A forlorn promise?

In more than one local media outlet last year, it was aptly pointed out that the constitutional reform the presidency has been spearheading for some time does not seem to be heading anywhere or, even worse, able to take off.

“If we ever come down to reforming our constitution many questions will arise, relating both to the process as well as the content.”

Indeed, despite having a Committee for Constitutional Reform set up way back towards the end of 2018, comprising representatives nominated by the two main parties, to date, we have not seen any tangible progress registered. Not only, but there might also be the need to revamp and update the public consultation process that had been conducted throughout three months due to this unreasonable lapse of time during which several pressing additional constitutional issues have emerged.

Undoubtedly, ever since, the concept of good governance and the necessary safeguards have consistently and continually been on everyone’s lips. Constitutional reform can be a vital tool to promote good governance by changing the rules to promote more accountability, transparency, participation and predictability. A constitution defines and protects citizens’ rights from governmental abuse. It also limits and balances government powers vis-à-vis other players and institutions, thereby safeguarding minority rights.

The constitution is the touchstone for the legality of all other laws and the basis for reviewing executive and legislative actions. Constitutional reform is the process of reconstructing the constitution and the laws it governs through public consultation and negotiation.

Now, more than ever, one can feel the urgency of a two-fold nexus between constitutional reform and good governance. The first lies in the very process of drafting the constitutional document. The more inclusive, participatory and transparent that process is, the more likely will the political order be seen as legitimate, and a political culture will emerge that fosters the four good governance criteria. The other is through constitutional choices. Constitutional reform demands that critical institutional choices be made in such broad areas as a form of government, electoral law, degree of centralization, and judicial and quasi-judicial agencies, to name only a few.

The outcome is that the constitution becomes the cornerstone of a country’s governance system. It stipulates where power lies within the state, what the institutions of government are and how they are intended to operate. Good governance emerges from its structural provisions, such as the separation of powers and statement of explicit rights that guard against authoritarian control. As the highest legal norm within the hierarchy of norms, the constitution also becomes a reference point for the legality of administrative and legislative actions. In sum, constitutional reform ultimately embodies governance reform.

It is about time that an informed debate about any intended constitutional reform takes place. This would serve to have a better idea of specific reform proposals with the benefit of being able to advocate better legislative standards and oppose ill-considered, piecemeal change. For example, despite appearances pointing to the contrary, one should delve deeper and consider the nature of the government’s power and its relationship with the institutions responsible for reviewing and checking its actions, in particular, the Parliament and the judiciary.

The question will have to be posed as to whether the power of the executive has been enhanced in worrying ways under the present government. Could it be that there is a growing emphasis on the role of the executive that might lead to some heterodox constitutional claims, such as the suggestion that the government has a free-standing mandate from the people, because of its extraordinary majority in Parliament, to deliver its manifesto?

If we ever come down to reforming our constitution many questions will arise, relating both to the process as well as the content. Typical, though far from the only, questions are the following: Should the constitution be amended or completely rewritten? Who will draft it? How will they be selected? How much public participation is desirable? Who will decide whether to accept the final draft?

The process of constitutional reform matters significantly, first, to the legitimacy the document can claim, and, secondly, to the final content. The process is as important as the outcome. Electing the members of a constitutional convention and ratifying the text by referendum, public hearings, media campaigns, survey research and solicitation of individual comments would increasingly make the public part of the process.

These are all issues that might cause constitutional reform to eventually stall. In the meantime, certain aspects remain ripe and crying out loud for reform. Religion, citizenship, presidential powers, the role and functions of members of Parliament, electoral law, financing of political parties and appointments to sensitive positions will undoubtedly have to be revisited.