Civil society and the media can play valuable roles by standing outside the process, monitoring and evaluating its performance and progress, and making proposals for improvement. Such roles can be of great importance in various ways. Regular monitoring can provide the basis for making regular reports that give the public independent assessments of progress. This can be particularly important where the official constitution-making body does not inform the people fully, whether as a result of a lack of “people-directedness,” a lack of resources, a lack of full understanding, or even a deliberate wish to keep the people ill informed and thus possibly less critical. Credible and regular civil society monitoring can also be helpful to the government and to the constitution-makers by providing them with independent assessments of progress, outcomes, public attitudes to the process, and so on.
The following discussion outlines suggestions about civil society monitoring drawn from experience in a number of processes.
Establishing a relationship with the official process
To provide credible monitoring of a process, it will be helpful first to identify the civil society actors best placed to develop and maintain a good working relationship with the official process, and for particular persons in those organizations to invest some effort in building the relationships. Helpful strategies may include:
- ensuring that relevant people in the official process know of the existence of the civil society actors in question, what they do, and what their interest in the constitution is;
- developing good personal relationships with key individuals in the process, on both the management side and the decision-making side; and
- getting to know the press and outreach people within the official process.
Developing such relationships provides a basis on which information is more likely to be readily volunteered by constitution-makers, and helps views put forward as part of monitoring reports (including suggestions about improvements to the process) to be dealt with in a nonconfrontational manner.
Civil society is often regarded with suspicion by senior politicians and civil servants. In developing countries and in conflict situations there is sometimes especially strong suspicion of NGOs that receive foreign funding (due to fears that they may be doing the work of foreign interests). In such cases it may be more difficult to develop good working relationships, and it may be wise to rely on civil society actors who do not have such problems.
Keeping the pressure up
Civil society may find that there is flagging enthusiasm for the constitution-making process on the part of politicians. Building support for the process, monitoring, and lobbying may all be as necessary during the process as they can be when getting it started. Even demonstrations and other forms of direct action may be required. There can be some risks in civil society getting involved in actions to maintain support for a process, including:
- being used by political forces to achieve quite different aims, either in relation to the process or more generally; and
- that in circumstances where there is serious controversy about the process, serious disorder could be used by those in power as an excuse to stop the process.
The balance between encouragement and critique
It is sometimes easier to criticize than to praise. Like anyone else, constitution-makers may grow to resent constant comments from civil society and the media that they see as negative and unfair. If the process is to come to a successful conclusion, it may sometimes be important that key constitution-makers feel appreciated and encouraged to go on. This may apply with particular force to nonpoliticians, but even professional politicians may resent being constantly criticized.
An effective monitoring program
The word “monitoring” has a range of meanings. In this context we are referring to systematically observing and recording what is being done in a constitution-making process in order to evaluate the impacts and outcomes of the process. One definition of evaluation is “collecting information to check performance against an expectation.” Evaluation may involve comparing actual impacts and outcomes with what was expected.
Many aspects of a process can be monitored and evaluated, all depending on the interests of those doing the monitoring and evaluation. (For example, donor countries and agencies will want to know how their money is being used; agencies of foreign powers with interests in the country or the region where it is situated may want to monitor developments in the process with a view to considering whether conflict might break out again, and whether the constitution- making country is going to contribute to regional stability.) The focus for civil society would be expected to be on monitoring the process in order to evaluate how well it is making progress toward meeting the expectations and needs of the ordinary people of the country for which the process is being conducted.
An effective monitoring program should be:
- well informed;
- flexible; and
Monitoring needs to be well informed because constitution-making is a complex business. If observation of what is going on is to be useful, it is important to understand the process well. How does what has happened relate to the objectives of the process? Monitoring a constitution- making process cannot be a mechanical affair.
The monitoring must be systematic in the sense that the monitoring bodies should have a strategy for collecting information. They need to know what they are looking for.
Monitoring should be flexible, because constitution-making will be affected by all sorts of political and social factors. As a result, information may come from many sources, some unexpected. Official sources should not be relied upon exclusively.
The monitoring should be consistent. Because circumstances may change quickly, important events may pass unnoticed unless monitoring is as continuous as possible. The challenges in monitoring a constitution-making process include the following:
- It is not enough (though it is important) to check actual events against planned timetables. (The press is sometimes guilty of focusing almost entirely on questions of timing and not paying sufficient attention to the content of developments.)
- It may be difficult for civil society to have access to the variety of skills needed to carry out an effective monitoring program, for the program may need to cover many aspects of a process, including: electoral systems and election management; public procurement and finance; civic education and public consultation methods; and debates on complex issues concerning the content of a proposed constitution.
- Reading official accounts, or even newspaper accounts, of what is being done will not be enough; it will almost always be important to witness activities such as public consultation sessions, the meetings of the constitutional commission, constituent assemblies or constitutional conferences, and so on.
- Monitoring must consider far more than just official accounts of the process, some of which may not be accurate; indeed, they may contain deliberate falsehoods. (Even opinion-polling organizations are sometimes known to be linked to political interests.)
- The media may be dominated by certain political parties, business interests, or ethnic groups.
There are almost limitless possibilities for the structure of arrangements for monitoring and evaluation. An effective monitoring program would ideally involve more than one organization; a group of NGOs could usefully cooperate to watch the various aspects of the process. It may also be possible to link up with entities beyond civil society, such as independent government bodies (e.g., a human rights commission or an ombudsman) or a media organization with an established record of independence.
In terms of tasks, a civil society monitoring process could involve:
- observing (and commenting on) whether the process unfolds according to its official timetable or at a reasonable pace, and why delays, if any, occur;
- watching out for developments—deliberate or otherwise—that threaten the continuation of the process;
- watching out for and drawing attention to process “hijackers” or spoilers—groups or people who may try to take the process over to influence the outcome to their own advantage, or who may seek to damage or destroy the process;
- ensuring that the people understand when and how they can offer input;
- watching to ensure that the process is inclusive (some women’s groups have monitored processes to ensure gender equity); and
- generally assessing whether the constitution-making bodies are fulfilling their mandates.
Box 46. Civil society monitoring in Zimbabwe
The Civil Society Monitoring Mechanism (https://www.cisomm.org) is a collective of about forty NGOs dedicated to monitoring and evaluating the implementation of Zimbabwe’s September 2008 Interparty Political Agreement involving President Mugabe’s Zimbabwe African National Union—Patriotic Front and the political opposition. Among other things, the agreement provided for a constitution-making process. The benchmarks that Zimbabwe’s monitoring mechanism established for monitoring the agreement include:
- ransparent and timely establishment of the select committee of parliament required to conduct the process;
- meaningful representation of, and powers for, civil society within all subcommittees for the purpose of contributing to the constitution-making process;
- widespread national consultations with the public and all civil society sectors on all relevant processes and on the content of the constitution;
- full involvement of all stakeholders in “all stakeholders” constitutional conferences;
- timely publication of the report, the recommendations for constitutional change, and the draft constitution presented to parliament;
- meaningful inclusion of the public through impartial and comprehensive publicity and dissemination of parliamentary debate on the draft constitution (through broadcast and print media); and
- no substantive amendments by parliament of the draft constitution so as to deny the will of the people as expressed during the public consultation process and all- stakeholders’ conferences.
Its report for May–June 2010 recorded progress, but also identified some worrying failures, such as that the Zimbabwe African National Union—Political Front had “reportedly launched Operation Chimumumu (Operation Dumbness) whereby villagers are strictly instructed that only a few select individuals will contribute during the public consultations, with everyone else remaining a passive audience.”
Some of the techniques and methods of gathering and assessing information that may be needed to carry out such tasks include:
- developing a good understanding of the structure of the process, what is supposed to happen as part of it, and when;
- studying carefully the official information that is put out—understanding it and checking on its accuracy;
- reading the press and listening to the radio carefully (especially phone-in programs, which have become important barometers of public opinion in many countries, as well as ways of putting views forward to constitution-makers);
- pulling together media (and other) reports from different sources, because any single media source can be expected to have an incomplete picture of what is happening;
- engaging with organizations that are making submissions (to get a sense of what points they are making and how the official process has responded—both whether that process has shown a serious interest in the submissions and whether those who make submissions are being treated with proper respect);
- having, if resources permit, representatives at public meetings where the official process gives out information or where the people make submissions (trying to ensure that the people’s concerns are taken seriously, and also seeking to understand how people are feeling about the constitution-making process and the constitutional issues being considered); and
- making use of contacts within the system in order to know what is really happening.
To be effective, outcomes of monitoring and evaluation need to be communicated to constitution-makers and to the public. Reports need to be made regularly, perhaps using newsletters, a website, or media reports. To do this in a sustained way over a prolonged period requires the commitment of both people and resources. Many monitoring groups have started with enthusiasm and been unable to sustain it.
Here are a few examples of monitoring activities carried out by groups working from outside constitution-making processes:
- In Timor-Leste , a group of women monitored the constituent assembly meetings as well as the public consultation meetings to determine whether the process was including women and hearing women’s concerns. The group made recommendations to improve gender equity in the process. It linked with the media to inform them when there were problems in the process, and also with a large coalition of women’s groups that then advocated for reforms of the process or changes to the draft constitution based on the information the monitoring group provided.
- In Nepal [ongoing process], staff of the Office of the High Commissioner for Human Rights attended some meetings held by constituent assembly members to collect public views, and were able to make useful comments on the organization of the meetings and on their limitations in terms of who was able to participate (especially women).
- In Kenya , the press reported on many misrepresentations being peddled by politicians and religious organizations in the referendum campaign.
It is also helpful to look at examples of effective civil society monitoring of government activities in contexts other than constitution-making. In the Philippines a monitoring program, undertaken by civil society with the cooperation of the government as an anticorruption measure, monitored the production and delivery of textbooks to schoolchildren, leading to the average price per textbook being halved; monitoring of civic education materials, broadcasting, and the like could help cut corruption in constitution-making processes.