There is a genuine fear that the haste may make not only the interim-constitution a waste, but the entire constitution making process

By Avantika Regmi

With records such as “Around the World in Fourteen Days” to compete with, it is no surprise that the six interim-constitution drafting gurus have to – “Come Around with an Interim Draft-Constitution in Fifteen Days.” In the meanwhile several constitution gurus have appeared on the scene and are educating us and the constitution drafting gurus with articles on the Constitution-Making Process (CMP).

Various models are competing for attention, including the South African Model (SAM), Kenyan, Nicaraguan, Indian, US, etc. etc. If anything the SAM appears to be the best. Irrespective of what is best the constitution-making process has stood true to its autochthonous nature and the CMP appears all set to spit out a “Made in Nepal” interim-constitution in 14 days.

However, there is a genuine fear that the haste may make not only the interim-constitution a waste, but the entire CMP. There are reasons for casting away the much-admired SAM. First, the South African CMP was a long one – formally it started with Convention for a Democratic South Africa (CODESA) – a two- day live-broadcast event where all-party negotiations began (Dec 1991). Five Working Groups were formed from this that for the next few months moved forward the work of CODESA. The talks collapsed after the second plenary meeting of CODESA (May 1992).

Negotiations re-started in the name of Multi-Party Negotiating Process (MPNP). The interim draft Constitution finally came out in July 1993 a full one and half years after the process started. It was the blue print for the final draft constitution. It was humungous. It was there to stay till the legislative body was elected in April 1994 (which acted both as transitional parliament and constituent assembly). Perhaps one and half years for an interim-constitution is far too long, but fourteen days is perhaps way too short.

The problem is that the “19 day People’s Movement” has taken precedence over everything else including the long-term future. Fear has been expressed that a ‘Sasharta’ (conditional) Constitution goes against the aspirations of people. On the other hand ‘Nisharta’ (unconditional) constitution is fraught with dangers.
Second, in the South African context Nelson Mandela had made it clear that if there was one thing non-negotiable it was universal suffrage. The rest was negotiable. Shortly after being released from prison in 1990 Mandela said – “Once you decide to negotiate, compromise is always possible. There can be no compromise on the demand for one-person, one-vote and the total scrapping of the apartheid in all forms. But all others are subject to compromise and negotiation.”

In the Nepali case it is the ouster of Monarchy that has turned to be the chief non-negotiable item, nothing like that of South Africa. If there is anything that should also be non-negotiable then it is protecting the fundamental rights of the people. Moreover, some balance in representation of various opinions is absolutely essential if the new constitution is going to be all-encompassing.

There were 34 Principles which formed the core of the South African interim- constitution (also mentioned in its Preamble). These then acted as guiding principles for the final draft-constitution. Even in Zimbabwe the all-powerful rebels (Zimbabwe African National Union (ZANU) headed by Robert Mugabe) which had huge popular base agreed on a constitution that incorporated certain safe-guards for the Whites, which included the latter’s majority in elected parliament. Surprising isn’t it? However, there seems to be a distinct possibility that our interim-constitution will not have such binding clauses. The problem is that the “19 day People’s Movement” has taken precedence over everything else including the long-term future. Fear has been expressed that a ‘Sasharta’ (conditional) Constitution goes against the aspirations of people. On the other hand ‘Nisharta’ (unconditional) constitution is fraught with dangers.

Finally, to end on a sobering note to those over-enthusiastic on the possibility that a new constitution would be a cure-all for all that is wrong – the 1995 new-draft constitution of Uganda was considered “simply statements of the aspirations (of the people) without accompanying mechanisms of enforcement.” There were reasons to fear that it would become a rubber-stamp constitution. This 1995 Ugandan constitution had the clause that someone could not be a President for more than two-terms. In the beginning of this year (2006) President Museveni started his third-term. The Constitution is after-all a document written by a couple of humans – the elites. It can either become sacrosanct or just another piece of document.

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