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Adoption & Ratification
Ratification of a new constitution is usually separate from the decision to adopt a draft as a “final draft.” There are two main approaches. One is to sponsor a ratification vote in the main deliberative body, such as the legislature or a constituent assembly. The second is to send the final draft to the public in a national referendum. In rare instances, ratification takes place when a super-majority of elected local assemblies casts a favorable vote.
Of the 195 cases studied in the first version of this project, 53.7 percent located the power to ratify in an assembly and 41.5 percent sponsored a national referendum. In almost all instances where an indirectly elected or appointed transitional legislature developed the draft, leaders have chosen to send the document to a referendum.
Although it is common to think that referenda elicit little real public involvement in constitution making and simply rubber-stamp the views of the majority party, the evidence suggests that populations do sometimes exercise their power to decline what is on offer. For example, Zimbabwe’s most recent constitutional draft suffered defeat in a referendum, and the citizens of Mauritius have repeatedly sent their leaders back to the table for more discussion. The extent of involvement by civic associations, ability to draw on existing electoral machinery, length of the campaign period, and cost are all factors that might influence the credibility and feasibility of a referendum.
Occasionally a country asks citizens for more than an up or down vote. A few countries have requested approval of both a specific item and the draft at the same time. In these situations there can be confusion about what a person’s favorable vote means—whether it is a vote on the draft as is or whether it is a vote in favor of the draft even if the particular language that is the subject of a separate question fails and disappears from the text. It is also possible to ask citizens to cast a ballot for more than one draft text, but this procedure opens the possibility that a draft might win ratification with less than 50 percent of the vote.