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PUBLIC PARTICIPATION IN

CONSTITUTION DRAFTING:

COMPARATIVE STATE PRACTICE

Legal Memorandum

2012


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PUBLIC PARTICIPATION IN CONSTITUTION DRAFTING:


Executive Summary

The purpose of this memorandum is to identify and analyze, through

comparative state practice, methods to facilitate public participation in the

constitution drafting process. A participatory constitutional process emphasizesthe importance of public participation in the constitutional drafting process as a

means to promote legitimacy and encourage citizen engagement in government.

Public participation refers both to the publics passive receipt of information

regarding the constitution through educational efforts, and the publics active

involvement in meetings and consultations. The constitution drafting body mayfactor input obtained through these meetings into the draft and final

constitutions.

States may employ a variety of methods to reach and include members of

the public, from community meetings and workshops, to radio and television

programming, to fliers and pamphlets, to social networking sites. Utilizing non-print forms of communication and taking steps to translate printed information

into numerous relevant languages can enable a state to reach a larger proportion

of its population, thereby increasing the level of overall participation in theprocess.

States may find soliciting input from the public at multiple stages of the

constitution drafting process useful. States can invite written submissions and

obtain oral testimony at public meetings, and develop questionnaires to identify

key constitutional issues important to the population. States may also

encourage alternative information sources and widespread representation inpublic discussions to prevent perceptions of bias. Organizing public responses

in a database can help the constitution drafting body to meaningfully considerthe publics views.

Public participation in the process can yield many benefits. Importantly,

the perception that the constitutional drafting body satisfactorily included thepublic in the process may enhance peoples acceptance of and sense of

ownership in the new constitution.


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PUBLIC PARTICIPATION IN CONSTITUTION DRAFTING:


Statement of Purpose

The purpose of this memorandum is to identify and analyze, through

comparative state practice, methods to facilitate public participation in the

constitution drafting process.

Introduction

States may emphasize public participation in the constitutional drafting

process as a means to promote legitimacy and encourage citizen engagement ingovernment. Typically, the process comprises a public education phase and a

public consultation phase. At the public education stage, the government seeks

to educate citizens about the role of a constitution, constitutional processes, andhow they may participate in public consultation efforts. In the public

consultation phase, the government encourages state-wide dialogue on

constitutional issues through solicitation for feedback from the public, and may

then synthesize such comments and incorporate them into the constitution.

Initiatives to educate the populace about constitutional changes may take

a wide variety of forms: community meetings, workshops, radio and televisionprograms, telephone hotlines, email, websites, songs and poems, theatre

performances, cartoons, fliers, pamphlets, and newsletters. Translating the

information presented to the public into as many local languages as possibleallows the communications to reach a greater percentage of the population.

Furthermore, non-printed forms of communication can help deliver information

to illiterate segments of society.

Public meetings can function as both an educational platform and as

effective means for the gathering of public feedback regarding a constitution.States may find it useful to solicit input in the form of written submissions, oral

testimony obtained at public meetings, or questionnaires about key

constitutional issues. A database that organizes public comments may assist the

constitution drafting body in effectively considering and incorporating the

publics views. The publics general perception that the constitution draftingbody adequately included them in the process may enhance peoples sense of

ownership in and support for the new constitution.


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Television and Radio Programming

Television and radio programs can serve as effective means of

communicating information regarding the constitution and constitutional issues

to the public. Many states develop programs, broadcast at varying intervals andfrequencies, to educate and involve their respective populaces in the constitution

drafting process. Radio programming can be particularly effective at providing

access to rural populations that otherwise are difficult to engage.1 These forms

of media can reach large portions of a states citizenry, and a state can enhance

this reach further by translating the information presented into all the languages

used throughout a state.2

South Africa

While emerging from apartheid, South Africas constitutional assembly

faced difficulties in promoting public participation in the drafting process of the

1996 Constitution.3 However, the assembly still implemented a successful

public participation process that observers praised as crucial to the successful

transition from the oppressive policies of the apartheid-era to genuine

democracy.4 South Africas constitutional assembly employed a number of

methods to engage the public in the constitution drafting process, including a

state-wide media campaign that many regard as one of the most successful stateefforts to inform and involve the public.

5 Whenever possible, the government

translated information into all the states languages.6 According to estimates,these educational efforts reached 73% of the South African population.

7

The South African constitutional assembly used television programming,among other means, to help promote public awareness of the constitutional

process. Authorities broadcast a total of 25 television programs for six months

1Commonwealth Human Rights Initiative,Promoting a Culture of Constitutionalism and Democracy in

Commonwealth Africa: Recommendations to Commonwealth Heads of Government, 21 (1999), available athttp://www.humanrightsinitiative.org/publications/const/constitutionalism_booklet_1999.pdf.2Hassen Ebrahim, THE SOUL OF ANATION:CONSTITUTION-MAKING IN SOUTH AFRICA, chapter 13 (2000),

available at http://www.sahistory.org.za/pages/library-resources/onlinebooks/soul-of-nation-

constitution/chapter13.htm.3Hassen Ebrahim, THE SOUL OF ANATION:CONSTITUTION-MAKING IN SOUTH AFRICA, chapter 13 (2000),


constitution/chapter13.htm.4Vivien Hart,Democratic Constitution Making, UNITED STATES INSTITUTE OF PEACE,7(July 2003), available

at http://www.usip.org/files/resources/sr107.pdf.5Jeremy Sarkin, The Drafting of South Africas Final Constitution From a Human Rights Perspective, 47 No. 1

The American Journal of Comparative Law 67, 71 (Winter 1999).6Specifically, the draft constitution was translated into all 11 official languages of South Africa. Jeremy Sarkin,

The Drafting of South Africas Final Constitution From a Human Rights Perspective, 47 No. 1 The AmericanJournal of Comparative Law 67, 70 (Winter 1999).7Vivien Hart,Democratic Constitution Making, UNITED STATES INSTITUTE OF PEACE,7(July 2003).


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in 1995 and 12 programs in three months in 1996.8 In these programs,

representatives from civil society groups debated multiparty panels of

constitutional assembly members regarding important aspects of the

constitution.9 Topics covered in these debates included the bill of rights,

separation of powers, the state anthem and flag, freedom of expression,traditional authorities, and the death penalty.

10 These televised debates proved

to be an effective educational tool, as 76% of the programs viewers said they

had learned from the program.11

The South African constitutional assembly also involved the publicthrough radio programming.

12 This proved to be a particularly effective

mechanism for public involvement because of its capacity to reach people in

urban and rural areas. The radio programming consisted of a weekly, hour-long

radio talk show, in which constitutional experts appeared as guests to educate tothe public.13 Eight different radio stations broadcast the weekly program in

eight different languages.14

These radio programs were quite popular and

reached ten to twelve million people each week.15

Radio functioned as an

important way to overcome the challenge of disseminating information to South

Africas large rural population, many of whom were illiterate and did not have

access to print media.16

Rwanda

Rwanda also used television and radio programs to inform its citizens ofproposed constitutional changes. For instance, the constitutional commission

broadcast a live talk show on public television and radio.17

The objective of the

four-hour program was to explain the draft constitution to the public before the

commission submitted it for a referendum eight days later. Members of the

8Hassen Ebrahim, THE SOUL OF ANATION:CONSTITUTION-MAKING IN SOUTH AFRICA, chapter 13 (2000),


constitution/chapter13.htm.9Commonwealth Human Rights Initiative,Promoting a Culture of Constitutionalism and Democracy in

Commonwealth Africa: Recommendations to Commonwealth Heads of Government, 21 (1999), available athttp://www.humanrightsinitiative.org/publications/const/constitutionalism_booklet_1999.pdf.10

Hassen Ebrahim, THE SOUL OF ANATION:CONSTITUTION-MAKING IN SOUTH AFRICA, chapter 13 (2000).11

Hassen Ebrahim, Constitution-Making in South Africa: A Case Study, 19, n. 27 (July 9, 1999), available at

http://www.dastuur.org/eng/index.php?option=com_docman&task=doc_download&gid=76&Itemid=15912

Jeremy Sarkin, The Drafting of South Africas Final Constitution From a Human Rights Perspective, 47 No. 1

The American Journal of Comparative Law 67, 71 (Winter 1999).13

Commonwealth Human Rights Initiative,Promoting a Culture of Constitutionalism and Democracy in

Commonwealth Africa: Recommendations to Commonwealth Heads of Government, 21 (1999).14Commonwealth Human Rights Initiative,Promoting a Culture of Constitutionalism and Democracy inCommonwealth Africa: Recommendations to Commonwealth Heads of Government, 21 (1999).15


Commonwealth Africa: Recommendations to Commonwealth Heads of Government, 21 (1999).16

Hassen Ebrahim, THE SOUL OF ANATION:CONSTITUTION-MAKING IN SOUTH AFRICA, chapter 13 (2000).17Angela M. Banks, Challenging Political Boundaries in Post-Conflict States, 29 UNIVERSITY OF

PENNSYLVANIA JOURNAL OF INTERNATIONAL LAW105, 126 (2007).


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constitutional commission, representatives of the national assembly, and thepresident of the electoral commission all participated in the program, and

Rwandans could use free telephone lines to call in and provide feedback on the

draft constitution.18

Rwandas public outreach program helped lead to broad

participation in the constitutional process: An estimated 90% of the populationvoted in the constitutional referendum, with 93% voting in favor of its

adoption.19

This result is a testament to the governments careful planning and

devotion of considerable time and resources to implementing the process, which

most observers consider a success.20

Eritrea

Eritreas constitutional commission likewise employed radio

programming, along with other non-print forms of communication, as a meansto reach members of its population to educate them about the new constitution.21

Radio in Eritrea was particularly effective in disseminating information to rural

communities and to its illiterate citizens, who comprise about 20% of thepopulace.

22 Eritreas constitutional commission utilized these radio programs

along with other forms of non-printed communication like songs, poetry, oral

recitations of short stories, and plays, to educate citizens on their rights and

duties, the limits on the governments power, and responsibilities the

government owes its citizens.23

Many view the public education campaign inEritrea as one of the most effective in the world at accomplishing its goals.

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Lessons Learned

Radio and television can serve as effective means of communicatinginformation regarding the constitution drafting process to the public,

particularly when illiteracy rates are high. It is typically more beneficial to

establish regularized television and radio programs, as opposed to only sporadic

or infrequent programming, in order to build audience loyalty and engagement

with the constitutional issues.25

Such programs can become popular and

18Priscilla Yachat Ankut, The Role of Constitution-Building Processes in Democratization, INTERNATIONAL

IDEA, 18 (2005), available at http://www.idea.int/cbp/upload/CBP-Rwanda.pdf.19

Vivien Hart,Democratic Constitution Making, UNITED STATES INSTITUTE OF PEACE, 9 (July 2003), available

at http://www.usip.org/files/resources/sr107.pdf.20

SeeUnited States Institute of Peace,Iraqs Constitutional Process: Shaping a Vision for the States Future, 8

(Feb. 2005), available at http://www.usip.org/files/resources/sr132.pdf.21Bereket H. Selassie, Creating a Constitution for Eritrea, 9 JOURNAL OF DEMOCRACY164, 168 (1998).22

Bereket H. Selassie, Creating a Constitution for Eritrea, 9 JOURNAL OF DEMOCRACY164, 168 (1998).23


See United States Institute of Peace,Iraqs Constitutional Process: Shaping a Vision for the States Future, 8

(Feb. 2005).25Vivien Hart,Democratic Constitution Making, UNITED STATES INSTITUTE OF PEACE,7(July 2003), available

at http://www.usip.org/files/resources/sr107.pdf.


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stimulate dialogue and public input in the constitution drafting process.26

Translating the programming into as many relevant languages as practicable

will enlarge the scope of people receiving the information and demonstrate a

states commitment to a more inclusive drafting process.27

Newsletters, Plays, and Social Networking

Beyond television and radio programming, states can utilize other

methods to engage members of the public in the constitution drafting process.

Such methods may include telephone hotlines, email, official websites, songsand poems, theatre performances, cartoons, fliers, pamphlets, newsletters, or

social networking websites. States may find some forms of non-printed

communications advantageous in reaching reach illiterate members of the

population.

South Africa

South Africas constitutional assembly successfully employed a number

of methods other than radio and television to engage the public in the

constitution drafting process. For instance, the constitutional assemblypublished and disseminated free newsletters called Constitutional Talk (the

same name used for the radio and television programs), which educated the

public about issues related to the drafting process.28

Typically, the newsletter

was produced twice a month and roughly eight pages long.29 It was distributedto 160,000 people, with 100,000 of the copies distributed state-wide through

taxicab stands and the other 60,000 sent directly to subscribers.30

This

newsletter proved to be a valuable resource for South Africans who were

interested in following the constitution drafting process closely.31

Another novel method of reaching people was the Constitutional Talktelephone line. This service allowed individuals to call a telephone hotline to

26See Hassen Ebrahim, THE SOUL OF ANATION:CONSTITUTION-MAKING IN SOUTH AFRICA, chapter 13 (2000),


constitution/chapter13.htm (discussing the Constitutional Assemblys use of television programming).27

SeeCommonwealth Human Rights Initiative,Promoting a Culture of Constitutionalism and Democracy in

Commonwealth Africa: Recommendations to Commonwealth Heads of Government, 21 (1999), available at

http://www.humanrightsinitiative.org/publications/const/constitutionalism_booklet_1999.pdf.28

Hassen Ebrahim, THE SOUL OF ANATION:CONSTITUTION-MAKING IN SOUTH AFRICA, chapter 13 (2000),


constitution/chapter13.htm.29



Vivien Hart,Democratic Constitution Making, UNITED STATES INSTITUTE OF PEACE,7(July 2003).31

Commonwealth Human Rights Initiative,Promoting a Culture of Constitutionalism and Democracy inCommonwealth Africa: Recommendations to Commonwealth Heads of Government, 21 (1999), available at

http://www.humanrightsinitiative.org/publications/const/constitutionalism_booklet_1999.pdf.


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listen to a briefing on current constitutional and political discussions.32

Thehotline was available in five languages, and callers could also leave messages

registering their comments or requesting additional information. 10,000 people

took advantage of the Constitutional Talk telephone line.33

The South African constitutional assembly also employed comic strips,

cartoons, and posters encouraging its citizens participation in the constitutional

process. For instance, the government distributed one million copies of a

human rights comic to all schools and adult literacy organizations.34

The

government also engaged in an advertising campaign to promote public

awareness. One memorable slogan from the campaign was Youve made yourmark, [n]ow have your say.

35 This advertising campaign utilized newspapers

and billboards, as well.36

The constitutional assembly also created a website, which was one of the

first of its kind, to serve as a clearinghouse for information related to the

constitution drafting process.37

The constitutional assembly partnered with theUniversity of Cape Town, which maintained the site.

38 The website offered

visitors a database of minutes, drafts, opinions, and submissions of the

Constitutional Assembly.39

Observers viewed the project as a successful

vehicle to reach members of the public.40

Employing a wide array of media enabled the South African

constitutional assembly to reach a broad range of its population withinformation regarding the new constitution.

41 Observers praised as successful

32Hassen Ebrahim, THE SOUL OF ANATION:CONSTITUTION-MAKING IN SOUTH AFRICA, chapter 13 (2000),



Commonwealth Human Rights Initiative,Promoting a Culture of Constitutionalism and Democracy inCommonwealth Africa: Recommendations to Commonwealth Heads of Government, 21 (1999).34


Jeremy Sarkin, The Drafting of South Africas Final Constitution From a Human Rights Perspective, 47 No. 1

The American Journal of Comparative Law 67, 71 (Winter 1999).36

Hassen Ebrahim, THE SOUL OF ANATION:CONSTITUTION-MAKING IN SOUTH AFRICA, chapter 13 (2000).37Commonwealth Human Rights Initiative,Promoting a Culture of Constitutionalism and Democracy inCommonwealth Africa: Recommendations to Commonwealth Heads of Government, 21 (1999).38






Commonwealth Africa: Recommendations to Commonwealth Heads of Government, 21 (1999).41Vivien Hart,Democratic Constitution Making, UNITED STATES INSTITUTE OF PEACE,7(July 2003), available



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information about the new constitution.48

Authorities employed songs, poetry,oral recitations of short stories, and plays translated into numerous Eritrean

dialects.49

The government staged competitions for writers and artists to

participate in creating these communication vehicles. These means of

communication required substantial investment of resources by the government,but generally produced positive results.

50 The commission also used mobile

theaters to provide information to communities.51

In addition to non-printed media, the constitutional commission used

various printed forms of communication as part of the public education

campaign. For instance, the commission developed pamphlets detailingconstitutional issues and distributed them to the public.

52 Furthermore, the

commission translated the Universal Declaration of Human Rights and the

International Covenants on Civil and Political Rights and on Social, Economic,and Cultural Rights into multiple Eritrean vernaculars as part of the educational

campaign.53

In all, these communication efforts reached approximately a half

million Eritreans and bolstered public opinion regarding the constitutiondrafting process.

54

Iceland

Following Icelands economic meltdown in 2008, the Icelandicgovernment decided to undertake constitutional reform with direct public

participation.55 In 2010, the government held elections to select 25 citizens tosit on the Constitutional Council, which has the mandate of drafting revisions to

the constitution to submit to the Parliament.56

The Council has recently decided

to use modern social networking websites to promote greater publicparticipation in the constitutional reformation process. For instance, it has

created profiles and webpages on Facebook,57

Twitter,58

Flikr,59

and YouTube60

48Bereket H. Selassie, Creating a Constitution for Eritrea, 9 JOURNAL OF DEMOCRACY164, 168 (1998).

49Bereket H. Selassie, Creating a Constitution for Eritrea, 9 JOURNAL OF DEMOCRACY164, 168 (1998).

50

Andrew Reynolds, THE ARCHITECTURE OF DEMOCRACY:CONSTITUTIONAL DESIGN,CONFLICTMANAGEMENT,AND DEMOCRACY364 (2002).51

Vivien Hart,Democratic Constitution Making, UNITED STATES INSTITUTE OF PEACE,7(July 2003), available





Associated Press,Iceland to Elect Citizens Panel to Rewrite Constitution (Nov. 26, 2010), available at

http://www.guardian.co.uk/world/2010/nov/26/iceland-elect-citizens-rewrite-constitution. 56Associated Press,Iceland to Elect Citizens Panel to Rewrite Constitution (Nov. 26, 2010); Official Websiteof the Constitutional Council, The Role of the Constitutional Council(2011), available at

http://stjornlagarad.is/english/. 57

Stjrnlagar!,FACEBOOK, available at https://www.facebook.com/Stjornlagarad (last visited Jun. 28, 2011).58

Stjrnlagar!, TWITTER, available at http://twitter.com/#!/stjornlagarad (last visited Jun. 28, 2011).59Stjrnlagar!s Photostream, FLICKR, available at http://www.flickr.com/photos/stjornlagarad/ (last visited

Jun. 28, 2011).


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to present draft versions of Icelands new constitution to the public.61

TheConstitutional Council is also streaming all of its public meetings live on its

own website62

and posting interviews with Council members on its YouTube

page.63

Two-thirds of Icelands population is on Facebook and internet access

is widespread, so the Councils use of social networking is a logical means ofencouraging direct public participation in the states constitutional review.

64

The Constitutional Council plans to send a final draft to Icelands

parliament for debate and approval by August 2011.65

Since the states

constitutional review process is still underway, the effectiveness of this

innovative use of social networking remains to be seen.

Lessons Learned

Like radio and television, novel forms of communication may prove

crucial in allowing a state to reach illiterate or harder to reach segments of the

public and to promote the participation of this population in the constitutiondrafting process. These may include newsletters and pamphlets; call-in

telephone information lines; seminars and workshops; comic strips, posters, and

cartoons; websites; and theater, songs, poetry, and literature. Translation of the

information into as many of the languages used in the state as resources and

time permit is important for their effectiveness.66

Broader translation allows alarger proportion of the public access to the constitution drafting process and

facilitates meaningful participation. A creative advertising campaign, includingdevices such as catch-phrases and slogans, can help spark public interest and

60Stjrnlagar!s Channel, YOUTUBE, available at http://www.youtube.com/stjornlagarad (last visited Jun. 28,

2011).61

Official Website of the Constitutional Council, The Publics Participation in the Work Process (2011),

available at http://stjornlagarad.is/english/; Julia Zabley,Iceland Drafting New Constitution Using Website,

Social Media, JURIST (Jun. 10, 2011), available at http://jurist.org/paperchase/2011/06/iceland-drafting-new-

constitution-using-website-social-media.php.62Official Website of the Constitutional Council,Homepage: Video (2011), available at http://stjornlagarad.is;

The Stream, Crowdsourcing a Constitution in Iceland, AL JAZEERA(Jun. 23, 2011), available at

http://stream.aljazeera.com/story/crowdsourcing-a-constitution.63

Stjrnlagar!s Channel, YOUTUBE, available at http://www.youtube.com/stjornlagarad (last visited Jun. 28,

2011); Haroon Siddique,Mob Rule: Iceland Crowdsources its Next Constitution, THE GUARDIAN, Jun. 9, 2011,

available at http://www.guardian.co.uk/world/2011/jun/09/iceland-crowdsourcing-constitution-facebook.64

Alda Sigmundsdottir, Tech-savvy Iceland Online for New Constitution,THE ASSOCIATED PRESS (Jun. 9,

2011), available at http://www.washingtontimes.com/news/2011/jun/9/tech-savvy-iceland-online-for-new-

constitution/.65

Alda Sigmundsdottir, Tech-savvy Iceland Online for New Constitution,THE ASSOCIATED PRESS(Jun. 9,

2011).66

SeeHassen Ebrahim, THE SOUL OF ANATION:CONSTITUTION-MAKING IN SOUTH AFRICA, chapter 13 (2000),

available at http://www.sahistory.org.za/pages/library-resources/onlinebooks/soul-of-nation-constitution/chapter13.htm (stating that the draft constitution, radio programs, and informational pamphlets were

all translated into multiple languages).


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engagement in the process.67

Furthermore, the use of popular social networkingwebsites can be used as tools for instant public participation in a familiar

forum.68

Public Meetings

Conducting a series of town meetings can serve as an effective way to

facilitate the participation of citizens from around the state in the constitution

drafting process. Public meetings can function as both an educational platform

and an effective means of gathering public feedback regarding the constitution.

A state may choose to organize such meetings around specific topics, or to keepthe subject matter general. Regardless, states may find it helpful to encourage

widespread representation in these public sessions in order to avoid perceptions

that participation is not free and broad-based.

Rwanda

In Rwanda, the constitutional commission developed an action plan for

drafting the constitution that included separate phases for educating the public

about the process, and consulting with the public concerning the constitutions

content.69

Accordingly, members of the constitutional commission and trained

assistants visited various provinces and met with the public over the course ofsix months.

70 Through these consultations, the commission was able to explain

important aspects of the constitution, generate constructive feedback, andencourage people to submit their views for the commissions consideration.

71

To facilitate and focus discussions on key, potentially controversialissues, the constitutional commission formulated a questionnaire for Rwandans

to complete.72

The questionnaire comprised 60 questions addressing an array of

issues to be addressed in the constitution, including land, marriage, and

67SeeJeremy Sarkin, The Drafting of South Africas Final Constitution From a Human Rights Perspective, 47

No. 1 The American Journal of Comparative Law 67, 71 (Winter 1999) (noting the Constitutional Assemblys

use of slogans and publicity campaigns received widespread praise).68

See Haroon Siddique,Mob Rule: Iceland Crowdsources its Next Constitution, THE GUARDIAN, Jun. 9, 2011,

available athttp://www.guardian.co.uk/world/2011/jun/09/iceland-crowdsourcing-constitution-facebook (noting

that through Facebook, a computer literate population can be involved in constitution drafting from the very

beginning of the process).69

Priscilla Yachat Ankut, The Role of Constitution-Building Processes in Democratization, INTERNATIONAL




Angela M. Banks, Challenging Political Boundaries in Post-Conflict States, 29 UNIVERSITY OF

PENNSYLVANIA JOURNAL OF INTERNATIONAL LAW105, 119 (2007).72Angela M. Banks, Challenging Political Boundaries in Post-Conflict States, 29 UNIVERSITY OF

PENNSYLVANIA JOURNAL OF INTERNATIONAL LAW105, 124 (2007).


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divorce.73

For the sizeable illiterate population in Rwanda, the commissionsmembers and staff convened public meetings and discussions related to the

questionnaires. In order to organize the publics responses, the commission

established a database and a weighted scoring system to analyze the

submissions received.74

After drafting the constitution, the constitutional commission also

organized a three-day seminar attended by 800 Rwandans, members of the

diaspora, and international experts.75

The commission then presented the draft

constitution to the general public through a series of additional meetings.76

The

budget for these consultative activities amounted to seven million U.S. dollars.77

Foreign states provided logistical support to Rwanda for conference and

trainings and helped procure items to facilitate the participation process, such as

vehicles and computers.

78

Rwanda carefully planned the public participationprocess and tried to avoid political divisions in the participation process.79

The

government also devoted considerable time and resources to implementing the

process, which most consider a success.80

South Africa

South Africas public participation strategy was quite comprehensive and

included extensive public meetings. The constitutional assembly conductedsector-specific hearings with the participation of groups of civil society

organizations, including, for instance, business, labor, women, traditionalauthorities, and youth.

81 Close to 600 civil society organizations participated in

these public hearings.82




IDEA, 17-18 (2005). For more details on the scoring methodology employed by Rwandas constitutional

commission, see the discussion of Rwanda under the section Inviting Comments.75


IDEA, 18 (2005).76Priscilla Yachat Ankut, The Role of Constitution-Building Processes in Democratization, INTERNATIONALIDEA, 18-20 (2005).77



Wellars Gasamagera, The Constitution Making Process in Rwanda: Lessons to be Learned, 7 (June 2007),

available at http://unpan1.un.org/intradoc/groups/public/documents/un/unpan026620.pdf.79

Vivien Hart,Democratic Constitution Making, UNITED STATES INSTITUTE OF PEACE, 9 (July 2003).80


(Feb. 2005), available at http://www.usip.org/files/resources/sr132.pdf.81

The Constitutional Assembly: Annual Report 1996, SOUTH AFRICAN CONSTITUTIONAL ASSEMBLY,35 (Marion

Sparg ed.) (1996), available at

http://www.polity.org.za/polity/govdocs/constitution/ca/ANREPORT/CA95_96.PDF. 82

The Constitutional Assembly: Annual Report 1996, SOUTH AFRICAN CONSTITUTIONAL ASSEMBLY,35 (MarionSparg ed.) (1996), available at

http://www.polity.org.za/polity/govdocs/constitution/ca/ANREPORT/CA95_96.PDF.


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Beyond these sector-specific hearings, lobby groups, public

demonstrations, and public debates provided platforms for public participation.

Additionally, face-to-face outreach programs allowed the constitutional

assembly to reach individuals who had minimal access to print or electronicmedia and to penetrate rural areas and communities with high illiteracy rates.

83

These outreach programs reached approximately 95,000 people and elicited

close to 1.7 million submissions to the constitutional assembly.84

The public meetings often provided the first opportunity for people to

directly engage with their elected representatives.85

The meetings producedlively discussions and served as platforms for the exchange of ideas and

views.86

Additionally, such meetings provided information to less educated

groups in society and illustrated the fact that constitutional issues affect allmembers of society.87

Uganda

The Ugandan constitution drafting process received praise from the

international community, as well as Ugandan citizens, for the levels of public

participation it entailed. The Ugandan constitutional committee conducted

numerous public meetings to gather input from the general population.Specifically, over the course of almost three years, the committee conducted

district seminars, in which groups of its members attended two-day seminars inall the states districts.

88 Over 10,000 people attended these seminars, including

district officials, local government council executives, county and sub-county

leaders, community leaders, and heads of schools and religious organizations.89

The constitutional committee also convened two-day seminars for a range

of government employeesincluding police, army, and prison personneland

for civil society organizationsincluding educational institutions, womens

83Catherine Barnes & Eldred De Klerk, South Africas Multi-Party Constitutional Negotiation Process,

CONCILIATION RESOURCES(2002), available at http://www.c-r.org/our-work/accord/public-

participation/southafrica-multiparty-process.php.84

Most of the 1.7 million submissions were petition signatures. Catherine Barnes & Eldred De Klerk, South

Africas Multi-Party Constitutional Negotiation Process, CONCILIATION RESOURCES(2002), available at

http://www.c-r.org/our-work/accord/public-participation/southafrica-multiparty-process.php.85






Devra C. Moehler, DISTRUSTING DEMOCRATS:OUTCOMES OF PARTICIPATORY CONSTITUTION MAKING55

(2008).89Devra C. Moehler, DISTRUSTING DEMOCRATS:OUTCOMES OF PARTICIPATORY CONSTITUTION MAKING55

(2008).


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groups, youth organizations, professional associations, and political parties.90

Civil society organizations also conducted meetings and had committee

members speak at them.91

The committee members participated in educational

forum discussions in every sub-county, and subsequently returned to each of the

sub-counties to obtain oral and written feedback on the constitution.92

Amongthe participatory activities, such as seminars, meetings, and submitting

comments, roughly half of Ugandas citizens participated in an average of one-

and-a-half activities, 35% did not participate in any activities, and 13% engaged

in three or more activities.93

Despite the public participation that occurred in this context, some arguedthat the process was tainted and not as fair as it initially appeared. Specifically,

critics accused the constitutional committee of presenting biased questions that

produced submissions that favored the government in power, and criticized thegovernment for limiting the free exchange of ideas by banning political party

activity.94

Moreover, due to the lack of alternative sources of information

regarding the constitution, some observers argue that political elitesperspectives greatly influenced much of the populations views.

95

Albania

In the 1998 Albanian constitutional process, the government supportedcreation of a nongovernmental body known as the Administrative Center, which

organized multiple public sessions to discuss constitutional issues.96 Thesessions each covered separate issues, including legislative power, executive

power, judicial power, human rights, and local government. The Administrative

Center then convened members of the parliamentary constitution drafting groupwith local and foreign experts to discuss the constitutional concerns identified

during the sessions.97

The discussions were then broadcast as a three-part

90

Devra C. Moehler, DISTRUSTING DEMOCRATS:OUTCOMES OF PARTICIPATORY CONSTITUTION MAKING56(2008).91

Devra C. Moehler, DISTRUSTING DEMOCRATS:OUTCOMES OF PARTICIPATORY CONSTITUTION MAKING56

(2008).92

Oliver Furley & James Katalikawe, Constitutional Reform in Uganda: The New Approach, 96 AFRICAN

AFFAIRS243, 249 (1997).93

Devra C. Moehler,Participation and Support for the Constitution in Uganda, 44 JOURNAL OF MODERN

AFRICAN STUDIES275, 286 (2006).94





United States Institute of Peace,Iraqs Constitutional Process: Shaping a Vision for the States Future, 5-6

(Feb. 2005), available at http://www.usip.org/files/resources/sr132.pdf.97United States Institute of Peace,Iraqs Constitutional Process: Shaping a Vision for the States Future, 8

(Feb. 2005).


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program on public television.98

Albanias efforts to engage the public and include their feedback had a

direct effect on the outcome of the constitution drafting process. The

Administrative Center indexed and organized public comments it received, inorder to facilitate their consideration by the constitution drafting body.

99

Ultimately, the drafting body accepted over fifty proposed changes from the

hundreds it received, which directly affected over 45 articles of the draft

constitution.100

It revised the constitution draft to incorporate these changes and

the public further participated in a referendum to approve the new

constitution.101

The Administrative Center effectively organized and conductedits public education and consultation processes, which led to an increased push

for greater democracy in Albania.102

Lessons Learned

A state may find it useful to take steps to promote as free a flow ofinformation as possible through mechanisms that promote public participation,

such as public meetings.103

This includes making alternative sources of

information available, to the extent practicable. These steps will enable the

population to form informed opinions and provide educated feedback, and may

counter a perception that political officials are skewing the process orsuppressing opposing views.

104

Moreover, a state may find it useful to encourage widespread

representation in these public meetings. By only permitting certain groups to

participate, particularly only groups that support the presiding government, astate may undermine the legitimacy of the constitution drafting process and the

resulting constitution.105

Holding numerous public meetings, throughout the

98United States Institute of Peace,Iraqs Constitutional Process: Shaping a Vision for the States Future, 8

(Feb. 2005).99

Scott N. Carlson, The Drafting Process for the 1998 Albanian Constitution, inFRAMING THE STATE IN TIMESOF TRANSITION: CASE STUDIES IN CONSTITUTION MAKING, 311, 317 (Laurel E. Miller, ed., with Louis Aucoin,

2010).100

Scott N. Carlson, The Drafting Process for the 1998 Albanian Constitution, inFRAMING THE STATE IN TIMES

OF TRANSITION: CASE STUDIES IN CONSTITUTION MAKING, 311, 317 (Laurel E. Miller, ed., with Louis Aucoin,

2010).101

United States Institute of Peace,Iraqs Constitutional Process: Shaping a Vision for the States Future, 8

(Feb. 2005).102


(Feb. 2005).103

See Devra C. Moehler,Participation and Support for the Constitution in Uganda, 44 JOURNAL OF MODERN


SeeDevra C. Moehler,Participation and Support for the Constitution in Uganda, 44 JOURNAL OF MODERN

AFRICAN STUDIES275, 276, 282 (2006).105SeeDevra C. Moehler,Participation and Support for the Constitution in Uganda, 44 JOURNAL OF MODERN

AFRICAN STUDIES275, 282 (2006).


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state, and open to all members of the public, can serve to prevent the perceptionthat the state is not allowing for free, broad-based participation.

106

Inviting Comments

Soliciting comments from the public on a draft constitution allows the

public to provide feedback for the constitution drafting body to evaluate and

synthesize into the draft or final version of the constitution. Including the

public in this way gives the public a sense of ownership over the constitution,

which can increase popular support for the document and the government.107

A

state may choose to solicit written submissions, obtain oral testimony at publicmeetings, or develop a meaningful questionnaire to identify constitutional issues

the public views as particularly important.

Rwanda

Rwandas constitutional commission solicited input from the generalpublic in numerous ways. In addition to using the 60-question survey

distributed to the population to facilitate discussions during public meetings, the

constitutional commission also utilized them as a method to obtain feedback on

the new constitution.108

Furthermore, the commission created free telephone

lines, email addresses, and a website through which the public could submitcomments.

109 Submissions received by civil society groups were useful in

providing the commission with information that reflected the interests of broadsegments of the public.

In order to organize the responses made by the public, the constitutionalcommission established a database and a weighted scoring system to analyze

the submissions received. Under this grading system, the commission accorded

a score of four points to in-depth written submissions from groups, a score of

three points to submissions from interest groups, and a score of two points for

expert opinions expressed on particular issues.110

The commission compiled

and summarized all the information it received in a booklet, which it thendistributed to the public, reflecting back to the people the issues they wanted the

106See Hassen Ebrahim, THE SOUL OF ANATION:CONSTITUTION-MAKING IN SOUTH AFRICA, chapter 13 (2000),








IDEA, 18 (2005).110Priscilla Yachat Ankut, The Role of Constitution-Building Processes in Democratization, INTERNATIONAL

IDEA, 17-18 (2005).


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new constitution to address.111

During the subsequent two months, thecommission drafted the constitution, and then allowed three more months to

receive comments from the public.112

Despite the significant efforts of the constitutional commission to consultwith and include the public in the constitution drafting process, some believed

that the nearly unanimous affirmation of the constitution in the referendum

resulted from political pressure and intimidation, as well as from the

mobilization of certain ethnic populations.113

Allegations also existed that only

members of the Rwandan Patriotic Front and its supporters participated in the

public meetings conducted by the commission.114

Nonetheless, Rwanda went toextensive lengths to include public opinion by obtaining, organizing, and

attempting to incorporate comments at multiple stages of the drafting process.

South Africa

The South African constitutional process called for public commentaryon multiple drafts and an ongoing dialogue that reinforced an atmosphere of

negotiation and cooperation.115

The constitutional assembly advertised in major

newspapers inviting submissions from the public, and administered workshops

to obtain public comments.116

The constitutional assembly encouraged all

members of the public to provide input on the new constitution by submittingwritten comments, providing oral statements at public meetings, calling the

Constitutional Talk telephone hotline, or using the Internet.117 Theconstitutional assembly received nearly two million submissions from

individuals, advocacy and interest groups, and professional associations

(although a majority of these were signatures on petitions).118

The Assemblys secretariat sorted the publics submissions by subject

area and then sent them to experts from each thematic constitutional committee.


IDEA, 18 (2005).112Priscilla Yachat Ankut, The Role of Constitution-Building Processes in Democratization, INTERNATIONALIDEA, 18 (2005).113


IDEA, 20 (2005).114

Rally for the Return of Refugees and Democracy in Rwanda,RDR Rejects Undemocratic Making of the New

Constitution for Rwanda(March 18, 2002), available at http://www.inshuti.org/rdr38.htm.115



Catherine Barnes & Eldred De Klerk, South Africas Multi-Party Constitutional Negotiation Process,

CONCILIATION RESOURCES(2002), available at http://www.c-r.org/our-work/accord/public-

participation/southafrica-multiparty-process.php.117


CONCILIATION RESOURCES(2002).118Vivien Hart,Democratic Constitution Making, UNITED STATES INSTITUTE OF PEACE,7(July 2003), available



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These experts then compiled the submissions and created summary reports forconsideration by the constitutional assemblys thematic committees.

119 From

these, the assembly developed a working draft of the constitution, which

included alternate formulations of contentious provisions and provided

associated explanatory notes.120

In addition, the draft unambiguously reflectedthe views and submissions made by the public. The assembly distributed five

million copies of the working draft in a tabloid format, upon which it then

solicited additional public comments.121

South Africans submitted 250,000

comments on the draft, and the Assemblys staff once again summarized these

comments.122

The staff then matched the summaries to the corresponding

articles in the constitution to facilitate the Assemblys consideration of them.123

South Africans initially expressed concern as to the extent to which the

drafters would actually take seriously the ideas and views submitted by thepublic and whether the Assembly would incorporate them into the new

constitution.124

The Assembly constructed the first draft in such a way that it

unambiguously reflected the publics submissions, and the revised draft notedwho had made a particular submission, which provisions of the draft that the

submission affected, and reports by the experts who addressed the

submission.125

Then, the Assembly sent a copy of the draft to each individual or

group who made a submission.126

Through such efforts, South Africas

constitutional assembly sought to meaningfully engage the public in the draftingprocess and address the voluminous input it received.

Zimbabwe

Zimbabwes experience illustrates how incomplete public participation,through the exclusion of the public from key phases and the presence of undue

political pressure, can undermine the constitution drafting process. In

appearance, Zimbabwes constitutional commission seemed to allow for

relatively extensive public participation in the form of education and

119

Catherine Barnes & Eldred De Klerk, South Africas Multi-Party Constitutional Negotiation Process,CONCILIATION RESOURCES, (2002).120


Commonwealth Africa: Recommendations to Commonwealth Heads of Government, 22 (1999), available at

http://www.humanrightsinitiative.org/publications/const/constitutionalism_booklet_1999.pdf.121




CONCILIATION RESOURCES(2002).123


CONCILIATION RESOURCES(2002).124



constitution/chapter13.htm.125Hassen Ebrahim, THE SOUL OF ANATION:CONSTITUTION-MAKING IN SOUTH AFRICA, chapter 13 (2000).

126Hassen Ebrahim, THE SOUL OF ANATION:CONSTITUTION-MAKING IN SOUTH AFRICA, chapter 13 (2000).


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consultation. During the consultation phase, the commission receivedapproximately 7,000 written comments.

127 Furthermore, authorities conducted

more than 4,000 public meetings statewide to discuss constitutional issues,

which engaged an estimated half million Zimbabweans.128

Authorities also

conducted a multi-lingual media campaign, scientific polling, and aninternational conference.

129

However, there was a widespread belief even by some constitutional

commission members, that the draft constitution did not reflect the views of the

public, including views conveyed through submitted comments.130

The

commission did not allow for any public comment on the draft constitution, andinstead sent it directly to President Mugabe.

131 President Mugabe did not allow

any amendments but swiftly submitted the draft constitution to a referendum,

where it was rejected by a vote of 54% to 46%.

132

A survey reported that nearlyhalf of the no voters felt that the people rejected the new constitution because

it did not adequately reflect the views of the public.133

As Zimbabwe

demonstrates, important aspects of a successful constitution drafting process, interms of increasing the probability of the publics acceptance of the new

constitution, are both public participation in and public perception of the

drafting process.

Nigeria

Nigeria had two distinct constitution drafting processes in 1979 and thenin 1999, and when compared to each other they illustrate the role and value of

public participation. In the 1979 process, a constitutional commission created

by the military government issued a draft constitution.134

For the next 12months, the public intensely debated the draft, though the military government

largely limited the submission of substantive comments to its supporters.135

While the commission did not employ formal consultative mechanisms to

engage the public at large, the military government did adopt the constitution in

127Vivien Hart,Democratic Constitution Making, UNITED STATES INSTITUTE OF PEACE,9(July 2003), available




David Pottie,Zimbabwe: Constitutional Referendum in Zimbabwe, ELECTORAL INSTITUTE FOR THE

SUSTAINABILITY OF DEMOCRACY IN AFRICA (EISA) (2000), available at

http://www.eisa.org.za/WEP/zim2000pottie.htm.131




Kirsti Samuels, Constitution Building Processes and Democratization: A Discussion of Twelve Case Studies,

INTERNATIONAL IDEA, 20 (2007), available at

http://www.idea.int/cbp/upload/IDEA%20CBP%20Comparative%20paper%20by%20Kirsti%20Samuels.pdf.135Kirsti Samuels, Constitution Building Processes and Democratization: A Discussion of Twelve Case Studies,

INTERNATIONAL IDEA, 20 (2007).


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a climate of public debate.136

Despite some of the lack of opportunities forpublic participation, Nigerians accepted this constitution due to the high level of

discourse existing at the public level, even without facilitation by the

government.137

However, during the 1999 constitution drafting process the military

government simply imposed a new constitution on the public without

consultation or debate.138

The public was widely critical of this constitution,

viewing it as a product of the ruling military government and its undemocratic

tendencies.139

The drafting process in 1979 created the publics expectation of

the opportunity to participate in future process, and the governments exclusionof the public in 1999 did not satisfy this expectation.

140

Iceland

Icelands Constitutional Council is currently inviting comments on its

constitution drafting process by posting interactive drafts of the constitutiononline. The Council frequently posts updated drafts on its Facebook page.

141

Any Facebook user may comment on these updates, and almost all postings are

written in Icelandic.142

The Constitutional Council also allows for comments

and public discussions of the comments on its official website, and the website

links new posts and discussions to Facebook.143

Additionally, theConstitutional Council has posted an English language copy of the draft

constitution on its website, which also allows for comments on the draft andcontributions to its translation in English.

144 The Council has done this in hopes

of broader public participation because two-thirds of Icelanders use Facebook,

and online communication is a familiar forum for much of Icelandspopulation.

145

136Kirsti Samuels, Constitution Building Processes and Democratization: A Discussion of Twelve Case Studies,

INTERNATIONAL IDEA, 20-21 (2007).137

SeeKirsti Samuels, Constitution Building Processes and Democratization: A Discussion of Twelve Case

Studies, INTERNATIONAL IDEA, 20-21 (2007).138Julius O. Ihonvbere,How to Make an Undemocratic Constitution: The Nigerian Example, 21 THIRD WORLD

QUARTERLY343, 348-49 (2000).139


INTERNATIONAL IDEA, 21 (2007).140


INTERNATIONAL IDEA, 21 (2007).141

Haroon Siddique,Mob Rule: Iceland Crowdsources its Next Constitution, THE GUARDIAN(Jun. 9, 2011),

available at http://www.guardian.co.uk/world/2011/jun/09/iceland-crowdsourcing-constitution-facebook.142

Stjrnlagar!,FACEBOOK, https://www.facebook.com/Stjornlagarad (last visited Jun. 28, 2011).143

Official Website of the Constitutional Council,Innsend Erindi: Senda Inn Erindi(2011), available at

http://stjornlagarad.is/erindi/ 144

EtherPad: Icelandconstitution, TELECOMIX COMMUNICATIONS AGENCY, available at

http://pad.telecomix.org/icelandconstitution (last visited Jun. 28, 2011).145Haroon Siddique,Mob Rule: Iceland Crowdsources its Next Constitution, THE GUARDIAN(Jun. 9, 2011),

available at http://www.guardian.co.uk/world/2011/jun/09/iceland-crowdsourcing-constitution-facebook.


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Lessons Learned

In order to promote public engagement and involvement, states may

invite comments from the public on the constitution drafting process before,during, and after the creation of a draft constitution. Enabling and incorporating

public feedback helps allow the public to feel as though they participated in

creating their own governance framework in a meaningful way.146

Using

popular social networking websites can further encourage helpful public

discussion on drafts in a timely manner.147

Excluding the public from

participating at this juncture may cause the public to reassert its power throughthe only recourses it perceives as availablesuch as rejecting the entire

constitution at the referendum stage or resisting its implementation.148

Both

results can promote instability in statesparticularly those emerging fromconflict.

Implications of Public Participation in the Constitution Drafting Process

A critical component of a successful constitution drafting process, in

terms of the perceived legitimacy of the resulting instrument, is the level of

public education, consultation and participation. Generally, the public may be

more likely to accept a constitution created through a genuinely participatoryprocess, even if the final constitution does not comprehensively reflect the

comments submitted by the public.149 The Rwandan Constitution did notincorporate all the input from the public but because of the array of mechanisms

that provided for public participation, a high level of support for the constitution

exists among Rwandans.150

Alternatively, the Nigerian public had very negativeperceptions of the 1999 Nigerian Constitution due to absence of meaningful

forms of public participation, viewing it as a continuation of military rule.151

The failure to provide adequate time for public education and

consultation can manifest perceptions of intentional exclusion in the process and

146Vivien Hart,Democratic Constitution Making, UNITED STATES INSTITUTE OF PEACE,9(July 2003), available


See Haroon Siddique,Mob Rule: Iceland Crowdsources its Next Constitution, THE GUARDIAN, Jun. 9, 2011,

available at http://www.guardian.co.uk/world/2011/jun/09/iceland-crowdsourcing-constitution-facebook

(quoting a Constitutional Council member on the usefulness of the Facebook page).148


SeeKirsti Samuels, Constitution Building Processes and Democratization: A Discussion of Twelve Case

Studies, INTERNATIONAL IDEA, 23 (2007), available at

http://www.idea.int/cbp/upload/IDEA%20CBP%20Comparative%20paper%20by%20Kirsti%20Samuels.pdf.150


INTERNATIONAL IDEA, 26 (2007).151Kirsti Samuels, Constitution Building Processes and Democratization: A Discussion of Twelve Case Studies,

INTERNATIONAL IDEA, 26 (2007).


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adverse feelings towards the product of the drafting process.152

Such perceivedor actual exclusion may lead people to reject the new constitution outright,

either at the referendum or implementation stage.153

Additionally, the careful organization of public comments may facilitatethe efficient utilization and incorporation of the information by the constitution

drafting body.154

Having insufficient capacity or an inadequate technique for

the meaningful integration of this information may prevent the drafting body

from incorporating the comments into the text of the constitution, which may

lead to public dissatisfaction with the new constitution.155

Conversely, effective

collation and synthesis of responses received from the public both promotes theincorporation of such comments in the constitution and instills in the public a

sense of ownership of the constitution.156

Conclusion

Public participation in the constitution drafting process can enhance theperceived legitimacy and acceptance of the resulting instrument. A state may

select from a wide variety of methods to promote participation during the

process. Specifically, states may utilize television and radio programming,

songs, theater, newsletters, and other means of communication to educate and

engage the public. Public meetings can serve as an educational platform and aneffective mechanism in which to gather public feedback regarding the

constitution. States can also solicit public input by inviting public comment inmultiple ways, and then incorporate the comments they receives into the

constitution, promoting legitimacy and confidence in the governing structure the

document produces.

152United States Institute of Peace,Iraqs Constitutional Process: Shaping a Vision for the States Future, 9-10



SeeUnited States Institute of Peace,Iraqs Constitutional Process: Shaping a Vision for the States Future, 9


SeeUnited States Institute of Peace,Iraqs Constitutional Process: Shaping a Vision for the States Future, 9(Feb. 2005).156

Bereket H. Selassie, Creating a Constitution for Eritrea, 9 JOURNAL OF DEMOCRACY164, 168 (1998).

Public Participation in Constitution Drafting CSP 2

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