Constitution Review Commission Research Articles

Entrusting a Witch with a Baby: the 2014 Constituent Assembly and the Failure of a Constitution Making-Process in Tanzania

Abstract Constitution-making, especially the one that relates to a constitutional replacement, is an important process in any democratic polity. Such process offers citizens an opportunity to exercise their most important constitutional and political power, which is called “constituent power” – the power to constitute a constitution and framework of government. The chief purpose of a constitution is to control and limit governmental powers. In order to achieve this objective, it is necessary to deny the government or powerholders the right to make a constitution. Thus, parliament and government generally have no power to make a constitution. Instead, the people have the right to exercise such power. This is the essence of the idea of constituent power. To entrust parliament or Members of Parliament (MP s) with the constitution-making responsibility is like to leave a baby in the custody of a witch, an action that can be perilous. This is what happened in 2014. The Constituent Assembly was convoked to debate a constitutional draft that the Constitutional Review Commission prepared. However, to allow all MP s to participate in the Assembly was a fundamental mistake. Members of Parliament used that opportunity to frustrate all major constitutional reforms that people recommended. This paper discusses the 2014 Constituent Assembly, especially its composition and the consequent impact on the process as a whole. The paper employs the principles of popular sovereignty, constituent power and democracy as its analytical tools.

Gambiya'da Önerilen Mahkum Ayrıcalıkları: Amerika’dan Dersler

Convict enfranchisement is among the themes The Gambia Constitution Review Commission is addressing in its appraisal and updating of the 1997 constitution. The dawn of a new political dispensation necessitated the assignment to usher in a third republic. By means of the United States case law, a country where most felonies lead to disenfranchisement, this article examine the likely consequences of enfranchising convicts in The Gambia. Blalock’s Group Threat hypothesis explained the ulterior motives fuelling the enfranchisement call as the social dynamics of the country contrasts those of other nations like the United States which The Gambia seems to be keeping up with. Rather than addressing the issue of enfranchising an insignificant number of convicts, the conclusion shows that tackling constitutional irrationalities undermining the principles propping the separation of powers will be more beneficial.

Strengthening Constitutional Identity Where There Is None: The Case of the Netherlands

Recently, many European countries have moved towards codification of international human rights law. Aiming for a deeper socio-legal understanding of the rationale behind these processes, this article discusses one country – the Netherlands. It looks at the rationale behind, and the outcomes of the 2009-2010 Constitutional Review Commission, mandated to advise on the relationship between the national and the international legal orders and the inclusion of certain human rights into the Constitution. Both rationale and outcome, it is argued, can be understood by focusing on Rosenfeld’s three aspects of constitutional identity: the actual text of the constitution, constitutional culture and the interplay between the constitution and national identity. The Dutch constitution is layered, sober, incomplete and relatively unimportant, with internationalism as its main distinguishing feature. The political rationale for Dutch constitutional revision was, contrary to common understanding, to use the constitution as a bulwark rather than a bridge vis-a-vis the international legal order thus foreseeing a new, more symbolic role for the Constitution. The fact that such strengthening of constitutional identity did not materialise is explained by the culture of pragmatic relativising of the Constitution and, paradoxically, the fact that commitment to internationalism is the only pronounced element of Dutch constitutional identity.

Forty-one In One Blow! Thoughts on the Proposed Single Referendum Question to Decide the Amendment of Ghana's Constitution

Ghana’s Constitutional Reforms Commission, [CRIC], set up in 2012 to translate the report of the Constitutional Review Commission (CRC), into concrete constitutional amendments submitted a draft bill to government in 2014. The Bill proposed to amend 34 entrenched provisions and insert 7 new ones and addressed matters found in no less than 10 chapters of the Constitution. Government apparently intends to put this bill to the mandatory referendum for amending entrenched provisions of the constitution. In other words, government hopes to amend Ghana’s Constitution 41 times with single power-packed blow. Both the constitutional review exercise and the proposed amendments, have been met with condemnation and challenge at nearly every turn. Recent sharp criticism from civil society organisations and constitutional experts, has centred on the intention – now somewhat less admitted – to craft a single ‘yes or no’ referendum question to decide all 41 proposed amendments. This paper is intended to swell the chorus of protest against a decision to logroll all 41 issues. It endorses the interpretation of Article 290(1) proffered by think-tank IMANI-Ghana. Hopefully a significant body of literature agitating against this unconstitutional, and unjust means of constitutional amendment will prevent the government from foisting on the people of Ghana – albeit with the best

Kadhi's courts in Tanzania mainland: a burning issue in the Constitutional review process

This article addresses the problems and the reasons behind the demands for introducing kadhi’s courts into the Constitution of Tanzania, which is currently being revised. The Constitutional Review Commission has been working on a new text since 2012. Analysis of the issue allows the author to highlight some aspects - from a legal, political and social point of view - of Tanzanian society. They concern the cohabitation of different ethnocultural identities and religious groups in the country: elements in transition, which could also help European society to reflect on the multiculturalism it is experiencing.

The Decline of the Indian Parliament

Indian Parliament had a very promising start and worked well during the1950s-1960s. During the 1970s Parliament was squeezed by a great extra-parliamentary mass movement against authoritarianism and corruption and partial but crippling subversion of parliamentary-federal Constitution during the national emergency. Democracy was restored following the 1977 general elections. But the general decline of Parliament that set in the post-Nehru era has not yet been reversed. Major indicators of this decline are shortening sessions, time lost due to disruptions in proceedings by the opposition and violation of norms and precedents by the government, rampant absenteeism, actual hours of sitting as a percentage of available hours, phenomenon of weak legislative federalism via Rajya Sabha in the overall setting of parliamentary-federalism, challenges of new extra-parliamentary mass movements, and judicial activism. The new committee system introduced since 1993 is a welcome development. However, the parliamentary reforms recommended by the constitutional review commission (2002) remain unimplemented.

Constitution-Building in Africa

Constitution-building is a delicate and intricate process which requires ample reflection and careful choices. African constitution-builders and politicians have since the beginning of the 1990s embarked on a process of constitutional reforms. A careful examination of the developments of the last two decades shows that the process has almost provoked never-ending contagion of making, unmaking and remaking of constitutions. This paper attempts to provide an over-view of the changes that have been taking place. Some of the issues relating to the durability of national constitutions and theoretical foundations for constitutional change are discussed. The paper also considers some of the possible implications of the endless processes of making, unmaking and remaking constitutions. The critical question it tries to grapple with is how this unending process of constitution-building in Africa can be controlled in a manner that will ensure peace, political stability and provide a legitimate foundation for entrenching a firm culture of constitutionalism. In advocating for an entrenched permanent constitutional review commission to check against frequent and arbitrary constitutional changes, the paper argues that this is the best way for constitutional legitimacy to be sustained throughout the life of a constitution.

Grounding with the People: Participatory Policy Making in the Context of Constitution Review in Ghana

Ghana has been experimenting with the participatory policy making approach that allows citizenry engagement in the formulation and implementation of public policies in recent times. In many ways the approach enhances the opportunity structures for consolidating the country’s democratic credentials by allowing citizens to share in the ownership of governance decisions. In this paper, we draw illustrations from the participatory strategies used by an adhoc body known as the Constitution Review Commission (CRC) established to study and make recommendations for the amendment of Ghana’s 1992 Constitution. The paper shows that although the idea of citizenry participation has intrinsic nation-building value for which reason it can be instrumental in kneading multi-ethnic countries together, paradoxically, against the innovative and comprehensive strategies adopted by the CRC, the approach was hindered by a series of inherent challenges that serve to perpetuate existing socio-political inequalities by privileging educated, urban, and relatively organized Ghanaians over their underprivileged and traditionally marginalized counterparts, especially those in the rural areas.

Amending the Constitution of Ghana: Is the Imperial President Trespassing? – A Rejoinder

Ghana’s 1992 Constitution is up for review following the establishment of a Constitution Review Commission. The commission’s work and mandate are spelt out in a Constitutional Instrument which inter alia charges it to submit proposals for the intended review of the constitution. While some have doubted the need for a review of the constitution generally, others have criticised the propriety of the process adopted for the review exercise. Needless to say, these differences

Judicial Independence and Accountability: In View of the Case of J. Soumitra Sen

Judiciary is deemed to be a image of blindfolded justice holding balanced scales embodying the idea of impartiality and fair setup in it. This paper is a humble attempt to understand the importance of “Judicial independence” to maintain the ‘image’ of judiciary and will try to look into the rationality of judicial accountability which has become a issue for debate today and will further deliberate on formulation of various laws in this arena. Many fingers have been pointed towards the procedure of selection, appointment and transfer of judges with the questions being raised about their being honest before, during and after their tenure. This paper also tries to find out the flaws in the impeachment procedure, appointment procedure and the much awaited Judicial Standards and Accountability Bill 2010 and insights have been taken from the Constitution Review Commission Report of 2002. Since judges are ‘Justice deliverers’, the level of trust reposed in them by the common citizens is quite high. It becomes a mandatory responsibility of them to maintain it. The paper will also try to answer the questions triggered by a recent case of J. Soumitra Sen: Is the judiciary holding the same value, as it had earlier? Is the judiciary abusing its privilege of judicial independence? Is the judiciary responsible and can it be held accountable? Hence, the author feels that there is an urgent need for efficient laws to be formulated and effective complaint mechanism to be triggered so as to avoid the occurrence of these unfortunate cases.

Amending the Constitution of Ghana: Is the Imperial President Trespassing?

Ghana, the country widely acknowledged as the contemporary leader in African democratization, is currently embarked on a comprehensive review of its Fourth Republican Constitution, in force since the restoration of constitutional democracy in 1993. This process of constitutional revision was initiated unilaterally by the President of Ghana by his appointment in January 2010 of a nine-member extra-parliamentary constitution review commission. The mandate of the commission includes the preparation of a draft Bill of proposed amendments to the Ghana constitution. In this article, we argue that this latest extension of the Ghana president’s prerogatives is both ill-advised and of dubious constitutionality. We believe that, Parliament, not the President, is the constitutionally legitimate and appropriate body to initiate and set the agenda for constitutional change in Ghana. We reach this conclusion on the basis of a textual and structural analysis of relevant provisions of the Ghana constitution, and also advance a set of policy rationales why Parliament, not the presidency, is where the power to review and revise Ghana’s constitution must be located. In our view, an assertion of presidential primacy and control over the process and agenda for constitutional review and amendment, and parliamentary acquiescence in this move, sets a bad constitutional precedent, one that further entrenches Ghana’s tradition of an imperial presidency and extends the tentacles of the presidency to new and dangerous frontiers.

Making History, Becoming History: Reflections on Fijian Coups and Constitutions

Early in March 1995, when the telephone call came from Jai Ram Reddy, Fiji's leader of the opposition and the long-term leader of the Indo-Fijian community, asking me to be his nominee on the Constitution Review Commission, I was naturally overwhelmed. The appointment was not unexpected--I had been asked several months earlier about my willingness to serve--but the enormity of the task ahead dawned on me at that moment. Many friends in Fiji had cautioned me. The review, they said, was a charade, a cynical exercise in public relations by a coup-tainted government eager to refurbish its image in the eyes of the international community. Rabuka was still Rabuka: leopards do not change their spots. The presence of Tomasi Vakatora--a member of the cabinet subcommittee whose recommendations had formed the basis of the contested 1990 constitution--proclaimed the government's real intention. But I was undeterred. At a celebratory dinner with friends that evening, my son Niraj, then just eleven, piped up proudly. "Dad," he said innocently, "You have taught history and written history. Now you can make history and then become history." Nervous laughter greeted his remark.

Fiji in Transition: Research Papers of the Fiji Constitution Review Commission , and: Fiji and the World: Research Papers of the Fiji Constitution Review Commission (review)

Fiji in Transition: Research Papers of the Fiji Constitution Review Commission, volume 1 (ISBN 982-01-0333-9; vii + 312 pages, tables, figures, notes, bibliography) and Fiji and the World: Research Papers of the Fiji Constitution Review Commission, volume 2 (ISBN 982-01-0334-7; vii + 358 pages, tables, appendix, notes, bibliography). Both volumes edited by Brij V Lal and Tomasi R Vakatora. Suva: School of Social and Economic Development, University of the South Pacific, 1997. Paper. Each US$30; both US$55.

Fiji at the crossroads?

Fiji has been outside the Commonwealth since the military coups of 1987 declared a republic, formalized the country's departure and rescinded the 1970 independence constitution which had constructed a numerical balance between indigenous Fijians and Indo‐Fijians in the Lower House of parliament. The 1990 constitution that replaced it was palpably unfair to the island's Indo‐Fijian population as well as to urban Fijians. The 1990 constitution deterred badly needed inward investment and, faced with a number of other problems Colonel Rabuka, the prime minister, realized that a substantial constitutional review and the necessary post‐report deliberations, would buy valuable time. After 15 months of deliberation the Constitutional Review Commission handed a report unambiguously committed to multi‐ethnic public management to Fiji's president. The United Kingdom, Malaysia and India have said that Fiji's return to the Commonwealth would be welcome, pending progress on constitutional reform, but an early return is unlikely.

Report of the Constitutional Review Commission in Zambia

In June 1995, die Constitutional Review Commission issued its report. Its major recommendations for a new constitution for Zambia are noted below whilst a detailed analysis will appear in the Journal at a later date.