In the World of Constitution Building in 2019 and 2020 Prospects

Introduction

People across the world believe in the importance of constitutions in ordering political systems and regulating power relations. If there ever was doubt regarding the centrality of constitutions to political conversations and popular protests, 2019 provided a significant antidote. Sudanese protesters sought not only to change the governing regime, but also the constitutional framework underlying and built by the regime. The constitution was also the single most important issue in the popular protests that rocked Chile.

Constitutions matter, as does their change or maintenance. In some countries, social and political movements have sought to ensure the abolition/change of constitutions (e.g. Panama). In others, the protection of constitutional frameworks against capricious and self-serving reform was at the forefront of political contestations (e.g. Guinea-Conakry). In Algeria, security and political elites have invoked the constitution to block a more democratic and popular transition following the forced resignation of a former president.  

Stories of constitutional change and maintenance covered a fair share of political, media and public engagement in 2019. The Constitution-Building Programme of the International Institute for Democracy and Electoral Assistance (International IDEA) has been reporting on and organizing information on these developments through ConstitutionNet, the sole platform dedicated to generating, organizing and disseminating knowledge and updates on constitution building processes worldwide.

There are few countries in the world, large and small, that have not appeared on the radar of ConstitutionNet’s analysis and updates.

In particular, the Voices from the Field series has given local experts a unique medium to provide detailed accounts of the background, process, actors, contentious substantive issues, and the prospects in constitutional reform processes in their respective countries. In 2019, ConstitutionNet published 33 original Voices from the Field pieces covering 32 countries, 16 for the first time, taking the total number of countries covered in the series since June 2013 to 105. These numbers do not include the large list of countries that were covered in the ConstitutionNet daily news updates (e.g. Cuba – the only country that adopted a new constitution in 2019).

There are few countries in the world, large and small, that have not appeared on the radar of ConstitutionNet’s analysis and updates, underscoring the importance of constitutional reform as a permanent feature of political discourse. Notably, the building of broad political settlement and constitutional reorganisation is and continues to be critical in conflict-to-peace transitions, including in Syria, Somalia, Sudan, South Sudan, Yemen and Libya.

Most of the reform processes that commenced in 2019 are still continuing; some were concluded, as in Cuba and Mongolia; and others have either stalled or are on the backburner, as in Philippines, Togo, and Venezuela.  

Increasing recognition of participatory processes in amendment processes

While popular participation is common in the making of new constitutions, increasingly, even constitutional amendments in some countries have provided significant opportunities for people to express their views over the value and propriety of proposed constitutional changes, in addition to ways to ensure relatively broad political and elite consensus. This goes beyond and is separate from the holding of referendums at the back end of a reform process. In this regard, the ongoing National Dialogue in Senegal anticipates consultations with the public to inform its conclusions and proposals, including potentially constitutional reforms. The constitutional amendment process in Mongolia involved extensive popular participation, including in the form of a deliberative platform comprising randomly selected citizens. The Maltese government has also established a constitutional reform committee whose mandate includes public consultation. South Africa has also recently released the Expropriation without Compensation amendment bill, which was drafted after extensive public engagement, for popular consultation.

Nevertheless, there are still many instances where public consultations are not conducted in constitutional amendment processes. Myanmar provides a good example of such less participatory processes. The constitution making process in Syria does not also anticipate significant public engagement. It is therefore too early to tell whether a global practice of participatory constitutional amendments is emerging.  

Enhancing democracy and fair elections

The scope of issues at the heart of constitution reform processes is expansive. An enduring theme remains reform aimed at enhancing democratisation. In 2019, a number of constitutional reforms sought to establish the conditions for fair and competitive elections through the establishment of independent and effective election management bodies. In Cote d’Ivoire, the reconstitution of the Ivorian Electoral Commission was necessary to comply with a decision of the African Court on Human and Peoples’ Rights and for the establishment of a level playing field ahead of planned general elections in October 2020.  In Togo, the reform of the Electoral Commission has been central to opposition demands as a precondition towards a peaceful transition. Nevertheless, agreement on the exact composition and organisation of the Commission has been elusive. Similarly, possible reform to ensure the independence of the Venezuelan National Electoral Council is a precondition for elections that could herald a more democratic and competitive dispensation.  

Other countries that are pursuing electoral reforms include Ghana, where a proposal for the direct election of mayors was approved in a referendum, and Malaysia, where a constitutional amendment reduced the voting age from 21 to 18. If approved by the required number of state parliaments, Mexico will join Ecuador, Venezuela and Bolivia in establishing procedures for the recalling of serving presidents. Mexico would be the first country to experiment with presidential recall in a context of single-term presidency. 

In response to concerns over the ‘crisis’ of representative democracy, some countries and local authorities have established or are considering establishing permanent deliberative mini-publics, including in Belgium and Spain. These platforms seek to regularize and expand the substantive portfolio of experiments with ad hoc ‘citizen assemblies’.  While these efforts have not been pursued through constitutional reform, they fundamentally modify the way democracy is operationalised and are therefore of significant interest to constitution building.

2020 Prospects

Constitutional reforms have become a regular feature of political and popular discussions across the world. The sprawling activity regarding constitutional reforms in 2019 is likely to continue in 2020. Several reform efforts that started in 2019 will continue and may be finalised in 2020, such as in The Gambia and Syria. Libya is also reportedly planning to hold a constitutional referendum in February 2020, although this may be impractical given the difficult political and security circumstances.

New constitution making processes are expected to start in Botswana, Chile, South Sudan and Sudan. The constitutional amendment processes are also likely to continue in Panama, Malta and Philippines. National Dialogue in Senegal may also lead to constitutional reforms.

As in the previous years, ConstitutionNet will return in 2020 to keep readers abreast developments in the world of constitution building, alongside regular original analysis of some of the notable developments.

The ConstitutionNet team wishes you a pleasant end to 2019 and a Happy 2020.

Adem K Abebe is the editor of ConstitutionNet.