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A Multi-Dimensional Model of Participatory Constitution Making and Legitimacy
Devra C. Moehler & Eleanor Marchant
Annenberg School for Communication, University of Pennsylvania
Abstract
Over the last few decades, interest in participatory constitution making increased dramatically, in
large part because citizen involvement is thought to enhance constitutional legitimacy. However,
there is no consensus about the form that participation should take. We identify at least three key
dimensions along which participatory constitution-making processes differ from one another: 1)
the extent of mass citizen involvement in the process; 2) the degree of elite polarization; and 3)
the level of citizen access to information. We develop a model describing how these three
dimensions can affect constitutional legitimacy, and we illustrate the model using case studies of
ostensibly participatory constitution-making processes in three East African countries: Uganda,
Kenya and Somalia. The model is consistent with the widespread belief that a highly
participatory process can, at times, lead to an increase in public approval for the constitution.
However, we argue that the benefits of mass involvement are contingent on elite consensus and
citizen exposure to positive information about the process and the outcome. Our central
argument is that the effects of citizen participation cannot be studied in isolation; the interactions
between the three dimensions shape citizen perceptions of constitutional legitimacy.
A MULTI-DIMENSIONAL MODEL OF PARTICIPATORY CONSTITUTION MAKING AND LEGITIMACY
A Multi-Dimensional Model of Participatory Constitution Making and Legitimacy
Leaders in new or transitional states often initiate constitution-making processes in order
to legitimize themselves as rulers of a sovereign democratic nation. The number of new
constitutions being written and old constitutions being rewritten proliferated over the last few
decades. In the 25 years between 1990 and 2005, 108 new constitutions were adopted in 83
different countries (Elkins, Ginsburg, & Melton, 2007-2011). In response to these trends, a
number of academic and development practitioners have sought to characterize various
constitution-making processes around the world in order to identify best practices for making or
remaking constitutions. i
Many constitutions, such as the US and the post-WWII German constitutions, were
written by elites in closed session far from public view so as to encourage reflection and
compromise by those who were invited to the table. The conventional view was that a
constitution should be judged democratic according to the nature of its provisions, not by the
manner in which it was created. However, the rise in the number of new constitutions since the
early 1990s has been accompanied by a similarly dramatic rise in the belief that public
participation in constitution-making process is necessary for the outcome to be considered
legitimate.
In Africa, authoritarian leaders of newly independent states increasingly sought to
control, contain and limit public involvement. However, by the early 1990s many
democratization movements involved National Conferences, which allowed a diverse array of
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stakeholders in the process of constructing a new system of government. While these National
Conferences did not always include the writing of a new constitution, and many were eventually
captured by elites, the high level of initial civic engagement did set a precedent for public
participation in transitions and other nation defining events on the continent. The success of the
highly participatory 1993 post-apartheid constitution-making process in South Africa
demonstrated the feasibility and desirability of involving the public in the creation of a country’s
constitution. This demonstration and many others seem to have cumulatively succeeded in
shifting accepted practice away from the older closed approach. Over 40 percent of the
constitutions currently in force around the world required public approval through some form of
a public referendum (Elkins, Ginsburg, & Blount, 2008, p. 377). Opinions have shifted to such
an extent that legal scholars and advisors now argue that participation and a high degree of
transparency are international norms for constitution making (Frank & Thiruvengadam, 2010). ii
Despite the widespread acceptance of such norms, the ways in which members of the
public are engaged in constitution-making processes vary widely. The method and intensity of
public engagement range from ‘downstream’ engagement (Elster, 1995) through a public
referendum on the final document to ‘upstream’ engagement through the election of members of
a Constituent Assembly, and from direct engagement through consultation during the drafting
phases to indirect engagement through civic education programs. A growing body of academic
and practitioner research on the subject has emerged, particularly in the last 10 years, but there is
not yet a consensus about what level and method of engagement will produce the most desirable
outcomes. And within this body of literature, there is little empirical work that might allow us to
build a larger evidentiary base with which to make claims about the effects of various methods of
participation.
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In order to develop an empirically grounded model of participatory constitution making
we draw on Moehler’s (2008) research on Uganda along with evidence on constitution-making
processes elsewhere in Africa. We identify three dimensions of participatory constitution
making that, we argue, interact with one another to effect public perceptions of constitutional
legitimacy. These dimensions are: 1) the degree of direct mass citizen involvement in the
process, 2) the extent of elite support for the constitution, and 3) the level of citizen access to
information. After describing our model about how the three dimensions interact to affect citizen
attitudes, we conduct a three country comparative analysis of Uganda, Kenya and Somalia to
illustrate the usefulness of the model.
Theories of Legitimacy
The literature on participatory constitution making focuses on a variety of outcomes but
most address questions about what kinds of participation produce either the most appropriate
constitutional document, or the most legitimate document in the eyes of the public. iii Admittedly,
the two are not mutually exclusive; a constitution that is egalitarian and represents the various
interests within the society may increase the likelihood that it is seen as legitimate. But existing
research suggests that they can also be conflicting; a transparent constitution-making process
might be more likely to result in a constitution that much of the public sees as legitimate (Wing,
2010), but it might also result in a higher degree of grandstanding and polarization among the
members of the Constituent Assembly with potentially deleterious consequences for the quality
of the constitution (Elster, 1995). Similarly, a constitution that is written with a high degree of
international involvement might be intrinsically “good” according to standards of international
law, but might lack legitimacy in the eyes of local citizens who feel it was imposed from the
outside.
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For the purposes of our study, we have chosen to focus on perceived legitimacy as the
key outcome of interest. We are primarily interested in the role of mass participation in
constitution-making processes within potentially emerging democracies. In countries emerging
from conflict or the shadow of authoritarian rule, previous exposure to democratic principles is
often limited and new democratic institutions may be very fragile. Understanding of, and respect
for, the new legal structures encapsulated in a new constitution can outweigh the importance of
an ideal constitution on paper. Furthermore, many practitioners leading and designing
participatory constitution-making projects in Africa have designed them to be broadly
participatory with the specific goal of developing widespread public support for the new
constitution (Moehler, 2008, p. 143; see also Odoki 2001). Consequently, it is important to see if
these processes are having the influence on legitimacy that practitioners expect.
In response, we develop a model about how three dimensions of participation might
affect perceived constitutional legitimacy. Our goal is to help scholars and practitioners theorize
about potential outcomes of the various participatory models that exist. We do not claim that our
model will be able to predict outcomes across all situations. Context varies widely and also
matters greatly. For example, in long-standing democracies childhood socialization helps to
ensure that citizens view their constitution as legitimate and worthy of adherence and protection
(Tyler, Casper, & Fisher, 1989), while such norms are weak in countries with recent experiences
under oppressive and corrupt leaders. Instead, we hope to help country experts think about how
different dimensions of participation might enhance or reduce perceived legitimacy in a given
context. After explaining the model, we illustrate its applicability to three particular, though still
varied, East African countries. We hope that the dimensions we identify can lay the groundwork
for future empirical work on the causes of constitutional legitimacy in emerging democracies.
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We build off Moehler’s (2008) research on the highly participatory and quite lengthy
constitution-making process in Uganda from 1988 to 1995. Her study employed a mixedmethods approach that combined survey analysis with in-depth interviews to examine the
individual-level effects of direct participation in the process. While her study isolated a variety of
different outcome variables, including democratic attitudes, political capabilities, institutional
trust, political knowledge, constitutional knowledge, she also looked specifically at constitutional
legitimacy. iv Her research compared perceived constitutional legitimacy among individuals who
participated in the constitution-making process with those who did not, taking into account the
characteristics that might have led individuals to participate in the first place (Moehler, 2008, p.
212). We use here research and that of others as a springboard for the development of our model.
1. Mass Public Participation and Influence
Somewhat surprisingly, Moehler’s analysis suggests that participants in the Ugandan
constitution-making process were not more supportive of the constitution than non-participants,
as the international norm in favor of participation would lead us to expect. In fact, she found that
“the relationship between participation and support for the constitution is weak, inconsistent,
fragile, and often indistinguishable from zero.” (Moehler, 2008, pp. 157-158). Based on the full
set of results, she conclude that “citizens who are involved in constitution making are more likely
to know and care about the constitution; however, participation does not automatically confer
constitutional legitimacy” (Moehler, 2008, p. 10). It is important to keep in mind that the survey
in Moehler’s study isolated the effect of participation on the individuals who participated, not the
effect of a participatory constitution-making process on mass public opinion. Intriguingly,
comparing comparable measures of constitutional support across eight African countries, v
including South Africa, she found that popular support for the new constitution in Uganda was
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the highest. That South Africa’s constitution-making process was the only one that rivaled
Uganda’s in the extent of public participation indicates that the degree of public participation
might have played a role in this result. The model we develop here illustrates why involving
citizens in the Ugandan constitution-making process may have increased citizen support for the
constitution in the aggregate, even though participants were not more supportive than nonparticipants at the individual level.
Other studies of constitution-making processes also discuss the degree of public
participation on legitimacy perceptions. Many of these are practitioner guides taking lessons
from previous cases of public engagement to best practices for other polities. vi One of the
principal arguments in these studies is that a constitution is less likely to garner public approval
when it is perceived as being imposed on the people from unpopular domestic rulers, or by
unfamiliar international actors. Furthermore, most of the literature argues that processes
involving more people are less likely to be perceived as imposed from above or abroad (Samuels,
2005). In short, citizen perception of which actors were influential during the process is as
important for legitimacy as who actually determined the content of the constitution.
Others in this area have attempted to isolate the effect of a particular kind of public
engagement, such as Elkins, Ginsburg and Blount’s (2008) academic study on the impact of
referendums, or Yash Ghai’s (2006) practitioner’s perspective on the role and design of
Constituent Assemblies. They consider the effect of elections of Constituent Assembly members
before the constitution-making process begins or direct public contribution to these Assemblies
during the drafting phase. Elkins, Ginsburg & Blount (2008) found that increasing the number of
participants seemed to increase the likelihood of federalism in the resulting governance structure
and that it might complicate the necessary bargaining and negotiating processes making them
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more extensive and more intensive (Elkins, Ginsburg, & Blount, 2008, p. 371). One of the
clearest clues to the specific impact of participation on legitimacy comes from the
comprehensive work of Jennifer Widner on participatory processes in post-conflict states where
she found evidence that public consultation can play a legitimating role, at least when there is the
appearance of listening to the views expressed (Widner, 2008).
From the studies discussed, we can identify a spectrum of mass public participation based
on how much of an influence the public is able to have on the content of the constitution. At the
high end of the spectrum is extensive involvement where frequent and direct consultation with the
mass public occurs and constitution writers take this input directly into account when drafting the
constitution. At the low end of the spectrum is apparent involvement, usually taking the form of
informational or civic education campaigns that give the appearance of public participation but
where citizens do not actually influence the content. Various levels of involvement exist between
these two extremes, including open elections for members of the Constituent Assembly,
referenda, or direct, but infrequent, consultation during the drafting phase. Although processes
along the entire spectrum of public involvement are typically grouped together under the label
“participatory”, we argue that where a process falls along the spectrum is a key factor that will
help to determine whether the new constitution will be accepted and respected by the public. In
short, the first of our three dimensions affecting perceived legitimacy of a new constitution is the
degree of citizen influence during the constitution-making process
Yet the complexities of the results from Moehler’s (2008) and a few other studies
indicate that other factors are important as well. We argue that processes can be further
distinguished by the extent of elite support for the constitution, and the amount of information
that citizens are exposed to about the constitution-making process and its content. These
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additional factors also influence whether the final document will be viewed as legitimate by the
general public once the process is over. We now turn to the second of our three dimensions of
participatory processes.
2. Elite Support for the Constitution
Moehler’s (2008) research explains the apparent disjuncture between the finding of no
effect of participation on perceived legitimacy at the individual-level and the national-level
results of greater support for the new constitution in Uganda compared to other countries in the
region. Her evidence showed a correlation between the views of local leaders and the views of
the public in different parts of Uganda. Where local leaders favored the new constitution, so did
their constituents, and where local leaders were opposed, so did the local public. Based on these
findings coupled with qualitative analysis of in-depth interviews, Moehler argues that the views
of the leaders active in a given area shaped citizen evaluation of both the constitution-making
process and the constitution, rather than individual’s actual participation (Moehler, 2008, p. 160).
Where local leaders were positive, so were the citizen and where local leaders were against the
constitution, so were the citizens. Importantly, more local leaders were in favor of the
constitution thus leading to overall high levels of support among the populous. Local elites
probably had such a strong influence on citizen attitudes because Ugandans had little
constitutional knowledge prior to the process, and because of the limited reach of private media
at the time; citizens had little alternative sources of information with which to form independent
perspectives about the process and the resulting constitution. As a result, the majority of the
information they did receive during the process, whether they were directly involved or not,
came predominantly from their local leaders.
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A second pertinent finding is that the existence of widespread mass public consultation
during Uganda’s constitution-making process actually served to increase polarization of public
attitudes about the constitution because of elite polarization. Specifically, Moehler argues that
“the public’s formal involvement in the making of a new constitution created incentives for
leaders to convey their opinions to their constituents, to convince citizens to share their view, and
to mobilize the public in support of or in opposition to certain constitutional provision”
(Moehler, 2008, p. 166). Elites actively mobilized citizens in defense of or in opposition to the
constitution so as to secure their party preferred outcomes. Elites divided along partisan lines
thus divided citizens according to where they lived.
Moehler’s (2008) finding that there is a relationship between mass public participation
elite polarization and in constitution making is not unique in the literature. Elster (1995)
developed a distinction between ‘upstream’ and ‘downstream’ influences on constitution makers
that we have referred to earlier. Public involvement later in the process, through a public
referendum for example, creates downstream pressures on constitution makers who must either
tailor a constitution to the demands of this approval process or influence the opinions of the
electorate to support their own position. Elster argued that particularly where political leaders
and involved in the drafting of the constitution, these downstream pressures lead to
grandstanding by drafters and to a deterioration in their ability to negotiate and compromise on
provisions in the constitution because they “will feel the need to signal positions to their
constituents outside the process, potentially leading to more extreme positions” (Elster, 1995, p.
388). More recently, Blount, Elkins and Ginsburg (2012) used cross-national data from their
Comparative Constitutions Project to test the effects of referenda and found support for the
argument that public referenda could serve as downstream constraints, particularly for “non-
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authoritarian drafting processes”(p. 54). Nathan Brown (2008) has similarly argued that
constitution-making processes that purport to engage the mass public can often be coopted by
self-interested politicians rather than actually producing a constitution that represents the “will of
the people”.
Based on existing literature, we hypothesize that popular elites opposed to the
constitution will generate greater public opposition to the constitution. In contrast, when most
elites are unified in their support of the new constitution, we expect them to generate greater
constitutional approval among citizens. Elite unity may at first seem unlikely in new democracies
where different political actors are vying for power, but there is evidence that elites may provide
a united front after periods of conflict, particularly under international pressure, as was the case
in the post-apartheid South Africa or in Kenya after the violence in 2007 and 2008.
Furthermore, we also expect a reinforcing cycle of effects on elite constitutional support
and broad mass participation in constitution-making. Specifically, in contexts where there is a
high degree of mass public participation, particularly in the form of downstream pressures, this
could lead to a polarization of elite opinion through grandstanding, which could in turn lead to
polarization of citizen attitudes about the constitution. Where opposition elites are in the
majority, public participation can actually lead to an average decline in public approval for the
constitution.
3. Citizen Access to and Exposure to Information
The third dimension we consider is citizen exposure to information about the
constitution-making process and the resulting constitution. There are reasons to expect that
variety and availability of information sources have important implications for citizen perception
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about the degree to which the constitution reflects citizen interests. In the Ugandan case, Moehler
(2008) found that access to information, or more specifically the lack of access to information,
also had a part to play in the relationship between elite opinion and mass public participation.
During in-depth interviews, respondents often complained that they were not given the
opportunity to read the constitution so they had a hard time judging the final outcome for
themselves. Many said that their main sources of information about the outcomes of the
participatory constitution-making process were their local delegate to the Constituent Assembly
(Moehler, 2008, p. 163). This meant, as we observed earlier, that citizens often lacked access to
more than one source of information or more than one perspective about the constitution.
Exposure to a diversity of sources should allow citizens to form independent attitudes about the
constitution, while exposure to homogenous perspectives causes citizens to follow the lead of
their local elites.
In the early 90s Uganda, there were some additional sources of information about the
process, beyond Constituent Assembly delegates. However, alternative accounts were typically
hard to come by, particularly as access to private news media was often limited. When delegates
were not available, respondents in Moehler’s (2008) study reported that they learned about the
process and the constitution from local council and government officials, active and educated
community members, and the leaders of organizations active in their communities. Crucially, she
also found through her survey analysis, that the variable measuring the extent to which
individuals follow public affairs had a consistent and significant positive effect. This meant that
citizens who reported following public affairs were significantly more supportive of the
constitution across all the measures of support, regardless of location. Moehler (2008) theorized
that more active news consumers may have been exposed to more government pronouncements
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about the positive value of the constitution than those who did not search out alternative sources
(p. 158).
Exposure to multiple and varied sources of information (whether actively sought or
incidental) during a constitution-making process is increasing over time as journalists, civil
society leaders, politicians, international development practitioners, civic education organizers
and constitution makers take advantage of new communication technologies. In Kenya, for
example, members of the Constituent Assembly frequently appeared on chat and call-in shows
on television and radio to talk about the constitution and the process (Cottrell & Ghai, 2007, p.
10). In Somalia, the final vote of the Constituent Assembly was televised live on all of the major
satellite stations. Many constitutional debates in other post-conflict settings are increasingly
being broadcasted nationwide (Banks, 2007). While access to news media continues to be more
limited in rural areas than in plugged in urban centers, the increase in mobile phone and FM
radio access in remote areas makes access to information easier, even in rural villages
(Anderson, 2007; Hermanns, 2008).
This technological trend can lead to an n increase in transparency during constitutionmaking processes, often resisted by elites and constitution makers (Benomar, 2004). According
to Frank and Thiruvengadam (2010) there is now an international norm of transparency in
addition to international norm of public participation in constitution making. For our purposes, it
is useful to think of transparency as an increase in direct coverage of the constitution-making
process, like live coverage of debates in Constituent Assemblies or footage of town hall meetings
where citizens can voice their opinions. Evidence suggests that participation, particularly direct
consultation with members of the public, increases citizens’ knowledge about the constitutionmaking process, (Finkel & Smith, 2011; Moehler, 2008;). We should expect that with current
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increases in transparency, more citizens could become observers of the process and thus increase
their knowledge about the nature of the constitution-making process.
There is also an increasing trend within constitution-making processes to included formal
civic education components. Of the 194 cases of constitution making that USIP has collected
data on, 25 percent included civic education programs funded by the government and 10 percent
had civic education programs led by NGOs (Hart, 2010, p. 37). Practitioner guides, such as those
from IDEA (Ghai 2006; Ghai and Galli 2006; Samuels, 2006) and iterpeace (2011), now advise
the inclusion of civic education programs. Particularly in places where existing democratic
knowledge is low, advocates for civic education campaigns believe they can successfully educate
the public about both overarching constitutional principles and the more nuanced details of the
drafting process, so as to enable them to better participate in the constitution-making process and
to be more engaged democrats once the process is over (Benomar, 2004, p. 88; Finkel & Smith,
2011).
It is useful to think of these civic education campaigns as a sort of indirect source of
information about a constitution-making process compared to the more direct information from
an increase in transparency involving observation of the process itself. As such, the authors
behind these projects are of particular importance. According to the comprehensive interpeace
guide published in 2011, it is common for organizers of civic education campaigns to rely
heavily on independent media where available. Where a constitution-making body has more
funds at its disposal, it might produce its own information campaigns and use traditional media
outlets, or increasingly social media, to disseminate them (Brandt, Cottrell, Ghai, & Regan,
2011, p. 97). In Vivien Hart’s (2010) account of civic education projects in South Africa, media
campaigns included “a weekly radio program with 10 million listeners; a weekly constituent
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assembly newsletter, Constitutional Talk, with a circulation of 160,000; colorful ads on buses;
talk lines; and an open phone line and website” (p. 38). They reportedly reached 73 percent of
adult South Africans (Hart, 2010, p. 38). Constitution making, and particularly such extensive
civic education campaigns, can be expensive and Brandt et al (2011, p. 88) find that this means
that many of them are funded either directly or indirectly by Western governments As a result,
they often include norms and practices from Western democracies for their content.
Crucially, the authors of civic education campaigns most affect the content of the
campaigns. vii Yash Ghai (2006, p. 25) argues that there is an inherent bias on the part of any
entity that engages in civic education projects. The bias is important because it is conveying
important information to a wide range of people at such a crucial time in the political history of a
country. As a result, he strongly advises against Constituent Assemblies organizing the civic
education campaigns because this has the potential to denigrate into manipulation on the part of
Constituent delegates. This is not so different from the Ugandan context where local Constituent
Assembly delegates were the primary sources of information about the constitution for citizens.
The monopolization of information creates a problematic link between the opinions of the
information providers and the opinions of the public. Steven Finkel, for example, shows that
civic education efforts in South Africa led to higher levels of trust than in the Dominican
Republic because in South Africa organizers of civic education projects largely favored the new
constitution while those in the Dominican Republic were more critical (Finkel, 2003, pp. 141142). Ghai advises that the most effective solution to counteract the effects of bias would be for
multiple entities to engage in civic education efforts, particularly civil society organizations
representing the various interests at stake in the new document (2006, p. 25). Hart similarly
argued that media campaigns and ad hoc independent information initiatives from non-
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governmental entities may be just as significant in getting information to the public about
constitution-making processes as official government information campaigns (2010, p. 38).
Empirical evidence about the impact of transparency and the proliferation of information
sources on citizens, and more specifically, on their propensity to view a new constitution as
legitimate, is still limited, but the literature does suggest some key considerations. Elster (1995)
finds that an increase in transparency heightens the tendency of elites to grandstand, while
Brown (2008) similarly argues that transparency can lead elites to focus on building support for
their position among their base instead of appealing to the broader public (p. 697). These
findings suggest that where transparency is high polarization among the elite will also be high. In
what seems to be a contrast to these findings, Jennifer Widner’s (2008) work on constitution
making in post conflict countries shows that increasing transparency and allowing members of
the public to play the observer role at multiple stages throughout the process, could contribute to
constitutional legitimacy. She argues that allowing a broader array of citizens to observe a
participatory process can heighten the perception that diverse views are being heard. In response
citizens viewers will feel that the process is more participatory and will thus be more likely to
support the outcome. Intriguingly, the positive effect on constitutional approval might actually
stay high if the information available makes the public feel like the process is participatory and
citizen voices and opinions are being heard, even if drafters of the constitution do not actually
take their opinions into account.
In sum, existing empirical work on the subject suggests that our third dimension, access
to information about the constitution-making process, does influence how the public views the
constitution. But the effect is not straightforward and depends on what form that information
takes (direct or indirect), and who controls it. We think the effect of information also depends on
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our other two dimensions. For example, an increase in transparency might lead to an increase in
support for the new constitution if the information reveals a participatory process, or a decrease
in support if it reveals political capture. As such, we argue that it is the interactions between
these three dimensions that will help us determine whether the public will accept a new
constitution as legitimate, and that will form the basis of our own model of constitutional
legitimacy.
Proposed Multi-Dimensional Model
Based on our review of extant theoretical and empirical literature, we now propose a
multi-dimensional model of how citizen support for the constitution is likely to be affected by
the following three dimensions of the constitution-making process: a) mass public participation,
b) elite support, and c) citizen exposure to information. Our model first begins with preliminary
hypotheses based on the first two dimensions:
a) Public participation exacerbates elite polarization by causing grandstanding.
b) Transparency exacerbates elite polarization by causing grandstanding.
c) Elite support for a new constitution increases perceived constitutional legitimacy
among the general public.
d) Public participation strengthens the relationship between elite opinion and citizen
perception of constitutional legitimacy.
e) Citizen exposure to diverse sources of information weakens the relationship between
elite opinion and citizen perception of constitutional legitimacy.
f) Public participation increases perceived constitutional legitimacy among the general
public when sources report that participant input affected constitutional content.
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g) Transparency increases perceived constitutional legitimacy among the general public
when the elite capture of the process is constrained.
We use the following case studies to illustrate the components of our hypothesized model.
Case Studies
Uganda
With our model’s predictions in mind, we return to the case of constitution making in
Uganda. Of our three countries, the constitution-making process in Uganda was the most
participatory. A committee of experts tasked with drafting the constitution actively sought public
contributions and recommendations and engaged in public education about democratic principles
and constitution making, and the public had the power to vote in members of a Constituent
Assembly who would ultimately ratify the new document. Although there was disagreement, the
majority of political elites supported the new constitution and due to a lack of diverse sources of
information the public largely followed the opinions of their leaders. As a result, there was
public opposition to the new constitution where there was elite opposition, but on the whole there
was broad support for the new constitution and for the new political system that it helped to
bring about. A more detailed look at the context will help us to understand how these various
pieces fell into place.
The first Ugandan constitution was put in place by the British upon the country’s independence
in 1962. While the document itself was ostensibly democratic, it represented colonial rule that
excluded the general population. Post-independence leaders, Milton Obote and Idi Amin who
ruled for much of the next 20 years, disregarded the document entirely, or dictated amendments
that consolidated executive power (1967) and banned opposition parties (1969). They ran the
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country by force, using increasingly brutal and repressive tactics and undermining the rule of
law. Museveni’s Popular Resistance Army, which later became the National Resistance
Movement (NRM), was among the guerrilla movements that formed in opposition to the rigged
election, government corruption, political manipulation of sectarian interests, and gross human
rights abuses of the second Obote government in the 1980s. In 1986, the NRM seized control of
the Ugandan government. They recognized the authority of the 1967 constitution, but also
suspended certain parts to legitimize their forceful acquisition of power and to maintain strict
limitations on political party activity, which they argued had exacerbated ethnic and religious
sectarian tensions under the previous regimes (Moehler, 2008, p. 47). This turbulent,
undemocratic, and violent history left the population with little or no knowledge of, or
attachment to, democratic constitutional principles; many younger Ugandans had not even heard
of a constitution until after Museveni came to power. Under Museveni, political conditions
initially improved; despite the “no-party” system Museveni built a broad-based government that
included members of opposition groups.
The constitution-making process was part of a larger impetus toward building legitimacy
through a democratic framework of governance. It was slow to get off the ground despite
Museveni’s rhetorical emphasis on its importance, and the participatory model of constitution
making only developed gradually over time. While there was initially much public disagreement
about the exact kind of participation that should be involved, in 1988 Museveni opted for a 21member Ugandan Constitutional Commission (UCC) to draft the constitution over 2 years.
Although the commissioners, finally appointed in 1989, came from different regions, religions
and sectors of Ugandan society, the government-controlled method of appointment fueled
speculation that the commissioners were aligned with or beholden to the president.
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Once operations got underway the UCC laid the groundwork for a much more extensive
public consultation process than had initially been envisioned including an expanded program of
public education. The eventual process included two-day commissioner-led seminars in each
district attended by 10,037 people, during which they solicited views from the public and
instructed them about how the constitution-making process would proceed. Moehler’s study
shows that, although extensive in comparative terms, the UCC activities included a minority of
citizens: Only 4.9 percent of survey respondents reporting that they had participated in this phase
of the process (Moehler, 2008, p. 57). The district seminars were followed by two-day seminars
with government employees and civil society groups, and a civic education program that
included 40 radio programs, 20 television programs, and 15 press conferences about the
constitution, the distribution of pamphlets to inform the public of the process. The UCC also
collected constitutional recommendations from various sectors of society. In total, the
commission received 25,547 submissions (Moehler, 2008, p. 57).
After this extensive consultation phase, the UCC persuaded a reluctant Museveni that a
separate Constitutional Assembly (CA) would be needed to ratify the draft constitution they’d
produced. The UCC argued that the constitution would not be seen as legitimate if it was ratified
by Parliament, which had already overstayed its interim mandate. 75 percent of the 288 delegates
to the CA were elected by universal suffrage, and the remaining quarter of the seats were
reserved for special groups including women, trade unions, political parties, the National Youth
Council, the National Union of Disabled Persons, and presidential appointees (Moehler, 2008, p.
60). An estimated 87 percent of registered voters turned out to vote in March 1994 with roughly
two thirds of the seats going to those who claimed to support the Movement. Despite a statute
constraining party activity leading up to the CA elections, many ignored the rule. Following the
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21
election, delegates to the CA hotly contested many of the provisions in the draft and actively
disseminated information about their perspective on the constitution to their constituents. Though
there had been a government and civil society led education campaign, the information most
citizens received at this point came from their delegates.
While the constitution-making process was initially supposed to be accomplished during
an interim period of four years, it ended up lasting until 1995, nine years after the NRM took
power. It also cost tens of millions of dollars, much of which was paid by external donors.
Indications are that most Ugandans think the process was representative and conducted in a free
and fair manner. Yet the process also had critics who claimed that UCC commissioners biased
the submission system by using misleading questions to guide submissions and by collecting
views through the pro-NRM local government council system. They also argued that the NRM
had campaigned as a political party, sometimes using government resources, during the CA
elections despite the official ban on political party activity.
The Ugandan cases shows how public support for the constitution resulted from
interaction between our three dimensions. There was an extensive process of direct public
consultation that seems to have contributed to the content of the final constitution and that the
public largely believed had been conducted freely. Organizers and civil society groups both led
various civic education campaigns, but they do not appear to have penetrated widely, and elites
were largely able to control the information in their district. This control of information meant
that public opinion followed elite opinion and while there was polarization among those elites
largely based on their support of Museveni and the NRM, delegates who supported the new
document outnumbered those who opposed it. In the end, it was the large majority of elites who
supported for the new constitution, combined with the resulting public perception that the
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22
process had been largely free and participatory that ensured majority public approval. Though a
minority of elites and citizens were strongly opposed to the process and the resulting document,
the majority opinion pervaded.
Kenya
Our model’s relevance to Kenya is best understood if we divide constitution-making
exercises into two separate but related periods: 1) a failed constitution-making process that ended
in 2005 when the government proposed constitution was rejected by 58 percent of voters, and 2)
a successful process that ended in 2010 with 67 percent approval in a referendum on a new and
different constitution. Why was there such a different response to the two documents? A look at
the two cases will show that despite taking place in the same country, the two processes differed
quite clearly along our three dimensions. The first process began with a high level of public
participation but was eventually, and quite publicly, captured by President Kibaki and his
supporters in Parliament. This led to extensive and vocal opposition to the draft constitution
among political elites. A diverse and critical press also ensured that the public was aware of this
opposition. By contrast, after violence split the country following a failed election in 2007, the
second process included elites from both sides and significant international oversight. Elites
emerged from the negotiations united in support of the new constitution and the peace process. In
response to the elite consensus, private media was more inclined to support peace and unity than
draw attention to potential problems of the proposed constitution.
Kenya I. Kenya’s initial constitution was put in place by the British at the end of colonial
rule in 1963. It had been updated and amended by ensuing presidents to silence the opposition
and centralize power. While the post-colonial history of Kenya did not see the level of violence
that Uganda’s did, it too operated as a one party state until President Daniel arap Moi bowed to
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23
domestic and international pressure and amended the existing constitution to allow for a
multiparty system. Even after the advent of multiparty competition, repression and domination of
the country’s political system allowed Moi to win both the 1992 and the subsequent 1997
elections.
Grassroots advocacy for a new constitution began before 1992 when activists calling for
a multiparty system also called for a reformation of the country’s repressive legal system
(Bannon, 2007). Reform of the constitution became a focus for democratization advocates. This
movement finally gained a foothold after the 1997 election when the Constitution of Kenya
Review Act was first passed and began to gain momentum in 2001 when the act was amended
compelling the review of the existing constitution and setting a goal for the eventual drafting of a
new document. The Act stated that the process was to include public consultation with an initial
drafting by a small Review Commission, followed by direct review of the draft by a broad
National Conference, and ultimate ratification by Parliament.
The Act emphasized the importance of public consultation and the plans laid out for the
National Conference were particularly impressive. It was to comprise 629 delegates including:
commissioners from the Constitution of Kenya Review Commission tasked with writing the
original draft as nonvoting members; every member of Parliament; representatives from all of
the districts and political parties in the country; and representatives from religious, professional
and other civic society organizations (Bannon, 2007, p. 1833). The President was expressly
prohibited from participating and MPs were to make up less than half of all Conference
participants, which is only partially consistent with Elster’s (1995) advice that members of the
existing government should be omitted from the constitution-making process to minimize selfdealing. However, this did not prevent then president Mwai Kibaki from involving himself in the
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24
process. Instead of holding the National Conference as initially planned in October 2002, before
the December election, Kibaki dissolved Parliament to prevent the process from moving forward.
Kibaki was able to win reelection that December by signing an agreement with one of his
opponents, Raila Odinga, which allowed him to put up a united front against his main opponent,
Uhuru Kenyatta. This agreement expressly stated that a new constitution would be passed into
law soon after the election and the new constitution would include provisions for a strong, newly
created, Prime Minister position that was intended for Odinga. Yet Kibaki’s opposition to any
reform of the legal structure that would divide political power became clear soon after his
reelection. Vocal domestic pressure finally ensured that the National Conference was held in
April 2003. Delegates to the National Conference approved a new draft constitution that Kibaki
himself vocally opposed. In response to Kibaki’s strong opposition to the Conference draft,
Kibaki supporters in Parliament wrote their own draft constitution instead of voting on the draft
from the Conference as the Constitutional Review Act required. In June 2004, in a step that
ultimately prevented Kibaki from pushing through this new constitution, the Kenyan High Court
stated that a national referendum would be required in order for a new constitution to become
law (Stacy, 2011, p. 588). The constitution that was ultimately put to, and rejected by, the public
in a referendum was the one drafted in Parliament and favored by the President with provisions
for a Prime Ministerial position that was clearly subordinate to the President and the executive
branch.
While the initial drafting phase, and particularly the National Conference, were focused
on giving the public an opportunity to contribute to the process, the final draft represented a clear
break from this process; the final draft was captured by ruling elites and did not allow citizen
input. As a result, there was vociferous disagreement among the country’s various political
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25
leaders over the provisions in the constitution, particularly the provisions concerning the
separation of powers. Furthermore, media representing both sides of the debate over the
constitution were vocal and coverage of the lengthy process was widespread.
Despite the government’s insistence that the state broadcaster, Kenya Broadcasting
Corporation (KBS), air only coverage that heavily favored a “yes” vote in the referendum
(Andreassen & Tostensen, 2006), other independent media outlets exposed citizens to
widespread and balanced coverage including the dissenting arguments (Andreassen & Tostensen,
2006). As a result, many perceived the authors of the final draft as self-serving. Alicia Bannon
(2007) argued that the public perception of self-dealing among the drafters played a significant
role in the draft’s eventual defeat at the polls (p. 1851). She also concluded, somewhat
presciently, that this process exacerbated ethnic tensions between the Kikuyus who largely
supported Kibaki and the Luos who largely supported Odinga (Bannon, 2007, pp. 1853-1854).
Again, the interaction between the three dimensions in our model helps explain the result
of this first constitution-making process. Initially there was a high degree of direct public
participation, but the process that actually produced the final draft was not participatory, and
opposition to the final elite produced draft was widespread during the referendum. Widespread
coverage by an outspoken and opinionated press informed the public about both of these trends.
The growth of public opinion in opposition to the new constitution resulted in large-scale
boycotting of the referendum and a majority “No” vote by those who did go to the polls in
November 2005. Our model indicates that had Kibaki allowed the original draft constitution
produced through the participatory Conference to proceed, had his allies been able to convince
other political leaders to support their draft, or had they been able to monopolize the information
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26
the public had access to, we would have seen a higher level of public support for the government
drafted constitution.
Kenya II. After the sizeable protest, abstention, and “No” vote in 2005, plans for a new
constitution were put on hold seemingly indefinitely. In 2007 controversy over the electoral
contest between Kibaki and Odinga, resulted in widespread inter-ethnic violence and the death of
over 1,200 people (UNHCH, 2008). The peace deal that ended the crisis, facilitated by former
Secretary General of the United Nations Kofi Annan, set up a temporary power sharing deal
between President Kibaki and the newly created post of Prime Minister for Raila Odinga.
Among other things, it mandated a return to the question of the constitution, this time with the
goal of using it to facilitate national reconciliation. The Kenya National Dialogue and
Reconcilitation Committee (KNDRC), set up by Annan for the purpose of reconciliation,
outlined the steps for the promulgation of a new constitution through an “inclusive” consultation
process, but the KNDRC only allocated eight weeks to the public consultation component of this
process. Ultimately, a small Committee of nine legal experts (the CoE) drafted the initial
constitution. A Parliamentary Select Committee was allowed to make changes to the draft before
it was put to the legislature and then the public in a referendum.
Despite the limited time allowed, the CoE began working in 2009 calling for submission
from the public and they received 12,133 responses. They also held meetings with
representatives of various sectors of civil society, including: religious, private sector, minority,
human rights and the 47 registered political parties in parliament (Konrad Adenaur Stiftung, Dec
2012, p. 70). Despite the efforts of the CoE, the ability of the average citizen to directly
contribute to the drafting process was largely limited to the referendum (Stacy, 2011, p. 606).
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27
The CoE, operating under an international shadow, produced a new draft constitution that
was a complete revision of the 2005 version. Most significantly it made a number of revisions
that reduced the power of the presidency, including the decentralization of power to the local
level, the creation of a second chamber of Parliament, and the ability for Parliament to impeach
the president. It also eliminated the temporary Prime Minister position that had been part of the
power sharing agreement. Most political elites were vocal in their support of this new draft,
including both Kibaki and Odinga, who actively campaigned in support of it leading up to the
referendum. They even published a co-authored op-ed in an American newspaper lauding the
new document for its American-style checks and balances (Kibaki & Odinga, 2010). While
support for the draft was not absolute – former president Moi led the “No” campaign arguing that
many of the provisions in the new constitution were “unworkable foreign ideals” – observers
agreed that the post-election violence generated the political will for elites to show a united front.
The overwhelming elite support stands in sharp contrast to the divisions that permeated the
country leading up to the 2005 referendum.
The CoE also had the task of leading a civic education campaign intended to prepare
citizens for the 2010 referendum. The campaign included the production of a handbook
containing a copy of the new draft constitution as well as media engagement, paid
advertisements, and a website. However, the limited amount of time the CoE had to conduct
civic education meant that the handbook was only produced in English and distribution was
limited (Konrad Adenaur Stiftung, Dec 2012, p. 62). By contrast, the various political actors
began their campaign efforts for the referendum as early as possible ultimately overshadowing
the CoE’s civic education campaign. While the Kenyan media actively covered the lead-up to the
vote, a there was a lot of self-censorship. Previously, the media had received a lot of criticism for
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28
inflammatory content, which critics claimed contributed to the post-election violence in 2007.
Leading up to the referendum, the majority of the content citizens received from the media and
political campaigns was in support of the new constitution and filled with messages of unity and
peace.
With regard to the three dimensions of our model, there is an obvious contrast between
the 2010 constitution-making process and the pre-2005 constitution-making process. Despite
limited public participation during the drafting of the constitution, there was an extremely high
degree of unity among the political elites. Moreover, the majority of information the public
received was extremely favorable towards the new draft constitution, due to the political unity,
self-censorship, and pro-peace content in the media, including the state broadcaster, KBS. In
keeping with our model’s predictions, the extremely high level of elite unity combined with the
dominance of information in support of the new constitution outweighed the negative effect of
low public participation in the constitution-making process. Had the media instead been critical
of the process, chosen to highlight the lack of transparency and participation, or openly
scrutinized the constitution’s content, public support for the new document might not have been
so high.
Somalia
Our third case of constitution making in Somalia provides a final illustration of our
model. A complicated and lengthy peace process designed to bring an end to 20 years of political
anarchy culminated in a transition to a new political system. The organizers of the process, the
United Nations, required a process leading to the adoption of a new constitution. The process
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29
was originally designed to be more participatory than it ultimately was, with failed plans for a
public referendum and elite rejection of a draft constitution that integrated public feedback. In
the end, a hastily-written draft was quickly approved by a bloated and undemocratic Constituent
Assembly. While the process organizers controlled much information available to the public
through a civic education program on the most popular news outlet, there was also vocal dissent
from elites and civil society leaders excluded from the process on other news outlets. Public
opinion about the new constitution in Somalia has unknown, but our model predicts that
perceived constitutional legitimacy depends on the valence of the information to which the
public was exposed.
The pre-existing Somali constitution was drafted in 1960 at the end of Italian rule. A 23member technical committee developed the initial draft, after which an “inclusive” 50-member
political committee debated all of the provision and made changes as needed. Finally, a 110member Constituent Assembly, including 90 parliamentarians and 20 representatives of civil
society reviewed it and in 1961 put it before the Somali people who ratified it through a
referendum (Contini, 1969). While many Somalis see this document as a colonial relic, the
process that made it is often pointed to as a model for representative constitution making in
Somalia.
In 1991 the collapse of Siad Barre’s regime left a governmental vacuum and sparked
violent conflict that lasted for more than 20 years. Since then there have been numerous domestic
efforts, as well as 16 internationally sponsored ones, to resolve the conflict and restore power to
a central government. The most notable was the UN-facilitated signing of the Transitional
Federal Charter in Nairobi in 2004, which created a Transitional Federal Government (TFG).
The TFG was tasked with paving the way for transition to democracy and creating an
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Independent Federal Constitution Commission (IFCC) UN backers required the IFCC to draft a
new document as a prerequisite of democratic transition (interpeace, 2011). The TFG had very
limited practical power and much of the time could not maintain security in the capital of
Mogadishu, which led them to reside in the distant security of Nairobi or Addis Ababa. While
the original agreement stated that the new constitution would have to be approved through a
public referendum by 2008, the persistence of insecurity made this impossible.
Despite significant limitations from lack of funding the IFCC was finally able to produce
a draft constitution (Tarey, 2010). The draft was presented to the public in July 2010 to collect
feedback from representatives of different sectors of society (IFCC, 2010). By many accounts
the IFCC did make an effort to engage with the leaders of various sectors of society, through
proxies if not directly (Elmi, 2012) (SOSCENSA, 2011). The response was largely and quite
vocally negative so the IFCC and a new Committee of Experts (CoE) drew up a second draft
trying to incorporate some of the feedback they received. This time the draft was submitted it to
elites instead of the public for review. The elites in question were six “stakeholders” that had
been identified as part of the 2011 UN Road Map to peace, including: the TFG President; the
Prime Minister; the former Speaker of Parliament; regional leaders of Puntland, and Galmudug;
and a representative of the Ahlu Sunna Waljama’a group.
In May 2012, these six, plus a UN Special Representative, met in Addis Ababa ostensibly
to review the new IFCC draft, but they instead disbanded the IFCC and the CoE. At a series of
subsequent meetings in Nairobi and Garowe, they approved a completely new draft they wrote in
secret and agreed that, instead of a referendum, a National Constituent Assembly (NCA) would
be given the power to vote the new document up or down. The NCA was a bloated entity with
over 800 delegates appointed by Somali traditional clan leaders, ostensibly to ensure that
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31
representatives from all of the major clans were included (Elmi, 2012). In practice, many of the
Somali elite, including those living abroad, jockeyed for positions on the Assembly through
bribes to clan leaders, and the Assembly functioned as little more than a rubber stamp for the
secret constitution (Aynte, 2013). On August 1, 2012, 96 percent of the members of the NCA
approved the seven signatories’ draft, despite many of its hastily written provisions that did not
resolve many of the most contentious issues including federalism and the decentralization of
power, the role of Sharia and local xeer law in the new system, the role of women in government
and the nomination of a capital city (BBC, 2012). The signatories agreed that the new
Parliament—sworn into power August 20, 2012 after being appointed by the NCA—would
subsequently have the authority to amend the new constitution. A parliamentary constitutional
commission has been created to begin this process, but even the MP heading this commission
admits that the constitution is confusing and the process is unlikely to proceed quickly (Aynte,
2013).
Crucially, external backers funded the entire constitution-making process, reportedly
costing the UN upwards of $15 million. External pressure contributed to the speed with which
the final constitution was pushed through to enable the final transition to the new government. In
tandem the UN funded a public information campaign nominally designed to engage the public
in the constitution-making process. The campaign revolved around programming produced in
collaboration with, and aired on, the largest and most popular Somali language satellite
television station, Universal TV. This included call-in shows where members of the public could
voice their opinion and elites, including members of the CoE, would appear on the show to field
question about the new constitution.viii The subject matter clearly favored the new constitution
focusing on what a constitution is, the importance of the constitution, and why it was needed for
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32
Somalia. The campaign could easily be described as advertisements for the constitution rather
than as true platforms for discussion (Osman, Marchant, & Stremlau, N.d.). Favorable coverage
of the constitution was also aired on the UN radio station, Bar Kulan.
The information campaigns and the acceleration of the constitution-making process in
2012 also fostered an increase in coverage of the constitution-making process in other news
outlets, including satellite television stations, radio networks, and online news sites. Detailed
qualitative content analysis of 30 of the major Somali-language news outlets by researchers at
the University of Oxford (Osman, Marchant, & Stremlau, N.d.) shows that there was a mixed
and often quite convoluted view of the confusing constitution-making process. Dissenting views
were commonly aired by news networks that opposed provisions in the new draft or by frequent
audience callers who voiced their objections on television and radio. The most common critiques
were about the corrupt selection of delegates for the NCA, the disproportionate role of the
government of Puntland, the involvement of the UN and other international actors, and inclusion
of provisions that were foreign to local Somali culture (Osman, Marchant, & Stremlau, N.d.).
Eleanor Marchant conducted 10 in-depth interviews with diaspora Somalis in London and every
one of the interviewees reported that Universal TV was the main source of information for
themselves and their relatives back in Somalia (Marchant, N.d.). Most respondents also claimed
to consult at least one additional source. While official audience figures are impossible to obtain
given the security situation, the impact of the UN information campaign broadcast over “the
most popular news outlet” should not be underestimated.
As was the case in the first Kenyan constitution-making process, the Somali process
began with a higher degree of public consultation than with which it ended. Despite the IFCC’s
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33
initial attempts to integrate public feedback into the process, the six stakeholders who
subsequently captured the process discarded their draft and a public referendum was abandoned
as impractical. Like the second Kenyan constitution-making process, international actors
influenced the process in Somali . In the Somali case, the UN took pains to emphasize the so
called “participatory” nature of this process. While the six signatories, the members of the NCA,
and the civic education campaign on the most popular news outlet all supported the new
constitution, there was dissent among members of the political and civil elite who were excluded
from the process. Elite division along with the vocalization of public opposition on various
interactive media platforms provided members of the public with a mixed picture.
It is impossible to say how the majority of Somalis really feel about the new constitution
due to the lack of polling data or a referendum. However, we do have evidence on two of our
three indicators: the level of participation in the process that produced the final constitution was
extremely low and elites excluded from the process were vocal in their opposition to the new
document. We argue that public opinion about the new constitution hinges on the information to
which the public were exposed. We would expect public support of the new constitution to be
low: 1) in regions where elite dissenters controlled the main source of information; 2) among
individuals who had access to a diversity of sources providing them with information from
constitutional opponents as well as supporters, or 3) where direct coverage of the process made
people aware of how un-participatory it was. By contrast, we would expect public support of the
new constitution to be high: 1) in regions where elites supported the new constitution and
controlled the main sources of information; 2) where the main news outlet the public consumed
was Universal TV; or 3) if the coverage of citizens voicing their opinions about the constitution
led people to believe that the process was more participatory than it really was. Questions remain
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34
about what kind of information Somalis are able to access outside of Mogadishu where a diverse
array of sources is available? Further empirical work is needed to help answer this question.
Conclusion
In this paper, we outlined a multi-dimensional model of the causes of public approval for
a new constitution. Drawing initially from extensive research based on a survey and in-depth
interviews in Uganda (Moehler 2008), supplemented by other academic and practitioner
literature, we argue that public acceptance of a new constitution depends on where the
constitution-making process falls along three dimensions: 1) the degree of direct mass citizen
involvement in the process, 2) The extent of elite support for the constitution; and 3) the level of
citizen access to information about both the process and the content of the constitution. Much of
the existing research on the legitimacy of a constitution-making process focuses on the first of
these three dimensions. There is widespread belief among practitioners that a highly
participatory process enhances citizen perception of constitutional legitimacy in addition to
creating a more democratic and representative document. Many constitution makers even attempt
to capitalize on this norm by calling a process “participatory” when the process truly lacks
citizen involvement. Our model supports the belief that an increase in public participation can at
times lead to an increase in public approval for the constitution. However, we argue that this
effect is contingent on where a constitution-making process lies along our other two dimensions.
As such, our central argument is that it is the interaction between these three dimensions that
effects citizen perceptions of constitutional legitimacy.
An exploration of four case studies of participatory constitution making in three East
African countries illustrates the usefulness of our model. Most notably, the case studies reveal
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35
the important role that access to information played in shaping legitimacy perceptions. However,
the effect of information access is not straightforward and depends very much on what form the
information takes, who controls it, and where the process falls along the other two dimensions of
our model. In the Ugandan case, elite control over information in their respective districts
ensured that local public opinion largely followed local elite opinion. Majority elite opinion in
favor of the constitution led to high public support. In the first Kenyan case a plethora of
independent media outlets ensured that the public was well-informed of President Kibaki’s
capture of the process and opposition to the constitution was widespread. This negative
information about the process led to mass disapproval and rejection of the constitution at the
polls. In the second Kenyan case, the unity of the elites behind the process and the predominance
of pro-peace and pro-unity messages in the majority of the country’s media outlets generated
widespread approval for the constitution despite a relatively secretive and unparticipatory
constitution-making process. Finally, further research is needed to know the actual level of
public support for the new constitution in Somalia, but our model suggests that approval depends
on the nature of the information to which citizens are exposed. We develop predictions about the
conditions under which information sources will describe the process as participatory and
representative, generating public support, and conditions under which the opposite will occur.
Looking forward, our model indicates that scholars should be attentive to new
technologies that increase access to diverse sources of information. Studying what kind of
information on the constitution-making process is available to citizens will be key to
understanding the relationship between citizen participation and perceive legitimacy of the
resulting constitutions.
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i
See (Samuels, 2005) (Elster, 1995) (Elkins, Ginsburg, & Blount, 2008) (Cottrell & Ghai, 2007) (Lerner, 2011)
(Moehler, 2008) (McWhinney, 1981) (Ginsburg, Comparative Constitutional Design, 2012) practitioner works
particularly by USIP and IDEA
ii
(Ihonvbere, 2000) (Ghai & Galli, 2006) (Chambers, 2004)
iii
Some other areas of study of participatory constitution-making have included its effect on the ability to constrain
government actors, on the decentralization of power, and on the capacity for peacemaking in post-conflict
settings.
iv
In addition to the results on constitutional legitimacy discussed in this paper, Moehler (2008) found that
participation was associated with stronger democratic attitudes as well as higher political and constitutional
knowledge, and that these attitude changes in turn led to the erosion of trust in institutions. Participants learned
that the institutions of government fell short of their newly developed democratic standards. Participation in
hybrid systems like Uganda, that combine elements of democratic and authoritarian rule, will have different
consequences than will participation in well-formed consolidated democracies where the erosion of trust might be
less likely.
v
List countries here and details of the Afrobarometer survey and the national level question in her index that was
comparable to the Afrobarometer questions
vi
See for example: Laurel Miller’s (2010) compilation of 19 cases for USIP; Jamal Benomar’s (2004) advice for Iraqi
constitution makers; and Brandt Cottrell, Ghai and Regan’s (2011) comprehensive practitioner’s guide for
interpeace.
A MULTI-DIMENSIONAL MODEL OF PARTICIPATORY CONSTITUTION MAKING AND LEGITIMACY
vii
41
Even in the case of seemingly direct information, like live televised coverage of a political debate, the news
network broadcasting now has increasing control over the way in which the audience interprets it through scrolling
headlines at the bottom of the screen or the choice of Twitter posts to display reacting to what the speakers are
saying.
viii
This is drawn from detailed and extensive content analysis conducted by Eleanor Marchant, Ridwan Osman, and
Nicole Stremlau through the Programme in Comparative Media Law & Policy at the University of Oxford. The
content analysis was performed between December 2011 and May 2012 and included 30 Somali-language news
outlets representing the different regions of Somalia and focused exclusively on coverage of the constitution
making process, the content of the new draft constitution and the various constitution-related conferences held
during the period.