Constitution Writing & Conflict Resolution

Reform Models

How do countries devise and debate constitutional texts? This section describes the five main alternatives in use today. These alternatives do not constitute recommendations; nor do they limit the range of possibilities. Together, the constituent assembly model and the legislature model constitute about 59 percent of the cases studied in this project (a rough approximation of actual patterns in the period 1975-2003).

Commission or Committee/Elected Constituent Assembly Model
Commission or Committee/Legislature Model
National Conference/Commission/Transitional Legislature Model
Executive-Directed Processes
Peace Negotiations
Hybrid Models & Unusual Approaches

Commission or Committee/Elected Constituent Assembly Model

About 17 percent of the countries in our study chose an elected constituent assembly as the main deliberative body in the development of a new constitution. In special elections, candidates compete for seats in the assembly. Sometimes this step takes place without political party involvement; more often, political parties put up candidates. Constituent assemblies, as well as elected legislatures that draft constitutions, range in size from 22 to 598 delegates and average 207 delegates.

In this model, the first draft usually comes to the assembly from an appointed but broadly representative commission of relatively small size. This commission may consult leaders of political, social, economic, and identity groups; study constitutions from other countries; solicit advice from experts; and work with a legal staff to prepare the text. The document it develops reaches the constituent assembly or legislature (see below) in the form of a bill or act. The assembly may assign working groups or sub-committees to discuss and evaluate specific parts of the commission’s draft or it may hold plenary sessions to consider the draft without this prior review of particular passages. It may also have a public comment period or hearings on the draft before it adopts the text.

On occasion, the assembly itself prepares the initial text. It may appoint a sub-committee for this purpose, or it may create several working groups plus a harmonization sub-committee that is responsible for melding the working group contributions into a first draft. The delegates subsequently debate and amend their work. This process may include public consultation or public hearings. In several instances, constituent assemblies have become regular legislatures at the conclusion of the constitution drafting process.

Selected examples: Colombia, Ghana, Haiti (87), Marshall Islands, Federated States of Micronesia, Namibia, Venezuela, Nicaragua, South Africa, Uganda

Commission or Committee/Legislature Model

Instead of sponsoring a special election for a constituent assembly, some countries vest responsibility for deliberation and adoption in the regular elected legislature. Usually the legislature employs special voting rules, requiring higher majorities.

The first draft usually comes to the legislature from the executive branch, which submits the proposal in the form of a bill. The executive may vest preparation of the initial text in an appointed but broadly representative commission of relatively small size. This commission may consult broadly with leaders of civic groups, economic associations, and members of the public when it develops its language. In some instances the central committee of the majority political party develops the text and the executive branch submits the text in the form of a bill or act for consideration by the legislature.

Selected examples: Albania, Armenia, Bangladesh, Croatia, Czech Republic, Fiji, Republic of Georgia, Hungary, Latvia, Lithuania, Macedonia, Poland, Spain, Tanzania

National Conference

A national conference or convention allocates a specified number of seats to delegates from recognized political groups, civic/economic organizations, professional associations, traditional leaders, women, religious communities, etc. A broadly representative organizing committee determines the overall size of the gathering, the sectors represented, and the allocation of delegates among these. Associations within each sector then appoint their own delegates by a mechanism they choose. In most instances all major political parties and human rights organizations play a role.

The national conference or national convention is most often used in countries transitioning from single-party systems or military governments to more open politics. In these settings, political parties are new and may have narrow bases. It may also prove difficult to mount meaningful elections quickly. A broad national conferences may prove more representative than a party round table or an elected assembly under these conditions, especially permits where trust is low and elections produce violence.

The role a conference plays in the development of a constitution varies from case to case. There are three main sub-models.

In most instances, the conference develops some immutable principles or makes recommendations about the form the text should take. It then elects or appoints a transitional legislature, one of whose tasks is to transform these ideas into a text, deliberate about the proposed provisions, and send a final draft to a national referendum.
In a few instances, the conference or convention functions in the same manner as a constituent assembly, developing and debating the text itself and sending a final draft to referendum. Because the large size of most conferences makes careful deliberation difficult, this second approach is uncommon.
In come countries, the conference is grafted onto a legislature model to provide an additional sounding board and a greater sense of representation. That is, instead of the majority party reviewing proposals from a constitutional commission, then submitting a reform bill to the legislature via the attorney general, the national conference discusses the text and sends it to the legislature.

It is worth noting that it is easier for interest groups and associations to appoint delegates in countries that have a tradition of “peak associations” along the continental European model. Choosing delegates in a system where no one association holds a monopoly on the title of “representative” can prove difficult, though the obstacles are not insurmountable. If there are many small groups already organized, then the challenge may be to ensure that these groups have enough of a following to speak for more than just a handful of friends and family. The prior absence of any kind of pluralism (political or interest group pluralism) may also render this approach unworkable.

Conferences also pose management challenges. They often number between 700 and 2400 delegates, not all of whom necessarily speak the same language. Delays in translation can produce distrust, as can limited time to speak.

Selected examples: Benin, Chad, Congo (Republic of, 92), Madagascar, Mali, Niger (92), Russia, Togo

Executive-Directed Constitution Writing

In about 15 percent of the cases in this study, neither elected bodies nor broadly representative national conferences played a formal role in the development of a new constitution. In most of these instances, a committee appointed by the executive developed an initial text for approval either by the central committee of the ruling party, in a single-party system, or by the head of state and his cabinet. In some of these cases the members of the appointed drafting committee consulted leaders of civic groups and nascent political organizations. In a few instances, extensive and relatively open discussion of draft provisions took place in the country’s press prior to the adoption of the draft.

Selected examples: Algeria (76 and 89), Azerbaijan, Guinea (90), Mauritania, Morocco, Nepal, Philippines, Qatar, Thailand, Tunisia (02)

Peace Negotiations

Peace negotiations have sometimes spawned new constitutions. In some cases, they function essentially as internationally mediated round tables that include the main warring parties. These are rarely open to public view and make little or no provision for public consultation. In other contexts, negotiations have produced initial round table agreements, followed by international oversight or administration of a process that follows the commission/constituent assembly model.

Selected examples: Zimbabwe 1979, Bosnia (Dayton Accords), Cambodia 1993, East Timor 2002

Hybrid Forms & Unusual Approaches

In recent years, as public demand for representation has increased, policy makers have started to mix and match elements to suit the situation.

Rwanda followed a fairly standard commission/legislature model in preparing its 2003 constitution but sponsored a short national conference and regional hearings prior to final deliberation in the legislature.
Kenya’s most recent constitution writing process has included a national conference of several months’ duration. The conference has enjoyed the power to discuss a text developed by a constitutional commission and make changes in that text. The text then goes to the legislature in the form of a bill the attorney general submits for consideration.
In the development of Uganda’s 1995 constitution, the constituent assembly contained some appointed members as well as elected delegates.

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