A few weeks from now, the Constitutional Review Committee (CRC) would begin winding up its activities. The committee was established in 2013 to review the current 1991 constitution taking into account views from the public and lessons from other countries. This 80 member review body has been constituted by an eclectic mix of representatives including amongst others, market women, political parties, youth groups, civil society organizations, professional associations, traditional authorities, government bodies and academic institutions.
The CRC claims to have received thousands of suggestions from the public through its standard submission forms as well as dozens of position papers from institutions and individuals within and outside the country. The last date for submission to the CRC is 30 November 2015 after which the committee will set about collating the multiply diverse submissions into a readable and presentable report for the attention of government. The CRC has always been at pains to point out that its mandate is circumscribed- a sort of constitutional clearing house.
Recently the committee’s secretariat issued a press release in which it promised to soon release the “first draft report containing recommendations for constitutional amendments”. The undated release also sought to clarify that the CRC will release a “draft report” and not a “draft constitution” as media houses had erroneously reported. The release vaguely hinted at the post-CRC phase. Once the report is validated and finalized, it would be submitted to the government. In accordance with the constitution, the government will issue a White Paper “accepting the recommendations and a draft constitution would then be produced.”
This lack of clarity about arguably the most important component of the constitutional review process- i.e. writing the constitution itself-is concerning. Who should or would draft our new constitution? What should or would be included or omitted from the new constitution? A simplistic answer to the first query is likely to be, the government of course, which would then predict the answer to the second query- the government determines what does or does not make it into the new constitution.
When he launched the CRC in July 2013, President Koroma called on “all compatriots irrespective of region, district, ethnic, political or religious affiliation to support, fully participate and take ownership of the entire review process”. The president asserted that “this is the best way to make the resulting document a true covenant amongst all of us to honour our common aspirations.”
Clearly, at the outset, the whole review process- from collation of views to drafting and approval by referendum-was intended to be inclusive, consultative and objective. The resulting 80 plus membership of the CRC was a nod in that direction. Contrary to the impression being created by the CRC’s press release, the review process should not end or cease to enjoy these qualities after the final report is presented to the government. It must not suddenly become a government-only process. If the CRC is genuinely in the dark regarding the post-collation review process, it is therefore imperative that government quickly and publicly outlines how the rest of the review process would unfold in the same spirit of participation and national ownership.
The drafting phase, in constitutional reform, is perhaps the most sensitive as could be seen from the experiences of other African countries like South Sudan and Kenya, some of the comparative lessons for our own process. In Kenya-the locus of a recent learning tour by the CRC- the drafting process for their 2010 constitution was a study in consultation, negotiation and compromise. A broad-based committee of experts drawn from “diverse religious, ideological, political and other persuasions” was mandated to draft the new constitution instead of a wholly government entity. This draft was then subjected to several reviews including one by the public before it was finally approved by referendum.
Departing from the culture of openness, inclusivity and objectivity engendered by the CRC in the drafting phase would completely undermine the value of the work that was carried out and amount to a betrayal of the “covenant” even before it is formalized. At the very least, an open, inclusive and objective drafting process would show that the government does not have something up its sleeve.
In addition, having received thousands of submissions from the public in the last two years it is inconceivable that every single suggestion or position would make its way into the new constitution. To guarantee the credibility of the content of the new constitution, it is important for objective criteria to be applied to the content question. What makes it into the new supreme law should not be an arbitrary decision.
As the president said at the launch of the CRC in July 2013, “Good constitutions are not imposed.” They are the outcome of open, inclusive dialogue, negotiation and compromise.
The Author of this commentary is a renowned legal practitioner named Sonkita Conteh. He is the Director of Namati Sierra Leone