Successful experiences of constitution-Making in Africa and the Arab world
Civil Education Brochure on Peace, the Constitution and Elections
Prepare: Road Center
Translated by moatinoon
South Africas experience is one of the successes through which it has been able to move the State from the past of the worst forms of apartheid to a modern democratic State. It was then followed by Kenyas constitution-making process, one of Africas newly successful democratic processes. Although the process that led to its writing took place without overthrowing the existing political system, it was characterized by broad and diverse popular participation that required the drafting of many drafts. It produced a constitution reached through an open dialogue involving all components of society. The final draft was overwhelmingly adopted in the 2010 referendum following a civic education campaign led by the Kenyan Government.
Tunisias experience in making the 2014 Constitution in the wake of its popular revolution is one of the successful ones that culminated in the production of a democratic Constitution, which was agreed upon across the widest participation in Tunisia and the Arab region, thus qualifying it as a model that merits study and lessons learned.
The most important features of South Africas experience in constitution-making:
In April 1994, South Africas first non-racial elections were held, involving about 86% of voters. In May 1994, the new Parliament met for the first time as the Constituent Assembly for the drafting of the countrys new final constitution, and to date people have not been directly involved in the drafting of constitutions. However, representatives of the Constituent Assemblys elected divisions initiated contact with people, educated them constitutionally and invited them to express their views, through media campaigns, advertising campaigns in newspapers, radio and television stations, billboards, buses, as well as in a newspaper published by the Constituent Assembly in public, large-scale meetings and web sites. Together, these efforts have affected about 73% of the population.
From 1994 to 1996, the Constituent Assembly received 2 million proposals or requests from individuals, human rights associations and various professional associations. Subsequently, the Constituent Assembly committees drafted the new Constitution, which was first published in November 1995. It published another revised draft in 1996.
The final draft was completed in May 1996, and the final draft of the Constitutional Court was submitted and reviewed from July to September 1996. It was then returned to the Constituent Assembly for some amendments, and then in December 1996 the Constitutional Court ratified the draft constitution, which President Mandela signed into the countrys constitution.
The most important features of Kenyas experience in the Constitution industry:
The parties involved in Kenyas political process have embraced the idea of an expanded constitutional conference, reflecting the disparities of Kenyan society. The parties concerned agreed that the composition of the Constitutional Convention for the people of Kenya should consist of 629 members and members, representing them as follows: (223 members of the Kenya Peoples Assembly, 210 members of the sectors elected by the provincial councils, 29 members representing the Constitution Commission as non-voting members, 41 persons representing political parties, 126 members representing various sectors, religious institutions, women, youth, professional groups, trade unions, NGOs and other interests). They were selected in accordance with the system established by the Constitution Commission responsible for administering the process of making the Constitution.
Participants in this Conference prepared the document of Kenyas future draft constitution, after groups and parties of society were able to press for the expansion of freedoms so that the people would express their opinion and criticize other visions freely and without any restriction. The draft Constitution contained very significant amendments to the States political structure and to the distribution of powers. The substantial amendments discussed in the new Constitution amounted to some 27 that had been submitted to the referendum, in which opposition proposals had triumphed over the Presidents proposals, following which the draft constitution and amendments for citizens had been published in the Official Gazette, and the President had dissolved his Government.
The new Constitution restricts the Presidents powers by establishing a political system aimed at achieving the principle of balance in the distribution of powers. Observers say that this point has been the most important and acceptable at the political and grass-roots levels, as this item will prevent the President from distributing the countrys wealth to those close to and politically accounted for by clans.
The new Constitution created a position of trust in the Constitution by the people, and the provisions of the new Constitution became known to all thanks to long debates and intensive propaganda campaigns. One of the most important concerns of citizens is to ensure that executive officers are held accountable and subject to the law, to ensure the integrity and independence of the national judiciary and to limit the Kenyan Presidents considerable powers.
The proportion of citizens participation was very high, reflecting the role of the people in the drafting of their Constitution, as it fulfilled their political aspirations. The participation of Kenyan citizens reflected the importance of the Constitution, constitutional culture and the peoples role in guiding the democratic process.
Politically, it is noted that the political will in the middle of the government and the opposition has reached the point where the parties have then promoted the initiative to amend the states constitution. President Mwai Kibaki and Prime Minister Raila Odinga were in favour of supporting the referendum, leaving the countrys two largest populations behind a (yes) campaign in favour of the new Constitution.
The most important features of Tunisias experience in making a new constitution:
Following the change of Ben Alis regime and the success of the Tunisian Revolution in 2011, the Constitution of 1959 was suspended and compensated for by the interim Constitution of Tunisia of 2011. Tunisia therefore wagered on the constitutional process as a path to genuine democratic life, within a transitional path known as its upward and downward movement, until the adoption of the Tunisian Constitution in 2014 as the countrys third Constitution.
Elections to the National Constituent Assembly were held on 23 October 2011, resulting in the election of 217 deputies, tasked with the main task of establishing a new constitution of the country, along with other legislative tasks. After political and parliamentary attractions during the writing of the Constitution, Tunisias new Constitution was voted on separately, and then an integrated text, within the framework of the arrangements provided for in the law governing the transition.
The general context surrounding these voting processes was characterized by sharp political polarization and ideological conflict over the States relationship with religion under bilateral polarization. The consensus mechanism approved and codified at the instigation of the quartet sponsoring the national dialogue did not succeed in breaking it, although it clearly limited its impact on the positions of political groups.
The dialogue between the leaders of the parties represented by the National Constituent Assembly took place under the auspices of the Tunisian General Labour Union, the Tunisian Federation for Industry, Trade and Traditional Industries, the Tunisian Association for the Defence of Human Rights and the Deanship of Lawyers, as part of the implementation of the Quartets proposed road map for emerging from the political crisis in 2013. This dialogue led to the voluntary resignation of the Government (ENNAHDA, Congress Party for the Republic and Caucus Party for Action and Freedoms) within the framework of an agreement providing for the interconnection of constituent paths (constitutional writing, election of the Independent High Electoral Commission and change of government). Within the same context, it was agreed to form a new Government consisting of independent national competencies that would manage the remainder of the transition and create a climate conducive to the first presidential and legislative elections under Tunisias new Constitution.
Despite the tension over most of the National Constituent Assemblys voting sessions, in a clear race against the time imposed by the road maps matrix of constitutional entitlements, However, the heads of the blocs have succeeded in achieving minimal consensus on the contents of most chapters of the Constitution policy , notwithstanding the contradictions between their references and party and electoral agendas that continue to overshadow their positions. However, the greatest mood facing these groups and making their consensus fragile is the lack of confidence among them, the resulting apprehension and the marking of the debates on the controversial chapters, in particular Title VI on independent constitutional bodies, which was ratified only at the final session and was repeatedly amended.
Tunisias new Constitution contains one hundred and forty-nine chapters, which are divided into 10 sections; It is considered a long constitution. The length of this Constitution as compared to the 1959 Constitution and the general constitutions around the world is due to the elaboration of some legal details and the delution of some partial issues originally placed in the legal texts rather than the Constitution. But taking into account the political attractions and the legal and parliamentary rivalries that surrounded the writing of this Constitution, We understand the reason for insisting on the scrutiny of certain issues that political groups fear could represent real bumps at the time of the Constitutions implementation so that they may be interpreted in so many meanings that they may amount to a conflict and then fuel the bilateral polarization that has surfaced at the conclusion of the constitutional debate, particularly with regard to the contents of certain contentious articles.
Nevertheless, the Constitution, which came in consensus with distinction and was written alone in keeping with the language of the twenty-first century, is calculated to have expressed the will of a wide spectrum of Tunisians, and was rarely drafted by civil society in even the most democratic and respected State for human rights.
The introduction of the new Constitution included numerous references to Tunisian societys references and symbols, and a corollary of this constitutional provision in its Tunisian environment and culture in their openness to diverse human experience. It also paid tribute to the martyrs sacrifices, valued national sovereignty and affirmed the independence of the national decision.
Perhaps the most important feature of Tunisias experience in the manufacture of its new Constitution is that its political movement, with its diversity of stripes and terms of reference, has bet on the constitutional process and regarded it as the path to a safe passage to a genuine democratic life in what it calls coexistence, respect for difference and impartial competition among politicians for the service of the public good within the framework of national perspectives.
The moments following the final ratification of the new Constitution late in the evening on 26 January 2014 reflected Tunisias unity and consent to the drafting of a constitution expressing them (wholly and in detail); It expresses their inclusive national identity, as well as their cultural, geographical, intellectual and political specificities, and represents the incubator they hold in the countrys possible difference between its political components.
Although the process of making Tunisias constitution has been positive in its entirety, Parliament (the National Constituent Assembly) has found difficulties in many important areas, including planning, communication, public participation and transparency. Most of the problems faced by the drafting process were those of any emerging democracy. The presidents and deputies of the National Constituent Assembly and their administrative assistants were not used to working in a democratic setting. They were not aware of the importance of transparency with citizens, public awareness, public relations with the media and consultation with civil society. These factors have weakened the relationship between the Tunisian people and the Council, resulting in growing public discontent and a perception that the Council operates with weak responsibility towards the electors who elected it.
