PEACEW RKS

PARTICIPATORY AND INCLUSIVE 

CONSTITUTION MAKING

Jason Gluck and Michele Brandt

[ [

giving voice to the demands of citizens

in the wake of the arab spring
Cover Photo: by Mosa’ab Elshamy, available under a 

Creative Commons Attribution-Noncommercial-Share 

Alike license. Copyright © 2012 Mosa’ab Elshamy. www.

flickr.com/photos/mosaaberising/6950525912.

The views expressed in this report are those of the 

authors alone. They do not necessarily reflect the views 

of the United States Institute of Peace.

United States Institute of Peace

2301 Constitution Ave., NW

Washington, DC 20037

Phone: 202.457.1700

Fax: 202.429.6063

E-mail: usip_requests@usip.org

Web: www.usip.org

Peaceworks No. 105. First published 2015.

ISBN: 978-1-60127-280-5

© 2015 by the United States Institute of Peace

About the Repor

In the wake of the Arab Spring, countries across the Middle East 

and North Africa are still struggling with societal divisions and 

citizens’ demands for transparency, accountability, and greater 

political, social, and economic rights. In many of these countries, 

constitutional reform has featured prominently in the nature and 

direction of the transition. Inclusive constitutional reform has been 

a key component of Tunisia’s path toward democratic consolidation. In Syria, consensus building and constitutional reform will 

have to wait until leaders can come to the negotiating table. 

Where conditions exist to lead a participatory process, this report 

underscores how inclusive constitution making can potentially 

assist Arab Spring countries to respond to the needs of their 

citizens and build consensus in divided societies. While there is 

no blueprint for how to make a constitution, Arab Spring leaders 

and citizens can be inspired by the last two decades of modern 

constitution making, in which citizens have gained a meaningful 

voice in developing their social compacts. The risks and benefits 

of participatory constitution-making processes, as well as themes, 

arguments, and case studies presented in this report, are drawn 

from a workshop entitled “Opportunities and Dilemmas of 

Public Participation in Constitution Building,” jointly organized by 

Interpeace, the U.S. Institute of Peace (USIP), and International 

IDEA, held in Cape Town, South Africa, April 25, 2009. It also 

builds upon previous scholarship from USIP, Interpeace, and 

other external institutes.

About the Author

Jason Gluck is a senior political affairs officer and constitutional 

focal point for the United Nations Department of Political Affairs. 

He is on leave from USIP where he serves as a senior rule of 

law adviser. Michele Brandt is the founder and director of Interpeace’s Constitution-Making for Peace Programme. The authors 

would like to thank Celena Canode for helping with research, 

Nigel Quinney for editing, and Christina Murray, Tom Ginsburg, 

and Susan Stigant for their invaluable feedback and advice.
PEACEWORKS • JANUARY 2015 • NO. 105

CONTENTS

Introduction ... 5

Constitution Making in Arab Spring Countries ... 7

Benefits and Risks of Meaningful Participation ... 11

General Principles and Guidelines to Give Citizens a Meaningful Voice ... 18

Conclusion ... 30

[Throughout Arab Spring countries, demands continue 

for participation, inclusion, and transparency to overcome 

widespread corruption and abuses. How governments 

respond to these calls may determine whether constitutionmaking processes unite or further divide their societies.]

USIP.ORG 3

PARTICIPATORY AND INCLUSIVE CONSTITUTION MAKING

Summary

■ Many of the countries of the Arab Spring face daunting challenges. Syria is racked by war. 

Libya’s transition is challenged by armed militias vying for control. In Egypt, the early 

promise of popular transformation has reinforced divisions in society. Jordan and Morocco 

have taken steps toward reform, but it is still unclear whether these countries can meet the 

demands of their citizens. It is also unclear to what extent Yemen’s mediated transition and 

ongoing constitution-making process will lead to a more stable and democratic society.

■ Tunisia, though still early in its transition, stands alone as a country that has achieved 

constitutional reform through a more inclusive and participatory process and has held 

peaceful elections under this new order.

■ Yet throughout Arab Spring countries, demands continue for participation, inclusion, and 

transparency to overcome widespread corruption and abuses. How governments respond 

to these calls may determine whether constitution-making processes unite or further 

divide their societies, whether they help or hinder the creation of a national consensus on 

fundamental principles and values, and whether the processes and documents that result 

from them are deemed legitimate. 

■ There is no blueprint for how to make a constitution, but the last two decades of constitution-making experience underscores that inclusive and participatory constitution making 

should address root causes of conflict and sectarian divisions, and ensure that the political 

process benefits from the full contribution of all citizens, including women and youth.

■ To achieve such results, constitution makers must have the political will to carry out a 

genuine process of civic education and consultations, in which the views of citizens are 

carefully considered. The constitution makers must carefully apply guiding principles, such 

as transparency and inclusion, and ensure that sufficient time and resources are allocated 

to the process. A nationwide participatory process must be well managed to avoid risks and 

reap benefits.

■ Where circumstances are conducive to meaningful constitutional dialogue and reform—at a 

minimum, a cessation of violence and a willingness of actors and constituencies to come to the 

table—the countries of the Arab Spring will benefit from using their constitutional moments 

to draw upon their own historical experiences as well as the lessons learned from the past 

twenty-five years in constitution making and research about what factors sustain peace. 

USIP.ORG 5

PARTICIPATORY AND INCLUSIVE CONSTITUTION MAKING

Introduction

The countries of the Arab Spring face daunting challenges. Syria is racked by war. Libya’s transition is challenged by armed militias vying for control. In Egypt, the early promise of popular transformation has reinforced divisions in society. Jordan and Morocco have taken limited steps toward 

reforms, but it is still unclear whether these countries can meet the demands of their citizens. 

Through an internationally mediated process, Yemen has thus far avoided civil war and against 

all odds is continuing its transition toward a new constitutional order. Tunisia, though still early 

in its transition, stands alone as a country that has achieved constitutional reform through a more 

inclusive and participatory process and has held peaceful elections under this new order. 

Citizens across the Middle East and North Africa have demanded transparency, accountability, and rights from their governments. For societies where borders were arbitrarily defined 

and dictators ruled for decades, these demands have created an opportunity to redefine national 

identities, set precedents for inclusive political processes, and create constitutions that represent the 

aspirations of their people. What is the nature of citizenship, and what is religion’s role in society? 

What are the nations’ core values? How do politically marginalized citizens, such as women, youth, 

or minorities, gain social, economic, and political rights and access to justice? On what terms can 

historically—and often deliberately—fragmented peoples peaceably coexist? 

Elites cannot answer such questions summarily. To overcome the legacies of dictators and 

hastily drawn borders, transitional leaders must build consensus across deep divisions and with 

previously excluded citizens through national dialogue, public consultations, and civic education. 

A robust democracy requires the full participation and contributions of all its citizens.

As has happened in Tunisia, new governing arrangements must be formed on carefully constructed compromises. Participatory processes must be broad and nationally owned and led to 

shape new social contracts that achieve a durable peace. As Nicholas Haysom suggests, “The right 

answer through the wrong process will not usually yield an acceptable solution.”1

Where circumstances are conducive to meaningful constitutional dialogue and reform—at a 

minimum, a cessation of violence and a willingness of violent actors and constituencies to come to 

the table—the countries of the Arab Spring will benefit from using their constitutional moments 

to draw upon their own historical experiences as well as lessons learned over the past twenty-five 

years in constitution making. Tunisia can serve as an example of how opening up the process and 

seeking consensus can lead to more legitimate outcomes. 

Leaders should develop and sustain the political will to promote the broadest possible participation and consensus. To achieve this goal, they must take adequate time to plan carefully and 

secure sufficient material and human resources. Leaders should continually review their plans to 

ensure the process is transparent and accountable at every stage and work to create a secure environment for opportunities for citizens to freely participate.2

Constitution making historically was concerned with the content of the document itself rather 

than how that content was agreed upon, and until recently, the writing of a constitution was generally an act of power consolidation rather than political negotiation. Imperial powers protected their 

own interests by determining which parties would take the reins of government and the terms 

under which they would rule. Especially during the Cold War, conquerors of vanquished nations 

or new rulers intent on consolidating their power3 drafted their constitutions behind closed doors. 

Times have changed, and in postconflict settings, constitutions tend to be negotiated instruments. In the past two decades, a trend has begun to emerge toward greater transparency, inclusion, 

participation, and national ownership; constitution-making processes now tend to have greater 

levels of citizen participation.4 Transitional leaders across the globe—from South Africa, Thailand, 

To overcome the legacies of 

dictators and hastily drawn 

borders, transitional leaders 

must build consensus across 

deep divisions and with 

previously excluded citizens 

through national dialogue, 

public consultations, and 

civic education. 
6 USIP.ORG

PEACEWORKS 105

and Uganda to Papua New Guinea, Brazil, and Kenya—have chosen to invest significant time 

and resources to implement inclusive and participatory constitution-making processes because 

they have the potential to:

•	 make the constitution itself, transitional authorities, and subsequent governments 

more legitimate in citizens’ eyes;

•	 garner wide support for a peace process;

•	 provide a forum for inclusive national dialogue to promote reconciliation and trust 

building;

•	 foster consensus on the fundamental principles of the nation and the framework of 

the state;

•	 strengthen and promote a common sense of belonging, national unity, and identity;

•	 acknowledge and incorporate the aspirations of citizens who have been previously 

marginalized, such as women, youth, or minorities;

•	 broaden the constitution’s social and economic agenda;

•	 transform the understanding of constitution makers themselves, as they learn about the 

hopes and concerns of their people and see and hear firsthand the problems they face; and

•	 break from an autocratic past and lay a foundation for more democratic practices, a culture of rule of law, and ongoing citizen participation in decision making in the future.5

Researchers on peace and statebuilding highlight6 that unstable political orders are more likely 

to be the products of political exclusion than of poverty, conflicts over natural resources, or weak 

leaders. Sustained peace is achieved through inclusive political settlements.7 One recent study 

found “a strong correlation... between active civil society participation in peace negotiations and 

the durability of the peace during the peace-building phase.” 8 Studying data from 132 new constitutions, professors at American University determined that countries with higher levels of direct 

citizen participation—such as citizen engagement in civic education, dialogues, and public consultation activities—had higher levels of subsequent democratic practices. Direct citizen participation 

during the drafting phase was more important than referenda or other end-phase activities in 

achieving more legitimate outcomes.9 Other researchers have concluded that a referendum at the 

tail end of a constitutional process can even undo carefully constructed compromises; sometimes 

autocratic regimes use referenda to legitimize elite-dominated processes.10

The above studies and the advice of experienced constitution makers underscore that the task 

of promoting a participatory and inclusive process can lead to increased democratic tendencies and 

potentially a more durable peace.11 There is no single blueprint for how to make a constitution. 

Even the most well-planned and participatory process will be fraught with challenges, including 

overcoming decades of oppression and mistrust, fragmentation of social and political actors, a 

weak history of transparency and consultation in governance, and illiberal tendencies within old 

regimes and many social movements. In many cases, regional interests will also have to be contended with—something constitution making is less equipped to handle. 

But inclusive and participatory constitution-making practices can assist countries seeking to secure peace in giving voice to citizens’ demands for accountable, transparent, and democratic reforms. 

In so doing, such processes can address many of the above challenges and increase the likelihood that 

constitutional reform can provide the basis for sustainable and peaceful democratic change. 

We begin with a brief overview of some of the constitution-making processes in the Arab 

Spring. Although it is too early to fully assess these political transitions, the report discusses options for how these processes may benefit from the global lessons learned in constitution making. 

Inclusive and participatory 

constitution-making practices 

can assist countries seeking 

to secure peace in giving 

voice to citizens’ demands for 

accountable, transparent, 

and democratic reforms.
USIP.ORG 7

PARTICIPATORY AND INCLUSIVE CONSTITUTION MAKING

We then review both the benefits and the risks of participatory and inclusive processes and conclude with the general principles and guidelines that should guide them. 

Constitution Making in Arab Spring Countries

Constitutional processes have been central to the transitions in Egypt, Tunisia, Libya, and Yemen, 

as well as the attempts to preserve the regimes in Morocco and Jordan. Reformers faced the task 

of creating a new legitimate constitutional order that redefined the relationship between citizens 

and government and redesigned the government’s systems and structures. In the wake of the Arab 

Spring, some countries have returned to sectarian conflict or a legacy of exclusionary political processes. Yet citizens continue to demand greater accountability, equity, and political freedom. It is 

not surprising, therefore, that in countries where constitutions have been made or remade, people 

have called for transparent, participatory, and inclusive processes that allow them to participate. 

For countries in the middle of constitutional reform or hoping to return to the negotiating table, 

Tunisia—although unique—holds out hope that leaders can embrace more democratic forms of 

constitution making.

Calls for Meaningful Participation

In Egypt, secular and youth groups in early 2012 filed legal challenges claiming that the Constituent Assembly—the first assembly formed to draft the constitution—did not adequately represent women, youth, and minorities. The first assembly was dissolved by judicial ruling in April 

2012. The second Constituent Assembly, formed in June 2012, faced similar problems, as the same 

groups held mass demonstrations in the fall of 2012 against the draft constitution and referendum, 

protesting that their voices had been excluded despite an abundance of commentary calling for a 

nationally inclusive and participatory process. One Egyptian editorialist noted in spring 2012 that 

“the success of a constitution derives not only from the wisdom and the fairness of the text/document, but most importantly from the widespread involvement, informed participation, and buy-in 

by all of the people of Egypt into the constitution making process.”12 Other writers noted that “in 

a country of 85 million people, the writing of Egypt’s constitution should allow for Egypt’s diverse 

civilian voices to speak for themselves.”13

In Tunisia, focus group research reflected calls for the Constituent Assembly, newly elected in 

October 2011, to “listen to the people,” warning that the assembly “should not forget what happened to [ousted president] Ben Ali; the Tunisian people revolted once and can do so again.”14 A 

poll conducted in February 2013 showed that 80 percent of Tunisians wanted to be able to vote 

on the constitution at referendum, a contingency that was available only if the Constituent Assembly failed to approve the draft by a two-thirds majority vote.15 Focus groups in Libya revealed 

similar sentiments: “Citizens want and expect to play a key role in the constitutional development 

process.” 16 An August 2012 press statement from the organization Lawyers for Justice in Libya 

declared that 

after decades of authoritarian rule where the will of the Libyan people was suppressed, the 

participation of Libyans in the constitution-making process will be vital to its success and 

legitimacy. It is absolutely essential that Libyans, all Libyans, have the opportunity to 

participate and engage in the constitution-making process and that the GNC [General 

National Congress] foster a sense of ownership of the process amongst Libyans.17
8 USIP.ORG

PEACEWORKS 105

The same calls heard in Egypt, Tunisia, and Libya have echoed in countries that quickly undertook constitutional reform, such as Jordan and Morocco, and in countries where constitutional 

reform has yet to begin, such as Bahrain. In Morocco, within five months of the start of demonstrations on February 20, 2011, the regime revised its constitution. It transferred the power to appoint government officials and dissolve parliament from the king to the prime minister, enshrined 

freedom of expression and equality between men and women, and criminalized torture, arbitrary 

detention, and enforced disappearances. The king announced the formation of a constitutional 

commission on March 9 of that year. The reforms were made public in mid-June and a national 

referendum was held on July 1. The Constitutional Commission invited political and social organizations to submit proposals for amendments and conducted approximately a hundred meetings with representatives of these organizations.18 The compressed time line, lack of transparency, 

and heavily orchestrated process, however, failed to assuage some in the revolutionary movements. 

Weekly protests across the country continued throughout the process, and the February 20 Movement ultimately rejected the 2011 constitutional revision process as “insufficient and overly controlled by the monarchy.”19

Jordan also employed a top-down approach to constitutional reform with uncertain results. 

The Royal Committee on Constitutional Review, formed in April 2011, proposed forty-one 

amendments to the parliament. The committee included no representatives from opposition parties or civil society.20 The amendments were made public in August, and the parliament debated 

them during nine days in September without public consultation, even though the king himself 

articulated “citizen activism and effective public participation” as a goal of constitutional reform.21

The bulk of the amendments were approved by royal decree on September 30. Since then, protests 

have continued and political opposition and civil society groups continue to call for greater constitutional reform in a “more transparent and participatory process.” 22

Libya’s constitution-making process is currently underway, even as the country experiences 

growing unrest. Libyans elected a Constitutional Drafting Assembly (CDA) in three stages between December 2013 and January 2014. Unfortunately, a combination of insecurity, voter apathy, 

and boycotting by minority groups resulted in less than five hundred thousand votes cast—less 

than half of those registered and barely a sixth of the national electorate. Four of the sixty seats in 

the CDA were left unfilled due to lack of security in certain areas and a boycott by the Amazigh 

minority community.23 The CDA met for the first time on April 21, 2014, with a deadline of August 19, as Libya’s Constitutional Declaration provided for 120 days for the CDA to complete its 

work. The deadline was missed, but this was ignored amid increasing violence,24 competing legislatures and governments vying for legitimacy,25 threats of secession,26 and ongoing attempts by the 

international community to mediate a dialogue to put Libyans back on a path toward consensual, 

constitutionally-based democratic governance.27 

In Yemen, the outcomes of the almost eighteen-month National Dialogue were handed over 

to a presidentially-appointed Constitutional Drafting Commission (CDC) on March 9, 2014. 

The CDC is a technical body of seventeen members, including judges, lawyers, and other professionals that reflect Yemen’s geographic, ethnic, and political diversity. Approximately one-quarter 

of the membership is women. The constitutional roadmap calls for the CDC to produce a first 

draft, which will then be submitted for public comment and to a “national body”—composed of 

representatives of the same groups that participated in the National Dialogue—to confirm that 

the draft is consistent with the National Dialogue outcomes. Like Libya, however, Yemen faces 

daunting political and security challenges. Houthi rebels have taken near-total control of Sanaa 

and other cities,28 and calls from the south for independence have increased.29

Libyans elected a 

Constitutional Drafting 

Assembly in three stages 

between December 

2013 and January 2014. 

Unfortunately, a combination 

of insecurity, voter apathy, 

and boycotting by minority 

groups resulted in less than 

five hundred thousand votes 

cast—less than half of those 

registered and barely a sixth 

of the national electorate. 
USIP.ORG 9

PARTICIPATORY AND INCLUSIVE CONSTITUTION MAKING

Egypt: Closed Processes

Egyptians began expressing concerns about the 2012 constitution-making process the moment 

the legislature announced the criteria for selecting the constituent assembly. By using the results 

of the parliamentary election—in which Islamist parties won the most votes—as the basis for 

determining the assembly’s membership, and by instituting a majority threshold for decision 

making, Egypt missed an opportunity to have the constitutional drafters “move beyond clear-cut 

party lines...in order to express a wider spectrum of opinion within Egyptian society.” 30 This effect 

was exacerbated when the opposition parties boycotted the assembly. The largely closed nature 

of the process—the assembly rarely consulted with the public, and drafters were alleged to have 

ignored the public inputs they received—further undermined the legitimacy of the process and 

final document.31

After the 2012 constitution was passed, “most of the complaints in Egypt about the [constitution were] about the process—who wrote it and how—and far less about the content.”32 Egypt’s 

constitutional referendum, the most participatory aspect of the process, did little to improve the 

situation; it merely codified the imposition of a majority’s will on a sizable minority. Although 63.8 

percent of Egyptians who voted in the referendum approved the constitutional draft, only 32.9 

percent of the total electorate voted, meaning that a mere 21 percent of eligible voters approved 

the constitution. One commentator predicted that “the poor showing will have a number of consequences, including the prospect that the new constitution’s popular legitimacy may be challenged 

for some time to come.”33

The rationale for toppling President Mohamed Morsi’s government, and the manner in which 

it was overthrown, will be studied and debated for years and is beyond the scope of this report. 

What seems clear, however, is that the 2012 constitutional drafting process failed to bring Egyptians together to reconcile their differences and find consensus on the core principles, values, and 

nature of the Egyptian state. To the contrary, the process polarized social and political constituencies. Even before the 2012 constitutional referendum was held, an Egyptian commentator presciently warned, “If there is a sizable number of people who think the constitution is illegitimate 

and the consensus around [sic] is weak, there is a risk down the line that this would make a coup 

(soft or hard) easier.” 34

The 2013 constitutional drafting process suffered from similar defects. Of the fifty-person 

constitutional drafting committee, only two were Islamists and neither was from the Muslim 

Brotherhood’s Freedom and Justice Party, which had won the previous presidential election. Article 29 of the constitutional declaration reserved only 10 percent of the committee member positions for “women and youth” each, resulting in only five women and four youths.35

The committee met with some civil society organizations, but the meetings were almost always 

closed, and there were no mechanisms for members of civil society to follow up with the committee or confirm that their views were being considered seriously. The committee had a website, but 

it went live to the public only a few days before the draft was complete. Social media were used 

for messaging, but there was no organized effort to reach the broader public. When the draft was 

eventually published, there was no systematic public engagement.36 Egypt’s 2013 constitutional 

reform process, far from promoting national dialogue, seemed to narrow the space for political dissent. The number of arrests of journalists, academics, and activists rose markedly in the second half 

of 2013,37 culminating with the arrest of several “peaceful activists” hanging posters encouraging 

people to vote against the constitution in the upcoming referendum.38

When the referendum was held on January 14 and 15, 2014, the constitution passed by 

an overwhelming 98.1 percent. However, like the 2012 referendum, the 2014 referendum was 

Egypt’s 2013 constitutional 

reform process, far from 

promoting national dialogue, 

seemed to narrow the space 

for political dissent.
10 USIP.ORG

PEACEWORKS 105

marked by extremely low voter turnout, only 38.6 percent. Several components of Egyptian society, including the Muslim Brotherhood and liberal parties, boycotted. Regular protests continued as incidences of violence increased. The Strong Egypt Party issued an official statement in 

January 2014 stating that “Egypt has come back officially—and unfortunately—to the ranks of 

the countries where dissidents are traitors, opposite opinions are foreign agents, and patriotism is 

only for those who blindly support.” 39 After the referendum, a civil society group monitoring the 

process noted that the lack of inclusiveness and participation would make it even more important 

for Egyptians to “find common ground for a constructive dialogue in which all Egyptians are 

equally represented.” 40

Tunisia: A Gradual Opening Up of the Process 

In sharp contrast to Egypt, Tunisia adopted its constitution on January 27, 2014, with wider national support. The more inclusive, transparent, and participatory process employed there seems 

to have helped the country eventually reach a greater consensus that conferred some degree of 

legitimacy to the constitution and, by extension, Tunisia’s democratic transition.

Inclusion, transparency, and consultation were lacking during the early stages of Tunisia’s 

constitutional review41 but picked up after the National Constituent Assembly (NCA) presented 

its first draft to the public in August 2012. Following publication of a second draft, the NCA 

launched a two-month outreach campaign that included public meetings in the NCA representatives’ constituencies,42 hearings with interest groups, and television broadcasts of most NCA 

debates and proceedings. The United Nations Development Programme supported a dialogue in 

2012 and 2013 between NCA members and citizens and civil society organizations in all twentyfour of Tunisia’s governorates; no fewer than 6,000 citizens, 300 civil society organizations, 

and 320 university representatives provided input directly to NCA members.43

The public interventions affected the eventual draft. Public reaction to the first draft contributed to at least three substantive changes,44 while lobbying from civil society groups helped 

secure guarantees regarding separation of powers and rights and freedoms.45 The Carter Center assessed these consultations to be “productive in reaching consensus on key issues.” 46 In 

the summer of 2013, however, the NCA was still gridlocked due to a majoritarian political 

dynamic similar to the one in Egypt. According to Mustapha Ben Jaafar, president of the 

Tunisian NCA, the assembly 

found all these issues raised by the opposition were almost impossible to solve in the 

framework of the Joint Committee for Cooperation and Drafting that was composed 

along the same lines of proportional representation as the Assembly itself...So we needed 

to find a formula where everyone would feel involved and represented...We really wanted 

everyone to participate.47

The answer came not from politicians, but from civil society. Four venerable and respected civil 

society organizations, with support from thousands of demonstrators, led a national dialogue that 

created the space for compromise within the NCA. 

Tunisia adopted its constitution through a two-thirds majority vote in parliament and not, as 

many Tunisians had wanted, through a referendum. But deliberate and organized efforts to reach 

out to and consult with people during the negotiation and drafting helped Tunisia secure greater 

legitimacy and support for the constitution, steadying a democratic transition that months earlier 

appeared shaky.48 The speaker of the Tunisian parliament declared that the constitution, “without 

being perfect, is one of consensus.” 49 

Deliberate and organized 

efforts to reach out to 

and consult with people 

during the negotiation and 

drafting helped Tunisia secure 

greater legitimacy and 

support for the constitution, 

steadying a democratic 

transition that months 

earlier appeared shaky.
USIP.ORG 11

PARTICIPATORY AND INCLUSIVE CONSTITUTION MAKING

Perhaps as important, inclusiveness and participation seems to have taught Tunisians a new 

paradigm of political discourse and conflict resolution. “Tunisians didn’t know how to communicate before,” remarks Abdullah Fadhli, of an association of unemployed people. “We were so 

used to being afraid to say anything of substance outside of our own homes, in case there was 

an RCD spy nearby. Now we are learning to talk together again.” 50 The benefits of inclusion 

and participation have been felt in other ways as well. According to one member of the NCA, 

“Before the Revolution, there was no clear role for Civil Society in decision-making and no conception of how people should participate in public debates.” Inclusion “brought people closer 

together. People have learned to listen to each other....a culture of dialogue [is] emerging.” 51

There are already plans for the next parliament to set up mechanisms for further strengthening 

relations with civil society.52 

Reflections

It is far too early to assess in all cases whether citizens who have participated in constitutional 

reform processes in the Middle East and North Africa will, in the end, feel that their voices and 

demands were heard and that their constitutions are legitimate social compacts. Widespread demands for participation, inclusion, and transparency to overcome corruption, abuse, and histories 

of marginalization and exclusion remain at the heart of many calls for reform and complaints about 

recent processes. Some citizens, including women and youth, continue to demand representation 

at the decision-making table and also demand that transitional leaders and constitution makers 

hear their views. Where there is calm enough for constitutional reform, people have returned to 

the streets when they perceive the process as exclusionary or secretive. How governments respond 

to these public demands, and how constitutions are drafted, can determine whether the resulting 

documents are deemed legitimate and whether the peace that follows is to last. Tunisia’s gradual 

opening up of its constitution-making process and more inclusive political processes can serve as 

inspiration to other Arab Spring leaders who seek to reach consensus and meet the demands of 

their citizens—or who will return to the negotiating table after violent conflicts subside. 

Benefits and Risks of Meaningful Participation

Leaders in postconflict, transitional, and divided societies have chosen to commit significant 

time and resources to undertake participatory and inclusive constitution-making processes—in 

part because they felt such a process offered the greatest chance of addressing the root causes 

of conflict and securing consensus towards peace. However, the conditions have to be present 

to successfully transition a society to a new social compact through broad participation, including a secure environment, freedom of speech and the media, and political will. Leaders need to 

assess how they will structure the process and respond to their context’s unique challenges to 

maximize the benefits and overcome the risks. 

Benefits

Recent scholarship regarding peace agreements underscores the benefits of broadening participation and the risks of exclusion. Badreddine Abdelkefi explains that “looking at case material 

from a range of peace agreements over the last fifteen years...we see that high or moderate civil 

society involvement in peace negotiations appears to be strongly correlated with sustained peace 

in the peace-building phase.” 53 Anthony Wanis-St. John and Darren Kew argue that “excluding 

civil society groups may streamline peace negotiations that are already complex,” but 

How governments respond 

to public demands, and how 

constitutions are drafted, 

can determine whether 

the resulting documents 

are deemed legitimate and 

whether the peace that 

follows is to last.
12 USIP.ORG

PEACEWORKS 105

the absence of these voices and interests at the negotiating table can prove fatal to the 

peace agreement during the postconflict peace-building phase. From Arusha to Oslo, the 

focus on elite interests in peace negotiations often leaves the populace at large without 

perceived stakes in the peace-building frameworks that the negotiators construct, weakening the ability of governments and transitional authorities to reach a sustainable peace.54

The constitution-making processes in Arab Spring countries provide an opportunity to address the underlying social and economic inequities that led to the need for reforms in the first 

place. By bringing together the disparate components of a divided society and broadening the constitutional discussion, a participatory constitution-making process can even confront deep-seated 

regional, ethnic, or religious issues in a way that top-down elite-driven constitutional reform may 

not. As Nicholas Haysom argues, if “new values” of social equality and cultural harmony “are to be 

absorbed into the political culture, then it is critical that they be embraced by the ordinary men and 

women—the citizenry at large.” 55 This requires constitution makers to build trust with the public 

and promote democratic practices themselves. They must allow substantive input into the process, 

improving transparency while providing for people’s safety, generating public goodwill to confer 

legitimacy on the entire process.

Building Trust

Even in the midst of conflict, a meaningful participatory process allows people a chance to express 

their own views and hear the perspectives of current or former adversaries. This type of exchange 

can promote understanding and build trust among communities; give rise to new institutional arrangements, rights, or guarantees; give visibility to and empower previously marginalized peoples; 

and provide a forum for national dialogue to promote reconciliation and forge a common vision on 

the identity and core values of the nation.56 In South Africa, trust was established between blacks 

and whites not only through the words and deeds of heroic South African statesmen on both sides, 

but also through public constitutional forums that enabled black South Africans to hear from their 

white countrymen and women their ideas of a future state that recognized the reality of a black 

majority while simultaneously enabling whites to hear directly from blacks their ideas of a country 

that included a fair and equitable role for the white minority.57

Promoting Democratic Practices and Values

Participatory, inclusive, and transparent processes can transform the relationship between citizens 

and their government, particularly in countries emerging from totalitarian or authoritarian regimes. The constitutional moment can be a break from a past where voices were suppressed at 

the point of a gun and demonstrate a new government’s respect for freedom, democracy, and the 

rule of law. Researchers refer to this in the peace agreement context as developing “social capital”; 

greater participation helps to “disseminate civic values...and demonstrate democratic behaviors 

for both political elites and the public.” 58

In Libya and Egypt, where authoritarian regimes held power for decades, or where most citizens had been excluded from the political life of the country, a more participatory process could 

set important democratic precedents, establish or reinforce the democratic bona fides of leaders, 

lay the foundation for a culture of rule of law, and educate citizens about democratic practices, 

values, and principles. Such education can, in turn, empower citizens to demand enforcement 

and implementation of constitutional rights and limitations and to hold governments accountable 

when they fail to abide by constitutional requirements. The example of Uganda (1989–95), related 

by Devra Moehler, is instructive:

By bringing together the 

disparate components 

of a divided society and 

broadening the constitutional 

discussion, a participatory 

constitution-making process 

can even confront deepseated regional, ethnic, or 

religious issues in a way 

that top-down elite-driven 

constitutional reform 

may not.
USIP.ORG 13

PARTICIPATORY AND INCLUSIVE CONSTITUTION MAKING

In Uganda, active citizens seem to be attached to democratic principles and constitutional rules and simultaneously more attentive to the flawed democratic performance of 

their political institutions. Uganda’s informed distrusting democrats are thus more 

inclined to hold their leaders accountable to constitutional standards and to push for 

democratic improvements. Institutional distrust, combined with civic engagement, 

democratic attitudes, and support for fundamental rules, seems to offer the best recipe 

for furthering democratization, though individual-level attitudes alone are not sufficient 

to guarantee progress.59

Direct participation might be appealing to unelected transitional governments because it can 

enhance their legitimacy. It can also provide leeway for the transitional government to lengthen 

the transitional period, which may be necessary but otherwise politically dangerous.

Enabling Substantive Input

The immediate effects of participation are difficult to quantify, often because no baseline surveys 

are conducted before the process starts. But the effects of direct participation on the content of 

the texts of constitutions are clearer. As Bereket Habte Selassie writes, “Public participation in the 

making of a constitution necessarily raises questions of substance.” 60 Public inputs typically lean 

toward including more rights, including socioeconomic rights, often broadening the social and 

economic agenda of the constitution.61 The Nicaraguan constitution of 1987 incorporated several 

important provisions that arose directly from public forums, including the establishment of autonomous zones for Nicaragua’s Miskito Indians and other indigenous peoples.62 In South Africa, 

a recommendation by the Centre for Human Rights at the University of Pretoria inspired a constitutional provision requiring the Human Rights Commission to report annually on the country’s 

achievements—or lack thereof—regarding socioeconomic rights.63 In Iceland, a massive public 

consultation effort using the internet in unprecedented ways resulted in approximately sixteen 

hundred web-based proposals,64 including recommendations to add rights that had been absent 

from the previous constitution.65 In Rwanda, gender equity advocates successfully influenced the 

content of the constitution.66 In Tunisia, public opinion prompted significant changes to the first 

draft that the National Constituent Assembly produced.67

Even less documented than the number of provisions that have made it into constitutions as a 

direct result of public engagement is the number of times the public has prevented the incorporation of an unpopular provision. Public participation can be an invaluable check against unilateral 

or coercive action by elites. Even if it does not prevent the adoption of an offending provision, it 

documents and makes public the dissatisfaction, fueling future reform efforts. This benefit from 

public input can extend beyond the constitutional moment. As expressions of the people’s needs, 

aspirations, and views emerge, governments can get a better sense of national goals and priorities 

for services and development, which can be incorporated into governance strategies. 

Increasing Transparency

Public participation, by definition, increases the transparency of the constitution-making process. It is also a valuable tool for constitution makers to manage public expectations, protect the 

integrity of the process, and protect officials against unfair or unjustified allegations of behaving 

in a biased or self-serving fashion (see the following). Transparency also strengthens officials’ 

accountability to the public as the process unfolds. As the media, civil society groups, and the 

public at large know more about how the process is supposed to unfold, they can monitor and 

report on any deviations.

Public participation can be 

an invaluable check against 

unilateral or coercive action 

by elites. Even if it does not 

prevent the adoption of 

an offending provision, it 

documents and makes public 

the dissatisfaction, fueling 

future reform efforts. 
14 USIP.ORG

PEACEWORKS 105

Providing for Safety

There are pragmatic benefits to inclusive, participatory, and transparent processes. By their nature, 

democratic transitions are emotional and volatile moments in a nation’s history. It is not uncommon for people to take to the streets to express a policy preference or general displeasure with decisions being made, especially if there is no other option. Incorporating participation into the official 

constitution-making process provides people with a formal and managed mechanism through 

which to express their views. This outlet can act as a pressure valve.

In Libya, Tunisia, and Egypt, massive and sometimes violent demonstrations and protests have 

occurred in part because people felt that the political process marginalized, excluded, or ignored 

them. A strategic and well-communicated effort to engage and include the public at key moments 

in the transition, such as the drafting of the constitution, can be valuable for transitional leaders 

seeking to avoid violent conflicts and promote dialogue while maintaining the public’s support and 

the legitimacy of the democratic transition.

Generating Public Good Will 

If leaders do not heed the public’s demands to take part, they may erode the legitimacy of the 

process. The government of South Sudan had limited time to draft and ratify a transitional constitution before independence on July 9, 2011, and it appointed a committee to do the work in only 

four months. As a result, the process included no civic education or public consultation. The ruling 

party, which had won 97 percent of the seats in the national legislature less than one year earlier, 

came under intense criticism from the media, the South Sudan Council of Churches, opposition 

political parties, state and local government officials, and numerous nongovernmental organizations for adopting an exclusionary constitution-making process. Because these stakeholders were 

not included in the discussion, many assumed that the leaders were motivated by self-interest. This 

pressure forced the government to spend time and political capital seeking to bolster its democratic 

bona fides, in part by adding guarantees of greater participation and inclusion in the postindependence constitution-drafting process.68

In East Timor, civil society and a broad swath of the public called for widespread public participation and a consensus-based process. Instead, a single political party dominated the constitution making, giving only lip service to participation. The resulting constitution was viewed as the 

product of a single party and lacked legitimacy. When violence erupted a short time after the 

constitution’s adoption, many key actors and groups called for the document to be replaced.69

Conferring Legitimacy

As Muna Ndulo argues, 

a constitution should be the product of the integration of ideas from all the major stakeholders in a country (i.e., all political parties both within and outside parliament, organized civil society, and individuals in the society).... A constitution perceived as having 

been imposed on a large segment of the population or having been adopted through the 

manipulation of the process by some of the stake-holders is unlikely to gain sufficient 

popularity or legitimacy to endure the test of time.70

It is in every government’s interest that the public perceives the process and results of constitution making as legitimate, as both can affect the legitimacy of the government itself. Genuine 

public participation, conducted in good faith by the governing authority, boosts societal ownership 

of the constitution and extends its legitimacy. The South African constitution, drafted through a 

participatory process, includes an introduction explaining that “the objective of drafting this text 
USIP.ORG 15

PARTICIPATORY AND INCLUSIVE CONSTITUTION MAKING

was to ensure that the final constitution is legitimate, credible and accepted by all South Africans.” 

In Kenya, where the 2010 constitution was ratified after a particularly contentious and divisive 

referendum, interest groups that campaigned hard to reject the constitution accepted the outcome, 

in part because they felt they had been given a free and fair chance to express and champion their 

views. As William Ruto, Kenya’s then-minister of higher education and a leader of the No campaign, stated as he admitted defeat: “[The] majority had their way, we had our say.” 71

Constitution-making leaders may engage the public to derive the benefits discussed above. 

They may also do so because of pressure from civil society, the media, or other stakeholders who 

expect to be consulted on the foundational document of their society and are aware both of the 

trend toward greater participation and of the international legal framework that confers rights on 

citizens to take part in public affairs. The African Charter provides that “popular participation is 

the fundamental right of the people to fully and effectively participate in the determination of the 

decisions which affect their lives at all levels and at all times.” 72 There may also be a moral case 

for public participation, particularly in postconflict states. Civilians bear the brunt of conflict—by 

some estimates, up to 90 percent of war causalities are civilians73—and thus surely deserve to have 

their say in the making of constitutions supposed to usher in enduring peace.

Risks and Challenges

Even as meaningful participation can confer benefits, there are attendant risks, and participation 

must be well planned and managed to address the challenges that arise particularly in divided 

societies. Participatory processes are more complex and complicated than elite-driven ones. They 

take more time, cost more money, demand more institutional capacity (e.g., local offices, larger 

secretariats, civic education teams, educational curriculums), and require the management and 

processing of many more interests and views. If meaningful participation is to be incorporated 

into the official process, national leaders and constitution makers should be aware of the potential 

pitfalls associated with engaging the public so they can plan accordingly. 

Potential of Polarization

Public participation can make building consensus harder. As participation increases the number 

of views to be accommodated, in both the process and the draft, it increases the likelihood that 

competing opinions will need to be reconciled. Even where constitution making is grounded in 

mass participation, it still requires compromise among political elites; open dialogue that exposes 

highly polarized views can make it harder for political elites to strike a bargain.74

Opening up the process can give spoilers a chance to undermine progress. Especially in divided 

societies, individuals or groups may use identity-based issues and politics to polarize and divide 

the population. Taken to the extreme, this polarization can undermine the very purpose of the 

constitutional undertaking and slide a nation into—or back into—open conflict. Political interest 

groups can also manipulate consultations. In Bolivia, both major parties mobilized huge numbers 

of supporters for marches, demonstrations, and even a general strike. At one point members of 

the constitutional assembly were physically attacked.75 Public participation became an exercise in 

“threat-based bargaining” and almost caused the country to collapse into violence.76

Requiring More Time and Money

As noted above, civic education and public consultation lengthen the process of negotiating and 

drafting a constitution, not only because of the time required to conduct the civic education and 

Participatory processes 

are more complex and 

complicated than elite-driven 

ones. They take more time, 

cost more money, demand 

more institutional capacity, 

and require the management 

and processing of many more 

interests and views. 
16 USIP.ORG

PEACEWORKS 105

consultations themselves but also because of the greater number of views that need to be reconciled to reach agreement or fashion compromises. They are costly too. According to government 

estimates, the participatory elements of Kenya’s process, including outreach efforts, the national 

conference, and the referendum, cost $88 million, or roughly $2.57 per person. Unofficial estimates 

are as high as $138 million.77

In societies emerging from decades of totalitarian rule, there may be a natural and justified 

impulse to rush through constitution making and create a democratically elected government. 

This has been the predominant rationale for Libya’s compressed constitutional timeline. However, 

Libyan officials may be able to temper some of the calls for quick completion of the transition and 

achieve the myriad potential benefits of a more broad-based dialogue by being more inclusive and 

participatory during the transition and engaging in a process of incremental constitutional reform.

Creating Unrealistic Expectations

Public participation can erroneously lead people to expect to have their way on every—or any—

issue. When the reality sets in that constitution making involves compromise, and that the final 

text may not include their interests or concerns, people may regard the constitution with suspicion. 

On the other hand, in societies emerging from repressive totalitarian regimes where there is an 

understandable fear of government, unchecked public participation could lead to excessive constraints on the executive or the transfer of typically executive powers to independent institutions, 

which ultimately undermine effective governance. 

Constitution makers must take care in shaping expectations so the public understands that the 

process is not an opinion poll. Even if an overwhelming majority of citizens expresses a particular 

view, it may not be reflected in the final draft. In Kenya in 2010, a majority of Kenyans opposed 

Qadi (Islamic) courts, but the final draft of the constitution included them out of respect for the 

Muslim minority, to the ire of the majority. 

Creating a Rift between the Public and the Political Elite

Public input should inform but not supplant the judgment of representative constitution makers 

and experts. Marginalizing political elites can risk creating tension between the constitutional text 

and the interests of those who will be called on to implement it. This could lead to a constitution that is ultimately undermined or ignored, fatally weakening not only the document but the 

entire democratic transition.78 Kenya’s attempt at constitutional reform (2000–05) was incredibly 

open and participatory, resulting in a draft that enjoyed widespread public support but threatened 

the interests of the political establishment. After adoption by an inclusive national conference, 

the Kenyan parliament removed publicly popular provisions relating to separation of powers and 

decentralization before submitting the draft for referendum. The public subsequently rejected the 

parliament’s draft at referendum, paving the way for violence following the 2008 elections. The 

public in the end had its way in Kenya’s 2012 constitution-making process, which resulted in a new 

constitution incorporating the popular provisions. 

The 2012–13 Fijian process suffered from a similar disconnect between public and elite views, 

as the government literally burned the draft produced by the Fijian Constitutional Review Commission.79 Designing a process that carefully balances the contributions of politicians, experts, and 

the general public is crucial to creating a constitutional draft that is supported by the political elite, 

is coherent, provides for effective and efficient governance, and reflects the will of the people. 

According to government 

estimates, the participatory 

elements of Kenya’s process, 

including outreach efforts, 

the national conference, 

and the referendum, cost 

$88 million, or roughly 

$2.57 per person.
USIP.ORG 17

PARTICIPATORY AND INCLUSIVE CONSTITUTION MAKING

Evaluating Public Inputs and the Challenge of Coaching

A more participatory process creates the challenge of analyzing, evaluating, and incorporating public 

comments into the constitutional draft. Should a petition signed by one thousand people enjoy greater weight and consideration than a letter sent by a single person? What about a Twitter feed with ten 

thousand followers or a Facebook post with thousands of likes? What if five thousand questionnaires 

are gathered that are exactly alike and seem to be part of a campaign? What if the one thousand people who signed a petition all belong to the same political party? How do constitution makers weigh 

the opinion of a civil society leader who purports to speak for thousands of others? There are no right 

answers to these questions. In the end, weighing, considering, and incorporating public inputs is more 

art than science. What is important is that drafters sincerely consider the views and preferences of the 

people, try to find consensus wherever possible, and remain transparent in communicating how they 

incorporated public inputs into the draft and the reasons for their decisions. 

A similar challenge may arise during in-person consultations. Public consultations are susceptible 

to manipulation from political elites, who may coach citizens to present a party line. In Zimbabwe, 

civil society monitoring groups reported that people were “reading from prepared scripts/booklets...

providing answers... irrelevant to questions being asked, [and only a] few people making contributions even where the meeting [was] highly attended.”80 These practices infringe on citizens’ right 

to be heard and constitute a form of coercion. It was also reported that “departures from coached 

positions usually carry the risk of punishment.” 81 Coaching undermines the utility of eliciting public 

input, further polarizes the public, and erodes the legitimacy of the constitution-making process. 

Creating the Veneer of Democracy

Public participation is susceptible to manipulation by authoritarians in democrats’ clothing. In 

Venezuela, the 1999 constitution-making process overseen by then recently-elected Hugo Chavez 

was greatly participatory. Elections for the constitutional assembly resulted in Chavez’s party controlling 95 percent of the seats, though his party only received 60 percent of the vote. Without a 

viable opposition, Chavez’s movement led a constitution-making process that received hundreds 

of proposals from civil society and even accepted a large number of them—all while dismantling 

Venezuela’s two-party system, purging the other branches of government, and facilitating Chavez’s 

control of the entire state.82 The participation helped cloak Chavez’s takeover.

Mitigating Risks

Scholars and practitioners have noted that at certain stages of the process or in particularly insecure 

environments, the risks and challenges of public participation may outweigh the benefits.83 In Iraq, 

limited public consultation was carried out despite a lack of security. As a result, it occurred only in 

certain areas and tended to reflect the interests of only one ethnic group. The benefits and risks of 

public participation must always be carefully assessed on a case-by-case basis. Widespread public 

participation may be more appropriate and necessary in certain countries and contexts, and in 

certain phases of a process, than in others.

That said, many risks attend constitution making even in the absence of formal public consultation. When constitution drafters do not manage and lead the process, ideologues or spoilers are 

more likely to dominate the discourse. A delay in launching the formal process of constitutional 

review in Libya has left greater space for proponents of extreme forms of federalism. The more 

loudly extreme views are voiced, the greater the danger that different segments of the public will 

harden their positions.

A more participatory 

process creates the 

challenge of analyzing, 

evaluating, and incorporating 

public comments into 

the constitutional draft. 

Should a petition signed 

by one thousand people 

enjoy greater weight and 

consideration than a letter 

sent by a single person? 
18 USIP.ORG

PEACEWORKS 105

Careful planning and management of the process and people’s expectations; conducting effective civic education and public information campaigns; ensuring that the process has sufficient 

time and resources; and adhering to the principles of inclusiveness, transparency, and national 

ownership can help manage and mitigate many of the aforementioned risks. The challenge is to 

design and manage the process to maximize the benefits while avoiding the risks of increased political or other identity-based polarization. Legitimacy through consensus is the ultimate goal of 

constitution making—consensus among political elites, between the people and their elected representatives, and among communities. Public participation can be an invaluable tool with which to 

achieve this consensus; the absence of participation can severely impede efforts to build it. 

General Principles and Guidelines to Give Citizens a Meaningful Voice

Many Arab Spring countries have designed their constitution-making processes by drawing upon 

their own historical experiences. This connection to the past can provide a sense of continuity, 

comfort, and perhaps even legitimacy. But countries should also avail themselves of lessons learned 

in other countries during the past two decades of inclusive and participatory processes. Not “confining one’s imagination to one’s own limited constitutional traditions and experiences,” as one 

expert observes, is “the true exercise of sovereignty.” 84

Each country has its own set of constraints and opportunities. Each principle must thus be 

tailored to fit the experiences and needs of each of the Arab Spring countries. If customized wisely, 

however, general principles derived from other countries’ experiences will assist constitution makers to address the demand for greater public participation, maximize the benefits of that participation, and minimize the risks.

General Principles for Participatory Constitution-Making Processes

In both its design and implementation, as mentioned above, a participatory process should develop 

and sustain political will, be as broadly participatory as possible, and promote consensus. It should 

involve careful planning and adequate resources, be transparent and accountable, and tailor public 

participation to its audience. Finally, it should provide a conducive political and security environment and foster a sense of national ownership.85

Developing and Sustaining Political Will

Perhaps no single factor affects the outcome of a constitution-making process more than the agendas 

and intentions of political leaders.86 A prerequisite to successfully engaging the public is the political 

will to conduct genuine and effective consultations. In some cases, constitution makers have conducted public consultations without fully embracing them or understanding why they benefit the 

process, their work, or their political interests. In Egypt, a July 2012 public hearing by the Constituent 

Assembly failed to engender goodwill or foster trust and legitimacy in the constitution-making process, instead prompting an open letter from eight Egyptian human rights organizations accusing the 

assembly of holding the hearing as a “largely formal gesture...to improve the image of the Constituent Assembly and give the impression that all segments of society, including human rights groups, 

participated in drafting Egypt’s new constitution.” The letter denounced the proceeding as unserious, 

given that the agenda was overly general and confusing and that the hearing was conducted when the 

country believed that the constitutional referendum would take place in a mere six weeks.87

In other cases, regimes have used public participation to give the appearance of democratic 

transition or to confer legitimacy upon themselves, even as they were determined to manipuLegitimacy through 

consensus is the ultimate 

goal of constitution making...

Public participation can be 

an invaluable tool with which 

to achieve this consensus. 
USIP.ORG 19

PARTICIPATORY AND INCLUSIVE CONSTITUTION MAKING

late the consultations or impose their preferences, regardless of what the public wanted. Uganda’s 

constitution-making process included widespread civic education and more than twenty-five 

thousand public inputs but did not result in a democratic system of government.88 The 1990 Zimbabwe constitution-making process included more than five thousand public forums but merely 

“illustrate[d] how a government can use a commission to ostensibly consult with the people on 

constitutional reform while in reality ensuring that the government controls the process.” 89 During the 2012 constitutional review in Fiji, the Fijian government was reported to have burned 

thousands of copies of a constitutional draft prepared by an independent commission that had 

elicited over seven thousand public submissions.90 The government replaced that draft with one 

that it favored, which Fijian civil society groups criticized as “an extreme concentration of power 

in the Prime Minister...that is unprecedented in most modern, democratic constitutions, and 

dangerous for Fiji.” 91 As Virisila Buadromo argues, 

when the government rejected the draft in December 2012 legitimacy instantly evaporated. The state was subsequently prepared to consult people on the constitution in order 

to provide a superficial rubber-stamp of popular legitimacy, but it was not prepared to 

allow genuine participation. Now, irrespective of whether or not the proposed 2014 electoral process is free and fair, the government will declare itself legitimate. This does not 

give power back to the people, but centralizes and reinforces it among elites.92

Research has shown that when people perceive a consultation to be insincere, they lose trust 

and confidence not only in the process but in the resulting constitution, their leaders, and the direction in which they are steering the country.93 Experience has also shown that constitution makers 

with a genuine will to consult with the public may lack sufficient resources or knowledge about 

how to do so effectively. These are necessary to successfully engage the public. 

In short, efforts must be made to secure the political will and support of all interests. Constitution making is as much a political negotiation as a legal drafting exercise, and every side in that 

negotiation must be made aware of the potential rewards of the process and the value of including 

the public in a national dialogue. Mediation—either local or international—may be helpful in getting the parties to buy into the process. 

International actors can help facilitate more participatory processes and provide the required 

resources. They cannot, however, force sincerity or political will on national actors; any effort to do 

so will be substantially diminished without the buy-in of and commitment from national counterparts. Such an effort could also backfire if elites try to influence international opinion by merely 

going through the motions of public consultation. The public will recognize the lack of a genuine 

commitment to hearing and considering their views, and the resulting constitution may enjoy less 

legitimacy than if it had been crafted behind closed doors. 

Being as Broadly Participatory as Possible

A constitution-making process should make special efforts to reach as many citizens as possible. 

Civic education and consultation programs should reflect the ethnic, religious, cultural, tribal, linguistic, gender, and geographic diversity of the country. This principle applies both to inclusiveness 

(i.e., having all key stakeholders represented in the constitution-making body) and to participation 

(i.e., reaching people directly). Failure to reach out to the population as a whole risks provoking 

accusations of partisanship and favoritism, on the one hand, and unfairness and marginalization, 

on the other hand. 

Research has shown that 

when people perceive 

a consultation to be 

insincere, they lose trust and 

confidence not only in the 

process but in the resulting 

constitution, their leaders, 

and the direction in which 

they are steering the country.
20 USIP.ORG

PEACEWORKS 105

Special attention should be paid to reaching disadvantaged or marginalized peoples. This may 

require translating materials into minority languages or using audio and visual tools for the illiterate. In Kenya, constitutional materials were available in braille. Arrangements may need to be 

made for women or members of other groups who may not feel comfortable speaking in public. 

An inclusive process must consider factors such as poverty, illiteracy, cultural biases, language barriers, lack of development, lack of education, and weak infrastructure in determining how best to 

reach and educate different populations. Efforts should be made to ensure that all key groups have 

a voice and that citizens who wish to share their views are provided with a mechanism to do so. 

In Kenya and Uganda, consultations were held in each electoral district.94 South African constitution makers made a concerted effort to reach out to remote parts of the country, but realizing that 

it would be impossible to reach, let alone properly educate, every person, they focused on community leaders with the motto “reach the people who reach the people.” Special efforts to reach 

out to potential spoilers and other self-excluding groups may also increase buy-in and help reduce 

obstruction and other challenges to the process. 

Promoting Consensus

If inclusiveness requires all key stakeholders to be at the table, consensus demands that all voices 

are heard and considered and that compromises are not necessarily based on majority positions. 

Especially in postconflict and transitional states, constitution making is as much about building a 

new national compact as it is about building new institutions and rules for governance. With such 

high and long-term stakes, it is crucial that diverse components of society agree on key issues. Not 

every view on every issue can be represented. But if done well, all participants will feel they have 

meaningfully taken part in the constitutional negotiation, will have had their views and voices 

heard, and will confer legitimacy and support for the constitution as a whole and, by extension, the 

new national project. 

Achieving consensus requires having time to build relationships and develop mutual understanding. Decisions must be made through discussion, negotiation, and persuasion, using majority 

votes only as a last resort. Constitutional negotiators in South Africa used the concept of sufficient 

consensus; in practice, this meant support from the two main parties and a critical mass of the 

smaller parties. In the negotiations in the late 1990s to bring peace to Northern Ireland, sufficient 

consensuswas reached only when a majority of the parties agreed on a particular provision, as well 

as a majority within each broad faction—unionist and nationalist. The process in Yemen sought 

agreement among 90 percent of the members of the National Dialogue’s constitutional committee 

or, failing that, the consent of 75 percent. Consensus can also be defined to mean agreement that is 

reached without a vote. During Indonesia’s constitution-making process, only one vote was taken, 

on a minor issue; in all other cases, there was unanimous agreement. 

Reaching consensus among negotiators is insufficient if the goal is a legitimate and enduring 

constitution. Consensus must also be reached among citizens’ groups and society at large. To encourage the development of such consensus, drafters have to explain to the people why they have 

produced the text they have: what factors they weighed, what compromises they struck with fellow 

negotiations and why, and how they reached agreements on the final text. Persuading the public 

to accept a negotiated draft is much easier if the drafters have communicated with the public 

throughout the drafting process. 

An inclusive process must 

consider factors such as 

poverty, illiteracy, cultural 

biases, language barriers, 

lack of development, lack 

of education, and weak 

infrastructure in determining 

how best to reach and 

educate different populations.
USIP.ORG 21

PARTICIPATORY AND INCLUSIVE CONSTITUTION MAKING

Planning Carefully and Securing Adequate Resources

Programs that engage the public should have realistic objectives and include a strategic plan that 

incorporates the time and resources needed to achieve them.95 Adequate time to plan and implement civic education and public consultation programs is crucial and will depend on myriad factors, including the size and population of the state, difficulties in reaching certain areas of the 

country, security conditions, seasonal challenges, linguistic diversity, levels of literacy, and the baseline knowledge and understanding of the population at large. The first stage of the Kenyan process 

in 2001 encompassed six months of strategic planning, during which the commission prepared 

educational and outreach materials; set up, staffed, equipped, and housed the secretariat; retained 

consultants; established a website; created an archives system; and set up local offices and planned 

constituency visits—all before any outreach and education programs were actually launched and 

before any drafting and negotiation were even considered. In South Africa, the Community Liaison Department took four months to plan for civic education and consultations.

It is difficult to predict how much time will be needed in any given country, both because of the 

factors described above and because civic education and consultations are not a discrete event but 

continue throughout the constitution-making process in various forms. That said, it would not be 

unusual for preliminary civic education to require two to three months and for public participation 

in the drafting and review process, especially if undertaken nationwide, to take an additional six to 

twelve months. This carries risks.

In countries emerging from dictatorship or violent conflict, a prolonged transition may seem 

unpalatable. The National Transitional Council of Libya felt compelled to prove its democratic 

bona fides by expediting Libya’s democratic transition and rushing to a constitutionally-based, 

democratically-elected government. The result was mandating a 90-day constitutional review, later 

extended to 120 days. The benefits of direct participation are many, but they may not always supersede the desire to complete the democratic transition quickly. The issue then becomes one of 

balancing the need to get it done with the need to get it right. 

Constitution-making processes in which international actors have shaped the agenda and timeframe—as in Iraq and East Timor—have tended to rush the planning stage and skimp on civic education and public consultation. By contrast, some of the most highly participatory processes that have 

genuinely engaged the public—as in Kenya in 2005 and South Africa in 1996—have been nationally 

owned and led.96 In Iraq, the international community funded public participation efforts. But there 

was no civic education, outreach extended no farther than Baghdad, the mechanisms through which 

the public could provide input were inadequate, and there were no assurances that those drafting and 

debating the constitution would analyze or even see the views collected; indeed, the views were not 

considered. If the potential gains of a participatory process are to be realized, the impulse to impose 

tight timetables must be resisted to allow time to genuinely engage with the public, analyze the views 

gathered, and consider these views when preparing the constitution. 

The human and financial resources needed to design and implement a highly participatory 

process can be substantial. In Uganda, 150 people were employed to cull the key inputs from more 

than twenty-five thousand public submissions. Kenya budgeted more than $7 million solely for 

its district coordinators, workshops, civic education, and the collection, collation, and analysis of 

public input. A substantial additional substantial sum was needed to fund a secretariat that had a 

part in overseeing the consultation process.97 The cost of undertaking similar tasks in South Sudan 

has been budgeted at approximately $5.5 million.98 Staff is required not only in the constitutional 

committee’s national headquarters but also in satellite offices around South Sudan, which have a 

vital role to play in educating and consulting with the people. 

If the potential gains of a 

participatory process are 

to be realized, the impulse 

to impose tight timetables 

must be resisted to allow 

time to genuinely engage 

with the public, analyze 

the views gathered, and 

consider these views when 

preparing the constitution.
22 USIP.ORG

PEACEWORKS 105

Being Transparent and Accountable

A transparent constitution-making process is one that is conducted in an open manner so that, at 

each stage, people are aware of what is happening and why, informed about the decisions being made, 

and confident that their voices are being heard. Transparency is sometimes viewed as a weapon, ensuring that governments obey the rules of the process and holding them accountable when they do 

not. Especially in the constitution-making context, however, the opposite is also true: Transparency 

is a tool that officials can use to promote the legitimacy of the process, manage public expectations 

by explaining how consensual decisions were reached, and protect themselves against allegations that 

they have behaved in a biased or self-serving fashion. Moreover, transparency can forestall criticism 

and stifle rumors. It has been said that the press is like a hungry dog: If you do not feed it, it will eat 

the scraps that fall on the floor. Transparent processes feed the dog.

One way to create transparency and accountability is to pass legislation that establishes the 

timeline and principles that will govern the constitution-making process, as well as the nature and 

mandate of the constitution-making bodies that will manage and perform it. By informing the 

public about the nature of the process from the start, authorities can begin to engender confidence 

and legitimacy. As the process unfolds, public confidence grows if it is kept informed. The mechanisms employed to disseminate information must be tailored to local realities and preferences. 

In other countries, several methods have been used successfully. Plenary sessions of constitutionmaking bodies have been recorded and broadcasted by radio and television. The press and civil 

society have been allowed to attend commission meetings and sessions. Constitution-making 

bodies have issued regular updates to the public and media through written statements, briefings, 

and question-and-answer sessions. Constitution-making bodies have posted reports on an official 

website and have made hard copies available at their headquarters. Further reports have been produced to accompany draft constitutions, explaining how public inputs were considered and why 

certain choices on constitutional matters were made. Drafts of constitutions have been distributed 

to all localities and posted online. The public has been given access to constitution-making records, 

including bylaws, minutes of sessions, constitutional drafts and working papers, and financial records. Finally, drafts and other key documents have been archived, both as a historical record and 

in case lawyers or courts in the future want to refer to records in interpreting the constitution.

A strategic information campaign should regularly inform the public about what is happening 

and what will happen next. Such a campaign keeps the public informed and allows constitution 

makers to manage the public’s expectations. When public hearings begin, the constitution-making 

body might explain that public inputs will be only one of several data points used in negotiating 

and drafting the constitutional text; other data might include the views of experts and the content of international conventions and standards. Such a message can help the public realize that, 

although they will be invited to express their views, the constitution-making process is not a public 

opinion poll in which majority views prevail every time. People may thus be more prepared to accept difficult and potentially divisive decisions.

The public also should be informed of plans for civic education and public consultation efforts 

as early as possible and given sufficient notice of when and where to participate. The views gathered during public consultations should be carefully gathered and recorded and then made available for public review. In Kenya, the Constitutional Commission held hundreds of public hearings 

and received tens of thousands of public inputs. The commission entered every input into a database that could be sorted by name, topic, locality, and other criteria. One day, a man came to the 

commission and accused it of having public hearings “just for show”—of listening to the people 

but then ignoring them and imposing its own views. A commissioner asked the man his name and 
USIP.ORG 23

PARTICIPATORY AND INCLUSIVE CONSTITUTION MAKING

pulled up his record in the database. This was proof that the constitutional commission had not 

only given the man a chance to speak but had recorded his comments for later consideration by 

the drafters.99 In South Africa, every person who made a submission to the Constituent Assembly 

received a reply from the constitutional body and was put on a mailing list to receive subsequent 

drafts of the constitution.100 Actions like these helped protect the integrity and legitimacy of the 

constitution-making body the constitution-making process, and the constitution itself. 

Not all meetings and forums need to be open to the public; some groups, such as women or 

vulnerable minorities, may feel more comfortable presenting their views in a closed forum. Similarly, 

a constitution-making body could decide to make each record of an individual’s input available only 

to that individual—not, at least for a while, to the general public. The degree and nature of transparency can vary according to context, and careful consideration must be given as to when to make 

proceedings open to the public and when to close them. A closed session can fuel suspicions that 

negotiations have stalled or that private deals are being made; at the same time, confidentiality may at 

times be necessary for compromises to be reached. Outside the public spotlight, parties are less likely 

to grandstand before their constituencies and more likely to negotiate in good faith.101

Codes of conduct requiring integrity and neutrality on the part of those carrying out the civic 

education and public consultation processes should be adopted and publicized, and officials should 

be held accountable for any misconduct. Elected officials, courts, media, and a variety of civil society 

actors should monitor and oversee formal and informal institutions involved in the drafting process. 

A constitution-making body’s final report should then explain why and how views were considered 

and how competing interests were handled. In this way, the public can be reassured that their views 

were heard even if they were not adopted. 

A transparent process is likely to increase the sense of national ownership and support for the 

constitution. It can also educate the public on democratic practices and set precedents for future 

government conduct. Transparency is not only a means of achieving integrity and legitimacy for 

the constitution-making process, but a goal in itself.

Tailoring Public Participation to the Audience

Constitution makers should listen respectfully to the views of the public without expecting citizens 

to speak about their aspirations or needs in constitutional terms.102 In Nepal, early civic education 

efforts were largely absent from the constitution-making process. Later, when constitution makers 

sought to consult with the people, questionnaires were distributed asking communities about their 

views on federalism, presidential versus parliamentary systems, and other concepts of which people 

did not have clear understandings.103 The Nepalese public could instead, or in addition, have been 

asked questions about the major challenges in their lives, what they perceived as defects in their 

government, how their communities could be improved, and what they wanted the government to 

be able to do for them. It is the responsibility of constitution makers, not of citizens, to understand 

how to put the concerns and aspirations of the people into constitutional terms. 

The Constitution Commission in Kenya produced a Little Red Book (described in detail below) 

asking questions that varied in their sophistication and complexity. The section on the legislature 

contained questions regarding whether Kenya should “introduce moral and ethical qualifications 

for parliamentary candidates.” There were also more complicated questions, such as whether Kenya 

should “continue with the current multi-party system in the Legislature and one party in the Executive” or “change to a system that demands multi-party representation at both levels of government.” 104

Different mechanisms and tools, including different languages, should be used for different audiences; indeed, a variety of mechanisms and tools should be used for each audience.

The degree and nature 

of transparency can vary 

according to context...

A closed session can fuel 

suspicions that negotiations 

have stalled or that private 

deals are being made; at the 

same time, confidentiality 

may at times be necessary for 

compromises to be reached.
24 USIP.ORG

PEACEWORKS 105

Different groups will also require different mechanisms of consultation. Some will be able to 

respond to surveys. Others, such as the illiterate, will need to be consulted orally. Private or small 

group meetings may be necessary for particularly sensitive issues or with vulnerable or previously 

marginalized groups. In some cultures, women may need to be consulted separately from men.

Providing a Secure Environment

Providing a secure environment for the public to learn about and contribute to the constitutionmaking process is central to the process’s efficacy and success. If people fear retribution for the 

views they voice, they are likely to remain silent. In the midst of renewed or ongoing violence, 

constitution-making officials may need to consider the feasibility and efficacy of a constitutionmaking process. Especially in nations transitioning from totalitarian regimes, laws may still inhibit 

free speech, assembly, or the media or may give undue latitude to security forces. Repealing these 

laws may be necessary to instill confidence in people that they can act and speak freely. 

Cultural norms should also be considered. As mentioned above, special arrangements, such as 

separate meetings, may be required for women and youth, who may be reluctant to express their 

aspirations in front of men or their elders. In Afghanistan, the constitution-making body met 

separately with women’s groups and youth so that they could speak freely about their views and 

aspirations. All obstacles to the free expression of views should be considered and addressed to 

ensure that all voices can be heard.

Fostering a Sense of National Ownership

As much of the above suggests, constitution making must be nationally owned and led in order 

to be successful. International advisers should get involved only if national or transitional authorities invite them to do so. Once involved, international actors should leave the lightest footprint 

possible and make every effort to ensure that national actors play the principal roles in designing 

and implementing the constitution-making process, including educational and other participatory 

programs. In some cases, this may mean international actors do little more than provide funding 

and offer advice from the sidelines. Even where more robust assistance is appropriate, international 

actors should cite lessons learned to help national actors make informed decisions for themselves 

and not push for a civic education curriculum or process that does not meet local needs.

National actors must lead because it is their process and they must live with the results. For 

practical, cultural, and social reasons, they will understand which options can succeed and will 

be better able to incorporate local context, culture, and language into the process. Local preferences, needs, and interests should be at the forefront, increasing the credibility and legitimacy 

of the constitution-making project. Empowering national actors with training, knowledge, skills, 

and experience pays dividends long after the constitution-making exercise is completed. It also 

strengthens civil society, as interest groups mobilize around key issues and develop advocacy and 

organizational skills.

Experience has shown that problems may arise when international actors lead in designing 

and conducting civic education and public consultations. The process may be perceived as a foreign-imposed agenda rather than a locally owned exercise, with predictable results. In East Timor, 

the United Nations organized public consultations before the sitting of the Constituent Assembly, 

and when the United Nations handed over the results of the consultations, they were shelved; the 

assembly did not trust them. Public consultation conducted by actors other than those writing the 

constitution also prevents those making the constitution from directly engaging with the public. 

In Afghanistan, the 

constitution-making body 

met separately with women’s 

groups and youth so that 

they could speak freely about 

their views and aspirations. 
USIP.ORG 25

PARTICIPATORY AND INCLUSIVE CONSTITUTION MAKING

Special care should be taken to ensure that international interference does not erode the credibility 

of a constitution-making process.105

Respect for national sovereignty, however, does not mean that international actors should fund 

processes that are primarily public relations exercises designed to promote a particular political 

agenda. Nor should they waste resources in contexts that make it impossible to have a nationwide 

and highly participatory process—such as high levels of violence or suppression of the free expression of views. 

International actors should decide whether and how to support participatory elements of a 

constitution-making process case by case,106 carefully assessing whether assistance will bolster the 

legitimacy of the process, especially where political elites do not have the political will to conduct 

the process in a genuinely inclusive and democratic way. There is a risk that assistance can lend an 

air of legitimacy and credibility to a process that is mere window dressing for a regime with more 

self-serving motives. 

There is seldom a clear answer to the question of whether or not to fund participatory elements of a constitution-making process. But the international community can develop guidelines 

for tackling the question. These could identify which factors and actors to assess and monitor in 

order to determine if processes that purport to be people-driven are what they claim to be. When 

international actors decide not to fund an official process, there may be other opportunities to open 

up the constitutional dialogue, such as supporting civil society.

General Guidelines for Civic Education and Public Consultation 

Civic education and public consultation are the cornerstones of efforts to promote a national dialogue on constitution making, build consensus, and engage the public. Meaningful participation 

can be defined by both what it is and what it is not. The constitution-making landscape is littered 

with boxes of surveys that citizens filled out and constitution makers never looked at,107 and too 

many civic education campaigns have been more about public relations than about hearing the 

voices of citizens.

Transitional leaders should promote civic education partly because it enables people to understand the constitution-making process specifically and democratic values and principles generally. 

It is also a chance for people to hear the issues being discussed, the choices being made, and the 

ways that they can participate in the process. People cannot be a part of constitution making if they 

do not understand what choices they are being asked to make, or even why a new constitution or 

reform process is needed. Civic education also enhances the public’s ability to participate in the 

implementation of the constitution after its adoption. It should take place before, during, and after 

an official process is launched to ensure that members of the public understand the constitution 

and their rights. Constitution makers can consult with the public about how the process should 

be conducted before it is designed, the agenda for the reform process, specific constitutional issues 

before a draft is prepared, and the nature of the reforms themselves.108 

The Need for Ongoing Civic Education 

To prepare the public to participate in constitution making, government officials and civil society 

may promote civic education even before the official constitution makers are selected. The focus at 

this stage should be on fostering awareness of the process itself as well as preparing people to participate. Educational efforts should explain why reform is needed, the history of constitutionalism, 

the timeline of the process and the public’s role in it, and how the process will take place. 

People cannot be a part of 

constitution making if they 

do not understand what 

choices they are being asked 

to make, or even why a 

new constitution or reform 

process is needed.
26 USIP.ORG

PEACEWORKS 105

Civic education in the early stages of constitution making may also focus on creating a basic understanding of core constitutional issues and themes, which will help the public to make 

choices regarding constitutional design and participate more fully in discussions on the substance 

of the constitution. Kenya’s Little Red Book discussed about twenty general issues—identified 

through public consultation—and two hundred specific items relevant to that country’s forthcoming constitution-making process, empowering the public to contribute thoughtful and targeted 

inputs once public hearings began. If the constitution-making body plans to consult the public on 

a specific set of reforms or a draft of the constitution, the public will need to be educated about 

the contents, the rationale behind choices made in the draft, and how public inputs are to be considered. If a referendum is to occur, people will need to be informed about the process, the issues 

under consideration, and how the questions will be posed on the referendum ballot.109

Civic education is a key component in the effective implementation of the constitution as well. 

It is axiomatic that organizations and individuals can demand their rights only if they know them. 

Civic education during the constitution-making process should inform people not only of what 

rights exist but why these rights are important. It should also educate them on the institutions—

such as courts and independent commissions—they can petition to enforce their rights. Finally, 

public participation should give people a feeling of ownership and entitlement regarding the rights 

that appear in the final text. In South Africa, some people carried the text of the new constitution 

in their pockets for years after it was adopted, a statement of empowerment. After the constitution 

has been ratified and adopted, civic education efforts should focus on the constitution’s contents, 

the people’s civic rights and duties, and the ways citizens can access their rights. 

Methods of Civic Education

The methods used to educate the public should be chosen in light of local circumstances, including 

cultural mores, literacy levels, country size, and geographic accessibility. Different mechanisms will 

be needed to reach different groups, with the rural poor and marginalized citizens typically being 

the hardest to reach. 

Past processes have used television, radio, the internet, and social media, as well as workshops, 

meetings, pamphlets, and books.110 South Africa employed a poster campaign with the slogan 

“This is your Constitution,” as well as brochures, posters, newsletters, comic books, and other creative means to raise awareness and encourage people to participate. In Eritrea, which has an 80 

percent illiteracy rate, the constitutional commission used songs, poetry, mobile theatre, and short 

stories. In Somalia, where access to the public is limited because of security, civic educators texted 

information to people by cell phone.111

Face-to-face civic education efforts should be directed in particular at citizens who historically 

have been marginalized to ensure that the process is inclusive and considers voices rarely, if ever, 

heard in the country’s political affairs. Research indicates that conducting at least three workshops 

in each community is the most effective way to ensure that marginalized citizens are empowered 

to participate and able to understand the process and choices involved.112

Whatever methods are used, a vigilant information campaign at each stage of the constitutionmaking process promotes better public understanding of and access to the process and facilitates 

public participation. In South Africa, the constitution’s designers not only published early drafts of 

the constitution but included multiple formulations of key issues on which consensus had not yet 

been reached. This allowed the public to see how the views of the working committees were evolving 

and prepared people for a final draft that would have to choose the views of some groups over others; those whose views would not be adopted at least knew that their opinions had been considered. 

In Eritrea, which has an 80 

percent illiteracy rate, the 

constitutional commission 

used songs, poetry, mobile 

theatre, and short stories. 

In Somalia, where access to 

the public is limited because 

of security, civic educators 

texted information to 

people by cell phone.
USIP.ORG 27

PARTICIPATORY AND INCLUSIVE CONSTITUTION MAKING

Public Consultation

Nationwide inclusive public consultations are a key component of participatory constitutionmaking processes. Constitution makers typically use a wide range of consultation mechanisms 

to reach as many citizens as possible or to achieve different objectives at different stages of the 

process. Those mechanisms can range from face-to-face public meetings, civil society hearings, and 

expert conferences to surveys, focus groups, social media, and requests for written submissions.113

A special effort should be made to ensure that previously marginalized citizens fully participate in 

the process, in particular women, youth, and minorities. 

Leaders should consult on the design of the process as well as the future content of the constitution and the people’s aspirations. Some leaders want to secure legitimacy from the outset for 

the process. In Libya, former prime minister–elect Mustafa Abushagur conducted an informal 

Facebook survey to determine whether the constitutional commission should be appointed by the 

parliament or directly elected by the people.114 In Uganda, citizens were consulted in 2012 about 

whether to engage at all in a process of constitutional reform.115

Public hearings have been organized geographically and thematically; others have targeted 

specific interests or issues. In South Africa, women’s groups, labor organizations, business interests, 

religious and tribal leaders, and judges provided open testimony to the Constituent Assembly. 

When the safety of the individual is not an issue, recording or videotaping public hearings and 

transcribing inputs is advisable for several reasons. It allows drafters to review specific comments, it 

can resolve disputes about what was said, and it creates an archive that can be kept in public libraries or other institutions to serve as a lasting testament to a seminal event in the nation’s history.

The opportunity to provide submissions in writing or through electronic means is particularly 

important where direct consultation with all communities is not feasible. In Iraq, the security situation made consultations and hearings outside Baghdad impossible, so the Constitution Drafting 

Committee designed a questionnaire for people to submit at designated offices.116 This, however, 

did not lead to an inclusive set of views. Limiting consultation to one form often benefits certain 

groups over others. A dedicated website can make it easier for citizens with internet access to provide direct input. Kenya in 2009 and 2010, Iceland in 2011, and Fiji in 2012 all created Facebook 

pages that allowed the public to offer comments.117

Where security allows, constituent assembly or commission members should consult with 

the public face to face. Constitution makers have reported that their views have been transformed 

through these interactions. In Afghanistan, committee members noted their surprise at the sophistication of the views shared in rural areas and the large portion of the population supporting 

greater religious freedom.

Engagement with diverse communities from across the nation also allows constitution makers 

to see themselves as representing not only a narrow interest or group but the nation as a whole. 

In South Africa, members of the Constituent Assembly divided into thematic groups and traveled to multiple districts to participate in public forums. Of course, official drafters cannot attend 

every public forum. A robust secretariat with local offices or another administrative mechanism or 

partnership is crucial for effective and comprehensive consultation. 

As mentioned above, constitution makers must carefully record, sort, maintain, analyze, and seriously consider all views. Oral submissions must be meticulously recorded, whether by videotape, 

audiotape, or in writing. A well-trained administrative body must maintain the documentation 

according to an agreed-upon procedure to protect the integrity of the information. Submissions 

should be coded so that, where appropriate, they can be quantitatively and qualitatively reviewed 

and considered.118 In Kenya, submissions were coded and tabulated by the submitter’s biographical 

Engagement with diverse 

communities from across 

the nation also allows 

constitution makers to see 

themselves as representing 

not only a narrow interest 

or group but the nation 

as a whole.
28 USIP.ORG

PEACEWORKS 105

information—name, age, gender, and residence, which were kept confidential—as well as by the 

form of the submission, the category of issues expressed in the submission, and the actual views 

expressed. This matrix allowed drafters to weigh submissions based on the frequency with which 

they were expressed. Other factors, such as the demographics of the submitters, could also be considered, depending on the drafters’ needs.119 In Kenya, South Africa, Sierra Leone, and elsewhere, 

constitution makers subsequently prepared and distributed a report about how public views were 

considered and incorporated into the draft constitution. 

Consultation can provide a forum for spoilers and extremists to undermine the public discussion of divisive issues that can be polarizing. Special attention should be paid to structuring public 

forums to minimize this likelihood. Federalism, for example, is often a divisive issue, with opponents accusing supporters of trying to disintegrate the country and supporters accusing opponents 

of trying to allow the capital city to subjugate peripheral or minority areas. Such is the tenor of the 

debate in Libya today.120 And yet when one focuses not on terms (federalism, decentralization) but 

on substance (which division of government oversees trash collection or other essential services), 

Libyan centrists and federalists may not be that far apart regarding which levels of government 

should enjoy which powers and be responsible for which services. 

Public debate should rise above labels and accusations of motives and focus on the broad 

concerns of citizens and options for addressing these concerns. This is easier said than done. But 

a well-facilitated dialogue accompanied by a public education campaign can bring people closer 

together, giving them an opportunity to identify the needs and preferences of citizens and to reach 

consensus on thorny issues. 

Working with Civil Society

The task of educating the public and raising awareness is extremely demanding and is often carried 

out by a multitude of actors. In inclusive and participatory processes, official constitution makers 

usually partner with civil society and the media to assist in preparing the public to participate in 

the constitution-making process.

The term civil society is broad and can mean different things in different contexts. It typically 

refers to any nonstate actor, including nongovernmental organizations (NGOs); social and professional organizations, from sports clubs and trade unions to tribal and religious institutions; and 

interest groups. In some countries, civil society is dominated by a vocal minority—elite, educated, 

urban-based organizations that have access to the media and the ears of political leaders and the 

international community but have less resonance with the general public. In other societies, civil 

society can be extremely broadly based and reach down to the grassroots. However defined, civil 

society and the media are often important to augmenting and supporting official efforts.

In numerous contexts, constitution makers have partnered with civil society and the media to 

reach citizens. Constitution makers can create a program that monitors, evaluates, and coordinates 

outside actors. This program can approve educational materials aimed at specific sectors of society 

or the nation at large, facilitate the training of those conducting the program, and monitor the 

process to ensure that the civic education plan is being carried out effectively. A standardized core 

curriculum can minimize the risk of competing or contradictory information reaching the public. 

In Kenya, the Constitutional Review Commission produced a civic education curriculum and 

source book that both official civic education providers and those external to the formal process 

used. A train-the-trainers model, adjusted in light of workshop evaluations, can improve coordination, support common messages in civic education activities and quality control, and ensure that 

programs reach previously marginalized citizens.121
USIP.ORG 29

PARTICIPATORY AND INCLUSIVE CONSTITUTION MAKING

Evaluation can determine the effectiveness of different methods as well as their effects on 

participants’ attitudes and knowledge. Ideally, surveys and interviews are carried out throughout 

the campaign so that early efforts can be improved. A code of conduct signed by all educators, or a 

memorandum of understanding between the formal body and educators, can ensure that all actors 

know what is expected of them and what the consequences are of breaching the code.122

Civil society has supported official constitution makers in gathering public inputs and conducted its own unofficial consultations. In Zimbabwe, civil society organizations were suspicious 

of government intentions in drafting the constitution and did not trust that public consultations 

would be carried out in a free, fair, and impartial manner. They thus conducted their own intense 

“civic education and information dissemination through the media, community outreaches, public discussion forums, road shows, marches and other forms of ensuring that the people [were] 

educated.”123 The United Group, an Egyptian NGO, conducted hearings in fifteen governorates, 

asking people what they wanted to see in the new constitution. The effort elicited more than six 

thousand inputs, which the NGO coded in a database—though it is unlikely constitutional drafters ever reviewed the data. 

Civil society may also monitor, observe, and report on the constitution-making process to ensure that it is credible and adheres to basic principles. NGOs in Zimbabwe formed 

ZZZICOMP, which “focuse[d] on independent civic monitoring of the constitution-making 

process in all constituencies in Zimbabwe with a view to increasing the transparency of the process, holding those leading the process to account, enhancing the development of a democratic 

constitution in Zimbabwe, and ensuring that the draft constitution produced reflects the wishes 

of those engaging with the process.” Zimbabwean NGOs trained 420 monitors to attend and observe official consultations and then produced a report on their findings.124 The media are another 

watchdog that can monitor and report on the constitution-making process. 

Civil society frequently engages in advocacy, lobbying for particular issues, such as human 

and minority rights and gender equality, or representing sectoral interests, such as trade unions or 

agriculturalists. In this role, civil society representatives may attend public hearings on specific issues, prepare submissions for the constitution-making body, and organize campaigns to get certain 

issues included in the constitution. 

Political parties can also be crucial in a constitutional review and invaluable resources and allies for constitutional drafters. Parties often have established structures and mechanisms to reach 

their constituencies and are accustomed to using them; these mechanisms can be extremely useful in fostering wider participation in the review process. Getting political parties involved in the 

constitutional reform project can also strengthen its legitimacy, just as marginalizing them risks 

alienating powerful interests. Formally partnering with political parties in the constitution-making 

process is not, however, without risks. Civic education should—to the fullest extent possible—

be neutral, apolitical, and objective. It should not be combined with advocacy regarding specific 

outcomes. Any societal group or institution—including NGOs, particularly in countries where 

NGOs are closely aligned with political parties—may have a partisan agenda, but political parties 

are specifically organized around them. In recognition of this, some constitution-making processes 

have sought to limit political parties’ role in civic education. Where political parties insist on engaging in civic education efforts, concerns over partisanship may be reduced by creating a code of 

conduct to which the parties must adhere.

By working with civil society, constitution makers can enhance their participatory efforts, 

reaching greater numbers of people. In addition, facilitating the ability of civil society to monitor 

and report on the process can improve the transparency, and by extension the legitimacy, of the 

Civic education should—to 

the fullest extent possible—

be neutral, apolitical, and 

objective. It should not be 

combined with advocacy 

regarding specific outcomes. 
30 USIP.ORG

PEACEWORKS 105

process. By creating space for civil society to advocate for special interests, constitution makers can 

gather useful information about the needs and priorities of society—although they must also carefully determine who these groups represent and how to weigh and balance the inputs.

Conclusion

Constitution making in fragile and divided societies presents a unique opportunity to redress inequities, resolve conflicts, seek compromise and consensus, build peace, and give citizens a meaningful 

voice. These goals are much more likely to be achieved if the process is inclusive, transparent, representative, participatory, and nationally owned and led. However, political will and careful planning 

are required to minimize the risks and seize the opportunities that such a process affords. 

Over the last few decades, constitution makers globally have been exchanging experiences, 

lessons learned, and guidance to provide options about how to overcome intractable conflicts or 

divisions through inclusive participation, dialogue, and consensus building. Leaders can look to 

their past experiences in constitutional reform but should also draw from the examples of other 

countries to maximize the likelihood of meeting new demands from citizens and changing political landscapes.

Even the most well planned and participatory process will be fraught with challenges with no 

guarantee of success. However, when public participation is more than an exercise in public relations, it increases the likelihood of achieving a more durable peace and building democratic foundations—especially for the countries of the Arab Spring attempting to repair the damage done 

by hastily drawn borders, decades of dictatorships, and ideological, ethnic, and sectarian divisions. 

Tunisia’s constitution-making process, while not perfect, demonstrated that inclusive and participatory constitution-making can set a precedent for inclusive political processes and lead to a 

more legitimate social compact. While it is too early to assess how deep public support for the 

Tunisian constitution runs, the country’s experience provides an example of good practice for other 

Arab leaders as well as citizens struggling to get their voices heard. 

In the wake of the Arab Spring, citizens’ demands cannot be addressed by a few elites horsetrading behind closed doors. They may require an inclusive nationwide process of civic education, dialogue, consultation, and negotiation, in which people meaningfully participate and leaders 

seriously consider their views, seeking acceptable compromises and consensus to achieve a more 

legitimate social compact and durable peace. 

When public participation 

is more than an exercise 

in public relations, it 

increases the likelihood of 

achieving a more durable 

peace and building 

democratic foundations.
USIP.ORG 31

PARTICIPATORY AND INCLUSIVE CONSTITUTION MAKING

Notes

1. Nicholas Haysom, “Negotiating a Sustainable Political Settlement, Part 2: Legitimation—Lessons from the 

South African Transition,” speech presented at the conference Toward Inclusive and Participatory 

Constitution Making, Kathmandu, Nepal, August 3–5, 2004, available at www.idea.int/news/upload/

Nepal%20-%20Haysom.pdf (accessed August 13, 2014).

2. These guidelines are drawn from Michele Brandt, Jill Cottrell, Yash Ghai, and Anthony Regan, 

Constitution-Making and Reform: Options for the Process (Geneva: Interpeace, 2011), 120–125.

3. Yash Ghai, “The Role of Constituent Assemblies in Constitution Making,” commissioned paper for the 

Institute for Democracy and Electoral Assistance (IDEA), available at www.constitutionnet.org/files/the_

role_of_constituent_assemblies_-_final_yg_-_200606.pdf (accessed October 19, 2014).

4. See Brandt et al., Constitution-Making and Reform; Michele Brandt, “Constitutional Assistance in PostConflict Countries: The UN Experience: Cambodia, East Timor and Afghanistan,” research report, United 

Nations Development Programme, June 2005; Andrew Arato, Civil Society, Constitution, and Legitimacy 

(Lanham, MD: Rowman & Littlefield, 2000), 229‒56; Nicholas Haysom, “Constitution Making and 

Nation Building,” in Federalism in a Changing World: Learning from Each Other: Scientific Background, 

Proceedings and Plenary Speeches of the International Conference on Federalism 2002, ed. Raoul Blindenbacher 

and Arnold Koller (Montreal: McGill-Queens University Press, 2002), 230; Vivien Hart, “Democratic 

Constitution Making”, Special Report no. 107 (Washington, DC: United States Institute of Peace, 2003); 

Alexandra Dobrowolsky and Vivien Hart, eds., Women Making Constitutions: New Politics and Comparative 

Perspectives (New York: Palgrave Macmillan, 2003); and Bereket Habte Selassie, The Making of the Eritrean 

Constitution: The Dialectic of Process and Substance (Trenton, NJ: Red Sea Press, 2003).

5. See Brandt, et al., Constitution-Making and Reform.

6. World Bank, World Development Report 2011: Conflict, Security, and Development (Washington, DC: World 

Bank, 2011). 

7. Charles Call, Why Peace Fails: The Causes and Prevention of Civil War Recurrence (Washington, DC: 

Georgetown University Press, 2012).

8. Anthony Wanis-St. John and Darren Kew, “Civil Society and Peace Negotiations: Confronting Exclusion,” 

International Negotiation 13 (2008), 11–36.

9. Todd A. Eisenstadt, A. Carl LeVan, and Tofigh Maboudi, “When Talk Trumps Text: How Participatory 

Deliberation on New Constitutions Advances Democratization,” presentation to George Washington 

University Comparative Politics Workshop, May 2, 2014, 1; See also John M. Carey, “Does It Matter How 

a Constitution Is Created?” in Is Democracy Exportable?, ed. Z. Barany and R. Moser (Cambridge: 

Cambridge University Press, 2008).

10. Brandt, et al., Constitution-Making and Reform.

11. Many of the themes, arguments, and case studies presented in this report are drawn from a workshop 

entitled “Opportunities and Dilemmas of Public Participation in Constitution Building,” jointly organized 

by Interpeace, the United States Institute of Peace, and International IDEA and held in Cape Town, South 

Africa, April 2‒5, 2009. The participants in the workshop included Raghe Abdirahman, Ahmed Abbas 

Ahmed, Melanie Allen, Ekuru Aukot, Markus Böckenförde, Michele Brandt, Fernando Carrillo-Florez, 

Hugh Corder, Jill Cottrell, Hassen Ebrahim, Yash Ghai, Jason Gluck, Peter Hislaire, Jenny Isberg, 

Mohammad Jawari, Pat Johnson, Katy Le Roy, Robert Mattes, Christina Murray, Walter Odero, Sakuntala 

Rajasingham, Varsha Redkar-Palepu, Anthony Regan, Renata Segura, Edward Shalala, Richard Khalipile 

Sizani, Paulos Tesfagiorgis, J. Alexander Their, Andres Torrez, Winluck Wahiu, Christie S. Warren, and 

Ruben Zamora Rivas. See also Brandt, et al., Constitution-Making and Reform; and Laurel E. Miller, ed., 

with Louis Aucoin, Framing the State in Times of Transition: Case Studies in Constitution Making (Washington, 

DC: United States Institute of Peace Press, 2010).

12. “From the Editor,” special edition of Midan Masr 1, no. 3 (April–May 2012), 1. 

13. Mina E. Khalil and Sadaf Jaffer, “Amal and Afaf: Egypt’s Revolutionary Underdogs Deserve an Inclusive 

Constitution,” Huffington Post, July 19, 2013, available at www.huffingtonpost.com/mina-e-khalil/amaland-afaf-egypts-revo_b_3624413.html (accessed August 13, 2014).

14. Nicholas Collins, “Voices of a Revolution: Conversations with Tunisia’s Youth,” research report prepared for 

the National Democratic Institute, Washington, DC, March 2011, 11–12, available at pdf.usaid.gov/pdf_

docs/PNADU912.pdf (accessed on August 13, 2014). 

15. International Republican Institute, “IRI Poll: Tunisians Look for Improvements in Government 

Performance,” press release, Washington, DC, February 14, 2013, available at www.iri.org/news-eventspress-center/news/iri-poll-tunisians-look-improvements-government-performance (accessed on August 13, 

2014); the results of the poll can be found at “Survey of Tunisian Public Opinion,” International Republican 

Institute and Elka Consulting, available at www.iri.org/sites/default/files/2013%20February%2014%20

Survey%20of%20Tunisian%20Public%20Opinion%2C%20December%2019%2C%202012-January%20

7%2C%202013_0.pdf (accessed August 13, 2014).
32 USIP.ORG

PEACEWORKS 105

16. Megan Doherty, “‘Now We Have Hope’: Citizen Views on Libya’s Political Transition,” research report 

prepared for the National Democratic Institute, Washington, DC, December 2011, 32, available at www.

ndi.org/files/Libya-FG-121611.pdf (accessed August 13, 2014); and Megan Doherty, “Building a New 

Libya: Citizen Views on Libya’s Electoral and Political Processes,” research report prepared for the National 

Democratic Institute, Washington, DC, May 2012. 

17. Lawyers for Justice in Libya, “LFJL Celebrates the General National Congress and Launches Destoori,” 

press release, August 9, 2012, available at www.libyanjustice.org/news/news/post/35-lfjl-celebrates-thegeneral-national-congres-and-launches-destoori-/ (accessed August 13, 2014).

18. Francesco Biagi, “The 2011 Constitutional Reform in Morocco: More Flaws than Merits,” Jean Monnet 

Occasional Paper No. 07/2014, Institute for European Studies, 2014, 7.

19. Alexis Arieff, “Morocco: Current Issues,” report for Congress no. 7-5700, Congressional Research Service, 

June 20, 2012, 3.

20. International Crisis Group (ICG), “Popular Protest in North Africa and the Middle East (IX): Dallying 

with Reform in a Divided Jordan,” Middle East/North Africa Report no. 118, March 12, 2012, 22.

21. “Jordan King Unveils Constitutional Reform Proposals,” Gulfnews.com, August 14, 2011, available at 

gulfnews.com/news/region/jordan/jordan-king-unveils-constitutional-reform-proposals-1.851688 

(accessed August 13, 2014).

22. ICG, “Popular Protest in North Africa,” 23.

23. Official website of Libyan Constitutional Drafting Assembly, available at www.cdalibya.org (accessed on 

January 10, 2015).

24. “At Least 250 Killed in 22 Days of Intense Benghazi Clashes,” Efe.com, November 5, 2014, available at www.

efe.com/efe/noticias/english/world/least-250-killed-days-intense-benghazi-clashes/4/2060/2458039 

(accessed on November 11, 2014).

25. Imed Lamloum, “Rival PM Says New Elections Can Save Libya,” Yahoo News, November 2, 2014, available at news.yahoo.com/rival-pm-says-elections-save-libya-101619104.html (accessed on November 11, 

2014).

26. Ayman Al-Warfalli, “Libyan Rebels Threaten to Declare Independence over Rival Parliament,” Reuters, 

November 7, 2014, available at www.reuters.com/article/2014/11/07/us-libya-security-idUSKBN0IR1YY20141107 (accessed on November 11, 2014).

27. Text of SRSG Bernardino Leon’s Press Conference in Tripoli, October 28, 2014, available at unsmil.

unmissions.org/Default.aspx?tabid=3543&ctl=Details&mid=6187&ItemID=1991298&language=en-US 

(accessed on November 11, 2014).

28. “Houthi Rebels Take Near-Total Control of Sanaa,” Al Arabiya News, September 23, 2014, available at 

english.alarabiya.net/en/News/middle-east/2014/09/23/Heavily-armed-Houthi-rebels-deploy-in-Sanaa.

html (accessed on November 11, 2014).

29 “South Yemen Separatists Pledge to Intensify Protests,” Yahoo News, October 23, 2014, available at news.

yahoo.com/south-yemen-separatists-pledge-intensify-protests-151901875.html (accessed on November 11, 

2014).

30 Issandr El Amrani, “In Translation: Egypt’s Constitutional Crisis of Consensus,” The Arabist, March 24, 

2012, available at arabist.net/blog/2012/3/24/in-translation-egypts-constitutional-crisis-of-consensus.html 

(accessed August 13, 2014).

31. See a statement by Egyptian human rights organizations criticizing a Constituent Assembly–led hearing on 

human rights held on July 22, 2012, as being “pro forma” and merely a “public relations” exercise (Arabic 

only), available at eipr.org/pressrelease/2012/07/24/1456 (accessed August 13, 2014). See also Sherif Tarek, 

“Liberal Hamzawy Seeks Foreign Help Not Interference in Egypt’s Constitution,” Ahram Online, September 

28, 2012, available at english.ahram.org.eg/NewsContent/1/64/54089/Egypt/Politics-/Liberal-Hamzawyseeks-foreign-help-not-interferenc.aspx (accessed August 13, 2014): “[Amr] Hamzawy [a professor at the 

Cairo University and the American University in Cairo and one of the secularist figures in the 2012 

Constituent Assembly] also voiced displeasure that the Constituent Assembly’s discussions are always held 

behind closed doors. ‘That’s why there in no civil society dialogue.... There shouldn’t be such hostility and 

fear between parties and figures; drafting the constitution is more pivotal than such disputes. It’s the future 

of Egypt we’re talking about here.’”

32. Nathan Brown and Eric Trager, “Have We Lost Egypt? A Dialogue on Islamists, Reactionaries, and 

American Diplomacy,” New Republic, December 14, 2012, available at www.washingtoninstitute.org/policyanalysis/view/have-we-lost-egypt (accessed August 13, 2014).

33. Zaid Al-Ali, “The New Egyptian Constitution: An Initial Assessment of Its Merits and Flaws,” openDemocracy, December 26, 2012, available at www.opendemocracy.net/zaid-al-ali/new-egyptian-constitutioninitial-assessment-of-its-merits-and-flaws (accessed August 13, 2014).

34. Issandr El Amrani, “In Translation: Egypt’s Constitutional Crisis of Consensus,” The Arabist, March 24, 

2012, available at arabist.net/blog/2012/3/24/in-translation-egypts-constitutional-crisis-of-consensus.html 

(accessed August 13, 2014). 
USIP.ORG 33

PARTICIPATORY AND INCLUSIVE CONSTITUTION MAKING

35. Yussef Auf, “Egypt’s Constitutional Committees,” The Atlantic Council, September 5, 2013, available at 

www.atlanticcouncil.org/blogs/egyptsource/egypt-s-constitutional-committees (accessed October 19, 2014).

36. Interview with Zaid Al-Ali by author, January 28, 2014.

37. See, e.g., Nathan J. Brown, “Egypt Has Replaced a Single Dictator with a Slew of Dictatorial Institutions: 

The Sad Story of Amr Hamzawy and Emad Shahin,” The New Republic, January 26, 2014, available at www.

newrepublic.com/article/116352/amr-hamzawy-emad-shahin-arrests-show-egypts-new-dictatorship 

(accessed August 13, 2014); Rana Muhammad Taha, “Nine Sentenced for Two Years in Prison,” Egypt Daily 

News, January 2, 2014, available at www.dailynewsegypt.com/2014/01/02/nine-activists-sentenced-fortwo-years-in-prison/ (accessed August 13, 2014); and David D. Kirkpatrick and Carlotta Gall, “Arab 

Neighbors Take Split Paths in Constitutions,” New York Times, January 14, 2014.

38. Human Rights Watch, “Egypt: Activists Arrested for ‘No’ Campaign,” press release, January 13, 2014, 

www.hrw.org/news/2014/01/13/egypt-activists-arrested-no-campaign (accessed August 13, 2014).

39. Mada Masr, “Strong Egypt Party: The Revolution’s Constitution Has Yet to Be Written,” Madamasr.com, 

January 20, 2014, available at www.madamasr.com/content/strong-egypt-party-revolutions-constitutionhas-yet-be-written-0 (accessed August 13, 2014).

40. Amira El-Fekki, “Interview with Field Office Director of Carter Center, Alessandro Parziale,” Cairo Post, 

January 20, 2014, available at thecairopost.com/news/76375/politics/interview-with-field-office-directorof-carter-center-alessandro-parziale (accessed August 13, 2014).

41. The Carter Center, “The Carter Center Encourages Increased Transparency and Public Participation in 

Tunisia’s Constitution Drafting Process; Calls for Progress Toward Establishment of Independent Election 

Management Body,” statement, May 11, 2012, available at www.cartercenter.org/resources/pdfs/news/pr/

tunisia-statement-051112-en.pdf (accessed August 13, 2014). 

42. Duncan Pickard, “At Last, Public Participation in Constitution-Making in Tunisia,” Atlantic Council, 

February 12, 2013, available at www.atlanticcouncil.org/blogs/menasource/at-last-public-participation-inconstitutionmaking-in-tunisia (accessed August 13, 2014).

43. UNDP Tunisia Project, “Parliamentary Update: The New Tunisian Constitution—Fact Sheet,” update, 

January 24, 2014, on file with author.

44. The NCA added a provision guaranteeing the right to vote, removed language that seemed to give the state 

constitutional authority over religious practice—authority that some feared could be used to outlaw blasphemy—and amended language that described women as “complementary” to men in society.

45. Kirkpatrick and Gall, “Arab Neighbors Take Split Paths.”

46. The Carter Center, “The Carter Center Congratulates Tunisia’s National Constituent Assembly on Final 

Draft of Constitution and Urges Safeguards for Human Rights,” report, June 12, 2013, available at www.

cartercenter.org/resources/pdfs/news/pr/tunisia-full-report-061213-eng.pdf (accessed August 13, 2014). 

The report continues: “The NCA has demonstrated its ability to take into account numerous suggestions, 

including the overall structure of the draft, the internal coherence of the text, and in particular concerns 

expressed regarding the protection of certain fundamental rights and liberties,” 1.

47. See “Interview with His Excellency, Mustapha Ben Jaafar, President of Tunisia’s National Constituent 

Assembly,” UN Constitutional, issue 2 (Spring/Summer 2014), available at peacemaker.un.org/sites/peacemaker.un.org/files/TheUNConstitutional_Issue2.pdf (accessed September 15, 2014).

48. “Tunisia Suspends Work at National Assembly Over Political Crisis,” Al-Arabiya News, August 6, 2013, 

available at english.alarabiya.net/en/News/middle-east/2013/08/06/-Tunisia-suspends-work-at-NationalAssembly-over-political-crisis.html (accessed August 13, 2014).

49. Naveena Kottoor, “Tunisia Assembly Passes New Constitution,” BBC News, January 27, 2014, available at 

www.bbc.co.uk/news/world-africa-25908340 (accessed August 13, 2014).

50. Sarah Chayes, “How a Leftist Labor Union Helped Force Tunisia’s Political Settlement,” Carnegie 

Endowment for International Peace, March 27, 2014, available at carnegieendowment.org/2014/03/27/

how-leftist-labor-union-helped-force-tunisia-s-political-settlement (accessed October 19, 2014).

51. Jasmine Foundation for Research and Communication, “An Interview with Badreddine Abdelkefi: The 

Role of Civil Society in Drafting the New Constitution,” March 4, 2014, available at www.jasmine-foundation.org/en/?p=903 (accessed August 13, 2014).

52. Ibid.

53. Ibid.

54. Wanis-St. John and Kew, “Civil Society and Peace Negotiations,” 13. 

55. Haysom, “Negotiating a Sustainable Political Settlement.” 

56. Brandt, et al., Constitution-Making and Reform, 80‒90. 

57. Hassen Ebrahim, executive director, South Africa Constitutional Assembly, interview by author (Jason 

Gluck), New York, May 28, 2013.

58. Wanis-St. John and Kew, “Civil Society and Peace Negotiations,” 16.
34 USIP.ORG

PEACEWORKS 105

59. Devra C. Moehler, Distrusting Democrats: Outcomes of Participatory Constitution Making (Ann Arbor, MI: 

University of Michigan Press, 2011), 9.

60. Bereket Habte Selassie, “Constitution Making in Eritrea: A Process-Driven Approach,” in Framing the State, 58.

61. Yash Ghai, “Human Rights and Social Development: Toward Democratization and Social Justice,” 

Democracy, Governance and Human Rights Programme Paper no. 5, United Nations Research Institute for 

Social Development, October 2001. 

62. Lee Demetrius Walker, telephone interview by author (Jason Gluck), December 6, 2012.

63. Christina Murray, interview by author (Jason Gluck), November 15, 2012.

64. Aaron Saenz, “25 Ordinary Citizens Write Iceland’s New Constitution with Help from Social Media,” 

SingularityHUB, August 3, 2011, available at singularityhub.com/2011/08/03/25-ordinary-citizens-writeicelands-new-constitution-with-help-from-social-media/ (accessed August 13, 2014).

65. Smari McCarthy, interview by Cyrus Farivar, Deutsche Welle, August 9, 2011, available at www.dw-world.

de/dw/article/0%2c%2c15304326%2c00.html (accessed August 13, 2014). The Icelandic recommendations 

have yet to be adopted by the parliament.

66. Laurel Miller, “Designing Constitution-Making Processes: Lessons from the Past, Questions for the 

Future,” in Framing the State, 662 n. 82.

67. Pickard, “Constitution Making in Tunisia.” 

68. See the Transitional Constitution of the Republic of South Sudan, 2011, articles 200 and 201.

69. Aucoin and Brandt, “East Timor’s Constitutional Passage to Independence,” in Framing the State, 251.

70. Muna Ndulo, “The Democratic State in Africa: The Challenges for Institution Building,” National Black 

Law Journal 16, no. 70 (1998–99), 93.

71. Rose Kamau, “Kenya Constitutional Poll: No Team Concedes Defeat,” Pan-African News Wire, August 5, 2010, 

panafricannews.blogspot.com/2010/08/kenya-constitutional-poll-no-team.html (accessed August 13, 2014).

72. African Charter for Popular Participation in Development and Transformation, 1990, E/ECA/Cm.16/11, 

article 10. See also International Covenant on Civil and Political Rights, article 25: “Every citizen shall have 

the right and the opportunity...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 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.” 

Available at www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx (accessed August 13, 2014). For 

more general discussion on public participation as a right, see Hart, “Democratic Constitution Making”; and 

Miller, Framing the State, 20.

73. Mary Kaldor, New and Old Wars: Organized Violence in a Global Era (Stanford, CA: Stanford University 

Press, 1999); and Martin Shaw, The New Western Way of War: Risk-Transfer War and Its Crisis in Iraq 

(Cambridge: Polity Press, 2005).

74 Jon Elster, “Forces and Mechanisms of the Constitution-Making Process,” Duke Law Journal 45, no. 364 

(1995), 388–89.

75. David Landau, “Constitution-Making Gone Wrong,” Alabama Law Review 64, no. 923 (2013), 28.

76. Ibid., 43.

77. Alicia Bannon, “Designing a Constitution-Drafting Process: Lessons from Kenya,” Yale Law Journal 116, 

no. 1824 (2007), 1847.

78. Kirsti Samuels, “Constitution Building Processes and Democratization: A Discussion of Twelve Case 

Studies,” IDEA working paper, 2008, 29; she concludes that one risk of public participation is that it “tend[s] 

to threaten the established power structures, which, reacted by undermining the constitution, amending, it, 

preventing its adoption, or preventing its enforcement.”

79. Matt Siegel, “Fiji’s Government Rejects Proposed Constitution,” New York Times, January 11, 2013.

80. ZZZICOMP Baseline Report, June 2010, on file with the authors; ZZZICOMP Monthly Report, June 2010, 

4–5, on file with the authors.

81. Ibid.

82. Landau, “Constitution-Making Gone Wrong,” 13–23.

83. Brandt, et al., Constitution-Making and Reform, 90; Hart, Democratic Constitution Making; Neil Kritz, 

director of the Rule of Law program at the United States Institute of Peace, testimony before a joint hearing 

of the Senate Committee on the Judiciary, Subcommittee on the Constitution, Civil Rights, and Property 

Rights and the Senate Committee on Foreign Relations, Subcommittee on near Eastern and South Asian 

Affairs, June 25, 2003, available at www.judiciary.senate.gov/hearings/testimony.cfm?id=4f1e0899533f768

0e78d03281fedf4c4&wit_id=4f1e0899533f7680e78d03281fedf4c4-2-4 (accessed August 13, 2014); and 

Brandt, “Constitutional Assistance.” 

84. Bill Heller, “Inventing Democracy,” New York Times, December 9, 2012.

85. These guidelines are drawn from Brandt et al., Constitution-Making and Reform, 120–25.
USIP.ORG 35

PARTICIPATORY AND INCLUSIVE CONSTITUTION MAKING

86. See, e.g., Moehler, Distrusting Democrats, 7: “So, while participation may have helped citizens form opinions 

about the constitution and made those options more durable, it appears that the leaders in the area (rather 

than participation) influenced whether citizens came to view the constitution as legitimate or illegitimate.”

87. See Cairo Institute for Human Rights Studies, “After Hearing Held by Constituent Assembly, Rights 

Groups in Egypt Express Fears about the Lack of Genuine Inclusive Debate on the Post-Revolutionary 

Constitution,” public statement issued by eight organizations and posted on the Cairo Institute website, July 

24, 2012, available at www.cihrs.org/?p=3594&lang=en (accessed August 13, 2014).

88. See Tripp, see Aili Mari Tripp, “The Politics of Constitution Making in Uganda,” in Framing the State.

89. Muna Ndulo, “Zimbabwe’s Unfulfilled Struggle for a Legitimate Constitutional Order,” in Framing the State, 188.

90. Siegel, “Fiji’s Government.”

91. Citizens’ Constitutional Forum, “An Analysis: 2013 Fiji Government Draft Constitution,” research report, 

March 26, 2013, 4, available at fijiconstitution.weebly.com/uploads/1/2/4/6/12466522/v1.2013_gdc_analysis.ccf_final_report.pdf (accessed August 13, 2014).

92. Virisila Buadromo, “The Constitutional Process: A View from the Fiji Women’s Rights Movement,” in 

Legitimacy and Peace Processes: From Coercion to Consent, ed. Alexander Ramsbotham and Achim Wennmann, 

Accord 25(2014), 67.

93. Moehler, Distrusting Democrats, 6–7: “Participation in the [constitution making] process contributed to the 

erosion of trust in political institutions...because [the people] want full democracy and know that Ugandan 

government is not delivering it.”

94. For Uganda, see Tripp, “Constitution-Making in Uganda,” 163.

95. For details about how to prepare a strategic plan for civic education and public consultation efforts, see 

Brandt, et al., Constitution-Making and Reform, chapter 2.3.2, box 23, 123, 152‒54.

96. Brandt, “Constitutional Assistance.”

97. “The Constitution of Kenya Review Commission Strategic Plan,” July 2001, 18, on file with the authors.

98. International Support to Constitutional Review Basket Fund, discussions, July 18, 2012.

99. Walter Odero, program officer and data analyst, Constitution of Kenya Review Commission, 2002–04, 

presentation at “Opportunities and Dilemmas of Public Participation in Constitution Building.”

100. Hassen Ebrahim, executive director, South Africa Constitutional Assembly, interview by author (Jason 

Gluck), New York, May 28, 2013.

101. Haysom, “Negotiating a Sustainable Political Settlement.”

102. Brandt, et al., Constitution-Making and Reform.

103. Ibid.

104. Constitution of Kenya Review Commission, The Constitutional Review Process in Kenya: Issues and Questions 

for Public Hearings (Constitution of Kenya Review Commission, 2002).

105. Michele Brandt and Louis Aucoin, “East Timor’s Constitutional Passage to Independence,” in Framing the 

State, 245–74; and Brandt, “Constitutional Assistance.”

106. United Nations, “Guidance Note of the Secretary-General: United Nations Assistance to ConstitutionMaking Processes,” April 2009, available at www.unrol.org/files/ Guidance_Note_United_Nations_

Assistance_to_Constitution-making_Processes _FINAL.pdf (accessed August 13, 2014).

107. Brandt, et al., Constitution-Making and Reform, 128‒30.

108. Ibid., 120‒23.

109. Ibid., 296–304. 

110. For a more in-depth examination of approaches to civic education, see Brandt et al., Constitution-Making and 

Reform, 91‒107.

111. Jason Gluck and Brendan Ballou, “New Technologies in Constitution Making,” Special Report no. 343, 

(Washington, DC: United States Institute of Peace, 2014).

112. Steven E. Finkel, “Can Democracy Be Taught?” Journal of Democracy 14, no. 4 (2003), 137–51.

113. For a more in-depth examination of approaches to public consultations, see Brandt, et al., ConstitutionMaking and Reform, 108‒48; Gluck and Ballou, “New Technologies in Constitution Making.” 

114. George Grant, “Four-Fifths of Libyans Support Electing Constitution-Drafting Committee: Poll,” Libya 

Herald, November 24, 2012, available at www.saudigazette.com.sa/index.cfm?method=home.regcon&

contentid=20121126144075 (accessed August 13, 2014).

115. Tripp, “Constitution Making in Uganda,” 170.

116. Jonathan Morrow, “Deconstituting Mesopotamia: Cutting a Deal on the Regionalization of Iraq,” in Framing 

the State, 563–600. Unfortunately, the compressed timeline made it impossible for drafters to review and 

reflect on submissions received, negating the intended benefit of engaging the public in the first place.

117. Gluck and Ballou, “New Technologies in Constitution Making.” 

118. Brandt, et al., Constitution-Making and Reform, 139‒48
36 USIP.ORG

PEACEWORKS 105

119. Odero, presentation at “Opportunities and Dilemmas.” 

120. See, e.g., Hadeel Al Shalchi, “Cradle of Libya Revolt Seeks Autonomy from New Rulers,” Reuters, April 

16, 2012, uk.reuters.com/article/2012/04/16/uk-libya-autonomy-idUKBRE83F0NG20120416; Mohamed 

Eljarh, “Federalists in Libya Up Their Game Ahead of the Constitution,” Foreign Policy, June 4, 2013, 

available at transitions.foreignpolicy.com/posts/2013/06/04/federalists_in_libya_up_their_game_ahead_

of_the_constitution (accessed August 13, 2014); “Regional Group Declares Self-Government for East 

Libya,” Reuters, June 2, 2013.

121. Copies of materials used by the Kenyan Constitutional Review Commission are on file with the authors.

122. Brandt et al., Constitution-Making and Reform, 96.

123 ZZZICOMP Baseline Report, June 2010.

124 Ibid.
 5

About the Institut

The United States Institute of Peace is an independent, nonpartisan 

institution established and funded by Congress. Its goals are to 

help prevent and resolve violent conflicts, promote postconflict 

peacebuilding, and increase conflict-management tools, capacity, and 

intellectual capital worldwide. The Institute does this by empowering 

others with knowledge, skills, and resources, as well as by its direct 

involvement in conflict zones around the globe.

Chairman of the Board: Steven J. Hadley

Vice Chairman: George E. Moose

Acting President: William B. Taylor

Chief Financial Officer: Michael Graham

Board of Di

Stephen J. Hadley, (Chair), Principal, RiceHadleyGates, LLC, Washington, 

D.C.• George E. Moose (Vice Chair), Adjunct Professor of Practice, The 

George Washington University, Washington, D.C. • Judy Ansley, Former 

Assistant to the President and Deputy National Security Advisor under 

George W. Bush, Washington, D.C. • Eric Edelman, Hertog Distinguished 

Practitioner in Residence, Johns Hopkins University School of Advanced 

International Studies, Washington, D.C. • Joseph Eldridge, University 

Chaplain and Senior Adjunct Professorial Lecturer, School of International 

Service, American University • Kerry Kennedy, President, Robert F. 

Kennedy Center for Justice and Human Rights, Washington, D.C. • Ikram 

U. Khan, President, Quality Care Consultants, LLC, Las Vegas, Nev. • 

Stephen D. Krasner, Graham H. Stuart Professor of International 

Relations, Stanford University, Palo Alto, Calif. • John A. Lancaster, 

Former Executive Director, International Council on Independent Living, 

Potsdam, N.Y. • Jeremy A. Rabkin, Professor of Law, George Mason 

University, Fairfax, Va. • J. Robinson West, Chairman, PFC Energy, 

Washington, D.C. • Nancy Zirkin, Executive Vice President, Leadership 

Conference on Civil and Human Rights, Washington, D.C.

Members Ex Offi

John Kerry, Secretary of State • Chuck Hagel, Secretary of Defense 

• Gregg F. Martin, Major General, U.S. Army; President, National 

Defense University • William B. Taylor, Acting President, 

United States Institute of Peace (nonvoting)
2 Looking for Justice

The Arab Spring has been a rejection of dictatorial regimes 

that for decades ignored or actively repressed democratic 

participation, and citizens in countries across the Middle East 

and North Africa are now demanding reform from their governments. Whether these governments seize their constitutional moments and seek to include the aspirations of all citizens, including women and previously marginalized citizens, in 

their new social compacts may determine whether the constitution-making processes lead to durable peace or further 

division. There is no blueprint for inclusive and participatory 

constitution-making processes, but there are lessons to be 

learned from the past twenty-five years of constitution making, including the recent experience of Tunisia. 

This report draws from the work of scholars and constitution 

makers who have been reviewing options for consensusbased constitution-making processes that can meet the 

demands of citizens as well as changing political landscapes 

in divided societies. As the countries of the Arab Spring transition from authoritarian regimes and attempt to overcome 

divisions in their societies, their leaders can learn from the 

wealth of recent comparative experience about how to use 

the process as a peacebuilding tool and develop a constitution that enjoys legitimacy. 

Of Related Interest

■ Transitional Justice in Balance: Comparing Processes, Weighing Efficacy by Tricia 

D. Olsen, Leigh A. Payne, and Andrew G. Reiter (USIP Press, 2010) 

■ New Technologies in Constitution Making by Jason Gluck and Brendan 

Ballou (Special Report, May 2014)

■ Yemen in Transition: Between Fragmentation and Transformation by Philip 

Barrett Holzapfel (Peaceworks, March 2014)

■ Crisis and Opportunity in South Sudan by Princeton N. Lyman, Jon Temin, 

and Susan Stigant (Peace Brief, January 2014)

■ Lessons from Afghanistan’s History for the Current Transition and Beyond by 

William Byrd (Special Report, September 2012)

■ Constitutional Reform in Transitional States: Challenges and Opportunities 

Facing Egypt and Tunisia by Jason Gluck (Peace Brief, May 2011)

PEACEWORKS • JANUARY 2015 • NO. 105

UNITED STATES INSTITUTE OF PEACE • 2301 CONSTITUTION AVE., NW • WASHINGTON, DC 20037 • USIP.ORG 

@ usip