Stockholm. Democracy as a normative framework requires constitution builders to support and guarantee civil and political rights. Since rights are indivisible, there are many rights recognised as economic, social, cultural or collective whose recognition completes political rights and makes it possible to realise them.
In the context of diversity described below, effective constitutional protection that is broad and equal across all categories of people is not possible except on the basis of a right to equality and non-discrimination.
Human rights allow the constitutional dismantling of unjustifiable inequality. The human rights of women, children and people living with disabilities are examples of rights that cut across cultures and identity groups, and which should be guaranteed because of the vulnerabilities faced by these groups, which are sharpened by violent conflict and deep division.
The recognition of diversity
A legitimate Constitution in a deeply divided and diverse society cannot be made without the full participation and inclusion of the potentially contentious groups in the country.
It is also accepted that even minority groups have a right to be represented and included in constitution building. Planning for the inclusion of diversity at the initial stages is, therefore, part of the good start.
Constitution builders have considered electoral options when bodies to deliberate the constitution are composed; there is a common approach that has emerged in the last few decades is the establishment of governments of national unity or grand coalitions to oversee the process of constitution building. This approach has had very limited success.
The recognition of economic, social, cultural or collective rights completes political rights and makes it possible to realise them.
The rule of law
Ultimately, a primary purpose of constitution building is to codify agreements into a legal text that courts will enforce as the supreme law. This is part of constructing a rule of law. The rule of law is important to ensure that constitution building is not ultimately only about sharing the spoils among different political actors. The rule of law will have to be upheld in order to impose necessary limits on political actions. If the process of framing the constitution is driven only by the political interests of the political groups in it, there may be nothing subsequently to constrain their power.
It is therefore important that some form of legality is established up front to ensure that even the constitution-building process is bound within a predictable framework of legal rules. In implementation, this helps ensure that the playing field is level for all players who play by the rules that are applicable for everyone. In terms of substantive outcomes, the rule of law is predicated on the supremacy of a constitution in all spheres of public life.
Essentially, each state has a legal framework or system that determines how a Constitution becomes supreme law. If still in force, that framework can be used to influence the procedures that negotiators will use to effect constitutional change. If it is weak or non-existent, an alternative legal framework, such as an interim constitution or a previous constitution, may need to be established urgently.
The pre-existing legal framework may permit interested parties or new players to question the legality or validity of proposed constitutional changes, hence reducing monopolisation of the process by political forces. Constitution builders could opt for a sovereign body with a legal mandate to frame the constitution, such as the constituent assemblies of Nepal and South Africa. Since Diversity can be recognised in terms of developing a common basis of identity with all groups in one mainstream or by recognising diversity in measures such as reservations and autonomy guarantees.
This text is extracted from a book entitled “A Practical Guide to Constitution Building”, Stockholm 2011.