Problems with participatory constitution making

June 24th, 2009 • Africa, Conflict
Tags: constitution, DRC, Gathii, Kenya, participatory constitution making, post-conflict, society reconstruction

Post-conflict constitution making is really difficult. How do you draft a document that serves as the “law of last resort”, that everyone agrees to, in a society that has just experienced massive division that resulted in a conflict?

I recently read an article by James Thuo Gathii that contrasted the experiences of the Democratic Republic of Congo and Kenya in drafting a new constitution.

In the DRC the draft constitution had relatively little input from the public, yet was overwhelmingly passed in a 2005 referendum. In Kenya despite widespread consultation and public input, the draft constitution was defeated in a referendum the same year.

IMG SOURCE: ZimTelegraph

Gathii posits that in the DRC the new constitution was seen as a break from the conflict of the past, and so was readily accepted; whereas the “participatory constitution making” undertaken in Kenya actually served to further fracture the country and left it more ethnically divided.

This adds another complex layer to post-conflict legal reconstruction. While it would appear obvious that constitution making should be participatory and open to public debate, Kenya’s experience shows that we also need to be conscious of how that debate takes place and where the dividing lines fall. Conversely, widespread public acceptance of a constitution doesn’t mean the people actually agree with or like the document.

So while enacting a constitution is often seen as the birth of a nation, as people overcome their differences to work together as one country, getting to that end point can be a dangerous process – public participation can result in increased division, and people are liable to approve a constitution for a variety of reasons apart from actually agreeing with it – and given the supra-law status of constitutions, it is a very important process to get right.

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