Constitutional reform: a democratic contest of ideas
Ishmael Mahomed, former Chief Justice of Namibia and later also of South Africa once described the constitution as "a mirror reflecting the soul of the nation, the identification of the ideals and the aspirations of a nation; the articulation of the values bonding its people and disciplining its government". Today, a number of African countries are moving towards a constitutional order that is not only democratic and legitimate, but also inclusive and popularly accepted.
Constitutional reform processes are now underway in several NIMD programme countries, including Malawi, Kenya, Zimbabwe, Mali and Ghana. In May 2010, NIMD partners involved in some of these national reform processes came together in Nairobi to reflect on their experiences so far.
The exchange visit – initiated by the IEA/Ghana Political Party Programme and hosted by CMD-Kenya – featured speeches and in-depth discussions on constitution making processes in Africa. The three co-chairs of the Zimbabwean Parliamentary Select Committee on Constitutional Reform and one expert on the Zambian constitutional reform process also took part in this exchange.
The peer-to-peer nature of the programme provided a unique opportunity for politicians and other NIMD partners from different African countries to compare the content, outcome and inclusivity of their respective constitutional review and reform processes. They challenged each other by posing the question: why is constitutional reform necessary and what can we learn from each other?
Constitution making: an ongoing process
Participants agreed that constitution making is an ongoing process and does not stop once a constitution is approved or adopted through a national referendum. Ghana, for example, recently kicked off a thorough review of its current 1992 Constitution. In January this year, the Constitutional Review Commission (CRC) was put in place to take charge of this process and consider some of the democratic loopholes identified after having used the current constitution for more than fifteen years.
Ghana’s review is planned to be national in character, and organised in a consultative, non-partisan manner. The entire exercise revolves around six principles related to voice and the building of citizenship; subsidiary constitutional powers of parliament; control of executive power; parliamentary autonomy; resource governance; and enhanced citizens-government engagement. These principles are expected to guide the Committee’s work and lead towards a revised, commonly agreed new constitution in 2012.
The endorsement of these principles by all political parties is considered a huge plus and helps facilitate the CRC’s work in Ghana. Following the exchange programme in Kenya, the Ghanaian political parties acknowledged this best practice and continued to build consensus on proposed amendments to the 1992 constitution. Their commonposition, as expressed in a joint communique, is another positive step.
Role of Referendums
A further dominant topic during the exchange was the use and usefulness of referendums as an important means of ensuring that a nation’s constitutional system derives its legitimacy through the people. Participants had the chance to debate and exchange views on this subject with Kenya’s Constitutional Committee of Experts. This Committee had a key role in drafting Kenya’s proposed constitution and is currently informing the public and preparing citizens for the national referendum scheduled for 4 August 2010.
Earlier this year Kenyan lawmakers passed the draft constitution, breaking a period of deadlock. Many consider the new constitution as a distinct improvement of the current model, claiming that it would mark an important shift towards a more pluralistic and consensual system at a moment of profound importance in Kenyan society. However, others are strongly opposed to the constitution based on differing views on contested clauses dealing with land, the right to life, and the so-called khadi courts.
At the time of the exchange visit it was evident that these opposing views had given rise to heated public discussions between those in favour and those against. The vital role of a referendum within this context was widely agreed upon, since it would validate the constitution’s content and process. Nevertheless, participants also noted that especially in a multi-ethnic society, using a referendum runs the risk of politicising and dividing that society.
Even more essential than getting a proposed constitution approved is the people’s dialogue leading to the constitutional design. Representatives of Zimbabwe’s Parliamentary Select Committee on the country’s new constitution illustrated this with experiences in ensuring inclusivity and public outreach in Zimbabwe. Their reflections were further enriched with similar examples from Zambia where public regional debates are used to create public awareness of the content and progress of the constitution process.
Based on these practices those in charge of the constitutional reform processes were urged to carefully think through the sequencing – what do you expect from people at what stage, when and why? Participants agreed that people’s participation has to take place before the actual decision-making and that dialogue should be underpinned by values. In short, the quality of the national debate is what counts.
Sufficient resources from the start
During the round table discussions, participants also recognised the role of more operational aspects of a constitutional reform process. One of the challenges, faced by most delegations present, is the lack of sufficient and committed funds for their work and the organisational capacity of their institutions. It appears that government commitment to the process is not automatically translated into substantial financial contributions, forcing those responsible for implementation to seek support from international donors or the private sector.
This was acknowledged as a shared concern and risk, as it delays the process and can undermine the independence of the constitutional reform bodies’ work and therefore the process. Any constitutional reform body was therefore recommended to ensure a sufficient allocation of funds from the start of the process.
Role of political parties
Constitutional reform is a political process requiring adversaries to work together: a sometimes difficult but necessary democratic contest of ideas. Participants also agreed that while civil society should be involved as underwriters of the constitution making process, the commitment of the political leadership remains crucial.
Political parties have an important role in negotiating the rules of the game, timing, process, and content of the constitutional debate – all in accordance with the public interest. As one of the delegation members remarked: "Those involved in the reform process should look out for the next generation, not the next election". The delegation members embraced the idea that while a constitution cannot resolve all contentious issues, it’s a good step in the right direction.
Dignitaries and experts
In addition to the group debates, participants were honoured with private meetings with Kenya’s Vice President Kalonzo Musyoka and Prime Minister Raila Odinga. Other notable speakers featured during the programme included Dr. Patrick Lumumba, former secretary of the CKRC and now Director of the Kenya Anti-Corruption Commission (KACC), Professor Yash pal Ghai and Vice-Chair of Kenya’s Committee of Experts (CoE) Atsango Chesoni.
In order to bring in a non-African perspective to the debate, NIMD had invited Mr. Jan-Kees Wiebenga (former MP of the VVD in the Dutch and European parliament and currently councilor with the Dutch ‘Raad van State’. He shared some key lessons derived from the EU constitution making process.
It is hoped that this regional exchange has contributed and added further momentum to the constitutional reform debate in NIMD programme countries like Zimbabwe, Ghana and Kenya, and to have given all participants the opportunity to become strategic players in their ongoing constitutional reform processes.