texts “constitutionally stigmatized,” groups to dures and substance. Where exclusion, in- whose lives such rights are central.159 equality, insecurity, or manipulation impinges, A handful of examples is enough to indi- there is currently little scope for legal redress. cate the potential of participatory processes Procedurally, courts must be satisfied of the to bring previously unconsidered people and standing of plaintiffs, will develop the law issues into the constitutional arena. The ben- only on a case-by-case basis, and may, as the efits of a firmly established right to enter the Mikmaq people found, take years to reach process, accruing particularly to those who a decision. Each of the handful of judicial most need support, offer the best hope of rulings discussed above affirmed the right proving that constitutions are not necessar- to participate but backed off from guid- ily always solely instruments of domination. ance on how it should be implemented. As Legal and practical hurdles remain, however, opined in Marshall v. Canada, “it is for the to achieving genuine and effective exercise of legal and constitutional system of the State the right to democratic constitution-making party to provide for the modalities of such processes. For advocates of participation, participation.”160 Using existing texts and progress requires not only maintaining the channels strategically depends in large part momentum that has built up behind the on supporting appropriate cases that might emerging norm of participation, so that it is clarify, for example, what modes of partici- ever more widely demanded and expected, pation meet the requirements of Article 25, but strategizing to clarify and develop the whether leaving fundamental decisions on law and build on the lessons of practical process to national authorities is adequate in experience. terms of Article 25, and whether redress is © Copyright by thepossible Endowment after the event. As with the handof- ful of cases discussed above, the outcome of Conclusion such a litigation strategy is liable to be piece- “Publicthe affairs” United is now assumed States to include meal Institute and partial. But case of law is Peaceimportant the making of a nation’s constitution, and both as formal legal confirmation of rights “taking part” is an established right. Estab- in particular cases and as a political resource lishing these fundamentals in international demonstrating judicial backing of claims for law and political culture may, however, prove inclusion, which typically come from those to have been the easy part. The developments dispossessed of political power. reviewed in this chapter show that while Developments in the law not only en- much has been gained, a huge area of diffi- hance political resources for effectuating culty remains around the issue of what “tak- change but often are themselves spurred by ing part” means, in law and in practice. The political developments. Any comprehensive idea of “taking part” is all too easily watered restatement of the right to take part in con- down. In what respects can the law be clari- stitution making will more likely come, as fied? Can the right be enforced? Who- de Franck and Thiruvengadam have observed, cides how participation shall be structured? from the multiplication and elaboration of Framing the State in Times of Transition 43

participation rights in international and na- legal grounding for participation.167 Several tional charters, conventions, comments, and international organizations and projects sup- indeed, from authoritative writings such as ported by non-governmental organizations their own, rather than from piecemeal judi- and think tanks have assumed that at least cial rulings.161 As noted above, regional char- the process, as opposed to the substance, is ters and national constitutional texts increas- susceptible to codification by a standard of ingly have broadened and deepened their democratic practice.168 The code presented guarantees of participation and the social and by the Commonwealth Human Rights Ini- political circumstances that make it effective. tiative (CHRI) to Commonwealth heads of Momentum has built as progressively more government in 1999 was an early attempt to texts have addressed participation seriously. address process issues: “governments must However, none has yet incorporated the tex- adopt credible processes for constitution tual affirmations of UN bodies on constitu- making; that is, a process that construc- tion making.162 tively engages the largest majority of the As discussed earlier, the foundations of population.” The CHRI code called for good the right to participate in constitution mak- management, responsiveness, accessibility, a ing lie in clauses of the UN Declaration of positive duty to provide the public with “the Human Rights and the ICCPR. UN agen- necessary tools to participate,” respect for cies themselves have recently been involved dissent, inclusiveness, mediation, and con- in constitution-making processes, testing tinuous review, evaluation, and feedback.169 the adequacy of their own precepts.163 No In addition to these principles, it enumerated constitution-making equivalent to their practices such as ensuring the independence election-monitoring apparatus, in structure of the drafting commission, giving adequate or code of practice, exists within the organi- time and funding, assisting civil society, fa- zation, however.164 James Paul reflects that in cilitating access to international experience, the early 1990s, Ethiopia was disadvantaged using the media to communicate with and by the absence of international standards for report to the public throughout the process, participation to provide a model and source and providing representative means of rati- of international pressure on its flawed -na fying the constitution and forward-looking © Copyrighttional process. His challenge by that thethe “in- Endowmentmeans for regular review thereafter. of170 ternational community can—I believe it is Many of these items are now general now obligated to—create a framework of currency. But no single authoritative set of thestandards United governing the processesStates of recon- Institutestandards has yet emergedof Peace in law or from stitution that would address not only partici- organizational sources to guide those trying pation but other necessary subjects as well,” to create participatory processes or monitor remains open.165 Can process requirements their progress. What we have to date perhaps for constitution making be conceived that most resembles traditional definitions of the could provide both political guidance and uncodified British constitution, a “curious legal guarantees? Could constitution mak- compound of custom and precedent, law and ing be monitored as electoral processes are convention,” (“convention” in the British sense monitored for their freedom and fairness?166 of “general agreement . . . about the ‘rules of Henry Steiner found that “infirmities” the game’ to be borne in mind in the con- inherent in the idea of a right to partici- duct of public affairs”).171 Such a compound pate—its “relatively vague and abstract” na- may fit with the vague and abstract charac- ture compared with the clarity of voting— ter asserted by Steiner and allow flexibility presented an obstacle to securing a firm and attention to local context. But compared 44 Vivien Hart

with more formal codes of practice, bundles tic experiments in such practice become the of miscellaneous advice are difficult for the binding precedents of an international right uninitiated to know or use. Rules designed that resistant powers are either persuaded or to be “borne in mind” by persons of good- forced to respect. will are hard to enforce. Observance of cus- tom and convention depends a great deal on goodwill and a culture of respect for the spirit Notes of constitutionalism that is easily lost in the 1. Thomas M. Franck, “The Emerging Right pursuit of power. The right to participate is to Democratic Governance,” American Journal of In- ternational Law, vol. 86 (1992), p. 46. legally enforced with difficulty. In politics, an 2. See Gregory H. Fox and Brad R. Roth, advisory code of sufficient generality to pro- eds., Democratic Governance and International Law vide a common starting point of principle for (Cambridge: Cambridge University Press, 2000). In constitution-making processes in many dif- particular, chapter 3 by James Crawford, “Democ- ferent national contexts might at least begin racy and the Body of International Law,” gives the to establish a bottom line that all can work substance of Crawford’s 1993 Whewell Inaugural Lecture at the University of Cambridge, published to achieve. as Democracy in International Law: Inaugural Lecture To conclude that a right to participate in (Cambridge: Cambridge University Press, 1994). constitution making is established—and is, to This stands with Franck’s work as foundational to varying degrees, being further defined by con- the debate about the right to democratic gover- ventions and charters, national constitutions, nance; to this later version, Crawford has added a judicial opinions and decisions, and practi- reprise of responses to his lecture. cal experiments in numerous constitution- 3. See the chapter in this volume by Thomas M. Franck and Arun K. Thiruvengadam. making processes—is clearly not to assert that 4. James Tully, Strange Multiplicity: Con- authentic and effective participation always stitutionalism in an Age of Diversity (Cambridge: or even often takes place. A serious “partici- Cambridge University Press, 1995), p. 28. pation deficit” still exists, a gap between that 5. In 1997, Giovanni Sartori recorded that right and its implementation. Constitution “Of the 170 or so written documents called consti- makers are experimenting with ways to fill tutions in today’s world, more than half have been that gap. They have been backed on occasion written since 1974.” Comparative Constitutional En- by taking flawed processes to courts and to gineering: An Inquiry into Structures, Incentives, and © Copyright by theOutcomes, Endowment 2nd ed. (New York: New York University of the UNCHR to test the extent of the right Press, 1997), p. 197. A database compiled under and seek enforcement. They are supported sponsorship of the United States Institute of Peace everythe time Unitedanother process takes States up the ex- by Institute Professor Jennifer Widner of includes Peace 194 cases periment and carries on the work. Even as of constitution drafting, between 1975 and 2002, the right is strengthened, however, the hard- that produced new or extensively amended constitu- est task remains for advocates of participa- tions or changes in regime type (excluding processes where there was no risk of violence). See Jennifer tory constitutionalism: how, in practice, to Widner, Princeton University, Constitution Writing persuade powerful and power-seeking elites and Conflict Resolution: Data and Summaries, avail- to abandon prior possession of the field and able at www.wws.princeton.edu/pcwcr/index.html admit whole populations to this foundational ( January 2006; accessed on April 18, 2009). I am political process. In an important step on the grateful to Professor Widner for advance data from this source. way, the evidence marshaled in this chap- 6. Penelope Andrews and Stephen Ellmann, ter suggests that the culture of constitution eds., The Post-Apartheid Constitutions: Perspectives making has come to include the expectation on South Africa’s Basic Law ( Johannesburg: Wit- of democratic practice. Only concerted legal watersrand University Press, 2001), and the full and political work can ensure that optimis- discussion of the South African case by Ebrahim Framing the State in Times of Transition 45

and Miller in this volume. Other examples from had been filed (art. 49). By June 2003 it had been the United States Institute of Peace Project on ratified by 149 states. ­Constitution Making, Peacebuilding, and National 14. Robin Luckham, Anne Marie Goetz, Reconciliation that highlight experiments in par- Mary Kaldor, Democratic Institutions and Politics ticipation include Albania, Brazil, Eritrea, Ethiopia, in Contexts of Inequality, Poverty and Conflict, IDS Nicaragua, Uganda, and Venezuela; the most recent Working Paper no. 104, Institute of Development may be Rwanda. In both Afghanistan and Iraq, the Studies, Brighton, 2000, p. 1. rhetoric of participation has been prominent. For 15. The Council of Europe was founded in examples of a large and scattered literature of books, 1949 with ten western european members: Belgium, articles, and reports, see the regional study by Julius Denmark, France, Ireland, Italy, Luxembourg, Neth- O. Ihonvbere, Towards a New Constitutionalism in erlands, Norway, Sweden, and the . Africa (London: Centre for Democracy and Devel- By 2003, it had grown to forty-five members, in- opment, 2000), and studies of particular aspects, such cluding many eastern european and former Soviet as Yash Ghai, Public Participation and Minorities Union nations. (London: Minority Rights Group, 2001); Alexandra 16. Henry J. Steiner, “Political Participation Dobrowolsky and Vivien Hart, eds., Women Making as a Human Right,” Harvard Human Rights Year- Constitutions: New Politics and Comparative Perspec- book 1 (1988), p. 94. tives (Houndmills: Palgrave, 2003); and Helen Ir- ving, Gender and the Constitution: Equity and Agency 17. ECHR, First Protocol to the Convention, in Comparative Constitutional Design (Cambridge: 1952, art. 3. Cambridge University Press, 2008). 18. Steiner, “Political participation as a Hu- 7. Iraqi Governing Council, Law of Admin- man Right,” pp. 94–96, quotations p. 96. istration for the State of Iraq for the Transitional 19. See also the review of international pro- Period, March 2004, arts. 60, 61. Jonathan Morrow visions in Gregory H. Fox, “The Right to Political discusses the flagrant breach of this mandate in his Participation in International Law,” in Democratic chapter in this volume. Governance and International Law, pp. 50–69. These 8. Franck and Thiruvengadam, this volume. all refer to political participation in general without 9. Marshall et al. v. Canada (Human Rights mentioning constitution making. Committee, CCPR/C/43/D/205/1986), 3 Decem- 20. Convention on the Elimination of All ber 1991; Human Rights Committee, “The right to Forms of Racial Discrimination, 1965, art. 5(c). See participate in public affairs, voting rights and the also United Nations Declaration on the Rights of right of equal access to public service” (Art. 25): Persons Belonging to National or Ethnic, Religious 12/17/96. CCPR General Comment 25, 6(b). and Linguistic Minorities, 1992, art. 2 (General As- © Copyright10. Supreme Court of Canada, by Reference the re Endowmentsembly Resolution 47/135 of 18 December of 1992). Secession of Quebec, 2 SCR 217 (1998). 21. Convention on the Elimination of All 11. Tony Evans, “International Human Rights Forms of Discrimination Against Women, 1979, theLaw asUnited Power/Knowledge,” HumanStates Rights Quarterly Instituteart. 7. of Peace vol. 27 (August 2005), p. 1048. 22. European Framework Convention for the 12. See, e.g., Owen M. Fiss, “Human Rights Protection of National Minorities, 1995, arts. 15 as Social Ideals,” in Human Rights in Political Tran- and 17. sitions: Gettysburg to Bosnia, eds. Carla Hesse and 23. African Charter on Human and Peoples’ Robert Post, 263–76 (New York: Zone Books, Rights, 1981, art. 13.1. 1999); Harold Hongju Koh and Ronald C. Slye, 24. Commonwealth Heads of Government eds., and Human Rights Meeting, 1991, The Harare Declaration, October 20, (New Haven, CT: Yale University Press, 1999); 1991, at www.dfaitmaeci.gc.ca/foreign_policy/the and a discussion in an American context, Stuart A. commonwealth.org/Internal/20723/34457/harare_ Scheingold, The Politics of Rights: Lawyers, Public commonwealth/imoc310-en.asp (accessed April 18, Policy, and Political Change (New Haven, CT: Yale 2009). University Press, 1974). 25. Asian Charter of Rights, 1998, art. 5, “The 13. The ICCPR was adopted in 1966 and en- Right to Democracy.” See text and a discussion of tered into force in 1976 when the required initial the drafting process led by the Asian Human Rights number of 35 ratifications or accessions by states Commission, a body without governmental stand- 46 Vivien Hart

ing, in Asia Pacific Journal on Human Rights and the The New Commonwealth and Its Constitutions (Lon- Law, vol. 1 (2000), pp. 126–66. As this source notes, don: Stevens, 1964). the Asia Pacific region remains without a formal hu- 36. Michael Foley, The Silence of Constitutions: man rights system. In November 2007, leaders of the Gaps, “Abeyances,” and Political Temperament in the Association of South East Asian Nations (ASEAN) Maintenance of Government (London: Routledge, signed an ASEAN Charter with weak and nonsanc- 1989); Alan C. Cairns, “Constitutional Stigmatiza- tionable human rights and democracy provisions; tion,” in Patrick J. Hanafin and Melissa S. Williams, the ten member states have yet to ratify it. eds., Identity, Rights, and Constitutional Transforma- 26. Organization of American States, Inter- tion (Aldershot: Ashgate, 1999), chap. 2. American Democratic Charter (Washington: OAS, 37. Alex Conte, Scott Davidson, and Rich- 2001). ard Burchill, Defining Civil and Political Rights: The 27. See John W. Graham, “A Magna Carta Jurisprudence of the United Nations Human Rights for the Americas: The Inter-American Demo- Committee (Aldershot: Ashgate, 2004), chap. 2; cratic Charter: Genesis, Challenges and Canadian Bayeksky.com, “How to Complain about Human Connections,” Policy Paper FPP-02-09, Canadian Rights Treaty Violations: The Covenant on Civil Foundation for the Americas, August 2002. and Political Rights,” available at www.bayefsky. 28. Inter-American Democratic Charter, art. com/complain/10_ccpr.php (accessed on April 18, 1, Graham, “A Magna Carta for the Americas,” p. 7. 2009). 29. UN, Vienna Declaration and Programme 38. Joseph A. Schumpeter, Capitalism, So- of Action, 25 June 1993, art. 5. cialism, and Democracy (London: Routledge, 1965), 30. UN, Vienna Declaration, art. 8: “Democ- p. 269. racy, development, and respect for human rights 39. See John S. Dryzek, Discursive Democracy and fundamental freedoms are interdependent and (Cambridge: Cambridge University Press, 1990), mutually reinforcing.” See examples linking par- defining a collective, social, communicative, and ticipation with development in Clarence J. Dias, argumentative democracy; also his overview of the Peacebuilding: International Law and Constitution- considerable debate that developed in the 1990s, Making, Report for the United Nations Develop- Deliberative Democracy and Beyond: Liberals, Crit- ment Programme, July 10, 2005. ics, Contestations (Oxford: Oxford University Press, 31. Inter-American Democratic Charter, 2000). art. 6. 40. See, e.g., Tully, Strange Multiplicity; Si- 32. Inter-American Democratic Charter, arts. mone Chambers, “Contract or Conversation: Theo- 2, 4, 7. retical Lessons from the Canadian Constitutional Crisis,” Politics and Society, vol. 26, no. 1 (March 33. Inter-American Democratic Charter, art. 1998), pp. 143–72; Vivien Hart, “Constitution- ©19. TheCopyright idea of sanctions goes against bythe tradition the Endowment of Making and the Transformation of Conflict,” Peace of noninterference in the affairs of a sovereign state, and Change, vol. 26, no. 2 (April 2001), pp. 153–76. long a principle of international law and breached bythe the OAS United only after tough intergovernmental States Institute41. South Africa, Constitution of ActPeace of 1996, debate. Graham, “A Magna Carta for the Ameri- chap. 1, s. 1 (d). cas,” p. 2, describes how the protection of national 42. South Africa, Constitution Act of 1996, sovereignty was the key issue in the drafting of the chap. 2, s. 19. charter, responsible for several major setbacks in the 43. Constitution of East Timor (2002), s. 46. process, and perhaps only overcome by acclamation See other examples across continents, such as the through the coincidence that the final vote took constitutions of Slovakia (1992, art. 30), and Ven- place on the morning of September 11, 2001, with ezuela (1999, art. 62). Like South Africa, the Hong U.S. Secretary of State Colin Powell delaying his Kong Basic Law (1991, art. 21) spells out under the return home from the signing ceremony in Peru to heading “Right to Participate in Public Life” that endorse this strong version. freely chosen representatives, genuine periodic elec- 34. Franck and Thiruvengadam, this volume. tions, equal access to public service are required. 35. See, e.g., Louis Henkin and Albert Rosen- 44. Constitution of Angola (1992), art. 28; thal, eds., Constitutionalism and Rights: The Influence Constitution of Ethiopia, chap 2, art. 8. of the United States Constitution Abroad (New York: 45. (1995), chap. Columbia University Press, 1990); S.A. de Smith, II (i). Framing the State in Times of Transition 47

46. Macro (or mega) constitutional politics strating the importance of language and of retain- is Peter H. Russell’s term to distinguish “efforts ing fundamental guarantees against future abuse in at broad constitutional renewal as compared with constitutional texts, Professor Brewer-Carias recalls piecemeal constitutional reform.” Peter H. Russell, that, as a delegate to the 1999 national constituent Constitutional Odyssey: Can Canadians Become a Sov- assembly, faced with the government proposal to ereign People? 2nd ed. (Toronto: University of To- delete the traditionally used word representativo, he ronto Press, 1993), p. 275, note 8. Uganda presents succeeded in substituting the word electivo (email to an interesting example of a constitution-making author, January 12, 2006). process apparently designed in the spirit of inclu- 51. The summary compilation of cases on sion, democratic consultation, and decentralization political rights at www.bayefsky.com/themes/ that theoretically guided the National Resistance political_jurisprudence.php lists three decisions on Movement’s so-called no-party politics. Yet this Article 25(a) and nineteen on clauses (b) and (c). was systematically subverted by the same NRM in Conte et al., Defining Civil and Political Rights, pp. government, in order to control the process. Aili 68–77, suggests a similar ratio. Mari Tripp’s chapter in this volume describes the lat- 52. Mr. Lallah, in UNCHR, “Summary Rec- ter process. For the contradictions, see Anne-Marie ord of the 1460th Meeting,” 30/10/95. CCPR/C/ Goetz, “The Problem with Patronage: Constraints SER.1460, para. 41. on Women’s Political Effectiveness in Uganda,” in 53. Marshall et al. v. Canada; see the docu- Anne Marie Goetz and Shireen Hassim, eds., No mentary history, with an introduction by Sákéj Hen- Shortcuts to Power: African Women in Politics and Pol- derson on the history of litigation by the Mikmaq icymaking (London: Zed Books, 2003), pp. 113–16. people, at www.usask.ca/nativelaw/unhrfn/mikmaq. Goetz describes the paradoxical conjunction of the php (accessed May 7, 2009). offer of openness and its simultaneous subversion as 54. Marshall et al. v. Canada, paras. 3.1 and one of “various self-imposed moments of reckoning, 3.2. The UNCHR was acting in its judicial capacity each of which has stiffened the executive’s resistance to hear individual complaints under Optional Proto- to political competition,” p. 113. col I to the ICCPR. The constitutional conferences 47. Constitution of Colombia 1991, preamble promised in art. 35.1 of the Canadian Charter of and art. 103. Rights and Freedoms of 1982 were for negotiations 48. William C. Banks and Edgar Alvarez, between federal, provincial, and territorial govern- “The New Colombian Constitution: Democratic ments and representatives of indigenous peoples Victory or Popular Surrender?” University of Mi- on amending the constitution as it affected those ami Inter-American Law Review, vol. 23, no. 1 (Fall peoples. Art. 35.1 (b) promised that “The Prime 1991), esp. pp. 80ff. Minister of Canada will invite representatives of 49. Constitution of Peru, title 1, chap. I, art. the aboriginal peoples of Canada to participate in © Copyright2: “Every person has the right: (xvi)by to participatethe Endowmentthe discussions.” The Mikmaq case questioned of the individually or in association with others in the po- adequacy of representation in the crucial discus- litical, economic, social and cultural life of the na- sions in the Canada Round between 1982 and 1992 thetion.” ConstitutionalUnited reform, totalStates or partial, may be Institutethat produced the Charlottetown of Peace Accord (Consen- subject to a referendum (art. 32). sus Report on the Constitution, August 29, 1992). 50. Political Constitution of the Republic of This proposed sixty changes, including the contro- Ecuador 1998, title III, chap. 3. Constitution of versial Canada Clause, which attempted to define the Bolivarian Republic of Venezuela 1999, title I, basic Canadian values, acknowledged Quebec as a art. 6; the standard English translation quoted in “distinct society” within Canada, and recognized my text reads in the original: “El gobierno . . . es aboriginal governments as “one of the three orders y será siempre democrático, participativo, electivo, of government in Canada.” The public rejected the descentralizado, alternativo, responsable, plural- accord in a referendum in October 1992. ista y de mandatos revocables.” Professor Allan R. 55. Marshall et al. v. Canada, paras. 5.2 and Brewer-Carias—author of the chapter on Venezu- 5.3. ela in this volume—notes that the words democrático, 56. The case is discussed in Mary Ellen Tur- alternativo (referring to the possibility for political pel, “Rights of Political Participation and Self- or partisan alternations in power in the presidency Determination in Canada,” in H. Reynolds and R. and the legislature), and responsable have their ori- Nile, eds., Indigenous Rights in the Pacific and North gin in the 1830 Venezuelan constitution. Demon- America (London: University of London and Sir 48 Vivien Hart

Robert Menzies Centre for Australian Studies, 71. Steiner and Alston, eds., International Hu- 1992), pp. 95–109. It is occasionally mentioned in man Rights in Context, p. 534. recent literature on the general right to participate, 72. Supreme Court of Canada, Native Women’s e.g., Ghai, Public Participation and Minorities, p. 8. Association of Canada v. Canada [1994], 3 S.C.R. 57. Marshall et al. v. Canada, para. 5.5. 73. Native Women’s Association of Canada v. 58. Marshall et al. v. Canada, para. 2.2. Canada, pp. 634–36. 59. UN Committee on Human Rights, CCPR 74. Quoted in the Supreme Court decision, General Comment 25, 12 July 1996, para. 1. Native Women’s Association of Canada v. Canada, 60. Steiner, “Political Participation as a Hu- p. 640. man Right,” p. 77. 75. From the initial decision in the Trial Di- 61. Steiner, “Political Participation as a Hu- vision, Native Women’s Association of Canada v. Can- man Right,” p. 78. ada (T.D.) T-2238-92 (1993), conclusions, available 62. UNCHR, Summary Record of the 1399th at http://reports.fja.gc.ca/eng/1992/1993fca0449. meeting: 10/04/95. CCPR/C/1399. html/1993fca0449.html.html (accessed on April 18, 2009). 63. General Comment 25, paras. 1–2. 76. Supreme Court of Canada, Reference re 64. General Comment 25, para. 6. Secession of Quebec [1998] 2 S.C.R. For contempo- 65. Franck and Thiruvengadam, this volume. rary reactions, see David Schneiderman, ed., The 66. When the UNCHR claimed a determina- Quebec Decision: Perspectives on the Supreme Court tive status for its own decisions (General Comment Ruling on Secession (Toronto: James Lorimer, 1999), 24, 2 November 1994, CCPR/C/21/Rev.1/Add.6., esp. Alan C. Cairns, “The Constitutional Obliga- para. 11), there was a speedy counterblast in defense tion to Negotiate,” chap. 14. of national sovereignty. The UNCHR asserted: “The 77. See, e.g., the attempt to work out how Committee’s role under the Covenant . . . necessar- the Reference might be applied in the Sri Lankan ily entails interpreting the provisions of the Cov- situation, in Andrew Pilliar, “Canada’s Unwritten enant and the development of a jurisprudence.” The Constitutional Principles and Their Relevance to U.S. government replied that the comment “appears Sri Lanka,” Moot Point: Legal Review 2003–2004, to go much too far” and denied any binding status vol. 7 (Colombo: Centre for Policy Alternatives, for the committee’s interpretations.The UK govern- 2005), pp. 103–11. Ran Hirschl has noted the im- ment suavely noted that it was “of course aware that pact of the Reference in “other fragmented polities the general comments adopted by the Committee (Spain, Britain, Belgium, India, France, Cyprus, Sri are not legally binding. They nevertheless command Lanka, Bolivia),” in “Canada’s Contribution to the great respect,” and then adapted the language of the Comparative Study of Rights and Judicial Review,” committee’s assertion above to conclude that “the paper presented at the Canadian Political Science ©Committee Copyright must necessarily be able to bytake a view,” the Endowment of Association, London, Ontario, June 2005, p. 26. a subtle shift of tone which negated the UNCHR’s authority. See UN, Report of the Human Rights Com- 78. Reference re Secession of Quebec, para. 67. mittee,the vol. 1,United General Assembly, OfficialStates Records, Institute79. Reference re Secession of of QuebecPeace, paras. Fiftieth Session, Supplement no. 40 (A/50/40), pp. 68–69. 126, 130. 80. Reference re Secession of Quebec, para. 65. 67. UNCHR, 1994 report, vol. 1, GAOR 81. Reference re Secession of Quebec, para 100. 49th Sess., Supp. no. 40 (A/49/40), para. 50, quoted 82. Doctors for Life International v. Speaker of in Henry J. Steiner and Philip Alston, eds., Interna- the National Assembly and Others, CCT 12/05 (2006), tional Human Rights in Context: Law, Politics, Mor- ZACC 11, 17, August 2006; Matatiele Municipal- als (Oxford: Clarendon Press, 1996), pp. 533–34. ity and Others v. President of the Republic and Others, 68. Marcia Rooker, “Monitoring Human CCT 73/05A (2006), ZACC 12, 18, August 2006. Rights: The Importance of the Universal Level for I am grateful to Professor Christina Murray for Roma and Sinti,” CPRSI Newsletter, vol. 3, no. 1 drawing my attention to these decisions. (February 1997), p. 9. The duty to facilitate involvement appears in 69. Franck and Thiruvengadam, this volume. the Constitution of South Africa at art. 59 (National 70. Steiner and Alston, eds., International Hu- Assembly), art. 72 (National Council of Provinces), man Rights in Context, p. 526; see pp. 522–35 for an and art. 118 (provincial legislatures). The Constitu- overview of the functions of General Comments. tion Twelfth Amendment Act of 2005 redrew pro- Framing the State in Times of Transition 49

vincial boundaries, with the effect of transferring ern Europe” that vary considerably in the degree of the local municipality of Matatiele from KwaZulu- citizen involvement. Natal to the Eastern Cape, which affected the pro- 92. Electoral standards have been the prime vision of public services to the municipality; art. 97 focus of discussions of the right to participation. See of the Matatiele decision notes that: “While it is litigation discussed above, and see also Thomas M. true that the people of the province have no right to Franck, “Legitimacy and the Democratic Entitle- veto a that alters provin- ment,” and Gregory H. Fox, “The Right to Politi- cial boundaries, they are entitled to participate in its cal Participation in International Law,” in Fox and consideration in a manner which may influence the Roth, eds., Democratic Governance and International decisions of the legislature.” Law, chaps. 1 and 2. 83. Doctors for Life, from para. 90. The court 93. See Harry Eckstein, A Theory of Stable De- had begun to develop arguments about democratic mocracy (Princeton, NJ: Woodrow Wilson School participation in the earlier case of Minister of Health of Public and International Affairs, Princeton Uni- and Another v. New Clicks South Africa (Pty) Ltd., versity, 1961), for the classic statement. Giovanni CCT 59/04A (2005), ZACC 25, 30 September, Sartori points out that while stable, in the sense of 2005, but with reference to secondary legislation, permanent, democracy must be a good thing, this is not to primary legislation as in Doctors for Life or often mistakenly construed as meaning stable gov- constitutional amendment as in Matatiele. ernment. See his Comparative Constitutional Engi- 84. Doctors for Life, para. 101, and the support- neering, pp. 111–14. ing opinion by Justice Albie Sachs, paras. 227–35. 94. In a particularly strong critique of the 85. Doctors for Life, para. 115. international law approach to democracy, Susan 86. Doctors for Life, paras. 125–29. Marks alleges that “international legal scholars . . . 87. Proposals concerning the recognition of precisely do not identify democracy with a concept traditional health practitioners and facilities for the or ideal of self-rule on a footing of equality among termination of pregnancies generated wide interest; citizens. Rather they largely elide democracy with a bill concerning the licensing of dental technicians certain liberal ideas and institutions [and] attenu- did not. The first two were declared invalid, the third ate the emancipatory and critical force that democ- allowed to stand. racy might have.” Susan Marks, “International Law, 88. Doctors for Life, paras. 159–62. ­Democracy and the End of History,” in Fox and 89. Matatiele, para. 67. Roth, eds., Democratic Governance and International Law, p. 533; for a similar criticism, see also Brad 90. Matatiele, para. 68. Both decisions were R. Roth, “Evaluating Democratic Progress,” in the written by Justice Ngcobo. same volume, chap. 17. A strong criticism of the © Copyright91. Constitutional amending by processes, the which EndowmentAmerican constitutional system on the of same lines have not been addressed in this chapter, are analo- is by Robert A. Dahl, How Democratic Is the Ameri- gous but usually may be differentiated from consti- can Constitution? (New Haven, CT: Yale University thetution United making as concerned withStates relatively limited InstitutePress, 2001). of Peace adjustments to existing texts rather than creating 95. See, e.g., Edward Said, “The Politics of new regimes. This is the same distinction between Partition,” Progressive, vol. 63 (December 1999), pp. mega- and piecemeal constitutional politics made 18–19; Robin Luckham, Anne Marie Goetz, and in Russell, Constitutional Odyssey. The participation Mary Kaldor, “Democratic Institutions and Demo- debate has impinged less on discussion of amending cratic Politics,” in Sunil Bastian and Robin Luck- processes, which has been more prone to leave the ham, eds., Can Democracy Be Designed? The Politics of process to legislatures, perhaps requiring superma- Institutional Choice in Conflict-Torn Societies (Lon- jorities and only in some places and circumstances don: Zed Books, 2003), chap. 1. requiring referendums for ratification. See essays in Sanford Levinson, ed., Responding to Imperfection: 96. Interview with José Zalaquett by Naomi The Theory and Practice of Constitutional Amendment Roht-Arriaza, “The Need for Moral Reconstruction (Princeton, NJ: Princeton University Press, 1995), in the Wake of Past Human Rights Violations,” in including Akil Reed Amar’s observations on the Carla Hesse and Robert Post, eds., Human Rights in absence of direct public initiative or participation Political Transitions: Gettysburg to Bosnia (New York: in the U.S. system, and the appendix of “Amending Zone Books, 1999), p. 197. Provisions of Selected New Constitutions in East- 97. Tully, Strange Multiplicity, p. 211. 50 Vivien Hart

98. See, e.g., the works of Arend Lijphart, tutions or design of the process); and peace negotia- recently reviewed by him in “The Wave of Power- tions or decolonization conferences at 4.2 percent. Sharing ­Democracy,” in Andrew Reynolds, ed., 103. Catherine Barnes, “Democratizing Peace The Architecture of Democracy: Constitutional Design, Processes: Strategies and Dilemmas for Public Par- Conflict Management, and Democracy (Oxford: Ox- ticipation,” in Owning the Process: Public Participa- ford University Press, 2002), chap. 2 (see also other tion in Peacemaking, ed. Catherine Barnes, Accord essays in this volume); Donald L. Horowitz, “Con- no. 13 (2002), p. 2. stitutional Design: An Oxymoron?” in Ian Shapiro 104. Barnes, “Democratizing Peace Pro- and Stephen Macedo, eds., Designing Democratic cesses,” p. 2. See also Kate Fearon, Women’s Work: Institutions, Nomos XLII (New York: New York The Story of the Northern Ireland Women’s Coalition University Press, 2000), chap. 9; Sartori, Compara- (Belfast: Blackstaff Press, 1999), chaps. 1, 2. tive Constitutional Engineering; and critical essays 105. Chambers, “Contract or Conversation?” in Bastian and Luckham, eds., Can Democracy Be p. 156. Designed? 106. Figure provided by the project director, 99. See Hanna Fenichel Pitkin, The Concept Professor Jennifer Widner, July 2005. of Representation (Berkeley: University of California Press, 1972). 107. See Lawrence LeDuc, “Theoretical and Practical Issues in the Study and Conduct of 100. See e.g., Graham Hassall and Cheryl Initiatives and Referendums,” prepared for dis- Saunders, Asia-Pacific Constitutional Systems (Cam- cussion at the International IDEA Workshop on bridge: Cambridge University Press, 2002), chap. Direct Democracy, London, March 13–14, 2004, 5; Shireen Hassim, “Representation, Participation, p. 1., available at www.idea.int/news/upload/direct_ and Democratic Effectiveness: Feminist Challenges democracy.pdf (accessed on April 18, 2009). to in South Africa,” in Goetz and Hassim, eds., No Shortcuts to Power, pp. 108. Chambers, “Contract or Conversation,” 81–109; and Kishali Pinto-Jayawardena, “Propor- p. 149. tional Representation, Political Violence, and the 109. A particular problem when the vote is Participation of Women in the Political Process in on an entire constitution. Referendums on single Sri Lanka,” and Jon Fraenkel, “Electoral Engineer- constitutional amendments often give a more re- ing and the Politicization of Ethnic Friction in Fiji,” liable verdict, e.g., the vote to end the role of the both in Bastian and Luckham, eds., Can Democracy monarchy in (where voting in referen- Be Designed? dums as in elections is compulsory), rejected by 55 101. Commonwealth Human Rights Ini- percent (see www.statusquo.org), or the simultane- tiative (CHRI), Constitutionalism: Best Practices ous votes in Ireland and Northern Ireland to accept of Participatory Constitution-Making, available at the Belfast Agreement, which received a 95 percent ©http://www.humanrightsinitiative.org/programs/ Copyright by theyes voteEndowment south of the border and a 71.2 percentof constitutionalism/practices.htm (accessed January yes vote with an 81 percent turnout in the north. 2003), arts. 4.4, 5.9. For a review of these issues See Quintin Oliver, “Developing Public Capacities fromthe a gendered United perspective, see States Anne Marie for Institute Participation in Peacemaking,” of in Peace Barnes, ed., Goetz, “Gender and Accountability,” in Dobrow- Owning the Process. sky and Hart, eds., Women Making Constitutions, 110. Robert Hazell, “The New Constitutional chap. 3. Settlement,” in Constitutional Futures: A History of 102. Figures provided by the project director, the Next Ten Years, ed. Robert Hazell (Oxford: Ox- Professor Jennifer Widner, July 2005. The project, ford University Press, 1999), p. 237. designed to support research on constitution mak- 111. Arend Lijphart, Democracies: Patterns of ing as a mode of conflict transformation, was spon- Majoritarian and Consensus Government in Twenty- sored by the U.S. Institute of Peace. Data are for One Countries (New Haven, CT: Yale University 194 cases, between 1975 and 2002, of constitution Press, 1984), p. 203; Mads Qvortrup, “Is the Ref- drafting that produced new constitutions or changes erendum a Constitutional Safeguard?” available in regime type (except those for which there was at www.iandrinstitute.org (accessed on April 18, no risk of violence). The remaining cases involved 2009). transitional legislatures (appointed) at 5.7 percent; 112. The USIP-sponsored database does not national conferences at 3.1 percent; roundtables at distinguish binding from advisory referendums. The 1.5 percent (usually responsible for interim consti- United Kingdom’s first ever referendum was held in Framing the State in Times of Transition 51

1975, on membership in the European Community. 118. Figures for abstention vary slightly in A series of subsequent referendums on devolution different sources. Brewer-Carias, in his chapter on proposals effectively “make it impossible for the Venezuela of this volume, gives 62.2 percent abstain- [sovereign] Parliament to abolish those assemblies ing in April, 57.7 percent in December; the Centre without their consent,” and have begun to establish d’études et de documentation sur la démocratie di- a precedent that this method should be used “to au- recte, Geneva, has 61 percent in April, 55.6 in De- thorize constitutional change.” Hazell, “The New cember; see http://www.c2d.ch/ (accessed April 18, Constitutional Settlement,” p. 236. 2009). 113. See LeDuc, “Theoretical and Practical 119. Marks, “International Law, Democracy Issues in the Study and Conduct of Initiatives and and the End of History,” p. 533. Referendums.” 120. Russell, Constitutional Odyssey, pp. 219, 114. The Zimbabwe Constitutional Referen- 227. dum, 12–13 February 2000: The Report of the Cen- 121. Ibid., p. 207. tre for Democracy and Development Observer Mission 122. The referendums held in France and (London and Lagos: CDD, 2000), p. 46. Guidelines Netherlands in April and May 2005, occurring be- and a list of polling stations were only released two tween regular elections, offered the opportunity to days before the vote (p. 46), while the authorities protest in France against President Chirac’s admin- busied themselves with “perfecting the voters roll” istration, and in the Netherlands against immigra- (p. 40). The draft constitution was only published in the Ndebele language two weeks beforehand, and tion policies. See, e.g., “The French and Dutch say the English text “was sold at a price not affordable no” and “After the French and Dutch referendums,” by many” (p. 39). Economist, June 2, 2005. 115. Figures from BBC News, May 27, 2003; 123. Masipula Sithole and Charles Man- this is the most conservative estimate from news re- gongera, “Why the Referendum Rejected the Draft ports. Details of the two-year program are on the Constitution: A Public Opinion Survey,” Agenda, Web site of the constitutional commission at www. vol. 4, no. 1 (March 2001). cjcr.gov.rw/eng/ (accessed on April 18, 2009). Ac- 124. The Zimbabwe Constitutional Referen- tivities included training programs, the residences dum, p. 44. See also the chapter on Zimbabwe by of constitutional commissioners in the districts, the Muna Ndulo in the present volume, which elabo- circulation of drafts in French, English, and Kin- rates upon the context and the reality of presi- yarwanda, and the preparation of visual material. dential power sheltered behind a facade of public Early in the process, the Inter-Parliamentary Union participation. sponsored a meeting to address the special needs of 125. Experiments in participation range from © Copyrightwomen; see I-PU, “A New Gender-Sensitive by the Con- EndowmentNicaragua (1986), Brazil (1988), Colombia of (1991), stitution for Rwanda,” www.ipu.org/english/press Uganda (1986–95), South Africa (1992–96), and doc/gen121.htm (accessed May 7, 2009). Eritrea (1994–97) to Albania in 1998, and Rwanda the 116.United In Spain, on December States 6, 1978, 67.11 Institutein 2002–03. In addition ofto chapters Peace in this volume, percent of eligible voters cast votes, and 87.87 per- see Bereket Habte Selassie, “The Eritrean Experi- cent of the votes cast were in favor of the constitu- ence in Constitution Making: The Dialectic of Pro- tion; see Andrea Bonime-Blanc, Spain’s Transition cess and Substance,” in The Architecture of Democracy, to Democracy: The Politics of Constitution-Making ed. Andrew Reynolds (Oxford: Oxford University (New York: Studies of the Research Institute of Press, 2002), chap. 12; and Carlson, “Politics, Pub- Columbia University, 2003), p. 62. In Poland’s 1997 lic Participation, and the 1998 Albanian Consti- referendum, held on May 25, 1997, after years of tution,” p. 506. There seems to be no escaping the elite debate, party division, and Catholic Church fact that informed elites are bound to take a lead in opposition, only 42.68 percent of voters cast votes, devising programs, though there is escape from the 52.7 of them voting for the constitution, which was worst kinds of external intervention. On the latter, duly promulgated; see Lech Garlicki chapter on Po- see opposing views from Nicolas Guilhot, Democ- land in this volume. racy Makers: Human Rights and International Or- 117. Scott Carlson, “Politics, Public Partici- der (New York: Columbia University Press, 2005), pation, and the 1998 Albanian Constitution,” Os- and Louis Aucoin, “The Role of International Ex- teuropa Recht (December 1999), p. 506. perts in Constitution-Making: Myth and Reality,” 52 Vivien Hart

Georgetown Journal of International Affairs, vol. 5, no. Outcomes of Participatory Constitution Making (Ann 1 (Winter–Spring 2004), pp. 33–49. Arbor: University of Michigan Press, 2008). 126. Figures provided by the project director, 131. Figures provided by the project director, Professor Jennifer Widner, July 2005. Professor Jennifer Widner, July 2005. She cautions 127. ICCPR art. 25: “Every citizen shall have that these figures are only indicative. In many cases, the right and the opportunity . . . to take part in records are incomplete and certainly underestimate the conduct of public affairs”; compare the earlier the incidence. They also do not record independent Universal Declaration of Human Rights, Art. 21: activity by the media. “Everyone has the right to take part in the govern- 132. A detailed account and evaluation of ment of his country” (emphasis mine). The General the very complex South African process appears Comment on art. 25 notes the contrast to “other in Hassen Ebrahim and Laurel Miller’s chapter on rights and freedoms recognized by the Covenant South Africa in the present volume. (which are ensured to all individuals within the ter- 133. Christina Murray, “Negotiating beyond ritory and subject to the jurisdiction of the State)” Deadlock: From the Constitutional Assembly to and proposes that “State reports should outline the the Court,” in Andrews and Ellmann, eds., Post- legal provisions which define citizenship,” which Apartheid Constitutions, pp. 106–07. See also the must accord with the nondiscrimination precepts of detailed account of the process, including the dif- art. 25; Human Rights Committee, “The Right to ficulties of dealing with the submissions, by Eldred Participate in Public Affairs, Voting Rights and the de Klerk, “South Africa’s Negotiated Transition: Right of Equal Access to Public Service (Art. 25): Context, Analysis, and Evaluation,” in Owning the 12/17/96,” CCPR General Comment 25, para. 3. Process, pp. 7–8. 128. Whereas possession of a number of 134. Murray, “Negotiating beyond Dead- rights is now based upon residency, citizenship lock,” p. 107. criteria might, for example, be affected by national 135. South Africa Constitutional Assembly, boundary disputes; exclude longtime resident aliens, You and the Constitution (Cape Town: Constitu- migrant, nomadic, indigenous peoples, or children tional Assembly, 1996). This was a classic piece of of noncitizens; or include detached diaspora popula- civic education, portraying in vivid sketches a rep- tions or the beneficiaries of grandfather clauses. See resentative group of citizens, bags under their eyes Ghai, Public Participation and Minorities, pp. 10–11; from negotiating under the stars, who have made Mark Tushnet, “Partial Membership and Liberal “lots of compromises” to achieve “a big step towards Political Theory,” in Christina Duffy Burnett and a united South Africa!” The same cartoon charac- Burke Marshall, eds., Foreign in a Domestic Sense ters used in Constitutional Talk conveyed “a delight- (Durham, NC: Duke University Press, 2001), pp. ful racial ambiguity,” and “a sense of joyous excite- 209–25; David Jacobson, Rights across Borders: Im- ment about our emerging democracy,” according to ©migration Copyright and the Decline of Citizenship by (Baltimore: the Murray, Endowment “Negotiating beyond Deadlock,” p. 108. of Johns Hopkins University Press, 1996); and Hassall 136. See, e.g., Bereket Habte Selassie, The and Saunders, Asia-Pacific Constitutional Systems, Making of the Eritrean Constitution: The Dialectic pp.the 46, 241–48. United Statesof ProcessInstitute and Substance (Trenton, of NJ, andPeace Asmara: 129. A classic example of the consequences Red Sea Press, 2003), pp. 37–44, 58–62, 73–78. of such exclusion is described in Jonathan Morrow, 137. John Mary Waliggo, “The Uganda Iraq’s Constitutional Process II: An Opportunity Lost, ­Constitution-Making Process and Implementation: Special Report 155 (Washington, DC: U.S. Institute Lessons Learnt, 1986–2001,” unpublished paper in of Peace, 2005), with reference to the Sunni Arabs; the author’s possession, for the USIP Project on on this point, see especially “Imbalanced Negotiat- Constitution-Making, Peace Building, and National ing Capacity,” pp. 12–13. Morrow elaborates upon Reconciliation, March 28, 2003, p. 19. The review this example in his chapter in the present volume. commission for the included 130. See Devra Coren Moehler, “Participa- among its frequently asked questions, “What will tion and Support for the Constitution in Uganda,” the new constitution contain? This will depend on Journal of Modern African Studies, vol. 44 (2006), the views of the people.” A public consultation in pp. 275–308, in which she concludes that participa- Sri Lanka found similar demands for recognition tion can teach citizens about the constitution even of social rights. See International Centre for Ethnic if it does not guarantee popular support. A full ac- Studies, Final Draft Report: Public Consultations on count appears in her book, Distrusting Democrats: the Constitution (Colombo: ICES, 2005). Framing the State in Times of Transition 53

138. Tripp more fully discusses Uganda’s Freedoms in 1982; see, e.g., Michael Lusztig, “Con- flawed process in the present volume. stitutional Paralysis: Why Canadian Constitutional 139. Goetz, “The Problem with Patronage,” Initiatives Are Doomed to Fail,” Canadian Journal p. 117. of Political Science, vol. 27 (December 1994), pp. 140. On Uganda, see Waliggo, “The Uganda 747–71; Matthew Mendelsohn, “Public Brokerage: Constitution-Making Process,” and Tripp in this Constitutional Reform and the Accommodation volume; on Mali, Kåre Lode, “The Regional Con- of Mass Publics,” Canadian Journal of Political Sci- certations Process: Engaging the Public,” in Owning ence, vol. 33 ( June 2000), pp. 245–72. In other cases the Process; on Rwanda, Legal and Constitutional where participation is viewed critically, the prob- Commission, “Towards a Constitution for Rwanda, lem is located in the way the process is structured Action Plan 2002–2003,” April 2002, www.cjcr.gov. and executed, as in the study of Brazil’s constitu- rw/eng/ (accessed on April 18, 2009); on ­Kenya, tion making by Keith Rosenn in this volume. Here Constitution of Kenya Review Commission at a solution can in principle be found in improved practice. www.commonlii.org/ke/other/KECKRC/ (accessed April 18, 2009); on Nicaragua, Andrew Reding, “ ‘By 149. Moehler, “Participation and Support for the People’: Constitution Making in Nicaragua,” the Constitution in Uganda.” See also her argument Christianity and Crisis, vol. 46 (December 8, 1986), that “participation can create informed distrusting pp. 434­–41; and on Fiji, Jill Cottrell and Yash Ghai democrats—knowledgeable citizens who possess in this volume. democratic attitudes but distrust their government institutions,” in “Informed Distrusting Democrats: 141. For example, women’s activities reported The Effect of Participatory Constitution-Making,” for Rwanda, “Seminar on the Process of Engender- unpublished paper, 2005, p. 1, as well as her book, ing a New Constitution for Rwanda”; Women for Distrusting Democrats (Ann Arbor, MI: University Women International, Our Constitution, Our Future: of Michigan Press, 2008). On the valuable role of Enshrining Women’s Rights in the Iraqi Constitution, distrusting democrats, see Vivien Hart, Distrust Dead Sea, Jordan, June 27–28, 2005, available at and Democracy (Cambridge: Cambridge University www.womenforwomen.org (accessed on April 18, Press, 1978). 2009). 150. Moehler, “Participation and Support 142. James N.C. Paul, “The Reconstitution of for the Constitution in Uganda.” Miria Matembe, Ethiopia: 1991–1994: A Procedural History,” un- comment at UN International Peace Academy published paper for USIP Project on Constitution- workshop on governance and power after conflict, Making, Peace Building, and National Reconcili- Greentree, New York, May 27–29, 2005. ation, pp. 33–34, in author’s possession. Meetings for women and elders described in “The Making of 151. Briefly summarized in Hart, the Constitution,” www.ethiospokes.net/Backgrnd/ “Constitution-Making and the Transformation of © Copyrightb1011981.htm (accessed January by 2003). the EndowmentConflict,” pp. 161–62. See also of Beverley Baines, “Using the Canadian Charter of Rights and Free- 143. Murray, “Negotiating beyond Dead- doms to Constitute Women,” in The Gender of Con- lock,” p. 112. the United States Institutestitutional Jurisprudence , of eds. BeverleyPeace Baines and 144. Ibid., p. 113. Ruth Rubio-Marin (Cambridge: Cambridge Uni- 145. Moehler, “Participation and Support for versity Press, 2005), chap. 2. the Constitution in Uganda.” 152. Keith S. Rosenn in this volume. 146. Paul, “The Reconstitution of Ethiopia: 153. Reding, “‘By the People,’” pp. 7–8. 1991–1994: A Procedural History,” p. 1. 154. Note the UN General Assembly Dec- 147. Dias, Peacebuilding: International Law laration on the Elimination of Violence Against and Constitution-Making, p. 6. Women 1993, GA Res 48/104; examples in re- 148. Some literature implies that public par- gional conventions of rights noted in Fareda Banda, ticipation will be inherently flawed because the Women, Law and Human Rights: An African Perspec- nature of a mass public renders it incapable of the tive (Oxford: Hart, 2005), chap. 5, esp. pp. 161–65; reasoned and moderate input required for effective cross-community demands for constitutional guar- constitution making. An example of such views antees as found in Sri Lanka, see International is found in postmortems on the inconclusive but Centre for Ethnic Studies, Final Draft Report: prolonged constitutional debate that followed in- Public Consultations on the Constitution, pp. 14–15. troduction of the Canadian Charter of Rights and See also Kenneth Roth, “Domestic Violence as a 54 Vivien Hart

Human Rights Issue,” in Human Rights of Women: 163. See, e.g., Michele Brandt, Constitu- National and International Perspectives, ed. Rebecca tional Assistance in Post-Conflict Countries: The UN Cook (Philadelphia: University of Pennsylvania Experience: Cambodia, East Timor and Afghanistan, Press, 1994), chap. 13. Report for the UN Development Programme, 155. Martha I. Morgan, “Gender Juris- June 2005; Morrow, Iraq’s Constitutional Process II, prudence under the Colombian Constitution,” in pp. 13–14. Baines and Rubio-Marin, eds., The Gender of Con- 164. UN Electoral Assistance Division, avail- stitutional Jurisprudence, pp. 75–76. able at www.un.org/Depts/dpa/ead/index.shtml 156. Reding, “ ‘By the People,’ ” pp. 7–8. (accessed April 18, 2009). 157. Joyce Green, “Balancing Strategies: Ab- 165. Paul, “The Reconstitution of Ethiopia,” original Women and Constitutional Rights in Can- p. 40. ada,” in Women Making Constitutions, p. 42. 166. See details of criteria and activities on 158. Catherine Albertyn, “Towards Substan- Web sites in addition to the United Nations: Inter- tive Representation: Women and Politics in South Parliamentary Union, “Declaration on Criteria for Africa,” in Women Making Constitutions, p. 99. Free and Fair Elections,” 1994, available at www.ipu. 159. Margot E. Salomon, ed., Economic, org/cnl-e/154-free.htm (accessed April 18, 2009); Social and Cultural Rights: A Guide for Minorities Organisation for Security and Cooperation in Eu- and Indigenous Peoples (London: Minority Rights rope, Office for Democratic Institutions and Human Group International, 2005). For a trenchant criti- Rights, Denis Petit, “Resolving Election Disputes in cism of constitutions that have stigmatized social the OSCE Area: Towards a Standard Election Dis- groups by ignoring or excluding their identities and pute Monitoring System,” available at www.osce. needs, see Cairns, “Constitutional Stigmatization,” org/odihr/item_11_13590.html (accessed on April in Identity, Rights, and Constitutional Transforma- 18, 2009). In addition to many general elections, the tion, pp. 13–38. OSCE-ODIHR monitored constitutional referen- dums in Azerbaijan in 1995 and Albania in 1998. 160. Marshall et al. v. Canada, para. 5. 167. Steiner, “Political Participation as a Hu- 161. Franck and Thiruvengadam in this man Right,” pp. 77–78. volume. 168. See, e.g., the USIP project reported in 162. A place to start might be in the provi- this volume; CHRI, Constitutionalism: Best Practices sions made for amending constitutions (see note 84 of Participatory Constitution-Making; International above). Whether makers of new constitutions are IDEA, Constitution Building Programme, Decem- obligated to follow procedures laid down in texts ber 2005, available at www.idea.int/ (accessed on they seek to replace entirely is a different question; April 18, 2009). megaconstitutional politics is more likely to make ©its own Copyright rules. A case in point is whether by the Cothe- Endowment169. CHRI, Constitutionalism: Best Practices of lombian constitution of 1991 “was illegally ­adopted, of Participatory Constitution-Making, para. 4, listing in violation of the amending clause of the 1886 fourteen requirements. Constitution,”the United as discussed in Banks States and Alvarez, Institute170. CHRI, Constitutionalism: of BestPeace Practices “The New Colombian Constitution,” p. 42. In this of Participatory Constitution-Making, para. 5, listing volume, see Ebrahim and Miller for South African twelve requirements. provisions for bridging the transition from one con- 171. Peter Hennessy, The Hidden Wiring: Un- stitutional regime to another, and Ndulo’s discus- earthing the British Constitution (London: Gollancz, sion on amending procedures in Zimbabwe. See 1995), p. 3; G.H.L. LeMay, quoted in Hennessy, also Arato, Civil Society, Constitution, and Legiti- p. 33. macy, (Lanham: Rowman & Littlefield Publishers, Inc., 2000), pp. 129–38.