Constitutional Reform

The creation of a new constitution generally occurs in the aftermath of conflict. In some cases, an interim constitution is developed, either under a peace agreement or through an interim arrangement, after which the process of developing the permanent constitution begins.

The importance of a constitution-making process cannot be underestimated. A constitution is the highest-order law in a country, providing the framework for how the state is organized, a framework from which all other laws flow. The constitution-making process seeks to establish a consensual political community around the nature of the state and the nation as a whole. Key issues related to the nature of the state include whether there will be a presidential system or a parliamentary system, what will be the institutions of government, the separation of powers, the degree of decentralization between national and subnational orders of government, and how revenue will be shared. Just as important, however, is the nature of the nation itself, its identity, and its core values.

There are, therefore, critical substantive and procedural elements of the constitution-making process. While some elements focus on the outcome of the constitution-making—namely, a new constitution—a major lesson learned is that the process is just as important, if not more so. The substantive issues that arise in a constitution-making process are fairly well known; they deal with the system of government, the relationship between different orders of government, the treatment of natural resources and other sources of revenue, human and sociopolitical rights, and procedures to amend the constitution in the future, to name a few.

In terms of process, considerations include the legal framework under which the process will occur, the body that will draft the document (e.g., a technical committee, a committee of experts, or a parliamentary committee); the body that will ratify it (e.g., a constituent assembly; a legislature; or the people, through referendum); and the establishment of a secretariat or other form of technical and administrative support for the drafting and ratification of the document. In addition, the creation and operation of bodies, mechanisms, and processes to increase the inclusiveness, transparency, and direct participation by the public are becoming the norm. “Inclusiveness” refers to ensuring that all major stakeholders, as groups, are given a seat at the negotiating table; “participation” refers to allowing the public at large to contribute. An inclusive and participatory process will require robust civic education, so that the public is better able to make informed contributions, and consultations, through which the direct participation can occur. Media outreach, donor coordination, issues of timing, and considerations as to the implementation of the constitution are also critical.

Below are links to a variety of resources on constitutional reform, from both the substantive and process perspectives.