Introduction. Consideration by Senior Officials. Constitution-making process. Action for Law Ministers. Annex A. Constitutional developments in the commonwealth. Introduction. The methodology of constitutional change. Devising and adopting a new constitution. Constitutional amendment. Special factors affecting constitutional reform. Ethnicity and communal tensions. Constitutional breakdown and... (see full summary)
1. In its report to the Commonwealth Heads of Government Meeting (CHOGM) in Coolum 2002, the Commonwealth High Level Review Group noted that there was a need to intensify efforts to assist members in strengthening democracy and democratic institutions through the provision of constitutional, electoral and legal assistance.
2. The Group recommended that priority should be given to supporting member governments in the review and strengthening of democratic institutions including constitutions, judiciaries and judicial processes, the training of legislative drafters and public service reform.
3. Globalisation has transformed the political and economic dynamics in the world bringing with it new challenges. With a wide spectrum of stakeholders and interest groups rising to play a role in devising their own constitution there is an emerging focus on the process by which a country's constitution is made. There is a demand for the process to be inclusive, accessible, empowering, open and transparent.
Consideration by Senior Officials
4. Senior Officials had before them at their meeting in October 2004, a paper by the Commonwealth Secretariat on Constitutional Developments in the Commonwealth: Annex A.
5. In their discussion of the paper, Senior Officials made specific reference to mechanisms for constitutional reform and amendment, the 'basic structure' doctrine and the issue of ethnicity and minority rights.
6. Senior Officials asked the Legal and Constitutional Affairs Division (LCAD) to continue work on the topics covered in the paper.
7. LCAD, has, on request from countries, rendered assistance by reviewing draft constitutions in the light of the Commonwealth Harare principles or provided advice to proposed amendments to specific provisions of a Constitution. The Division has also sourced appropriate experts to advise on the constitution-making process and to draft constitutions.
8. In July 2005, the Division in collaboration with the Constitution Review Commission of Zambia, organised a workshop on the constitution-making process for Commonwealth SADC countries, which was held in Livingstone, Zambia. After identifying underlying principles, the workshop developed Guidelines for the constitution-making process and formulated strategies to implement those Guidelines. For the information of Law Ministers, the Guidelines from the workshop are at Annex B.
Action for Law Ministers
9. Law Ministers may wish to endorse the request by Senior Officials to LCAD to continue work on topics covered in the paper which include the following issues:
(a) the mode of making constitutions in the Commonwealth;
(b) the mode and effectiveness of mechanisms for amending constitutions;
(c) mechanisms for protecting constitutions against retrogressive amendment;
(d) monitoring and advising on the development of appellate court structures and systems;
(e) reviewing bills of rights in Commonwealth constitutions;
(f) capacity building in establishing sound constitutional structures.
Annex A. Constitutional developments in the commonwealth
Paper by the Commonwealth Secretariat
1. The object of this paper is to identify key issues of constitutional governance for the purpose of providing a future agenda for Commonwealth Law Ministers, Senior Officials and the Legal and Constitutional Affairs Division of the Commonwealth Secretariat.
2. In Abuja in 2003, Heads of Government re-affirmed their commitment to the fundamental political values of the Commonwealth set out in the Singapore and Harare Declarations and elaborated on in subsequent CHOGM communiqués. Specifically, they adopted the Commonwealth Principles on the Accountability of and the Relationship between the Three Branches of Government (set out in the Appendix hereto) and the Aso Rock Declaration on Development and Democracy. The latter identifies key priorities for the promotion of democratic governance, including participatory democracy characterised by free and fair elections and representative legislatures, an independent judiciary, a well-trained public service, a transparent and accountable public accounts system, machinery to protect human rights and active participation of all elements of civil society. It is widely acknowledged that building democracy, in the words of the Aso Rock Declaration is a "constantly evolving process".
3. This process in terms of constitutional reform is in train in countries in many parts of the Commonwealth, both rich and poor, large and small, including those countries with a long-established tradition of constitutional governance and those where the foundations are still being laid. All however can learn from the shared experience of the 53 member states. We are also mindful of the situation in Zimbabwe, which was a central concern of the Abuja Meeting and remains a Commonwealth concern in the hope that Zimbabwe's return to membership will not be too long delayed.1
4. Most countries of the Commonwealth share in the "Westminster" constitutional tradition although the model exported at the time of de-colonisation has always differed in certain fundamental respects from the original United Kingdom version. The latter has been characterised by a unitary state structure with an unwritten constitution controlled by the conventions of responsible government based on the accountability of the executive to a sovereign parliament. The "export model" was based on the supremacy of a written constitution, with an entrenched bill of rights supported by judicial review and express provision for the separation of powers. In a number of countries, the model, following the pattern of Australia and Canada, took a federal form.
5. The survival rate of the export model has varied sharply across the regions of the Commonwealth. For example, the constitutions of the Caribbean are essentially unchanged since independence whilst most Commonwealth African countries have seen fundamental constitutional, and indeed in some cases unconstitutional, change.2
6. Of particular interest today is the extent to which British constitutional reforms, the most far-reaching of their kind since the 19th Century development of responsible government, are now moving nearer to the export model -away from a unitary state with an unwritten constitution and a sovereign parliament. The "unwritten" constitution is thus increasingly being reduced to writing. Lord Bingham has counted 18 statutes of constitutional import since the election of the Labour administration in 19973; the doctrine of parliamentary supremacy has been modified, some would say undermined, by the supremacy of European Union law in certain matters and by the incorporation of the European Convention on Human Rights into United Kingdom law, with a power of disallowance of incompatible legislation; moves towards the formal separation of executive, legislative and judicial powers are reflected in the prospective replacement of the Judicial Committee of the House of Lords by a supreme court, the removal of judges from legislature and the abolition of the venerable office of Lord Chancellor; the removal of the hereditary element from the upper house of the legislature removes one of the most startling, if equally venerable anomalies in a democratic constitution.
7. The creation of devolved government for Scotland, Wales and Northern Ireland4, particularly the devolution of exclusive legislative power in devolved matters to a Scottish Parliament, while not formally affecting the unitary character of the United Kingdom state, is likely to create by convention a system which the sovereign Westminster parliament will be unable to undo in practice.5 While the position of the Crown remains unchanged, and government is still carried on in the Queen's name by a Prime Minister and other ministers accountable to parliament, the old fabric of the British constitution has been transformed in the name of a modern perception of democratic governance, bringing government closer to the people and enhancing the transparency and accountability of government.
The methodology of constitutional change
8. Since 1990, a significant number of Commonwealth countries have introduced new, autochthonous constitutions. In some cases this has caused, and continues to cause, considerable controversy. For example, in Kenya the Constitutional Review Commission process has proved difficult and is still subject to challenge in the courts.
9. Thus there may be useful lessons to be learned from a comparative study of the various methodologies adopted for constitutional change.
Devising and adopting a new constitution
10. Since 1990, constitution-making efforts in many Commonwealth countries have focused on seeking to provide a consultative procedure that gives popular legitimacy to the new document. In many cases this was effected by the establishment of a constitutional commission whose function was to seek the views of the people. In some countries, the commission was then responsible for drafting the new constitution, whilst in others, the matter was left to a popularly elected constitutional/constituent assembly. This has raised several controversial issues.
* How are commissioners appointed? By means of a popularly elected commission (e.g. Uganda) or a commission appointed by the Head of Government (e.g. Zambia).
* To whom is the commission answerable? For example, should the commission make its report to a popularly elected constitutional assembly that is tasked with drawing up the final document or should it report to the Head of Government?.
* How are the views of the people distilled into the new document? A recurring problem concerns the incorporation of the views of the "people" into the new constitution. Experience has shown that with thousands of submissions, it is possible to draft a number of
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