Academic journal article William and Mary Law Review

Expanding Participation in Constitution Making: Challenges and Opportunities

Academic journal article William and Mary Law Review

Expanding Participation in Constitution Making: Challenges and Opportunities

Article excerpt

INTRODUCTION

Internal exclusion is a substantial impediment to the successful implementation of participatory democratic reforms in post-conflict states. The recent use of participatory constitution making in states like Rwanda illustrates the challenge that inclusion presents. (1) Inclusion ensures not only that individuals are physically present in the decision-making forums, but that they have an "effective opportunity to influence the thinking of others." (2) This requires that participants review and reconsider their preexisting preferences and positions in light of reasons and justifications offered by other participants. (3) Absent a willingness or ability to do so, the decisionmaking process becomes one in which original positions are zealously defended and decisions are made based solely upon factors such as numerical majorities and political power. (4) Participants argue, rather than deliberate, which reduces their ability to influence the thinking of other participants. This creates a situation in which those in the numerical minority or without significant political power are internally excluded.

Internal exclusion was a prominent feature of Rwanda's participatory constitution-making system. The system used a small, minimally representative drafting body, the Legal and Constitutional Commission, that rarely deliberated substantive issues with the public. (5) The drafters focused on educating the public about the role of a constitution within a society and identifying widely held beliefs about general governance issues, such as whether the state should have a presidential or parliamentary style of government. (6) Substantive engagement (7) was limited to internal Legal and Constitutional Commission (LCC) meetings and LCC exchanges with government officials. (8) Absent a representative within the LCC or the support of influential government officials, citizens lacked an opportunity to have the constitution drafters seriously engage their concerns, ideas, recommendations, or proposals. (9) This lack of internal inclusion created a situation in which most citizens were denied the opportunity to participate in the substantive decisionmaking process. (10) Rwanda focused on facilitating external inclusion through public meetings, questionnaires, and radio and television broadcasts. (11) This created a system with significant participation without power, which undermines the theoretical and legal justifications of participatory constitution making. Further research into the ways in which citizens are internally excluded is critical for evaluating states' use of participatory constitution making and assisting states in implementing it effectively.

Part I locates the theoretical and legal foundations of participatory constitution making within participatory democratic theory and the right to self-determination. This discussion identifies inclusion as a fundamental requirement for successful participatory constitution making. Part II examines the tension between inclusion and political power in post-conflict states, and Part III identifies the barriers to internal inclusion that existed in Rwanda.

I. CONSTITUTIONS AND PUBLIC PARTICIPATION

Scholars and policy makers concerned about democratization efforts in post-conflict states are beginning to focus on the process by which reforms are made, not just the substance of the reforms. This has led to an emphasis on citizen participation in the drafting and implementation of constitutions. This form of constitution making is referred to as democratic or participatory constitution making. Advocates advance both normative and instrumental benefits for process-oriented constitution making. The normative justifications are rooted in participatory democratic theory, emphasizing the importance of broad participation and deliberation for the creation of a legitimate governance system.

A. Normative Foundation

Participation in government decision making is emerging as an international norm. …

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