Specialist Bodies for

Constitution-Making

Goran Hyden

Constitution-making in Focus: Issue Paper

FOR REFERENCE ONLY— NOT FOR CITATION

2010
 c o n s t i t u t i o n - ma k i n g i n f o c u s : iss u e pap e r s u i 

Contents
1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2. Types of specialist bodies, their functionsand rationale . . . . . . . . . . . . . . . . . 4
2.1 Eastern Europe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.2 Latin America . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.3 Africa . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.4 Summary of Main Points . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

3. Challenges and Problems . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

3.1 Facilitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.2 Formulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.3 Finalization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

4. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
5. References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
 c o n s t i t u t i o n - ma k i n g i n f o c u s : iss u e pap u 1 

1. Introduction
Constitutions are meant to have lasting value. Their purpose is to provide a framework of
overarching norms and principles so that a country can be governed in a stable and pre-
dictable manner. These norms and principles constitute a set of “meta” rules from which
more specific legislation is supposed to be derived. Reviewing or making a new constitu-
tion, therefore, is not an everyday event. It typically takes place only in extraordinary
circumstances. Although these circumstances vary, they can more generally be character-
ized as political conditions in which the existing regime—overarching norms and princi-
ples—is being called into question or having already collapsed.
Because constitution-making transcends “politics-as-usual” there is a perceived need or
desire among political elite and citizens alike to create bodies that can devote their atten-
tion solely to developing and adopting new constitutional proposals. These “specialist
bodies,” as they are called in this volume, have historically been particularly prominent in
helping to develop and design constitutions but with the rapid growth in constitution-
making exercises in the wake of the “third wave” of democratization (Huntington 1991),
these bodies have increasingly been created to prepare the ground for the constitutional
reform exercise itself as well as to ensure adoption of the new constitution.
A salient feature of constitutional reform efforts in the past two decades is their participa-
tory orientation. Constitution-making is no longer the prerogative of a few experts or a
select group of political representatives. Whether through consultation, direct submissions,
or a referendum vote, citizens are invited to take part in constitution-making that was
rarely, if ever, practiced before. The task of developing constitutional proposals, therefore,
has changed a lot from the days when the fifty-five Founding Fathers designed and ad-
opted the United States constitution or the time immediately after the First World War
when Hans Kelsen and Hugo Preuss provided Austria and Germany respectively with
what can be best described as “professorial” constitutions. Today’s processes are also in
stark contrast to the top-down practices associated with the adoption of the post-World
War II constitutions in Germany and Japan as well as the Communist countries in Central
and Eastern Europe.
The role of specialist bodies in the contemporary context, therefore, tends to be different in
some important respects, most notably that they are created and used for multiple purpos-
es, not just designing the proposals. As used here, “specialist bodies” refer to those special
forums, committees or commissions, and assemblies—appointed and/or elected—that are
set up, usually with a limited time frame, to facilitate and contribute to the development of
constitutional proposals as well as their adoption. This is a broader definition than others
may use, but it is justified in order to deal with the variety of approaches that have been
taken especially in the Third Wave period.
The purpose of this paper is partly to draw attention to this variety, partly to bring some
coherence to the interpretation of these practices. The chapter begins with a mapping
exercise drawing on cases from three regions and showing what these specialist bodies are,
what functions they have, and what their basic rationale is. It continues by looking at the
 c o n s t i t u t i o n - ma k i n g i n f o c u s : iss u e pap u 2 

challenges and problems that are associated with the use of these bodies. The conclusion
provides a overall assessment of the usefulness of specialist bodies in the Third Wave
context.

2. Types of specialist bodies, their functions

and rationale
Constitution-making today is more than just design and adoption of proposals. Because it
is so often induced under difficult circumstances, there is a need to prepare for the actual
design and adoption phases. Special bodies are thus created to facilitate the process.
Similarly, throughout the process of designing a constitution issues arise over how it might
be best managed. It is appropriate to acknowledge, therefore, that this phase of constitu-
tion-making is not merely technical but also highly political. The adoption phase, though
highly political too, may nonetheless be the least complicated because by that time many of
the hurdles have already been passed. In the discussion below, the distinction will be kept
between the three phases in which specialist bodies participate:
FacilitationFormulationFinalization
There is often an overlap between the various phases. A body created to facilitate the
constitution-making process may be called upon to also participate in the formulation of
constitutional proposals. Similarly, the line between formulation and adoption is not
always clear. For example, a constituent assembly may also be in charge of developing
proposals through committees established under its immediate authority. Such empirical
variations notwithstanding, the three-phase approach makes sense for analytical and
explanatory purposes. It will be applied to the following discussion of specialist bodies in
three separate regions: Eastern Europe, Latin America and Africa.

2.1 Eastern Europe

Constitutional review and the development of new basic laws in Eastern Europe were
prompted by the fall of Communism in the late 1980s. Although the patterns vary some-
what the exercise typically started as a review of the existing Communist constitution,
was done in a hurry and did not employ specialist bodies except in the form of legal
drafting. Eastern Europe, therefore, is an example of where specialist bodies were rela-
tively unimportant for the final outcome. This is particularly true for Bulgaria and Roma-
nia, the first states to adopt new constitutions in 1991. The rush and the inclination to
keep the exercise within the ranks of existing political institutions is best explained by the
desire among incumbent Communist leaders to stay in power while adopting a softer,
social democratic stand on the transition. This strategy worked because the former Com-
munists won landslide victories in the first free parliamentary elections after the new
constitution had been adopted. There was neither much public discussion nor serious
negotiations over the content of the proposed constitutional principles. As one account
notes, the new basic laws became for the former Communist leaders their sui generis
“democratic business cards” in the process of integration with Western Europe (Dreijmanis
 c o n s t i t u t i o n - ma k i n g i n f o c u s : iss u e pap u 3 

and Malajny 1996).

The constitutional reform process was more complex and drawn out in Poland. Even there,
the exercise began as an attempt to revise the old “Stalinist” constitution, but it could not
be monopolized by the ruling Communist leaders. The presence of an underground
movement—Solidarinosc—and a powerful Catholic Church forced the latter to incorporate
others in the process, beginning with a special Roundtable to negotiate and hammer out
the principles for a transition to more democratic forms of governance. This led to an
initial quite far-reaching modification of the 1952 constitution in 1989 followed by the
adoption in 1992 of the “Little Constitution” which had the effect of abolishing the old
Stalinist constitution.
The Hungarian case resembles what happened in Poland in that the reform process went
through distinct phases. The purpose of the first stage involved a “pacting” exercise be-
tween incumbents and reformers aimed at liberalizing the previous regime. The second
phase was used to create the foundation for a democratic system and a market economy by
reinstating the rule of law, establishing fundamental rights and freedoms, setting up
checks and balances, and introducing authentic judicial review. In 1989 and into the first
years of the 1990s there existed a political will to establish a legal framework for the
transformation of government but also to pass new constitutions (Paczolay 1993). The
process was not free of controversy and conflict. For instance, in Poland, the Senate and
the Sejm (lower house) formed their own commissions to draft a new constitution with the
result that a major disagreement arose whether to adopt a presidential or parliamentary
system, an issue that was then resolved in favor or the latter but later reversed.
There are certain lessons that can be drawn from the East European constitution-making
exercise that stem from the limited use of specialist bodies. The first is that it was confined
to the political elite with little input from the public at large. The second is that by relying
on existing legislative institutions, constitutional reform issues had to compete for atten-
tion with more immediate political issues. The third is that because they were carried out
in a hurry—Poland being the main exception—the basic laws that were initially agreed
upon were not adequately assessed in terms of how well they would suit the new political
dispensation in the making.

2.2 Latin America

No region of the world has received more attention than Latin America when it comes to
democratic transition and consolidation. Together with the southern European cases of
Greece, Portugal and Spain, democratization in Latin America during the Third Wave has
been at the center of the emerging literature on the subject (O’Donnell, Schmitter and
Whitehead 1986; Linz and Stepan 1996). The challenges in Latin America are different
from those of Eastern Europe. While in the latter, the transition was from a totalitarian
system, the process in Latin America, as in southern Europe, has been from an authoritar-
ian, typically military, regime. Another important difference is that while the Communist
leaders in Eastern Europe tried to hang on to power or at least be sure that they could
continue to be relevant political actors, the outgoing military leaders in Latin America
 c o n s t i t u t i o n - ma k i n g i n f o c u s : iss u e pap u 4 

were ready to withdraw from politics altogether, thus paving the way for a new order that
could be more effectively introduced and managed by civilian groups and parties.
Because of these circumstances, the preparatory phase during which the outgoing military
leaders and the incoming reformist civilian leaders would meet to agree on the terms for
the transition has been particularly salient. Special negotiating forums have been necessary
to facilitate the transition and setting the conditions for constitutional reform (Przeworski
1991). This “pacting” is not new in Latin America. It has been adopted as an important
part of the constitution-making exercise in previous years when a military or civilian
dictatorship has given way to democratic rule. A case in point is the 1958 Pact of Punto
Fijo which paved the way for the 1961 Venezuelan Constitution and helped institutional-
ize a new democratic order. It charged the newly elected senators and deputies to write a
fresh constitution and soon thereafter the latter created a bicameral commission for consti-
tutional reform (Planchart Marique 1988). The pattern during the Third Wave has been
similar. For instance, in 1990 there was a political pact between political parties in Colom-
bia to design and agree on the mandate for a constituent assembly. In Argentina, Brazil,
Chile and Peru, where the transition was negotiated with the outgoing military still in
charge, the dynamic was different but the process similar, leading as it did to the creation
of a constituent assembly that would design a new constitution.
There are a few interesting lessons that can be learnt from the Latin American experience.
One is that agreeing on the principles and terms for the constitutional reform exercise has
generally been its most important political aspect. Paying attention to what institutional
arrangements are best suited to maximize the probability of success at facilitating the rest
of the process has been critical in that region. A second lesson is that once political agree-
ment has been reached, the constitutional drafting has been fairly straightforward and
dominated by legal expertise. This may also explain why the constitutions in Latin Ameri-
ca over time have come to emphasize the same set of principles with only modest modifi-
cations. Because law and politics are closely integrated in the region, as they are in all
countries that have inherited features of the Napoleonic Code, there is a striking path
dependency reflected in the way constitutions have been developed and adopted. The third
lesson is that because of the prominence of legalism in the constitution-making process,
the gap between constitutional principle and political practice is a common feature of the
Latin American political scene (O’Donnell 1994).

2.3 Africa
The political and constitutional context in the Africa region is less homogenous than it is
in either Eastern Europe or Latin America. The former countries all shared a Communist
legacy but also proximity, culturally, economically and politically, to the rest of Europe.
With the desire to join the European Union, the constitutional path there was pretty much
set in a uniform manner. In Latin America, as suggested above, it was not only a common
experience with military dictatorships but also a long common constitutional tradition that
helped pave the way for revision and reform. The use of specialist bodies, therefore, tended
to confined to facilitating a process that otherwise would be quite closely managed under
the auspices of existing legislative bodies. In Africa, by contrast, there is a variety of
 c o n s t i t u t i o n - ma k i n g i n f o c u s : iss u e pap u 5 

constitutional legacies at play. In francophone Africa, the French constitutional model is

very much dominant; in anglophone countries, the constitutional features of British
parliamentarism dominate despite a move toward presidentialism. What is more, African
countries lack of constitutional tradition of their own, leaving constitutional reform largely
confined to a choice between options derived from foreign models.
The driving forces behind constitutional reform have been both domestic and foreign.
Dissatisfaction with governments unable to deliver development goods to the people has
been one important factor as has opposition to corruption and violations of human rights.
At the same time, foreign governments, not the least those that provide foreign aid to
Africa, have insisted on and encouraged reforms in accordance with the spread of demo-
cratic forms of governance elsewhere in the world. Not surprisingly in these circumstances,
incumbent government leaders have typically shown little interest in constitutional reform
and have agreed to it only reluctantly. These circumstances explain why in the Africa
region, specialist bodies have come to play a particularly prominent role in the reform
process.
The francophone and anglophone countries have chosen different strategies for dealing
with constitutional reforms, each reflecting their respective legal traditions, the former
within the civil law the latter within the common law system. The French-speaking
countries adopted the national conference as the principle vehicle for engaging rulers and
ruled in a dialogue on constitutional and legal principles. LeVine (1994) believes that it is a
replica of the French Third Estate, which, as a popular assembly in 1789, declared itself a
sovereign legislative body and swore its famous Tennis Court Oath as the sole representa-
tive voice of the people. The parallels are especially striking in the cases of Benin and
Mali. The national conference in these two countries brought together representatives of
the most important social forces, proceeded to assert its own autonomy and after having
chased incumbent military rulers from power, engaged in drafting a new constitution.
While these national conferences lacked their Abbé Sieyes to realign and manage the
Third Estate throughout the process, the churches in both Benin and Mali made their
clergy available to preside over and guide the proceedings. The new constitutions are
largely reinventions of the French constitution for the Fifth Republic and there is little that
some one familiar with the French system does not find (Mbaku and Ihonvbere 1998). It
should be added here that the national conferences that were held in other Francophone
countries about the same time were not as successful as those in Benin and Mali. For
instance, in the Republic of Congo, the national conference fuelled ethnic conflict. Much
the same happened in Chad. In Togo, the military decided to hold delegates to the confer-
ence hostage for a long time (Clark and Gardinier 1997).
The trend in nglophone countries has been characterized by more caution. Governments in
power have been quick to point out that they are legitimately constituted bodies and that
their parliaments are sovereign. This argument has been used in several countries, e.g.
Kenya, Tanzania, Zambia and Zimbabwe, against those groups in the emerging political
opposition who have advocated a sovereign constitutional conference along the lines of
what the francophone countries have done. Constitutional amendments, therefore, have
 c o n s t i t u t i o n - ma k i n g i n f o c u s : iss u e pap u 6 

remained the prerogative of parliaments where incumbent governments typically have a

comfortable majority exceeding the two thirds necessary for such amendments. Uganda
and Kenya, in addition to South Africa, are the only countries in English-speaking Africa
that have appointed independent commissions involving politicians, lawyers and lay people
representing civil society1.
These commissions are interesting because they have been highly participatory and thus
open to local input. In Uganda, the Secretariat of the Commission responsible for drafting
the new constitution in 1988-94 received no less than 25,000 documents to consider, many
from the country’s local government bodies. In South Africa, there was also various ways
of engaging the public using both print and visual media, the result being the submission
of some 250,000 petitions and comments, although only about 11,000 were really substan-
tive (Ephraim 2001).
Of all the constitutional reforms in Africa, the one in South Africa was particularly
impressive. Not only did it result in a very different liberal constitution compared to
previous documents. It also demonstrated that where there is political will, reform is
possible. These achievements, however, would hardly have been possible had it not been for
the careful preparations that were made to get the exercise off the ground in the right
direction. As Haysom (2001) points out, this preparation required two distinct phases, the
first agreeing on the preconditions for “talks about talks,” the second—“talks about
talks”—focusing on establishing the conditions for substantive negotiations. These inter-
party dialogues in both phases were critical to the pursuit of the substantive reform efforts.
The lessons from Africa indicate that specialist bodies have played a very important role in
all three phases of constitution-making. They have been important in the facilitating
period. Wherever the national conference model was successful, it tended to take responsi-
bility for formulation as well as adoption of proposals and thus the finalization of the
reform process. In Anglophone countries the reluctance among leaders notwithstanding,
once specialist bodies had been agreed to, they tended to become forces of their own
shaping the process in often unanticipated directions. That certainly was the case in
Uganda and also in Kenya 2000–2004.

2.4 Summary of Main Points

It is possible now to bring this mapping exercise to closure by offering a summary of the
discussion above that highlights the principal points about specialist bodies at different
points in the constitutional reform process:

1 Ethiopia and Eritrea are two other countries, which chose the mechanism of independent commissions to
prepare for constitutional reform. The extent to which these commissions enjoyed autonomy varied. It was very
high in South Africa, quite high in Uganda, but much less so in Kenya, and especially Ethiopia and Eritrea
where the process was very much influenced by the agenda of the incumbent regime (Hyden and Venter 2001).
 c o n s t i t u t i o n - ma k i n g i n f o c u s : iss u e pap u 7 

Table 1. Summary of types, functions and rationale of specialist bodies.

Phase Examples of specialist body Rationale

Facilitation Pact (Latin America), Nation- Finding agreement on a Grund-
al Conference (Francophone norm or a set of guiding principles
Africa), Inter-Party Dialogue
(Poland, South Africa)
Formulation Constitutional Commission/ Development of proposals drawing
Committee, on divergent political views and
independent expert opinions
Finalization Constituent Assembly Adoption by a one-time elected
representative body to avoid
short-term and special interest
considerations

The main points about these bodies are that they are temporary and devoted singularly to
constitution-making, whether it is laying the ground for it, developing specific proposals,
or adopting them. Their functions differ according to which phase in the constitution-
making process applies. In order to clarify and summarize what these functions are it may
be helpful to provide a summary of what these are in the three phases:

Table 2. Functions of specialist bodies in the different phases of constitution-making.

Facilitation Formulation Finalization

Reaching a broad-based Designing specific propos- Deliberating the draft
accord on basic principles als prepared in the formula-
tion phase
Legitimizing the exercise Deliberating proposed Seeking inputs from
rules and potential specific
alternatives political constituencies
Building constituencies of Raising awareness among Agreeing on the proce-
support members of the public dures
for final adoption
Mobilizing resources, Seeking specific inputs Adopting the constitution
human as well as financial from the public
Designing the features of Managing the process to Securing legitimacy for
the constitution-making achieve agreements the constitution
process
 c o n s t i t u t i o n - ma k i n g i n f o c u s : iss u e pap u 8 

Making a constitution is not a simple exercise, nor is the process of doing so linear. The
lines between the three phases are often blurred. There is often movement both forward
and backward. Not all the time do the constitution-makers succeed. In short, there are a
number of challenges and problems arising along the way. Drawing on a select number of
cases, the next section of this chapter will deal with these as they apply to each phase of
the process.

3. Challenges and Problems

Constitution-making typically takes place at certain extraordinary moments in a country’s
history. While the principles and norms of constitutional law and constitutional govern-
ment tend to have a universal value and applicability, finding the commonalities with
regard to the constitution-making process is more difficult. Nonetheless, the rich experi-
ence of constitution-making during the Third Wave, in particular, has produced a set of
insights that may be of particular interest for future consideration. The focus here is on the
challenges and problems that participants and analysts have identified as especially perti-
nent. They will be discussed here with reference to each phase of the process.

3.1 Facilitation
Although most attention in constitution-making has been paid to drafting and adoption
issues, the preparatory phase is often the most critical and difficult. This is particularly so
since many recent cases of making new constitutions have resulted from experiences with
severe and widespread civil and political violence. This is true for Africa where constitu-
tion-making has been quite frequent in the past two decades, but also elsewhere, e.g. Asia
and the Pacific. Getting to the point where drafting can begin requires its own strategy.
The following challenges and problems seem to be particularly relevant for consideration
here: (1) Is there a perceived need for reform? (2) Is there a political will to invest in the
process? (3) Are political leaders ready to “give and take”? and (4) Can key stakeholders
agree on how to proceed?
3.1.1 The need for reform
Even if there may be a shared sense that a country is caught in quite extraordinary circum-
stances, members of the political elite as well as the public are not necessarily going to find
themselves in agreement about the need for a new constitution. Governments are usually
the least likely to agree to reform preferring to keep the existing constitution and instead
managing the process by agreeing to amendment of specific paragraphs. The establishment
of specialist bodies is rejected not only on grounds of financial costs but also and often, in
particular, because incumbent leaders are afraid of losing control of the reform process.
This is what has happened in many nglophone countries which have remained free from
major upheavals, notably Kenya, Tanzania and Zambia. Governments have referred to the
sovereignty of the elected parliament and claimed that it should be the body dealing with
constitutional changes. In Tanzania, the Government has succeeded in holding back
demands for a special constitutional commission, although members of the political
opposition called for it after a special commission headed by the then Chief Justice, Francis
 c o n s t i t u t i o n - ma k i n g i n f o c u s : iss u e pap u 9 

Nyalali, had proposed a series of amendments that could have warranted the establishment
of a special review body (Mwakyembe 1995; Widner 2001).
The outcome of the political battle in Kenya over the need to reform eventually ended up
differently largely because it was driven in the 1990s by a strong and unified civil society in
which church leaders and lawyers played a prominent role. Its representatives developed a
proposal of its own identifying the kind of Kenya they wanted (Mutunga 1999; Ogweli
Analo 2004). This draft became a political rallying point although the President, Daniel
arap Moi and his government for a long time showed little interest in buying into the call
for reform. When Moi finally agreed to a constitutional review in 2000, the proposed
chairman, Professor Yash Ghai, agreed to serve only as long as the constitutional draft of
civil society could be incorporated into the agenda of the commission. Moi yielded to this
condition and thereby set in motion a review that turned out to become much more than
he had anticipated (Cottrell and Ghai 2007).
The experiences of Kenya and Tanzania are not necessarily typical since they carried out
their constitutional reviews under conditions of peace and stability. Establishing special
forums for constitution-making in “post-conflict” societies, where a new entity is being
created, e.g. Kosovo, or where state failure has occurred may seem especially urgent, but
getting agreement on the need for reform is not necessarily easier. There is always the fear
that one party will try to use the occasion to entrench itself in power. Because of such
mutual suspicion, agreeing on the need for reform may be impossible and definitely take its
time. South Africa is a case in point. The need for reform was eventually shared by both
the white minority government and the black opposition that previously had been forced
into exile, but it took a long time.
3.1.2 Political will to invest in the process
South Africa provides perhaps the best evidence of the importance of key stakeholders
being willing to invest their energy in the process. This case indicates that where parties
are stalled and there is no progress in sight, the willingness to start negotiations is unlikely
to exist, but once there is a sign of breakthrough, as happened in 1988 in response to the
publication of a document entitled “Constitutional Guidelines for a Democratic South
Africa” by the African National Congress (ANC). It was the first concrete indication that
the party was prepared to accept a constitutional dispensation which subordinated majori-
tarian democracy to the limits prescribed by a constitution (Hansom 2001:95). This had
the effect of bringing civil and political leaders in South Africa together in new ways and
encouraged tentative—though politically controversial—meetings between South African
government representatives and members of the exiled ANC leadership outside the coun-
try.
These initial contacts between the ANC and the Government may be best described as
informal bodies that were set up in order not to negotiate but to build confidence, thereby
paving the way for formal negotiations at a subsequent point (Spark 1993). These were
“talks about talks,” as Hanson calls this initial phase of the constitution-making process
(Hansom 2001:94). These conversations did lead to more regular meetings, but there was
still disagreement about a number of things so the “talks about talks” continued, initially
 c o n s t i t u t i o n - ma k i n g i n f o c u s : iss u e pap e r u 10 

under the ill-fated Codesa (Convention for a Democratic South Africa) in 1991-92, but
subsequently through a resumption of bilateral talks that ended with the Memorandum of
Understanding in late 1992. Most importantly, this set of negotiations produced the 34
Grand Principles that would serve as binding on the rest of the constitution-making
process.
The South African process was in the end successful in producing a constitution that all
the major stakeholders would accept, but the political will to invest in the reform process is
sometimes lacking or at least insufficient. If political leaders are not ready to take the
facilitation phase seriously, the chances that the rest of the process will be productive
diminish significantly. This seems to have been the case in Kenya as it reluctantly em-
barked on constitutional reform in 2000. It has happened elsewhere too. For instance, the
collapse of the Egmont Palace Pact in Belgium in 1977 severely complicated and put back
the reform process which only much later has ended up in a federal constitution for the
country (McWhinney 1981:13).
3.1.3 3. Readiness to “give and take”
Constitution-making is a strategic game where political actors typically enter the process
with a view to promoting and defending their own interest, not necessarily their personal
ones, but those of their respective constituents. Being able to transcend these often par-
ticular, if not narrow, views, is paramount for a constitution-making process to move
forward. The special bodies that are set up to facilitate confidence-building and mutual
understanding are the vehicles by which such values are fostered. As the South Africa case
indicates, learning to respect and trust each other enough for meaningful negotiations
takes time and requires patience. This is particularly true in situations where peace nego-
tiations constitute a sine qua non condition for constitutional reform (Klug 2007).
Peace negotiations in societies that have undergone periods of serious civil and political
violence deal with the underlying political conditions but they are often focusing on the
immediate rather than the longer term implications of the agreement. As such the peace
agreement is a facilitating mechanism and it is important, therefore, to ensure as much as
possible that it lays the ground for subsequent negotiations about a new constitution. The
most important outcome of peace negotiations, as the case of Burundi indicates, is the
socialization of key stakeholders into a mode of thinking that makes them look at each
differently. Even so, as the Burundi example also shows, building enough confidence that
leads to constitutional negotiations is cumbersome when social and political cleavages go
deep. The Sri Lankan case would be another where the willingness to give and take that
once existed between the Sinhalese and Tamil groups now seems to be completely gone
(Ghai 2005). As one analyst notes with reference to Iraq, building a democracy entails
much more than drafting and adopting a new constitution (Benomar 2004).
The need for a long facilitation phase is likely to be the case especially in countries that
emerge out of civil and political conflict. Peace negotiation becomes the special and
primary mechanism for preparing constitutional reform. It is important to keep these two
activities apart and ensure that the facilitation phase concentrates on talks rather than
drafting. An assuring climate in which contending parties can sit down and agree “on
 c o n s t i t u t i o n - ma k i n g i n f o c u s : iss u e pap e r u 11 

paper” what the future constitutional framework of their country should look like is an
important first step.
3.1.4 Agreeing on how to proceed
Yet another challenge in the facilitation phase is to be able to negotiate and create the time
and space for a strategic and long-term view of what is needed. In post-conflict countries,
in particular, members of the public are tired of the violence and want a rapid return to
peace. Sometimes peace agreements turn out to be no more than truces. Violence breaks
out soon again. The danger in these situations is that the mechanisms or bodies that were
created to facilitate peace and pave the way for constitution-making lose much of their
credibility. It is not only individual political leaders that may lose face; the whole institu-
tional apparatus does. Finding agreement on a Grundnorm, however, is often tedious and
political leaders are apt to give into popular pressures to act swiftly. Without implying that
such a “fast track” is bound to fail, it is clearly very risky. The challenge, therefore, is to
strike a balance between reflection and action, planning and implementation.
Disentangling the various components of peace-making and what needs to be done to
proceed to the next stage is not easy but there seem to be two ways forward that make the
challenge somewhat easier to handle. The first is to create a “peace package” which involves
a complex mix of discrete but complementary of components. This way of “sweetening” the
path forward was attempted, for example in Bougainville, as it embarked on negotiating
peace with Papua New Guinea and a new constitution. This package approach had both
advantages and disadvantages. Some stakeholders could not accommodate themselves to
the full package and were reluctant to go along, but step by step progress was made as
actors took steps that others could not afford to reciprocate. The lesson from there and
other similar cases, e.g. more recently Nepal, seems to be to include fill the package with
things that are not necessarily resolved in full but within reach of being agreed upon so
that keeping negotiations going is worthwhile.
The other approach is built on the notion of sequencing. In this approach it is important
for actors involved to agree on the process toward making a constitution entails. This
step-by-step approach is more careful and avoids “front-loading” as often happens when
stakeholders are under pressure to achieve swift results. Sequencing typically involves
thinking strategically about what is necessary to put in place in order to move from one
phase to another. For instance, the South African process was carefully planned in terms
of how to move from A to B. Although it was temporarily derailed before any real consti-
tutional drafting had taken place, it eventually resumed with an agreement about basic
principles that then made it possible to agree on substantive negotiations and drafting.
Sequencing is a strategic tool to help the process move forward from facilitation to formu-
lation, but it is fraught with its difficulties and traps. The “road map” of the process that
sequencing allows is often not clear enough to make a full commitment by all stakeholders
possible. Some may be tempted to withdraw their support and the whole process collapses.
Such is the risk that must be taken in this approach. One step at a time, one phase at a
time in constitution-making sounds like the right approach, but it often turns out to be
two steps forward and one (if not more) backward, leaving stakeholders and their represen-
 c o n s t i t u t i o n - ma k i n g i n f o c u s : iss u e pap e r u 12 

tatives in the constitution-making process frustrated and often ready to abandon their
commitment.

3.2 Formulation
The line between facilitation and formulation is sometimes difficult to draw in the empiri-
cal reality of constitution-making. They do occur in sequence, but they are often com-
pressed in such a way that it is difficult to trace where one begins and the other ends. In
fact, this compression is in some cases so complete that they are better seen as complemen-
tary measures that support each other. This becomes the case especially where the special-
ist body that was set up to prepare constitution-making also takes on the task of actually
carrying it out. The most extreme examples of this are the National Conferences that were
held in francophone countries in the late 1980s and early 1990s to pave the way from
military autocracy to civilian democracy. For instance, the Conference in Benin declared
itself sovereign and proceeded to draft—and adopt—a new constitution. One and the same
body with the same composition throughout made all the decisions about both process and
substance (LeVine 1994). Such examples, however, are exceptions because, despite an
inevitable continuity with regard to institutional formulas and personnel, there is usually a
distinction between those who lay the political foundation for making a constitution, on
the one hand, and those responsible for drafting the proposals.
The challenges that arise in the formulation phase, therefore, are related to the exercise of
drafting proposals and how to drive the process forward through strategic management.
They can be summarized as follows: (1) Who should draft? (2) How should public input be
assured? (3) How is the process best managed?
3.2.1 Who Should Draft?
Drafting is typically an exercise that requires legal expertise but the specialist bodies that
are set up to produce proposals are often filled with political representatives as well. In
some cases, legal and political expertise is combined in one and the same group of indi-
viduals. Such was the case, for instance, in Spain at the time it prepared its first post-Fran-
co constitution in the late 1970s. The drafting was delegated to a seven-person committee,
the Ponencia, made up of representatives of each main political party who also happened to
be constitutional experts.
Drafting bodies when set up as special institutions are generally larger than the Ponencia in
order to accommodate major interest and groups in society, because in addition to simply
be technical or legal, the tasks also include deliberation. So there are essentially two
models: one that integrates drafting proposals with public deliberation; the other that
keeps the two separate.
The first type is usually referred to as a constitutional commission. The political representa-
tives are dominant and are served by legal expertise that is either confined to a common
secretariat, as the case was in Uganda 1988-1992 or attached to individual political parties
as the case was in South Africa 1991-94 (Hyden and Venter 2001). In Kenya, the Consti-
tution of Kenya Review Commission was made up of representatives of civil society
organizations, the main political parties with the Attorney General and the Secretary to
 c o n s t i t u t i o n - ma k i n g i n f o c u s : iss u e pap e r u 13 

the Commission as ex-officio members. There were lawyers among these members and the
body had the advantage of being chaired by an independent constitutional lawyer (Cottrell
and Ghai 2007). The “publicness” of the constitution-making process has become increas-
ingly important in recent years as one of the effects of the Third Wave has been to prompt
greater accountability and transparency in politics. This has been driven by domestic
constituencies as well as the international community that often finances constitution-
making exercises. This has been the case particularly in Africa.
The second model is to have a specialist body that largely concentrates on drafting propos-
als but let these be deliberated in another body, typically a legislature. Such bodies are
often referred to as constitutional or drafting committees. They often have less public
prominence and tend be largely technical or legal. This model is more common in coun-
tries that embark on constitutional review or reform with long-standing democratic
institutions—parliament and political parties, in particular—that tend to assume that it is
their prerogative to take political responsibility for the exercise. Even though these com-
mittees in some cases may be seeking public input and consists not only of lawyers, they
are working as a special arm of an existing parliament. This was the case with the body
established by the Swedish parliament in 1955 to review the country’s 1809 Constitution
that had become obsolete following the transition to democracy in the early 20th Century.
This committee worked diligently with much attention to technical detail while also
“updating” the language to fit the circumstances in the second part of the century. It took
12 years to complete its review (and it took another six years before the constitution was
adopted by parliament separated by two elections). The Swedish case stands in contrast to
the Spanish review of 1977-78 which was carried out not only much faster but also without
any public input.
In fact, the Ponentia drafted the new constitution in closed chambers (Rubio Llorente
1983).
It has not been uncommon to have legal experts from other countries join in the drafting
exercise, but their role has typically been to serve as advisors rather than actual authors of
particular proposals. For instance, in the cases of Ethiopia 1994 and Eritrea 1996, the
Constitutional Commission arranged a special international conference to be able to draw
on relevant comparative experiences and listen to the views of constitutional experts
coming from other countries (Wodajo 2001). At least in the former case, the ideas shared
at the conference lived on and led to a debate on some principles that had been introduced
by foreign experts at that occasion.
3.2.2 How is public input assured?
Not all constitutional commissions and committees go out of their view to systematically
collect opinions from individuals, groups and private or public agencies but it has become
more common that in the interest of legitimizing the exercise, such efforts are increasingly
being made. In African countries, for instance, with no real constitutional tradition,
previous constitutions have been disregarded by political leaders. Such was the case with
the “independence constitutions” that were pragmatically, if not cynically negotiated by the
outgoing colonial government and the incoming nationalists. The latter never treated these
 c o n s t i t u t i o n - ma k i n g i n f o c u s : iss u e pap e r u 14 

constitutions as blueprint and were only too happy to change—or abandon—them after
independence. The first three decades after that event witnessed an almost total disregard
of constitutions and the adoption of autocratic or dictatorial practices that left the public
disillusioned. The Third Wave, therefore, created space for new constitutions that would
reflect democratic values (Hyden 2006). Popular expectations of a “people’s constitution”
emerged in these countries, e.g. in Uganda (Mugwanya 2001).
It is clear that constitutional commissions as independent specialist bodies have been able
to organize their own collection of opinions from the public. Calls have been sent out
through the media, including Internet, in order to receive inputs. Special media cam-
paigns, for instance, were conducted in South Africa with astonishingly rich results (Ebra-
him 2001). A similar effort, though less formalized occurred in Uganda where over 20,000
were received and some 7,000 considered and discussed by the Commission (Waliggo
2001). Cottrell and Ghai (2007:9) report that the Commission in Kenya received no less
than 37,000 submissions from individuals and groups, ranging from lengthy (and some-
times learned) presentations to a few oral sentences. In Kenya as well as Uganda, special
hearings were organized in each district or electoral constituency with sometimes thou-
sands of people in attendance (Cottrell and Ghai 2007:9). All the accounts above confirm
that the public views that reached the commission were faithfully considered.
The specialist bodies, therefore, play an important political role in legitimizing the consti-
tution-making exercise. If it is able to demonstrate its independence from government, as
happened in both Kenya and Uganda, there is a tendency for the exercise to overshadow
day-to-day politics and encourage media to address its issues in a favorable manner. These
bodies have had an important role to play in raising public awareness about such issues as
human rights, rule of law, and other aspects of what is generally called “good governance.”
3.2.3 How is the process managed?
The formulation phase is not merely about drafting. Equally important is the ability to
move the process forward giving opportunity for deliberation, yet not get caught in dead-
locks. This political task is sometimes best performed by a respected and influential person
who can persuade all contending parties. It may be done through direct intervention or
more indirectly through using “moral persuasion.” When Yugoslavia embarked upon its
new constitution in the early 1970s, the actual drafting was led by the President of the
Constitutional Commission, Edvard Kardelj, but he enjoyed the political backing from the
country’s president, Tito, to help resolve outstanding issues. Moving the process forward,
therefore, was the result of a direct engagement in the process by both individuals with a
view to finding concrete solutions to disagreements over the formulation of the constitu-
tion (Djordjevic 1983). In South Africa, the influence of President Nelson Mandela was
more indirect but it is clear that his presence was felt among the participants throughout
the constitution making process (Hansom 2001).
Constitutional commissions enjoy varying degrees of autonomy when it comes to drafting
proposals. In South Africa, for instance, the process was closely tied to ongoing inter-party
negotiations. In Uganda, by contrast, where political parties were not allowed to campaign
or pursue any really partisan activities, the Commission operated much more independent-
 c o n s t i t u t i o n - ma k i n g i n f o c u s : iss u e pap e r u 15 

ly under the able leadership of a respected judge. Because the commission in Uganda was
under less pressure from political parties to deliver it took its time to complete the exercise.
Having been appointed in 1988, it submitted its report six years later. The commission
relied on donor funding, notably from Denmark, and members of the international donor
community did express concern about the time it took to complete the drafting, yet felt
that they could not stop funding the process given its significance for the future of the
country and the fact that it enjoyed broad-based legitimacy among the people of Uganda
(Waliggo 2001).
The Ugandan case raises the issue of whether deadlines are helpful or not for drafting
commissions. Such deadlines have often been applied. For example, when Egypt adopted
its 1971 Constitution, the drafters were given a deadline of two months (Saleh 1983).
Although no explicit deadline is always set, the drafters are aware of the need to deliver
proposals promptly. The Ponencia in Spain, for instance, produced its complete draft in less
than four months in 1977 (Rubio Llorente 1983:252-53). There is no real precise answer to
the question about the usefulness of deadlines. The cases under review seem to indicate
that the political circumstances—often the need to seize a “historical opportunity”—tend
to determine the approach that is taken.
The Spanish case raises another issue: should the drafting be public or conduced. The
drafters furnished summaries of its progress on a regular basis after each of its meetings,
but it never published the preliminary drafts. The media lamented this approach and
criticized the Ponentia for its semi-secrecy. Just before the draft was finalized, however, the
drafters arranged a “leak” via a newspaper close to one of the key authors, thereby allowing
the Spanish public to know about it in full. The only snag in this particular case was that
by publishing the draft the authors lost control of the process, to the point that they never
got around to carry out even technical corrections (Rubio Llorente 1983:253).
Current practice tends to be more transparent and interactive not only with high-level
party representatives but also members of the public. This tends to have two immediate
effects. One is to prolong the process because consultations and deliberations are more
widely held. The other is to prompt drafters to include a wide range of rules that could
have been left for regular legislation but which a public and transparent process makes
politically difficult to ignore in the actual draft of the constitution. Specialist drafting
bodies today, therefore, tend to be under increased pressure to be as inclusive as possible.
In this respect, constitution-making is back to the Kelsonian days hundred years ago,
when the professors were in charge and used their legal insights to try to plug literally
every conceivable loophole. The difference, of course, is that today it is not the experts that
call for such an approach but stakeholders in a democratic process in which constitution-
making is nested.

3.3 Finalization
As between facilitation and formulation, there is overlap between the latter and finaliza-
tion. Some of the issues that arise in the formulation phase keep popping up in the delib-
erations that precede adoption of the constitution. Because drafting is not merely a techni-
 c o n s t i t u t i o n - ma k i n g i n f o c u s : iss u e pap e r u 16 

cal exercise but fraught with its own political contestations, the same disagreements that
complicated the drafting are often amplified in the process of adopting the constitutions.
This is particularly true in many countries in which constitution-making involves address-
ing fundamental issues of state formation or nation-building as the case is in Africa, parts
of Asia and the Pacific.
Despite the overlap, the final phase of constitution-making raises its own issues that
deserve attention here. The first is the way the process of adopting a new constitution is
organized. There are variations that are relevant to discuss here. The second issue concerns
the role of the constitution-makers. How do they interpret it? The third issue relates to
how well a constitutional consensus can and should reflect the national consensus. How do
constitution-makers respond to this challenge?
3.3.1 The process of adopting the constitution
Some countries, e.g. Greece in 1974, have left the adoption of a new constitution in the
hands of a sitting parliament. A variation of this approach is the one taken, e.g. by Swe-
den, where parliament adopts the constitution—or constitutional amendment—but does
so in two separate sessions divided by a general election. The more common practice,
however, has been to enact legislation to create a special body with exclusive responsibility
for deliberating and adopting it There are various ways that this has been done. In some
countries, e.g. Uganda in 1994, a “one-shot” Constituent Assembly was created and
elections of its members across the country. In addition, a number of groups that were not
likely to be elected, including women, youth and disabled, could nominate their own
representatives to the Assembly. The Ugandan Assembly sat for almost a year before the
constitution was enacted and promulgated by the President in October 1995 (Wapakhabu-
lo 2001). This approach seems to be particularly common—and appropriate—in countries
which start from “scratch,” i.e. have to bring in a democratic regime after a civil war or the
return from military rule. Where elected bodies have been in existence but temporarily
suspended or where legislatures exist but having been restricted by autocratic rulers, the
tendency has been to turn the parliament into the constituent assembly focusing exclusively
on its adoption. If the legislature has two chambers they have combined into a Grand
Assembly in which they jointly deliberate and approve constitutional principles. The idea
of creating a special assembly is justified mainly on the ground that constitutional matters
are important and should not be allowed to be crowded out by day-to-day parliamentary
business. Another reason is that the latter typically operates with different rules than
parliament, e.g. requiring not simple but extraordinary majorities for approval.
The idea that a special constituent assembly should be responsible for adopting the consti-
tution is associated not only with the United States and France where this formula was
first used in the late 18th century but it has also been adopted in many British Common-
wealth countries where the original model relies on the sovereignty of parliament rather
than specially elected bodies. Australia, Canada and most other Commonwealth countries
have deviated from the British model and opted for the special Assembly for deliberating
and adopting new constitutions or significant amendments.
The use of a constituent assembly that is elected for the sole purpose of adopting a new
 c o n s t i t u t i o n - ma k i n g i n f o c u s : iss u e pap e r u 17 

constitution seems to be the more common approach in the Third Wave period, but some
countries have gone further in this “direct” or “populist” way of constitution-making by
introducing a popular referendum for purpose of ratifying a constitution or amendment
(McWhinney 1981). Interestingly, this is the case within the United Kingdom where the
issue of constitutional devolution to Scotland and Wales was subject to popular referen-
dums. The same applies to the European Union which has applied the same model for a
vote on its proposed constitution. In none of these cases, however, has the referendum been
anything more than a consultation of popular opinion. Law-makers have not been bound
by their outcome.
3.3.2 Role of constitution-makers
Many of those who as members of a specialist body are charged with deliberating and
adopting a new constitution may be experienced and seasoned law-makers but that is not
always the case. In many countries where constitution-making involving specialist bodies
is new, some, if not all, of those who are elected or nominated to the Constituent Assem-
bly have little understanding of what the role of being a constitution-makers entails. To be
sure, as the case was in South Africa (Mbete-Kogitsile 2001), members of these bodies
gradually acquire the experience of focusing on specific issues instead of just making
speeches for the sake of taking a position. They also get socialized into their roles as
negotiators. Thus, even though the beginning may be rough, progress is made as experi-
ence is gained. In other countries, e.g. Uganda 1994-95, the balance between taking a
stand on a particular issue and finding a solution to it appears to have been more weari-
some (Wapakhabulo 2001). Much the same is also reflected in the deliberations of the pro-
posed new Kenyan constitution in 2004 Cottrell and Ghai 2007).
The cases listed above also raise the question of how the constitution-makers view their
role. Are they representatives of specific constituencies on whose behalf they speak and are
accountable to or are they “delegates” with a mandate that allows them to act independent-
ly? This distinction is rarely spelled out in advance as a way of making the constitution-
makers reflect on who they are in such a capacity. The vast majority of them tend to
identify themselves as “representatives” rather than “delegates.” It is easy to see in a democ-
racy—or a country aspiring to be one—that this is an appropriate conceptualization but it
often has the effect of making agreements difficult because the members of the assembly
are reluctant to give up a position that they have once taken on an issue. In Uganda 1994-
95, for instance, it turned out that it was impossible to get any agreement on the “land
question,” i.e. what formula should apply for owning land in the country (Wapakhabulo
2001:125-26). The issue had to be deferred to the parliament that would be elected follow-
ing the adoption of the new constitution.
The “delegate” role is more compatible with a specialist body that is made up of constitu-
tional experts who share a common language and understanding of the issues. The Ponen-
cia in Spain is a case in point. This small committee was made up of representatives of the
main political parties, who were also all constitutional lawyers. To be sure, they were
largely responsible for drafting, not adopting the constitution, but they managed to recon-
cile these two roles in a constructive manner that allowed for an expeditious. The notion of
 c o n s t i t u t i o n - ma k i n g i n f o c u s : iss u e pap e r u 18 

being a representative has been widely embraced in Third Wave countries where the idea is
that the new constitution must somehow reflect popular opinion. It is not clear, however,
that reliance on elected representatives necessarily paves the way for a more durable and
meaningful constitution. Constituent Assemblies that are established in countries with
little domestic constitutional tradition are often inclined to become too ambitious in terms
of adopting endless numbers of paragraphs that not only are unjusticiable but also difficult
to apply politically. In short, the tendency to include a number of moral or ideological
statements is likely to be particularly pronounced wherever specialist bodies are called
upon to deliberate and adopt constitutions in countries with no or scant indigenous tradi-
tion of constitutionalism.
3.3.3 Constitutional and societal consensus
In addition to trying to plug specific loopholes, contemporary constitution-makers also
strive to ensure that what they agree upon reflect a societal or national consensus. This
ambition is driven partly by their mandate as elected representatives but also by their wish
to ascertain that their constitution easily gains support and legitimacy outside their own
chamber. Because socio-economic and political conditions in every country tend to change,
this is a challenge that the constitution-makers find hard to address.
They have difficulty in accepting that a brief constitution that is first and foremost a
document that can be tested in courts is often the best approach because it tends to rely on
legal texts and it leaves room for interpretation. This approach, which is best illustrated by
the U.S. case, however, is not easily applied in other countries where the legal tradition and
political culture is different. The inclination in those countries is to make the constitution
as long and verbose as possible in order to try to capture a perceived societal consensus.
A compromise that allows for adjustment to changing circumstances is to build into the
constitutional act appropriate methods for how it can be amended. Amendment procedures
should be sufficiently flexible to allow such an exercise to happen, but it should also be
strict enough that amendments do not pile up in endless numbers as the case is, for ex-
ample, in the state of Florida in the U.S. A qualified majority—typically two-thirds—are
needed for amendment. Such a threshold level does not work in every country—in many of
them in Africa the dominant party has more than a two-thirds majority. Thus, the rule can
easily be misused and the credibility of the constitution undermined.
There is also the issue of where the compatibility of constitutional and societal consensus
applies. For instance, the 13th, 14th and 15th amendments to the U.S. Constitution, all
carried out in the wake of the Civil War, mandate racial equality but it took almost a
century before these amendments were acted upon politically and an acceptable level of
compatibility—to most, if not all Americans—was achieved (McWhinney 1981:17).
Constitutionalizing morals has proved especially difficult. They tend to be ignored whether
they appear in the original text or become the subject of an amendment as, for instance the
18th Amendment to the U.S. Constitution aimed at prohibiting sale of liquor, illustrates.
Ignoring the need for compatibility between constitutional and societal consensus or
failing to achieve it can be harmful as the case of the German Weimar Constitution of
 c o n s t i t u t i o n - ma k i n g i n f o c u s : iss u e pap e r u 19 

1919 demonstrates. It was adopted with a number of ambiguous clauses with regard to
basic constitutional provisions because there was at the time no identifiable societal con-
sensus and the constitution-makers rather than trying to see their role in that context and
do something about it, they felt ultimately responsible to the legal community. In so doing,
they ignored the need to address underlying political disagreements and resorted to hoping
that the legal professors could resolve the issues by developing appropriate clauses for their
adoption. They were fooled by the promise of these professors that law stands above
politics and thus could be used to somehow engineer solutions to political problems. In the
end, the Germans learnt the hard way the limitations of such an approach.

4. Conclusions
The generic types of specialist body in constitution-making are the constitutional drafting
committee and the Constituent Assembly, one confined to formulation, the other to
finalization. The point that the paper has tried to make is that these kind of bodies have
become not only more frequently used but also applied in new ways in Third Wave coun-
tries. There are several reasons for this proliferation. An absence of a strong constitutional-
ist tradition in many new states in Africa and the Pacific has allowed for experimentation.
Particularly striking is the number of British Commonwealth countries that have deviated
from the British model of parliamentary sovereignty to establish specialist constitution-
making bodies. Another reason is that many countries in Africa and some in Asia and the
Pacific have emerged from—or in a few cases still being caught in—civil war, circumstanc-
es in which it has been necessary to create specialist bodies to lay the ground for meaning-
ful constitution-making. It may be the most significant change in the use of specialist
bodies compared to earlier periods. Facilitating the process has become an integral part of
making a new constitution as the cases of Uganda and South Africa, among others,
illustrate. Yet another reason for the proliferation is the demand for participation by groups
that in an autocratic political dispensation have been prevented from exercising influence.
The rise of the National Conference to sovereign constitution-making body in Benin and
Mali—and other African countries with less success—is one case in point; the evolution of
an alternative constitutional proposal by civil society organizations in Kenya in the 1990s
another. Failure to lay the ground for consensus on the basic principles—or Grundnorm—
for the constitution-making exercise can be costly. In Kenya, the political establishment
remained divided thereby thwarting the adoption of the constitution that had been care-
fully drafted 2001-04. In Bolivia, more recently, the attempt to change the constitution
without first securing a national consensus led to the emergence of two rivaling exercises.
The final point is that with an increasingly rich and varied experience with specialist bodies
around the world the basis for providing advice on how to conduct constitution-making
exercises is wider but also more complex. There is no simple formula for how to make best
use of these bodies because so much of their performance depends on the context—tempo-
ral as well as social—in which they are nested. The conclusion, therefore, is that learning
from other experiences is important but in the end it is the political sensibility of key
stakeholders about how to proceed and what role specialist bodies can play that matters.
 c o n s t i t u t i o n - ma k i n g i n f o c u s : iss u e pap e r u 20 

5. References Linz, Juan and A. Stepan 1996. The Problems of

Democratic Transition and Consolidation: Southern
Agweli Onalo, P.L. 2004. Constitution-Making in Europe, South America and Post-Communist Europe.
Kenya. Nairobi: Transafrica Press. Baltimore: Johns Hopkins University Press.
Benomar, Jamal 2004. “Constitution-making After Mbete-Kogitsile, Baleka 2001. “The Principal Actors
Conflict: Lessons for Iraq,” Journal of Democracy, vol in the South African Constitution-Making Process”
15, no 2 (April), pp 81-95. in Hyden and Venter, op.cit. pp 25-42.
Clark, John F. and D.E. Gardinier (eds) 1997. Political Mbaku, John M. and J.O. Ihonvbere 1998. Multi-Party
Reform in Francophone Africa. Boulder CO: West- Democracy and Political Change: Constraints to
view Press. Democratization in Africa. Aldeshot UK: Ashgate.
Cottrell, Jill and Y. Ghai 2007. “Constitution Making McWhinney, Edward 1981. Constitution-making.
and Democratization in Kenya (2000-2005),” Toronto: University of Toronto Press.
Democratization, vol 14, no 1 (February), pp 1-25. Mugwanya, George 2001. “The Legitimisation of the
De Villiers, Bertus and J. Sindane (eds.) 1996. Constitution-Making Process in Uganda” in Hyden
Managing Constitutional Change. Pretoria: HSRC and Venter, op.cit. pp 162-76.
Publishers. Mutunga, Willy 1999. Constitution-Making from the
Djordjevic, Jovan 1983. “The Creation of the 1974 Middle: Civil Society and Transition Politics in Kenya.
Constitution of the Socialist Federal Republic of Harare: MENGO Press.
Yugoslavia” in R.A. Goldwin and A. Kaufman (eds), Mwakyembe, Harrison G.1995. Tanzania’s Eighth
Constitution Makers on Constitution Making: The Constitutional Amendment and Its Implications on
Experience of Eight Nations. Washington DC: Constitutionalism, Democracy and the Union Question.
American Enterprise Institute for Public Policy Münster, Germany: Lit.
Research, pp 184-209. O’Donnell, Guillermo 1994. ”Delegative Democracy,”
Dreijmanis, John and M. Malanjny 1996. “Managing Journal of Democracy vol 5, no 1 (January), pp 55-69.
Constitutional Change: Post-Communist Experi- O’Donnell, Guillermo, P.C. Schmitter and L.
ences” in de Villiers and Sindane, op.cit., pp 37-67. Whitehead (eds.) 1986. Transitions from Authoritar-
Ebrahim, Hassan 2001. “The Public Participation ian Rule: Prospects for Democracy, 4 vols, Baltimore:
Process in South Africa” in Hyden and Venter, op.cit. Johns Hopkins University Press.
pp 153-61. Paczolay, Peter 1993. “The New Hungarian Constitu-
Ghai, Yash 2005. “A Journey Around Constitutions: tional State: Challenges and Perspectives” in A.E.
Reflections on Contemporary Constitutions,” The Dick Howard (ed.), Constitution Making in Eastern
South African Law Journal, vol 122, no 4, pp 804-31. Europe. Washington DC: Woodrow Wilson Center
Goldwin, Robert A. and A. Kaufman (eds.) 1983. Con- Press.
stitution Makers on Constitution Making: The Planchart Marique, Gustavo 1983. “The Making of the
Experience of Eight Nations. Washington DC: Venezuelan Constitution” in Goldwin and Kaufman,
American Enterprise Institute for Public Policy op.cit. pp353-78.
Research. Przeworski, Adam 1991. Democracy and the Market.
Haysom, Fink 2001. “Special Features and Mecha- New York: Cambridge University Press.
nisms in Negotiating the South African Constitu- Rubio Llorente, Francisco 1983. “The Writing of the
tion” in Hyden and Venter, op.cit, pp 93-113. Constitution of Spain” in Goldwin and Kaufman,
Huntington, Samuel P. 1991. The Third Wave: Democra- op.cit. pp 239-65.
tization in the Late Twentieth Century. Norman OK: Saleh, Ibrahim 1983. “The Writing of the 1971
University of Oklahoma Press. Egyptian Constitution” in Goldwin and Kaufman,
Hyden, Goran 2006. African Politics in Comparative op.cit. pp 288-331.
Perspective. New York: Cambridge University Press. Sparks, Alister 1993. Tomorrow is Another Country.
Hyden, Goran and D. Venter (eds.) 2001. Constitution- Johannesburg: Struik.
Making and Democratization in Africa. Pretoria: Waliggo, John 2001. “The Main Actors in the
Africa Institute of South Africa Press. Constitution-Making Process in Uganda” in Hyden
Klug, Heinz 2007. “Constitution-making, Democracy and Venter, op.cit. pp 43-68.
and the ‘Civilizing’ of Irreconcilable Conflict: What Wapakhabulo, James 2001. “Managing the Constitu-
Might We Learn from the South African Miracle?” tion-Making Process in Uganda” in Hyden and
Wisconsin International Law Journal, vol 25, no 2 Venter, op.cit. pp 114-31.
(Summer), pp 269-99. Widner, Jennifer A 2001. Building the Rule of Law.
Levine, Victor 1994. “Constitutions and Constitution- New York: W.W. Norton.
Making in West Africa,” paper presented at a Wodajo, Kifle 2001. “The Making of the Ethiopian
Symposium on Constitution-Making organized by Constitution” in Hyden and Venter , op.cit. pp
the Constitutional Commission of Eritrea, Asmara, 132-42.
January 7-11.