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Thursday, 26 April 2018

Expanding Participation in Constitution Making: Challenges and Opportunities (1)

(Angela M.Banks) - Sudan is in the process of drafting a new Constitution and so we will publish a number of paper

and studies on this vital issue to enrich he debate. This is a combined review of several papers.


Internal exclusion is a substantial impediment to the successful implementation of participatory democratic reforms in post-conflict states. The recent use of participatory constitution making in states like Rwanda illustrates the challenge that inclusion presents.
Inclusion ensures not only that individuals are physically present in the decision-making forums, but that they have an "effective opportunity to influence the thinking of others. This requires that participants review and reconsider their preexisting preferences and positions in light of reasons and justifications offered by other participants.  Absent a willingness or ability to do so, the decision-making process becomes one in which original positions are zealously defended and decisions are made based solely upon factors such as numerical majorities and political power. Participants argue, rather than deliberate, which reduces their ability to influence the thinking of other participants. This creates a situation in which those in the numerical minority or without significant political power are internally excluded. Internal exclusion was a prominent feature of Rwanda's participatory constitution-making system. The system used a small, minimally representative drafting body, the Legal and Constitutional Commission, that rarely deliberated substantive issues with the public.
The drafters focused on educating the public about the role of a constitution within a society and identifying widely held beliefs about general governance issues, such as whether the state should have a presidential or parliamentary style of government.
Substantive engagement was limited to internal Legal and Constitutional Commission (LCC) meetings and LCC exchanges with government officials. Absent a representative within the LCC or the support of influential government officials, citizens lacked an opportunity to have the constitution drafters seriously engage their concerns, ideas, recommendations, or proposals.' This lack of internal inclusion created a situation in which most citizens were denied the opportunity to participate in the substantive decision-making process. Rwanda focused on facilitating external inclusion through public meetings, questionnaires, and radio and television broadcasts." This created a system with significant participation without power, which undermines the theoretical and legal justifications of participatory constitution making. Further research into the ways in which citizens are internally excluded is critical for evaluating states' use of participatory constitution making and assisting states in implementing it effectively.
Theoretical and legal foundations of participatory constitution making within participatory democratic theory and the right to self-determination. This discussion identifies inclusion as a fundamental requirement for successful participatory constitution making. Part II examines the tension between inclusion and political power in post-conflict states, and Part III identifies the barriers to internal inclusion that existed in Rwanda.

Constitutions & Public Participation 

Scholars and policy makers concerned about democratization efforts in post-conflict states are beginning to focus on the process by which reforms are made, not just the substance of the reforms.
This has led to an emphasis on citizen participation in the drafting and implementation of constitutions. This form of constitution making is referred to as democratic or participatory constitution making. Advocates advance both normative and instrumental benefits for process-oriented constitution making. The normative justifications are rooted in participatory democratic theory, emphasizing the importance of broad participation and deliberation for the creation of a legitimate governance system.

Normative Foundation

Participation in government decision making is emerging as an international norm. Participatory democratic 2 scholars connect the legitimacy of government action to the participation of those affected by the decision in the decision-making process.'  The decision-making process is thus conceived of as a "well-conducted conversation," and the goal is to give all affected individuals a genuine voice in the conversation. Thus the "decisive test of a democracy is its capacity to encourage its population to play an active role in its government."' 5 This principle has influenced the
development of international legal rules regarding citizen participation in governance matters.
The constitution-making conversation is a discussion of problems, conflicts, interests, preferences, and claims of need. " Within participatory democracy, participants offer solutions for the problems raised or proposals to address the needs mentioned. They present reasons and justifications to persuade other participants to accept their solutions or proposals.  Through dialogue the participants test and challenge the proposals and arguments of the other participants. Deliberation is to continue until the "force of the better argument" compels the participants to accept a particular conclusion.  Proposals are rejected or refined based on their ability to withstand "dialogic examination. Thus decisions are made based on which proposals are supported by the best reasons, as decided by the participants, rather than which proposals are supported by the largest number of people.  The idea that interests are dynamic and that the process of deliberating facilitates interest transformation is a key premise of participatory democracy.
Politically equal actors deliberating political matters in an environment free from coercion or domination can often develop a consensus.
Inclusion and political equality are two foundational norms of deliberative democracy. To increase the likelihood that the "best arguments" will emerge and be discussed, it is essential that a wide variety of interests, opinions, and perspectives are raised. The inclusion norm supports this goal. Furthermore, because decisions are made based on reasons and dialogic examination, those that participate are more likely to transform their positions than those who do not participate. Inclusion assists in interest transformation taking place on a much larger scale.
Political equality ensures that all affected individuals are included in the decision-making process on equal terms. This includes having an opportunity to express one's interests and concerns and to question one another, respond to criticisms raised, and critique the arguments and proposals of others. This requires that the participants have equal respect for each other.
Additionally, participants must be equal "in the sense that none of them is in a position to coerce or threaten others into accepting certain proposals or outcomes.
The political equality norm ensures that all participants are free to speak and have the same opportunity to speak. Political rights guaranteeing freedom of expression, conscience, and assembly support this norm. Participatory decision making also provides a space in which innovative solutions and approaches to problems can emerge that are qualitatively better than the solutions and approaches developed in elite or exclusive settings. Effective solutions to concrete problems often require "the variety of experience and knowledge offered more by diverse, relatively more open-minded citizens and field operatives."'" Designing an effective political system in a post-conflict state requires a similar cast of participants. Such societies are confronted with developing institutions, rules, and procedures to resolve political, economic, or social disputes that can effectively impede future armed conflict. Elite discussions or deliberations generally focus on addressing the security, political, and economic concerns of the elite. Such a narrow focus during constitution making can cause drafters to miss out on effective substantive governance solutions. Participation by those with the complaints, those experiencing the difficulties, and those tempted to take part in armed rebellions can lead to the emergence of different types of recommendations, proposals, and solutions. Participatory constitution making recognizes the public as a resource for democratization. This approach to constitution making seeks to utilize the experiences, knowledge, and ideas of the public. It is based on a normative claim regarding the value of public participation and a legal claim based on the right to self-determination.

Legal Foundation

The right to self-determination and the right to participate in the conduct of public affairs provide a legal foundation for citizen inclusion in the constitution-making process. Constitution making is not only an aspect of public affairs; it is also a means by which citizens can participate in determining the State's political status and its economic, social, and cultural development. There has been a considerable amount of scholarship on the evolution of the right to self-determination. Of specific interest to constitution making is what the right entails substantively. This question has led to a conceptualization of the right as both external and internal. The external conceptualization refers to the "right for the peoples of the State to determine how the State will be run without external interference. The internal right is an entitlement to participate in the State's decision-making processes regarding its political status and its economic, social, and cultural development.
The right to political participation not only refers to a citizen's right to participate in decision making regarding his or her State's political status, constitution, or government, but also to a right to participate in the conduct ofpolitical affairs. This participation right is based on Article 25 of the International Covenant on Civil and Political Rights (ICCPR).38 Article 25 states that: Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;
(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;
(c) To have access, on general terms of equality, to public service in his country.
The United Nations Human Rights Committee (UNHRC or Human Rights Committee) has concluded that the right to participate in the conduct of public affairs extends to constitution making. In Marshall v. Canada, the UNHRC addressed a Canadian tribal society's claim of exclusion from the State's constitution-making process. The Mikmaq tribal society in Canada submitted a communication to the UNHRC under the Optional Protocol to the ICCPR claiming that its rights to self-determination and to take part in the conduct of public affairs had been violated.
The Mikmaq tribal society contended that Canada's refusal to allow it to attend the constitutional conferences convened pursuant to the Constitution Act violated their above-mentioned rights.