2.1.5 Timetables

A constitution-making process that is designed (as opposed to one of incremental constitutional change) will usually include a timetable and sequence of events. This is desirable for various reasons, including the need to seize a “constitutional moment” (see part 2.1.2), to control the costs of the process, and to ensure that narrow interests do not either rush the process or drag it on for too long. Getting the timetable wrong may mean that:

  • the document produced lacks legitimacy in the eyes of the public;
  • the document is of poor quality; or
  • no document at all is produced—because enthusiasm fades and people learn to live with what they have got, or an interim constitution turns into (or is amended to become) a permanent one.

A road map may work in various ways. It may:

  • have only a final date by which the new constitution must be adopted, giving no other indications of time periods or order of events (this is unusual, because if tasks are specified some intended sequence will usually be stated or implied, even if in general terms);
  • specify tasks in some detail and the order in which they are to be carried out, but without any time periods being fixed at all, or with only an ending date being specified;
  • specify tasks in very general terms, without a clear indication of when they are to be done (for example, a requirement might be “to consult the public” without an indication of whether this is to occur before any other work is done, only when a draft is prepared, or both);
  • spell out the entire sequence of events with precise time periods attached;
  • involve a mixture of these approaches; or
  • schedule events by reference not to time but to the occurrence of other events, such as other elements of agreement in a peace process (as in Bougainville, Papua New Guinea—see appendix A.9).

Box 3. Damaging deadlines

Some processes dominated by the United Nations or foreign governments have been seriously affected by externally imposed deadlines (e.g., Afghanistan [2004] and Iraq [2005]). This outside pressure not only caused resentment, but prevented local processes from being worked out fully. In Iraq, important issues were left unresolved, and remain unresolved. (See part 4.2, appendix A.1, and appendix A.6.)

How much detail should there be? It is impossible to anticipate exactly how long any stage of a process will take. Though it is possible to plan meetings for civic education and the collection of public views, the amount of public enthusiasm may affect how much time it will take to analyze the views. (See part 2.2.4.) More time or more resources may be needed. Each stage should ideally be planned to take some time. Otherwise there will be the risk of other stages being shortened, or extensions being sought.

Complex processes involving civic education and public consultation, the preparation of drafts, and discussions held by a constituent assembly or similar large-scale debating body typically take a few years.

Factors suggesting some urgency may include:

  • the risk of a return to conflict;
  • the risk of a coup (which is why the Philippines completed the process of drafting its 1987 constitution in six months);
  • the desire to complete a process before an election (either because it is clear that a new government will resist change or because before an election it may be difficult for participants to calculate how particular provisions will work to their advantage); and
  • foreign pressures (financial or other).

But the process must not be rushed. It is important to allow time to educate the public about what a constitution is, to educate the political actors, for people to formulate and submit views, for those views to be processed, and for consensus to be developed on difficult issues. In deciding what is “enough” time, the following might be relevant:

  • how much knowledge the people already have, including how much civic education has occurred;
  • terrain and communications—how people are to learn about the process and how they are to submit their views;
  • allowing time for views to be processed (because otherwise they may simply be put in a cupboard and forgotten);
  • whether it will be necessary to hold an election for a constituent assembly;
  • whether participants in the process (commission or constituent assembly members, for example) are engaged full-time or part-time; and
  • finances (which may determine whether a commission works full-time, or whether extra people can be hired to process submissions, for example).

Designers must take account of existing laws or constitutions prescribing some elements in a time frame (for example, that there must be a certain lapse of time between stages of deliberation in parliament).

Who should set the timetable?

Some people want a constitution quickly, some people want to extend the process, and some people may not want a constitution at all. Who sets the timetable may have serious consequences for success or failure. Factors involved include the following:

  • Politicians as a group may wish to enhance their electability by producing a constitution, regardless of its quality.
  • Individual politicians may believe that a new constitution will give them a chance to return to office (as some presidents have argued: if there is a new constitution, the old limit on the number of terms one can serve does not apply!).
  • Participants in a process who come from outside politics may find their role pleasurable, even financially rewarding, and wish it to last as long as possible.
  • International actors often want to have a clear exit date, and may be prepared to sacrifice quality for speed. (See part 4.2.)

Rigid or flexible?

It is not uncommon to allow for extensions of time. This flexibility may be given to the constitution-making body itself; if the time is without restriction, however, this may make nonsense of any timetable. But perceptions of the need for speed may change according to political circumstances. In other cases the control over extensions is given to the same body that imposed the timetable originally: parties to a peace agreement, parliament, foreign interests, and the like.

In Nepal the interim constitution provided the possibility of a six-month extension, but only if a state of emergency caused delay. This extension would require only a resolution of the constituent assembly itself (largely controlled by the parties), passed by a majority of those members present and voting.

Factors likely to result in completion on time

A realistic timetable is more likely to be adhered to; in addition, the following factors may be important:

  • effective chairing and management: the chair of any body, or, more broadly, the management structure, must develop a work ethic for participants, and generally promote the understanding that timing matters;
  • political commitment, so the actors feel they will “lose face” by seeking an extension; • making sure the public understands—and, ideally, supports—the timetable; • mechanisms for resolving particularly difficult issues (see part 2.5.2); • not making involvement in the process too lucrative;
  • trying to ensure that financial support is sufficient; and
  • generally managing the process effectively, including instituting measures to avoid corruption (see part 2.3).

What happens if a deadline simply expires?

This will depend, from a legal perspective, on the document that sets forth the deadline.

  • If the result is that the whole process dies, the existing constitution may remain. This may be only an interim document and not suitable for long-term application, or it may be a full, if unsatisfactory, constitution.
  • The document setting forth the deadline may require an election and then a revival of the process (as in Iraq).

How can a timetable be enforced?

Timetables imposed from outside, whether they purport to be legally binding or not, may be “enforceable” for the same reason that they were imposed in the first place: hard-nosed political or economic reality. If security will be withdrawn, if foreign aid may be released, pressures to finish may be real. States emerging from conflict are often vulnerable and divided.

Compromises are sometimes possible. In Timor-Leste the original timetable was completely unrealistic and had to be extended. But it remained unsatisfactory, and the constitution might well have been improved if additional time had been available.

In Iraq a constitution was produced according to a timetable largely dictated by the United States. But even the United States could not prevent the constituent assembly from amending the constitution five minutes before the expiration of the deadline under the interim constitution. A long extension was not practicable, and the result was an incomplete constitution, with certain issues not being properly resolved. Even before the constitution was adopted, a promise was made to certain sections of the community that it would be reviewed and finalized immediately after the elections.

If a constituent assembly is also the legislature, it may not be possible to prevent it from amending the constitutional or legislature framework (as in Nepal)—though this may have a political cost.

Some examples of timetables

The constitutional convention for the United States took nearly four months; ratification by the states took a further forty months. The Indian constituent assembly sat from 1946 to 1949 (though it was severely affected by Partition). The Eritrean process took thirty-eight months from the proclamation of the constitutional assembly to ratification of the constitution. The South African process took five years from the beginning of multiparty negotiations to the adoption of the final constitution.

The Ugandan commission took from 1989 to 1993 to prepare a draft constitution, and the final constitution was adopted in 1995. There were various reasons for the length of time the process took, including the time needed to carry out extensive public consultation as required by the law establishing the commission, and lack of resources.

The Timor-Leste constituent assembly [2002] took five weeks to prepare its rules of procedure, and the Bolivian constituent assembly [2009] seven months. The Bangladesh assembly [1972] took only two days, because it used the existing parliamentary rules.

Public consultation early in the process took about four months in Kenya [2005], and nearly three months in Fiji [1997]; in Rwanda [2003], civic education and public consultation combined took about six months.

The drafting of a constitutional document to be submitted for public consultation took two months in Rwanda [2003] and about one month in Kenya [2005]—but considerable preliminary work had been done in the latter case, and perhaps in the former also.

Public consultation on a draft constitution or concrete proposals has taken from one week in Timor-Leste [2002] to about four months in Eritrea [1997]. The Timor-Leste period was recognized as too short, but that was the result of pressure to complete the process.

Debate on a draft constitution in a constituent assembly took two weeks in Afghanistan [2004], five months in Timor-Leste [2002], and eleven months in India [1950] and Kenya [2005]. The Afghan process was largely a rubber-stamp operation; the Timor-Leste assembly oversaw almost the entire process and there was no separate commission. In Afghanistan [2004] and Kenya [2005], a separate commission prepared the constitution. In India the constituent assembly was also the parliament, and in Kenya all members of parliament were members of the constituent assembly, which could not sit when the parliament was in session.

Referendum campaigns for and against a complete draft have taken less than four weeks in Albania, one month in Venezuela, five weeks in Spain, and three months in Kenya.

These figures will be of limited use to planners, and are intended just to show the range of times and some of the factors that may affect them.