Expanding Participation in Constitution Making: Challenges and Opportunities

William & Mary Law Review, Vol. 49, 2008

William & Mary Law School Research Paper No. 09 - 341

28 Pages Posted: 29 Apr 2016

See all articles by Angela M. Banks

Angela M. Banks

Sandra Day O'Connor College of Law, Arizona State University

Date Written: 2008

Abstract

Internal exclusion is a substantial impediment to the successful implementation of participatory democratic reforms in post-conflict states. The recent use of participatory constitution making in states like Rwanda illustrates the challenge that inclusion presents. Inclusion ensures not only that individuals are physically present in the decision-making forums, but that they have an “effective opportunity to influence the thinking of others.” This requires that participants review and reconsider their preexisting preferences and positions in light of reasons and justifications offered by other participants. Absent a willingness or ability to do so, the decision-making process becomes one in which original positions are zealously defended and decisions are made based solely upon factors such as numerical majorities and political power. Participants argue, rather than deliberate, which reduces their ability to influence the thinking of other participants. This creates a situation in which those in the numerical minority or without significant political power are internally excluded. This article uses the the post-genocide constitution making process in Rwanda as a case study to examine the theoretical and legal justifications for internal exclusion in post-conflict constitution making processes. This case study illuminates the tension between inclusion and political power in post-conflict states and the barriers that exist to achieving successful internal inclusion in post-conflict constitution making processes.

Suggested Citation

Banks, Angela M, Expanding Participation in Constitution Making: Challenges and Opportunities (2008). William & Mary Law Review, Vol. 49, 2008, William & Mary Law School Research Paper No. 09 - 341, Available at SSRN: https://ssrn.com/abstract=2771307

Angela M Banks (Contact Author)

Sandra Day O'Connor College of Law, Arizona State University ( email )

Mail Code 9520
111 E. Taylor Street
Phoenix, AZ 85004-4467
United States

HOME PAGE: http://www.angelamariebanks.com

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