tag:theconversation.com,2011:/au/topics/constitutional-reform-16581/articles
Constitutional reform – The Conversation
2024-03-01T02:39:56Z
tag:theconversation.com,2011:article/224852
2024-03-01T02:39:56Z
2024-03-01T02:39:56Z
Brian Mulroney, champion of free trade, brought Canada closer to the U.S. during his reign as prime minister
<p>Brian Mulroney — Canada’s 18th prime minister who has <a href="https://twitter.com/C_Mulroney/status/1763337379165934039">died at age 84</a> — will be remembered for many things, but his most significant decision during two terms in office was to link Canada’s future with the United States.</p>
<p>Unlike Pierre Trudeau, Canada’s Liberal prime minister <a href="https://www.snopes.com/fact-check/did-trudeau-say-worse-things-better-men/">who had a rocky relationship with several U.S. presidents</a> during the 1960s, ‘70s and '80s, Mulroney was an unabashed Americanophile. </p>
<p>After all, he <a href="https://www.tourismebaiecomeau.com/histoire?lang=en">grew up in Baie-Comeau</a>, Que., a town founded by a wealthy American industrialist — Robert Rutherford McCormick — to produce cheap newsprint for New York and Chicago papers. Mulroney would at times reminisce that as a child he sang songs for McCormick to earn small monetary rewards. </p>
<h2>Negotiated Free Trade Agreement</h2>
<p>Mulroney’s admiration for American capitalism was evident in his political polices. Within a year after being <a href="https://www.cbc.ca/archives/brian-mulroney-wins-stunning-landslide-victory-in-1984-1.4675926">elected with a large majority in 1984</a>, Mulroney stated he wanted to negotiate a free trade agreement with the United States. </p>
<p>Shortly after that, Mulroney hosted then U.S. president Ronald Reagan for what was called the <a href="https://montrealgazette.com/news/local-news/history-through-our-eyes/history-through-our-eyes-march-17-1985-the-shamrock-summit">“Shamrock Summit”</a> in Québec City. The two leaders, both of whom were proud of their Irish heritage, took to the stage at the summit and famously launched into a rendition of <em>When Irish Eyes Are Smiling</em>.</p>
<p>While some Canadians may have cringed at the sight of the two men warbling together, Mulroney’s close relationship with Reagan was a political asset for the Progressive Conservative leader.</p>
<h2>A second majority</h2>
<p>Mulroney and Reagan signed the U.S.-Canada Free Trade Agreement on Jan. 2, 1988. Mulroney campaigned on the deal during Canada’s general election in November of that year and won a second consecutive majority. Some international media outlets dubbed Mulroney “<a href="https://www.barrons.com/news/brian-mulroney-ex-canadian-pm-and-father-of-north-american-free-trade-ba03b008">the Father of North American Free Trade</a>” in stories about his death.</p>
<p>The Mulroney years marked the end of a two-decade reign by the Liberals under Lester Pearson, Trudeau and John Turner. Mulroney shifted Canadian policy to the right when he negotiated the Free Trade Agreement. Other controversial policies — the <a href="https://www.thecanadianencyclopedia.ca/en/article/crown-corporation#Privatization">privatization of Crown corporations</a> like Air Canada and Petro-Canada, and the <a href="https://www.thestar.com/news/history-of-the-gst/article_1b750dd8-dab3-5292-adbb-76cb681df763.html">introduction of the goods and services tax (GST)</a> — would last and not be undone when the Liberals returned to power under Jean Chrétien in 1993.</p>
<p>Mulroney, more than any modern day prime minister, sought to atone for the actions of his predecessor Trudeau in constitutional reform.</p>
<p>Investing enormous political capital in the <a href="https://www.historymuseum.ca/blog/meech-lake-accord-fails/">Meech Lake Accord</a> and then the <a href="https://www.constitutionalstudies.ca/2019/07/charlottetown-accord/">Charlottetown Accord</a>, Mulroney tried to increase the jurisdiction of the provinces, reform the Senate and recognize Québec as a distinct society. He wanted to extensively change the Constitution and correct what was not done, or in his view done poorly, in the patriation of the Constitution in 1982 and the introduction of the Charter of Rights and Freedoms. </p>
<h2>Constitutional reforms failed</h2>
<p>After pitched battles across the nation, both accords failed to meet the constitutional bar for ratification. In fact, the collapse of the accords — which had raised expectations in Québec — revived Québec separatism and <a href="https://www.ctvnews.ca/politics/mulroney-dismissed-bouchard-s-influence-as-meech-lake-accord-withered-records-1.1742812">led to the rise of the Bloc Québécois</a>.</p>
<p>The failure of the accords was a lesson subsequent prime ministers — Chrétien, Stephen Harper and Justin Trudeau — took to heart. None has dared to even hint at any kind of constitutional reform.</p>
<p>When in power, Mulroney led the Progressive Conservatives. After retirement from politics, Mulroney never felt at home at the renamed Conservative Party of Canada that was born with the <a href="https://www.ctvnews.ca/5-things/flashback-friday-on-this-day-in-2003-pcs-and-alliance-united-as-conservatives-1.2607589">merger of the Progressive Conservative Party and the Canadian Alliance in 2003</a>. </p>
<p>During one of his last major public events in June 2023, Mulroney sat on stage with Justin Trudeau at St. Francis Xavier University, the Nova Scotia institution from which Mulroney graduated. Mulroney <a href="https://www.cbc.ca/news/politics/brian-mulroney-defends-trudeau-parliament-gossip-trash-1.6882315">praised the incumbent</a> to such an extent that Trudeau said: “It’s… embarrassing when you’re speaking about me in such glowing terms.” </p>
<p>Mulroney leaves a perplexing legacy. A charismatic politician who led his party to two majority governments. A prime minister who made major and lasting changes to Canada’s economy. A successful business leader before and after his years in politics. </p>
<p>Yet, he was also a prime minister who failed to bring in constitutional reforms that seemed within his grasp and a leader who unleashed political turmoil in his home province that has had a lasting impact on the Canadian political landscape decades after he left office.</p><img src="https://counter.theconversation.com/content/224852/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Thomas Klassen does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
The death of former Canadian prime minister Brian Mulroney will lead to a wide examination of his legacy. A lasting policy of the Mulroney regime is free trade with the United States.
Thomas Klassen, Professor, School of Public Policy and Administration, York University, Canada
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/221503
2024-01-23T15:13:06Z
2024-01-23T15:13:06Z
What does Wales’ future hold? New report maps options for more devolution, federal and independent futures
<figure><img src="https://images.theconversation.com/files/570678/original/file-20240122-25-8l3je8.jpg?ixlib=rb-1.1.0&rect=20%2C20%2C6968%2C2305&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Independent Commission on the Constitutional Future of Wales was set up in 2021 and has been gathering evidence since then.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/united-kingdom-vs-wales-welsh-smoky-1354803587">vladm/Shutterstock</a></span></figcaption></figure><p>A <a href="https://www.gov.wales/independent-commission-constitutional-future-wales">commission</a> set up to consider the constitutional future of Wales has published its <a href="https://www.gov.wales/sites/default/files/publications/2024-01/independent-commission-on-the-constitutional-future-of-wales-final-report.pdf">final report</a>. The Independent Commission on the Constitutional Future of Wales, co-chaired by former Archbishop of Canterbury Dr Rowan Williams and Cardiff University’s Professor Laura McAllister, maps three different “viable” options.</p>
<p>First, they suggest “enhancing” devolution. This would see Wales operating similarly to how it does now, only with more powers for justice and policing, financial management and rail services. This option also proposes greater cooperation between Cardiff and London on energy and broadcasting.</p>
<p>Second, it suggests Wales joins a federalised UK system. This <a href="https://www.centreonconstitutionalchange.ac.uk/opinions/federal-future-uk">idea</a> often draws comparisons to the <a href="https://www.law.cornell.edu/wex/federalism">US model</a>. But the key feature here is granting Wales guaranteed legal rights and defined areas of responsibility, while the UK government handles broader matters like national security and international treaties.</p>
<p>Finally, it suggests a Wales which is fully independent from the UK.</p>
<p>While the commission finds all of the options to be possible, with advantages and disadvantages, it does not recommend one as the “correct” outcome. Instead it finds that there needs to be a constructive and evidence-based debate which engages Welsh citizens, so that an informed choice can be made. </p>
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<img alt="Rowan Williams stands next to Laura McCallister in the middle of a shopping street." src="https://images.theconversation.com/files/570683/original/file-20240122-29-v8agms.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/570683/original/file-20240122-29-v8agms.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/570683/original/file-20240122-29-v8agms.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/570683/original/file-20240122-29-v8agms.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/570683/original/file-20240122-29-v8agms.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/570683/original/file-20240122-29-v8agms.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/570683/original/file-20240122-29-v8agms.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Former Archbishop of Cantebury Dr Rowan Williams and Professor Laura McCallister co-chaired the commission.</span>
<span class="attribution"><span class="source">Independent Constitutional Commission for Wales</span></span>
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<p>The Welsh government <a href="https://www.gov.wales/node/42768/latest-external-org-content?page=4">established</a> the commission in 2021. It was set up to ensure Wales is ready for any radical changes in the union, such as Scottish independence, for example. The panel included people from the four main political parties, various organisations and also surveyed the Welsh public.</p>
<h2>Criticising the status quo</h2>
<p>The report maps the deficiencies in the current devolution settlement. It identifies how the fall-out from Brexit has exposed the fragility of devolution, through Westminster disregarding the <a href="https://commonslibrary.parliament.uk/research-briefings/sn02084/">Sewel convention</a>. This states the UK parliament will “not normally” pass a law which is within the remit of the devolved legislature without the <a href="https://www.parliament.uk/site-information/glossary/legislative-consent/">agreement</a> of the devolved institution. However, the convention is not legally enforceable. </p>
<p>Since the <a href="https://www.consoc.org.uk/wp-content/uploads/2018/04/Gordon-Anthony-Devolution-Brexit-and-the-Sewel-Convention-1.pdf">2016 referendum</a>, the report points out that the Sewel convention has been overridden on 11 occasions with virtually no scrutiny in Westminster. It finds that devolution is at risk of gradual attrition if steps are not taken to add legal enforcement to the current convention system.</p>
<p>In their <a href="https://www.gov.wales/sites/default/files/publications/2022-12/independent-commission-the-constitutional-future-of-wales-interim-report-december-2022.pdf">interim report</a>, published in December 2022, the commission found that the status quo is neither viable for the stability nor prosperity of Wales. However, in the <a href="https://www.gov.wales/sites/default/files/publications/2024-01/independent-commission-on-the-constitutional-future-of-wales-final-report.pdf">final report</a> the language surrounding this was revised slightly to reflect citizens having a choice to choose “no change”. </p>
<p>The language used by Professor McAllister at the Senedd report launch, however, was more critical. She expressed disappointment with the quality of evidence from those who should have been in a position to defend the status quo. </p>
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<iframe width="440" height="260" src="https://www.youtube.com/embed/WSOlBi1VY-g?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">Final report launch event at the Senedd.</span></figcaption>
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<h2>Communication and engagement</h2>
<p>Part of the commission’s work included surveying Welsh citizens. The report finds people in Wales are often unsure about who makes the decisions on different issues. Some people mistakenly believe areas like policing and broadcasting are already devolved to the Welsh government, while others incorrectly identified the UK government as being responsible for health. </p>
<p>The report offered insights as to why this may be the case. This includes an absence of a Welsh perspective on UK affairs in the media. For example, 73% of people agreed they don’t see or hear enough about how Wales is run. </p>
<p>Public confusion is another concern. When the UK government steps in on matters already devolved to Wales, citizens struggle to understand which government is calling the shots and on which issues.</p>
<p>It finds that 81% are very or fairly concerned about how Wales is run. But Welsh citizens also lack confidence in their knowledge of the governance of Wales when discussing the constitution in abstract terms. Despite the maturity of Wales’ democratic institutions, the commission finds that devolution does not yet enjoy citizens’ full confidence, and that Welsh democracy therefore needs strengthening. The findings stress the need for more democratic innovation and community engagement that is appropriately resourced. </p>
<p>The commission acknowledges the wider challenges surrounding the current UK environment, particularly in terms of declining trust in political institutions, and the polarisation of debates surrounding Brexit and COVID-19. It acknowledges that many conflate questions about constitutional structure with assessments of the government of the day, and so greater civic engagement is needed. </p>
<h2>What next?</h2>
<p><a href="https://www.gov.wales/sites/default/files/publications/2024-01/independent-commission-on-the-constitutional-future-of-wales-final-report.pdf">The commission</a> stresses that all options are theoretically viable. Which step is pursued is dependent upon the values and risks people are willing to accept. </p>
<p>The report details the harm independence would cause to the Welsh economy in the short to medium term, making it a particularly unattractive option in the current climate. It also states that support for an independent Wales, or indeed the abolition of the Senedd, are in the minority. </p>
<p>Regarding the federal model or Welsh independence, wider UK input would be needed. This is because some of the issues are outside the current <a href="https://commonslibrary.parliament.uk/research-briefings/cbp-8544/">competence of the Senedd</a>. </p>
<p>The option of an enhanced and protected devolution is more achievable, it says. But inter-governmental relations would need to be improved to achieve this. Some 92% of people surveyed believed it was important for governments to work together. The Welsh citizens who were questioned had little time for governments blaming each other, which ultimately feeds disaffection with politics entirely. </p>
<p>The next step must be about moving away from political point scoring and slogans, and widening the national conversation about what could be the best constitutional future for Wales. Politicians in the Senedd and Westminster will set the initial tone but that debate needs to be mature and evidence-based.</p><img src="https://counter.theconversation.com/content/221503/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Stephen Clear does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
The Independent Commission on the Constitutional Future of Wales acknowledges each option requires UK government involvement.
Stephen Clear, Lecturer in Constitutional and Administrative Law, and Public Procurement, Bangor University
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/217639
2023-11-23T17:42:31Z
2023-11-23T17:42:31Z
After 8 years in power, what is Justin Trudeau’s legacy — and how will he cement it?
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<p>Justin Trudeau led the Liberals <a href="https://www.cbc.ca/news2/interactives/results-2015/">to electoral victory in 2015</a>, when the party began the federal election campaign with just three dozen MPs in the House of Commons. </p>
<p>Trudeau’s <a href="https://liberal.ca/wp-content/uploads/sites/292/2020/09/New-plan-for-a-strong-middle-class.pdf">campaign platform</a> promised Canadians significant reforms in several areas.</p>
<p>How has he fared? Let’s take a look.</p>
<h2>Gender equity</h2>
<p>Trudeau acted quickly to fulfil his promises on gender equality, appointing a cabinet that was — and continues to be — 50 per cent women. </p>
<p>Thanks to six consecutive Supreme Court of Canada appointments by Trudeau, there are <a href="https://www.reuters.com/world/americas/canada-top-court-get-first-woman-majority-bench-with-trudeaus-new-nominee-2023-10-26/">more women than men</a> on the court for the first time in Canadian history. </p>
<p>It seems unlikely that future prime ministers will be able to claim that there are insufficient qualified women in their caucus to maintain the 50 per cent female precedent set by Trudeau. The same applies to Supreme Court appointments, and those of other government bodies.</p>
<h2>Indigenous agenda</h2>
<p>Trudeau also acted quickly on his reconciliation agenda with Canada’s Indigenous communities. </p>
<p>Expectations were high, but only limited progress has been made on access to services such as drinking water, child welfare, housing and health care for First Nations, Inuit and Métis people. </p>
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Read more:
<a href="https://theconversation.com/trudeau-launches-canada-into-a-radically-new-approach-to-indigenous-affairs-53159">Trudeau launches Canada into a radically new approach to Indigenous affairs</a>
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<p>However, there has been some movement on all fronts, and there is now <a href="https://www.sac-isc.gc.ca/eng/1506514143353/1533317130660">public accountability and tracking</a>.</p>
<p>A future government may not be as active as Trudeau’s Liberals in <a href="https://www.rcaanc-cirnac.gc.ca/eng/1499711968320/1529105436687">consulting with First Nations, Inuit and Métis leaders</a> but the priority given to Indigenous Peoples in Canadian politics is unlikely to slide back to where it was in 2015.</p>
<h2>Legal drugs</h2>
<p>A controversial platform item in 2015 was the legalization of cannabis, which departed from the prohibitionist view held by previous governments of all political stripes. </p>
<p>By 2018, recreational cannabis sale and use was legal in Canada with relatively little opposition. At present, at the five-year mark, the policy is largely accepted, even if the <a href="https://www.ctvnews.ca/health/five-years-later-researchers-say-the-impacts-of-legalizing-cannabis-in-canada-have-been-mixed-1.6596478">public health outcomes are mixed</a>. </p>
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Read more:
<a href="https://theconversation.com/a-campaign-promise-kept-canadas-modestly-successful-cannabis-legalization-122380">A campaign promise kept: Canada's modestly successful cannabis legalization</a>
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<p>It’s highly unlikely any future government would be able to roll back the legislative changes that now permit <a href="https://www.canada.ca/en/health-canada/services/drugs-medication/cannabis/laws-regulations/provinces-territories.html">cannabis shops across Canada</a>, from Watson Lake in Yukon to Happy Valley-Goose Bay in Labrador. </p>
<p>As the experience with the legalization of gambling shows, <a href="https://www.cbc.ca/news/business/ontario-online-gaming-wagers-sports-casino-1.6911479">governments become addicted to the revenues generated</a> and jobs created from creating consumer demand for previously illegal activities. Private-sector producers and retailers of cannabis would also fight against any attempt to shrink their market.</p>
<h2>Other initiatives</h2>
<p>Other noteworthy reforms under Trudeau include non-partisan Senate appointments, a carbon tax and early learning and child-care bilateral agreements. However, each of these is subject to reversal. A future prime minister may have different criteria in appointing senators. </p>
<p>The carbon tax remains precarious, with the Conservatives calling for a <a href="https://www.ctvnews.ca/politics/poilievre-wants-a-carbon-tax-election-liberals-say-bring-it-on-1.6626287">carbon tax election</a>. </p>
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Read more:
<a href="https://theconversation.com/are-freeloading-premiers-undermining-canadas-climate-strategy-217638">Are freeloading premiers undermining Canada's climate strategy?</a>
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<p>The <a href="https://www.canada.ca/en/early-learning-child-care-agreement/agreements-provinces-territories.html">child-care agreements with the provinces</a> that will see fees decrease to $10 a day by 2026 have been made possible by federal funds that are too enticing for the premiers to pass up. </p>
<p>However, a future government may not have the same spending priorities, at which time the role of the state in <a href="https://activehistory.ca/blog/2021/05/18/childcare2021/">child-care policy may shift</a> yet again. </p>
<h2>Will Trudeau resign?</h2>
<p>There is no sign that Trudeau will depart before the next election even as the latest polls <a href="https://www.reuters.com/world/americas/canadas-trudeau-far-behind-polls-remains-liberals-best-chance-2023-10-11/">show his party trails the Conservatives</a>. There is little precedent of Canadian prime ministers resigning before they must. </p>
<p>Stephen Harper, John Diefenbaker and Louis St. Laurent lost at the polls. <a href="https://www.economist.com/the-americas/2002/06/06/jean-chretien-v-paul-martin-now-its-really-war">Jean Chrétien was pushed out by his own party</a>. <a href="http://www.biographi.ca/en/bio/king_william_lyon_mackenzie_17E.html">William Lyon Mackenzie King</a> and <a href="https://www.thecanadianencyclopedia.ca/en/article/lester-bowles-pearson">Lester Pearson resigned due to ill health</a>. </p>
<p><a href="https://www.cbc.ca/player/play/1751950795">Brian Mulroney</a> and Justin Trudeau’s father, <a href="https://ottawacitizen.com/news/national/trudeaus-third-walk-in-the-snow">Pierre, resigned</a> when polls over a long period of time made it abundantly clear they — and their parties — would be voted out of office. </p>
<h2>Legacy lesson from the elder Trudeau?</h2>
<p>Although some of Trudeau’s legacy is secure, none of it has redefined the nation and isn’t likely to do so in the future. </p>
<p>The <a href="https://calgaryherald.com/opinion/columnists/brownsey-after-40-years-the-charter-of-rights-and-freedoms-steered-canada-toward-a-better-society">last landmark achievement</a> of a Canadian prime minister was 40 years ago, when Trudeau’s father succeeded in repatriating the Constitution from Great Britain and enshrining the Charter of Rights and Freedoms. This type of bold constitutional reform could provide inspiration to Justin Trudeau in how to cement his legacy.</p>
<p><a href="https://policyoptions.irpp.org/magazines/may-2023/abolish-monarchy-goodbye-charles/">Removing King Charles as Canada’s head of state</a> is an attractive proposition if Trudeau needs votes in Québec, where the monarchy has never been popular. </p>
<p>It would also appeal to voters in Canada’s large urban areas, where immigration patterns have reduced the proportion of voters with a connection to the U.K.</p>
<p>For the Liberals to win the next election, after all, they require votes in Québec and in Vancouver, Toronto and Montréal. </p>
<h2>Indigenous head of state?</h2>
<p>Opening the Constitution for a homegrown head of state could also ensure future Indigenous heads of state like the current governor general <a href="https://policyoptions.irpp.org/magazines/december-2022/monarchy-canada-indigenous/">appointed by Trudeau</a>, Mary Simon. Governor generals serve as the monarch’s representative in Canada. </p>
<p>Constitutional reform proposals <a href="https://www.theglobeandmail.com/opinion/article-launching-constitutional-reform-in-canada-would-be-a-terrible-idea/">are fraught with dangers</a>, as Mulroney well knows. His two attempts at constitutional amendment that would have decentralized the federation — the Meech Lake Accord in 1990 and the Charlottetown Accord in 1992 — consumed immense political capital but ultimately <a href="https://www.thestar.com/opinion/rejection-of-charlottetown-accord-ended-era-of-constitutional-reform/article_f678e1dd-d6cb-5714-8e99-410b26577af9.html">ended in failure</a>. </p>
<p>But as Trudeau heads into what will likely be his last election, opening the Pandora’s box of constitutional reform might offer one route to secure a legacy that few other prime ministers can match.</p><img src="https://counter.theconversation.com/content/217639/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Thomas Klassen does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
Justin Trudeau has been in power for almost a decade, achieving some of his objectives and stalling on others. What will be his legacy, and is constitutional reform in the cards in the next two years?
Thomas Klassen, Professor, School of Public Policy and Administration, York University, Canada
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/215820
2023-10-31T15:29:03Z
2023-10-31T15:29:03Z
Kenya’s courts were under political pressure: how a constitutional reform empowered judges
<p>Changes to Kenya’s constitution in <a href="http://kenyalaw.org/kl/index.php?id=398">2010</a> on the <a href="https://www.klrc.go.ke/index.php/constitution-of-kenya/134-chapter-ten-judiciary/part-1-judicial-authority-and-legal-system/329-160-independence-of-the-judiciary">independence of the judiciary</a> created room for judges to act as guardians of the electoral process. </p>
<p>Before this, the law gave Kenya’s presidents considerable influence over courts’ actions. <a href="https://www.sciencedirect.com/science/article/abs/pii/S0261379423000756">Historically</a>, the judiciary was not an independent branch. It was categorised as a governmental department working under the authority of the attorney general. The president was responsible for appointing judges. </p>
<p>For instance, <a href="https://www.britannica.com/biography/Daniel-arap-Moi">Daniel Moi</a>, who was president from 1978 to 2002, <a href="https://www.pd.co.ke/news/former-top-judge-blows-lid-off-moi-regime-dirty-bench-antics-61768/">systematically appointed loyalists</a>. The close links between the government and the judiciary made it pointless to go to court to challenge electoral disputes. </p>
<p>The 2010 constitution changed this. And in 2017, the Kenyan supreme court, the highest court in the country, <a href="https://www.reuters.com/article/us-kenya-election-court/kenyan-court-scraps-presidential-vote-kenyatta-calls-for-calm-idUSKCN1BC4A5">annulled the re-election of the presidential incumbent, Uhuru Kenyatta</a>. The ruling asked the electoral commission to organise a rerun of the presidential election. This was despite the <a href="http://kenyalaw.org/caselaw/cases/view/140716/">threats and pressure</a> the judges faced. </p>
<p>As a political scientist and former lawyer researching judicial politics in non-democratic settings, I found this change in behaviour puzzling. In <a href="https://www.sciencedirect.com/science/article/abs/pii/S0261379423000756">a recent paper</a>, I sought to understand why a court would take such a risk. Where judges face retaliation and pressure from political actors, why – and when – would courts take the risk of nullifying the elections of ruling party candidates? </p>
<p>I found that courts take such risks when there has been institutional reform. But to have this effect, the reform must meet two conditions. </p>
<p>First, a legal framework must shield the judiciary from political interference. It must create distance between the executive and the judiciary branch. Second, legal reforms must also mobilise judicial activists, lawyers and scholars to train and monitor courts on electoral issues. The Kenyan case illustrates how this works.</p>
<h2>The legal framework</h2>
<p>Kenya’s 2010 constitution put in place mechanisms to shield the judiciary from executive branch interference. First, the judiciary stopped operating under the leadership of the attorney general, an executive office. This made the separation between the two branches of power official. Second, the constitution <a href="https://www.klrc.go.ke/index.php/constitution-of-kenya/134-chapter-ten-judiciary/part-1-judicial-authority-and-legal-system/329-160-independence-of-the-judiciary">removed</a> the president’s prerogative to appoint judges. </p>
<p>My study found that constitutional reforms should not give the executive branch any decision-making power over the functioning and organisation of the judiciary. </p>
<p>In Kenya, the <a href="https://judiciary.go.ke/judicial-service-commission/">Judicial Service Commission</a>, an independent body established under the constitution in 2010, is responsible for all appointments. Judges go through a rigorous process where their legal skills and personal ethics are questioned before they are appointed. This process prevents the president from appointing regime supporters. </p>
<p>Kenya’s reforms also modified the structure of the judiciary by creating the <a href="https://supremecourt.judiciary.go.ke/">supreme court</a> and diluting the <a href="https://ocj.judiciary.go.ke/cj-roles/">authority of the chief justice</a>. A new <a href="https://www.judiciary.go.ke/wp-content/uploads/2023/07/Public-Hearing-2023-1.pdf#page=4">special fund</a> gave the judiciary financial autonomy. </p>
<p>The constitution also contains specific provisions regulating how the judiciary settles electoral disputes. Before 2010, it took years to settle them. The constitution established a <a href="https://www.klrc.go.ke/index.php/constitution-of-kenya/130-chapter-nine-the-executive/part-2-the-president-and-deputy-president/308-140-questions-as-to-validity-of-presidential-election">mandatory timeline</a>. Courts have six months to deal with electoral disputes and 14 days to rule on presidential elections. </p>
<h2>Strong judicial networks</h2>
<p>These legal mechanisms are not sufficient on their own. They must create the space for civil society groups to interact with the judiciary, and encourage collaboration between activists, lawyers and scholars. By teaming up, these groups bring together more resources, expertise and experience. </p>
<p>They can help courts to resist government pressures. In Kenya, I found that these networks of lawyers, activists and scholars used three strategies to empower courts.</p>
<p><strong>1. Strategic petitions</strong></p>
<p>Lawyers, activists and scholars in Kenya have engaged in strategic litigation to improve the quality of election petitions, pushing courts to depart from the old English precedent, <a href="https://vlex.co.uk/vid/morgan-v-simpson-793009613">Morgan v Simpson</a>. The 1974 ruling requires plaintiffs to show that electoral fraud occurred, and that the fraudulent behaviour affected an election’s outcome. These Kenyan networks have given courts the opportunity to change their electoral jurisprudence. </p>
<p>In the 2017 <a href="http://kenyalaw.org/caselaw/cases/view/140716/">presidential election petition</a> filed by <a href="https://theconversation.com/raila-odinga-should-be-thanked-his-election-losses-helped-deepen-kenyas-democracy-190044">Raila Odinga</a>, the supreme court changed its jurisprudence. It established that petitioners had to prove either that electoral fraud took place, or that these irregularities affected election outcomes. This means plaintiffs don’t need to meet the two conditions at the same time, making it easier for opposition candidates to win a case. </p>
<p><strong>2. Judicial training</strong></p>
<p>These networks hold training and professionalisation workshops with the <a href="https://judiciary.go.ke/judiciary-committee-on-elections-jce/">Judiciary Committee on Elections</a>. The sessions help judges to deal with issues such as tight constitutional timelines. They also aim to build a more coherent approach to electoral petitions and discourage arbitrary decisions. </p>
<p><strong>3. Increased scrutiny</strong></p>
<p>The mobilisation of these networks has put the judiciary under intense scrutiny. They can detect inconsistencies or flawed legal reasoning in courts’ decisions. This scrutiny has direct effects on courts’ behaviour.</p>
<p>Most of the judges I interviewed for <a href="https://www.sciencedirect.com/science/article/abs/pii/S0261379423000756">my paper</a> remember the atrocities committed following Kenya’s <a href="https://www.aljazeera.com/features/2013/3/3/kenya-what-went-wrong-in-2007">2007 election</a>. For many, the judiciary’s inability to settle the electoral dispute effectively plunged the country into violence. More than 1,100 people died. The conflict almost put the future of judicial institutions into jeopardy. </p>
<p>The supreme court knows that <a href="https://theconversation.com/how-kenyas-judiciary-can-break-the-cycle-of-electoral-violence-182710">any future misstep</a> could threaten the institution’s survival and the country’s political stability. </p>
<h2>The lessons</h2>
<p>Policymakers can draw important lessons from the Kenyan case. </p>
<p>First, to prevent political actors from using courts for their own political gain, policymakers must design judicial institutions that cannot be influenced by the government’s agenda. They should identify all pathways through which governments could influence courts – not only through appointments. </p>
<p>Second, by funding and supporting civil society’s judicial activities, donors can help courts uphold electoral integrity and put states on the path to democratisation.</p><img src="https://counter.theconversation.com/content/215820/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Thalia Gerzso received funding from the United States Institute of Peace, the American Political Science Association, the Cornell Graduate School, and the Qualitative and Interpretive Research Institute. </span></em></p>
Two conditions enable courts to take the risk of nullifying the elections of ruling party candidates.
Thalia Gerzso, Postdoctoral Fellow, London School of Economics and Political Science
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/208666
2023-09-01T11:26:18Z
2023-09-01T11:26:18Z
King Carl XVI Gustaf of Sweden: 50 years of banal royalism
<p>The <a href="https://theconversation.com/what-do-britains-tears-for-queen-elizabeth-mean-190784">death of Queen Elizabeth II</a> in September 2022 and the subsequent <a href="https://theconversation.com/king-charles-iiis-coronation-oath-is-a-crucial-part-of-the-ceremony-experts-explain-202870">coronation of King Charles III</a> eight months later, were international media events of historic proportions. People around the world observed, in close detail, how the UK’s royal institution consolidates its authority by using ritual to link to the past. </p>
<p>Over the weekend of September 15 and 16 2023, Sweden will celebrate its own royal occasion, the golden jubilee of King Carl XVI Gustaf. This represents a significant national moment. Several TV documentaries have been made. A plethora of books and magazines have been published. Podcasts have been recorded.</p>
<p>Since the 1970s, the Swedish crown has gained its legitimacy and popular support by being perceived as <a href="https://www.tandfonline.com/doi/full/10.1080/08038740.2013.808261">being above politics</a>. This contemporary monarchy was the result of constitutional reforms implemented in the 1970s, which renounced extravagance and ritual. </p>
<p>The Swedish royal family garners notably less attention worldwide than the British monarchy. Where the British coronation ceremony, replete with ritual magic and religious symbolism, is notable for its extravagance, Sweden is characterised by a distinctive <a href="https://portal.research.lu.se/en/publications/the-king-and-public-power-in-the-minimalist-monarchy-of-sweden">monarchical minimalism</a>. </p>
<p>Our research shows that having little political power is precisely what gives the royal family continued cultural and political relevance in modern Sweden. This may be of interest to the British royal family if their popularity continues to decrease over time.</p>
<h2>Towards a low-key monarchy</h2>
<p>Of the nine remaining hereditary monarchies in Europe, the Swedish monarchy has the least power and resources. All European royal families are essentially politically powerless and play a minimal role in their governments’ affairs. However, quite how their constitutional role – and the societal and political meaning afforded them – is shaped, differs by country. </p>
<p>After Oscar II was crowned King in 1873, Sweden eschewed coronations in favour of a simpler – and crucially less expensive – inauguration. Royal regalia including the crown, sword and sceptre, were displayed, but not handed to the monarch.</p>
<p>From the 1950s, the political parties in Sweden agreed that <a href="https://www.google.se/books/edition/Monarkins_makt/pdnZLGg5i1sC?hl=sv&gbpv=1&printsec=frontcover">constitutional reform was necessary</a>. Reaching agreement on the fundamental principles, however, was a complicated, long-winded process. Many members of the Social Democratic party were pushing for the country to become a republic, while the more conservative voices sought to retain the monarchy.</p>
<p>In August 1971, a cross-party committee of inquiry convened in Torekov, a coastal town in southern Sweden, and agreed on what became known as the <a href="https://lucris.lub.lu.se/ws/portalfiles/portal/83875920/Wenander_The_King_and_Public_Power_in_the_Minimalist_Monarchy_of_Sweden_in_Hazell_Morris_The_role_of_Monarchy_in_Modern_Democracy_2020.pdf">Torekov compromise</a>. </p>
<p>This stipulated that the country would not become a republic with an elected president. Instead, it would remain a constitutional monarchy, with the Bernadotte dynasty holding the throne. The king, however, would be stripped of all constitutional powers – including the power to appoint the prime minister, sign government bills and preside over cabinet meetings. </p>
<p>The new constitution of 1974 drastically reduced the Swedish monarchy. As former prime minister Olof Palme <a href="http://www.olofpalme.org/1972/10/07/avslutningsanforande-vid-saps-kongress-3/">put it</a>: “There is only a plume left, a decoration.”</p>
<p>To Palme’s mind, very little now stood in the way of abolishing the monarchy entirely.</p>
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<p>In 1979, the Swedish parliament voted to introduce gender-neutral succession. This placed the royal couple’s first-born child, a girl, ahead of her brother. By doing away with this antiquated tradition of male-preference primogeniture, the monarchy was aligned with modernity. This reflected the societal push for gender equality.</p>
<h2>An ordinary (royal) family</h2>
<p>After the 1974 constitutional shift, the media, too, emphasised the family’s ordinariness, their <a href="https://su.diva-portal.org/smash/record.jsf?dswid=-1131&pid=diva2%3A1699695&c=5&searchType=RESEARCH&language=sv&af=%5B%5D&aq=%5B%5B%7B%22personId%22%3A%22authority-person%3A88331%22%7D%5D%5D&aq2=%5B%5B%5D%5D&aqe=%5B%5D&noOfRows=50&sortOrder=author_sort_asc&sortOrder2=title_sort_asc&onlyFullText=false&sf=all">“just like us”</a> quality. </p>
<p>Royal birthdays, marriages, deaths and births have, since the 1970s, been framed in <a href="https://www.diva-portal.org/smash/record.jsf?pid=diva2%3A181195&dswid=1549">emotional and intimate</a> terms, as <a href="https://su.diva-portal.org/smash/get/diva2:211721/FULLTEXT01.pdf">moments of national pleasure</a> unrelated to politics and government.</p>
<p>The Year with the Royal Family has been part of Christmas scheduling on public service TV since 1977. This show introduces viewers to the royals’ everyday life and festive celebrations. A typical scene from 1985 features the family making sausages in the palace kitchen – the king in a red cardigan, the children in matching white aprons. Four decades on, it continues to be used in <a href="https://www.svenskdam.se/webb-tv/mera-kott-se-den-ikoniska-julfilmen-pa-kungafamiljen/5960501">media coverage</a>. </p>
<p>In 2010, the crown princess Victoria’s <a href="https://en.wikipedia.org/wiki/Wedding_of_Victoria,_Crown_Princess_of_Sweden,_and_Daniel_Westling">marriage to Daniel Westling</a> drew thousands of people to Stockholm and was broadcast live to <a href="https://www.svt.se/kultur/sa-manga-sag-prinsbrollopet">3.2 million viewers</a>. This emotional narrative centred on the couple being <a href="https://www.taylorfrancis.com/chapters/edit/10.4324/9781315884783-5/royal-love-anna-adeniji">modern and gender-equal</a>. Westling, a personal trainer, was <a href="https://su.diva-portal.org/smash/record.jsf?pid=diva2%3A860520&dswid=-1131">often referred to</a> as a “man of the people”. </p>
<p>These media portrayals have sought to underline quite how ordinary the royal family is and how the public might identify with them. Yet it is this very ordinariness that, paradoxically, confirms their special status. It is special that they are just like us, which of course confirms that they are not. </p>
<p>This specialness is clearly illustrated in the annual Nobel prize ceremony. The king hands out the medals on behalf of the Nobel committee. Pundits, meanwhile, focus on what the royal women are <a href="https://www.diva-portal.org/smash/record.jsf?pid=diva2%3A181195&dswid=-4036">wearing</a>. Media research has <a href="https://ojs.ub.gu.se/index.php/tgv/article/view/4276/3470">shown</a> how the queen, in particular, becomes the focal point of the televised Nobel banquet – an aspirational symbol of traditional, ideal femininity and class.</p>
<p>In his 1995 book, <a href="https://thecharnelhouse1.files.wordpress.com/2018/10/michael-billig-banal-nationalism-sage-1995.pdf">Banal Nationalism</a>, British social psychologist Michael Billig unpicks how nationalism is reproduced in everyday life via ordinary, unremarkable reminders. </p>
<p>Similarly, we might talk about “banal royalism” to describe how closely tied the Swedish royal institution is to the private lives of ordinary citizens – their superiority accentuated by their proximity to normal people.</p>
<p>It is precisely the monarch’s lack of political power and the royal family’s ordinariness that account for their strong position and the influence they continue to wield within Swedish society. If the Torekov compromise rendered Swedish royals <a href="https://www.tandfonline.com/doi/abs/10.1080/08038740.2013.808261">powerless</a>, it also gave the monarchy continued leverage. </p>
<p>The forthcoming golden jubilee, however, might just see this change. Members of the nationalist Sweden Democrats have argued for <a href="https://www.riksdagen.se/sv/dokument-och-lagar/dokument/motion/grundlag_h802797/">reintroducing</a> previously discarded royal ceremonies and <a href="https://www.riksdagen.se/sv/dokument-och-lagar/dokument/motion/aterforande-av-ansvaret-for-aproposals%20-ny_ha02799/">returning formal powers</a> to the king. </p>
<p>These proposals may turn out to be a threat to the monarchy precisely because they politicise the institution. We insist that giving political power back to this enduring national symbol could well mark its demise.</p><img src="https://counter.theconversation.com/content/208666/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Cecilia Åse receives funding from The Swedish Research Council,The Riksbank's Anniversary Fund, The Wallenberg Foundation and Författarförbundet. </span></em></p><p class="fine-print"><em><span>Mattias Frihammar receives funding from The Swedish Research Council,The Riksbank's Anniversary Fund</span></em></p>
Having little political power has long been what has given the Swedish royal family its continued cultural and political relevance in modern times.
Cecilia Åse, Professor of Gender Studies, Stockholm University
Mattias Frihammar, Associate Professor of Ethnology, Stockholm University
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/199832
2023-02-16T13:12:04Z
2023-02-16T13:12:04Z
Tanzania is ruled with impunity – four key issues behind calls for constitutional reform
<figure><img src="https://images.theconversation.com/files/510162/original/file-20230214-20-egw7ke.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Tanzanian opposition politician Freeman Mbowe (left) flashes a victory sign at a public rally in January 2023.
</span> <span class="attribution"><span class="source">Michael Jamson/AFP via Getty Images</span></span></figcaption></figure><p>Tanzania’s president issued a <a href="https://www.amnesty.org/en/latest/news/2023/01/tanzania-president-hassan-lifts-the-blanket-ban-on-political-assemblies/">statement</a> in June 2016 announcing a ban on political rallies outside campaign periods. The ban was unconstitutional. </p>
<p><a href="https://rsf.org/sites/default/files/constitution.pdf#page=17">Article 20 (1)</a> of the constitution of Tanzania allows for public assembly. Other laws, such as the <a href="https://media.tanzlii.org/files/legislation/akn-tz-act-1992-5-eng-2019-11-30.pdf">Political Parties Act</a> and the <a href="https://www.tanzanialaws.com/principal-legislation/parliamentary-immunities-powers-and-privileges-act">Parliamentary Immunities, Powers and Privilege Act</a>, give political parties and politicians the right to conduct rallies. </p>
<p>Despite these laws, it took another <a href="https://www.hrw.org/news/2023/01/09/tanzania-ends-ban-political-rallies">presidential statement</a> in January 2023 to unban rallies. This illustrates the power of the president – even over the constitution. </p>
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Read more:
<a href="https://theconversation.com/tanzania-opposition-rallies-are-finally-unbanned-but-this-doesnt-mean-democratic-reform-is-coming-198436">Tanzania: opposition rallies are finally unbanned – but this doesn't mean democratic reform is coming</a>
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<p>Opposition parties and activists have noted that this great presidential power is a constitutional loophole. The Tanzanian constitution has proved to be weak in protecting itself. </p>
<p>A constitution can protect itself if it has clear checks and balances. With <a href="https://www.cfr.org/blog/interview-tundu-lissu-discusses-need-constitutional-reform-tanzania">imperial presidential powers</a>, the constitution gives the executive branch of government the upper hand over the two other branches of government: the judiciary and legislature. </p>
<p>Such powers – and their abuse – have led opposition parties and activists to <a href="https://theconversation.com/tanzania-must-face-up-to-calls-for-reform-if-it-wants-to-keep-the-peace-172967">call</a> for constitutional reviews. </p>
<p>There are four reasons driving the agitation for constitutional change in Tanzania: unfree and unfair elections; unchecked presidential powers; political impunity; and the skewed political arrangement between Tanzania and Zanzibar.</p>
<h2>Entrenching dominance</h2>
<p>Recent calls for constitutional change in Tanzania <a href="https://www.theafricareport.com/109246/tanzania-whats-really-behind-ccms-refusal-to-change-the-constitution/">began in 2010</a>. A constitutional review commission was set up in 2012, headed by former prime minister <a href="https://www.taas-online.or.tz/members/view/hon-joseph-sinde-warioba">Joseph Warioba</a>. The commission drafted a report, and a constitutional review assembly was set up to debate it. </p>
<p>The review assembly was dominated by members of the ruling party, Chama cha Mapinduzi. They altered the Warioba report and proposed a draft constitution similar to the existing one. A coalition of opposition parties boycotted the process and it stalled. </p>
<p>Maintaining the same constitution has been the ruling party’s strategy. The current constitution facilitates <a href="https://www.wits.ac.za/news/latest-news/opinion/2022/2022-07/tanzanias-undemocratic-constitution-is-a-template-for-disaster.html">one-party dominance</a> by entrenching the party’s and president’s power. </p>
<p>Further review was stopped by president <a href="https://theconversation.com/tanzanias-john-magufuli-a-brilliant-start-but-an-ignominious-end-157092">John Pombe Magufuli</a>, who came into power in 2015. Magufuli rejected any calls for constitutional reforms – and acted in a way that disregarded the existing law.</p>
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Read more:
<a href="https://theconversation.com/tanzanias-john-magufuli-a-brilliant-start-but-an-ignominious-end-157092">Tanzania’s John Magufuli: a brilliant start but an ignominious end</a>
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<h2>Chasing change</h2>
<p>The four triggers for constitutional reform in Tanzania are related.</p>
<p><strong>1. Repeated unfree and unfair elections</strong> </p>
<p>In Tanzania, unfree and unfair elections began after the constitution was amended <a href="https://www.eisa.org/wep/tan5.htm">in 1992</a> to allow for multi-party elections. Since then, there have been six general elections. Each has been marred by accusations of an <a href="https://heinonline.org/HOL/LandingPage?handle=hein.journals/jpola5&div=36&id=&page=">unlevel playing field</a>, <a href="https://www.theguardian.com/global-development/2015/oct/29/tanzania-announces-election-winner-amid-claims-of-vote-rigging">rigging</a> and violence. The <a href="https://news.un.org/en/story/2020/11/1077292">2020 general election</a> was especially violent. </p>
<p>Constitutional reform is crucial to realise free and fair elections. This is because the composition of the electoral commission as provided for by the constitution is bound to be biased. The president, who is often the incumbent candidate and the chairperson of the ruling party, is responsible for appointing the executive director and commissioners of the commission. All election returning officers at the constituency level are also presidential appointees. </p>
<p>The consequence is that electoral officials are likely to be loyal to their appointing authority rather than to the ideals of free and fair elections. </p>
<p>Additionally, once the presidential vote has been announced, the constitution <a href="https://www.thecitizen.co.tz/news/1840340-5593992-b0yrsv/index.html">doesn’t allow for it to be challenged in court</a>. </p>
<p><strong>2. Unchecked presidential powers</strong> </p>
<p>Under the current constitution, the president of Tanzania has enormous power. He or she appoints senior officials in other branches of government and all heads of public institutions. This includes the chief justice, all other judges and the inspector general of police. The president also appoints the controller audit general, who audits government accounts. </p>
<p>Through loyalty, these appointees are likely to enforce the president’s statements even if they are unconstitutional. </p>
<p>Further, the president cannot be prosecuted as per <a href="https://rsf.org/sites/default/files/constitution.pdf#page=29">Article 46</a> of the constitution. The president is protected during and after their tenure in office. Such provisions promote impunity. </p>
<p><strong>3. Impunity</strong> </p>
<p>Impunity in Tanzania plays out where one group of people can do what they like politically, while another group – in particular opposition politicians – faces excessive exposure to an unjust system. </p>
<p>Trumped up charges against opposition leaders, activists and business people deemed critical of the president are popular tools for keeping critics silent. Such charges, facilitated by undemocratic laws, were used during Magufuli’s regime. Magufuli <a href="https://www.aljazeera.com/news/2021/3/17/tanzanian-president-john-magufuli-is-dead-vp">died in March 2021</a> and was succeeded by Samia Suluhu Hassan.</p>
<p>In the early days of Hassan’s administration, in July 2021, Freeman Mbowe, the leader of the opposition party Chadema, was <a href="https://www.aljazeera.com/news/2021/8/31/tanzania-opposition-leader-freeman-mbowe-appears-in-court-to-face-charges">arrested and charged</a> with terrorism offences. Due to political pressure – and a failure to find evidence – the <a href="https://www.bbc.com/news/world-africa-60616800">charges were dropped</a>. Mbowe spent eight months in jail.</p>
<p>After his release in March 2022, Hassan <a href="https://www.reuters.com/world/africa/tanzania-frees-detained-opposition-leader-mbowe-drops-charges-citizen-newspaper-2022-03-04/">expressed her determination</a> to boost the country’s democracy. She has also expressed her resentment of the unjust political system and <a href="https://www.thecitizen.co.tz/tanzania/news/national/massive-fraud-at-the-dpp-s-office-as-plea-bargain-money-stashed-away-in-china-4106530">called out corruption</a> at the office of public prosecutions. </p>
<p>But presidential sentiments like these are not adequate as they don’t lead to institutional changes in political structures or norms. </p>
<p><strong>4. The Tanzania-Zanzibar agreement</strong> </p>
<p>This is arguably the most contentious trigger for calls for constitutional reform. </p>
<p>The political relationship between the island of Zanzibar and the mainland, Tanzania, has raised calls for Zanzibari autonomy. The government of the United Republic of Tanzania deals with union matters, as well as all mainland issues. The Revolutionary Government of Zanzibar deals with the matters of Zanzibar only. </p>
<p>Opposition leaders have argued that the constitution and this current structure increase the ruling party’s influence in Zanzibari politics. Constitutional debate on this issue is often around <a href="https://www.jstor.org/stable/45342101">four proposed structures</a>: one joint government, two governments, three governments (with the union being the <a href="https://www.theeastafrican.co.ke/tea/news/east-africa/zanzibar-mourns-the-advocate-of-three-tier-system-of-government--1354218">third tier</a>), or a confederation with a central authority. </p>
<h2>What next?</h2>
<p>The underlying call for constitutional reform seeks to uproot the one-party state system to allow for accountability and democratic progress in Tanzania. Under the current constitution, any pronouncements of change are cosmetic, with no sustainable effects. </p>
<p>For Tanzania to realise real and sustainable democracy, a new constitution is necessary.</p><img src="https://counter.theconversation.com/content/199832/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Aikande Clement Kwayu has previous received funding from various academic and research institutions. She has volunteered at CHADEMA. </span></em></p>
Tanzania’s six-year ban on political rallies shows how the president’s power can override the constitution.
Aikande Clement Kwayu, Independent researcher & Lecturer, Tumaini University Makumira
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/195976
2022-12-07T12:09:34Z
2022-12-07T12:09:34Z
Labour’s plan to ‘abolish’ the House of Lords: what exactly has been proposed – and the chances Keir Starmer will adopt it
<p>A commission led by former prime minister Gordon Brown has called for a future Labour government to replace the controversial House of Lords with an elected upper chamber, in a landmark report on reforming the UK’s messy constitution.</p>
<p>Brown was tasked with setting out wide-ranging ideas about the future shape of the UK but this is perhaps the most significant. The House of Lords is currently unelected and still includes <a href="https://www.parliament.uk/site-information/glossary/hereditary-peers/">92 hereditary peers</a> – people who inherited their seat through family lineage – <a href="https://www.parliament.uk/business/lords/lords-history/lords-reform/">years after a pledge to get rid of them</a>. </p>
<p>In a short speech to launch the report, titled <a href="https://labour.org.uk/page/a-new-britain/">A New Britain</a>, Labour leader Keir Starmer said he would set out the details of the reforms he wants to take forward in the party’s next election manifesto. But he immediately stated his commitment to a smaller, democratically elected upper chamber.</p>
<p>Constitutional reform is often dismissed as a distraction from issues that voters care about, such as the economy, health and education. The report tries to overcome this critique by presenting constitutional and economic renewal as intertwined. In this vision, the economy is reformed by redistributing powers away from Westminster. </p>
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<figcaption><span class="caption">Keir Starmer responds to the Brown report.</span></figcaption>
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<p>Crucially, the report acknowledges that a long-term commitment to decentralising power cannot be secured through legal mechanisms alone. Under the UK’s constitution, the legal principle of parliamentary sovereignty means that a future parliament can simply legislate to re-centralise power if it opposes devolution. The country therefore needs political institutions to safeguard the principle of decentralised power. </p>
<p>In Brown’s view, replacing the House of Lords with what he calls an “assembly of nations and regions” is a way to achieve the kind of political consensus needed for a fairer system to flourish. This upper house would serve as the guardian of the constitution and this redistribution of power. </p>
<h2>An elected upper house</h2>
<p>Brown’s commission urges a future Labour government to replace the House of Lords with an elected second chamber representing the nations and regions of the UK. It stops short of making precise recommendations as to how this should be achieved, instead proposing that Labour hold a consultation on the precise composition of the chamber and process for electing its members.</p>
<p>However, it does imagine the assembly being smaller than the Lords. And it highlights that the Lords is currently significantly larger than other upper chambers around the world.</p>
<p>The assembly would have four key functions, the first of which is essentially the same as its current role: to constructively scrutinise legislation and government policy. But it would also monitor standards of public life and safeguard the constitution and distribution of power. </p>
<h2>A constitutional guardian?</h2>
<p>To safeguard the constitution and redistribution of power, the assembly would have the power to reject proposed laws which conflict with certain constitutionally significant laws. However, there are some problems that would need to be addressed.</p>
<p><a href="https://lawsblog.london.ac.uk/2015/03/16/constitutional-statutes/">“Constitution statutes”</a> are usually considered different from ordinary statutes because they create rights and institutions or regulate the relationship between different state institutions. For example, the <a href="https://www.legislation.gov.uk/ukpga/1998/46/contents">Scotland Act of 1998</a> is a constitution statute because it created the Scottish government and established its relationship with the Westminster government. </p>
<p>The problem is that beyond some obvious candidates, like the Scotland Act, it’s difficult to determine what is a constitutional statute and therefore part of the UK’s constitution. Constitutional lawyers have long struggled to develop a definitive list. Brown, too, has left his view only vaguely defined.</p>
<p>Another problem is how to decide whether a proposed law conflicts with an existing constitutional statute. The report’s solution is to allow these questions to be referred to the UK supreme court for clarification. This is important as it encourages the assembly and the supreme court to work together to safeguard the constitution and develop a shared understanding of the constitution. </p>
<p>This would work similarly to a process currently used <a href="https://commonslibrary.parliament.uk/what-happens-when-a-devolved-bill-is-referred-to-the-uk-supreme-court/">within the devolved legislatures</a> when a proposed law potentially touches on policy matters reserved for Westminster.</p>
<p>The final problem is about the House of Commons’ right to overrule the assembly if it rejects a proposed law, even if a bill might endanger a constitutional statute. The report is unclear about when it would be right for the Commons to do so and in a constitutionally acceptable manner. </p>
<p>Despite these problems, it would still be far more politically difficult than at present for a future government to re-centralise power. The elected assembly would safeguard the redistribution by establishing new political hurdles of its own. </p>
<h2>Reasons for caution</h2>
<p>The report is very vague on key details about the assembly. The tough question of which electoral system should be used will be left to the consultation. The same goes for how this body will actually represent the nations and regions. </p>
<p>And Labour’s historic approach to constitutional reform casts some doubt over whether these proposals will be implemented. The party is generally economically progressive but constitutionally conservative, to the confusion of many of its own MPs and members. However, there is good reason for Labour’s constitutional conservatism. </p>
<p>Various features of the UK constitution – the absence of a written and entrenched constitution, <a href="https://www.parliament.uk/site-information/glossary/parliamentary-sovereignty/">parliamentary sovereignty</a>, a <a href="https://theconversation.com/labours-plan-to-reform-politics-doesnt-go-far-enough-heres-what-evidence-shows-will-really-stop-governments-hoarding-power-196002">highly centralised state</a>, the first-past-the-post electoral system and a weak House of Lords – create fertile conditions for governments to pursue radical agendas once in power. It has therefore always been counter-intuitive for Labour governments to get rid of these structures. </p>
<p>Such reforms would only make it harder for future Labour governments to deliver radical economic change. An unelected second chamber is tolerable, so long as it does not seek to substantively frustrate a Labour government.</p>
<p>Much of Brown’s report runs contrary to Labour’s traditional constitutional thinking. A decentralised state, safeguarded by an elected second chamber could threaten a future Labour government if their visions are not aligned. That makes the reform proposals a huge gamble. So we should not be surprised if the promised consultation on the working details of the assembly turns into an excuse to kick these reforms into the long grass.</p><img src="https://counter.theconversation.com/content/195976/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Robert Greally works for the University of Bristol. He is a member of the Labour Party. </span></em></p>
Gordon Brown’s proposed elected upper chamber could protect plans to decentralise power, but it’s arguably not in the Labour party’s interest to introduce one.
Robert Greally, Lecturer in Constitutional Law, University of Bristol
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/196002
2022-12-07T10:17:34Z
2022-12-07T10:17:34Z
Labour’s plan to reform politics doesn’t go far enough – here’s what evidence shows will really stop governments hoarding power
<p>In a major report for the Labour party, former prime minister Gordon Brown has proposed a number of reforms to address some of the UK’s glaring institutional problems. He recommends reforming the House of Lords, so that it is elected and far smaller than its current size, as well as major devolution across the UK. Yet evidence from political science suggests Labour leader Keir Starmer needs to go much further to bring about the real change in the power and standards of central government <a href="https://www.theguardian.com/politics/2022/dec/04/the-journey-towards-a-fairer-britain-starts-now">he claims</a> to want. </p>
<p>The key scholar here is Dutch-American political scientist Arend Lijphart, who divides democracies into two categories. Those characterised by the concentration of power in single-party governments are “majoritarian” and those built around power-sharing are “consensus” democracies. </p>
<p>The UK is a key example of a majoritarian system. It features a first-past-the-post (FPTP) electoral system, single-party cabinets, massive concentration of power in the national government and an uncodified constitution which is very easy to change. These elements are arguably at the root of many of the UK’s recent problems. </p>
<p>Most European nations – including Germany, Sweden and Belgium – slot into the consensus category. They use proportional representation for elections and have coalition cabinets. Most also generally feature lots of devolution to different regions of the state. They have codified constitutions which are difficult to amend and often powerful upper houses to check the executive. </p>
<p>Proportional representation is arguably the most important element here. Giving parties seats in proportion to their share of the vote generally leads to more parties being represented in parliaments. That, in turn, makes power-sharing arrangements between parties and full-blown coalition governments more common.</p>
<p>Brown’s report steps toward this in some respects. He proposes greater decentralisation, and more consultation with devolved governments in Scotland, Wales and Northern Ireland. But it makes no mention about proportional representation and the reformed upper house it suggests contains no extra powers to check governments. </p>
<p>The House of Commons – and the massively powerful governments it provides – would remain largely unchanged under Brown’s reforms. To really unlock the power of institutional change so that it ensures the government delivers for the British public, Labour needs a much bolder embrace of consensus democracy. </p>
<h2>A broken system</h2>
<p>The British experience has clearly displayed the pitfalls of majoritarianism compared to a consensus system, especially since 2016. Abuses of power of the kind seen under Conservative governments since 2019 are made much easier by majoritarianism, because there are so few checks and balances imposed on government ministers. </p>
<p>Had the Conservatives been in a coalition government with another party, Boris Johnson would arguably have found it far harder to get away with his <a href="https://theconversation.com/wine-time-friday-and-invites-for-200-five-of-the-most-interesting-findings-from-sue-grays-partygate-report-183866">lockdown-breaking parties in Downing Street</a>. Rishi Sunak would have faced significant opposition to his politically expedient but otherwise questionable decision to appoint <a href="https://www.theguardian.com/politics/2022/oct/25/outcry-suella-braverman-return-home-secretary">Suella Braverman</a> as home secretary mere days after she was forced to resign from the very same post for failing to comply with ministerial rules. </p>
<p>Nor would Liz Truss’s disastrous mini-budget have been possible under a coalition government. Such a drastic policy change simply couldn’t be made midterm with no consultation. Coalition governments are typically sources of stability. Parties tend to stick to agreements made at the start of the term and play by the rules. </p>
<p>Party leadership changes have significantly less impact on government policy here. <a href="http://digamo.free.fr/lijphart99.pdf">Evidence</a> shows that coalitions are at least no worse performers on economic policy than single-party governments. They are, however, much less prone to destabilising policy shifts.</p>
<p>Aside from coalition governments, checks on ministerial abuses and incompetence could be strengthened with a codified constitution and a powerful upper house. Introducing proportional representation would allow more politicians from other parties to enter parliament, likely raising the calibre of MPs because party loyalty alone could no longer be relied upon to keep an MP in their job if they were under-performing. Such a system could also be expected to increase the number of <a href="https://global.oup.com/academic/product/the-gendered-effects-of-electoral-institutions-9780199608607?cc=gb&lang=en&">women and minorities</a> in parliament. </p>
<p>Proportional voting would make space for people unwilling to work through the two main parties to win a seat. Safe seats would become a thing of the past. All this would bring policymaking closer to voter preferences. </p>
<p>Such reforms would also reduce polarisation, which has grown significantly in the UK in recent years. The UK has a very confrontational political climate because of the winner-takes-all nature of its institutions. Stronger incentives for parties to cooperate with each other would be extremely useful in changing this. </p>
<p>Majoritarian systems incentivise focusing on “wedge” issues that divide voters and appeal only to specific groups of loyal or swing voters. In a consensus system, parties must engage in more long-term national planning. </p>
<p>Policy made under a consensus system is more likely to take into account diverse parts of the country, and <a href="https://www.sciencedirect.com/science/article/pii/S0261379410000958">last much longer</a>. Consensus democracies almost always have <a href="https://link.springer.com/article/10.1007/s00181-021-02154-9">much lower levels of inequality</a> than majoritarian systems like the UK or US. </p>
<p>A much bolder offering from Labour – at the moment likely to form the next government – would have multiple benefits. Aside from improvements to governance, there are gains to be had in terms of the quality of democracy, and potentially strategic advantages for Labour too. But the party would need to embrace this opportunity in a way it failed to do <a href="https://www.theguardian.com/politics/2009/jan/27/house-of-lords-reform">last time</a> it was in government.</p><img src="https://counter.theconversation.com/content/196002/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jonathan Parker does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
Gordon Brown’s proposals include hefty devolution and House of Lords reform but one change that could have the biggest impact is nowhere to be seen.
Jonathan Parker, Lecturer in Politics, University of Glasgow
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/190048
2022-09-26T20:02:22Z
2022-09-26T20:02:22Z
After the Voice, climate change commitments should be the next urgent constitutional reforms
<p>After decades of foot-dragging on climate change, Australia has finally put significant commitments <a href="https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r6885">in national legislation</a>. It joins other countries such as <a href="https://www.canada.ca/en/services/environment/weather/climatechange/climate-plan/net-zero-emissions-2050/canadian-net-zero-emissions-accountability-act.html">Canada</a> and the <a href="https://www.democrats.senate.gov/summary-of-the-energy-security-and-climate-change-investments-in-the-inflation-reduction-act-of-2022">United States</a> that also recently took big new legal steps. </p>
<p>The new laws may still not be enough, but they mark real progress. Yet, will such progress last or be short-lived? </p>
<p>As we saw with Australia’s <a href="https://www.legislation.gov.au/Details/C2011A00131">carbon price law</a>, which passed in 2011, a change of government can lead to a change in direction. And that direction may be broadly <a href="https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1314/QG/CarbonPriceRepealBills">backwards</a>. </p>
<p>For this reason I have, in <a href="https://law.unimelb.edu.au/__data/assets/pdf_file/0003/4276254/Levy-461-Advance.pdf">recent research</a>, called for a new kind of commitment to climate change mitigation: a set of clear numeric targets entrenched in our highest laws, namely our constitutions. Constitutions spell out our most sacrosanct commitments. They are hard to budge once enacted.</p>
<p>At the moment, the focus of constitutional change in Australia is on the <a href="https://theconversation.com/au/topics/indigenous-recognition-13965">recognition of Indigenous people</a> in the First Nations Voice to Parliament – as it should be. </p>
<p>But we must also look over the horizon to the next challenges. After the <a href="https://theconversation.com/our-research-shows-public-support-for-a-first-nations-voice-is-not-only-high-its-deeply-entrenched-172851">Voice</a>, climate change commitments should be the next urgent constitutional reform. The republic can wait; climate change <a href="https://news.un.org/en/story/2022/04/1115452#:%7E:text=A%20new%20flagship%20UN%20report,limit%20global%20warming%20to%201.5">cannot</a>.</p>
<h2>What would it look like?</h2>
<p>An ongoing emergency like climate change calls for an unwavering set of policy solutions well into the future. But a long-term policy – such as a target year for net-zero emissions – may struggle in a democratic system that can promise only occasional and precarious environmental protection. </p>
<p>Entrenching such policies in our national, state or territorial constitutions may help firm up our commitments to resolute action. But that depends on what constitutional climate action looks like. </p>
<p>Ideally it should specify a carbon emissions reduction target – as a minimum or “floor” – and a process for ratcheting up the target over time (similar to the international <a href="https://unfccc.int/sites/default/files/english_paris_agreement.pdf">Paris Agreement</a>). There should also be new enforcement bodies to review the carbon budgets of Australian governments. </p>
<p>On the one hand, if we took these constitutional steps we would be in good company. A <a href="https://www.ohchr.org/Documents/Issues/Environment/CRC_DGD_Sept2016.docx">majority of national constitutions</a> already protect the environment. On the other, what I suggest here goes beyond most past examples. Most have been decidedly vague. </p>
<p>South Africa’s <a href="https://www.gov.za/sites/default/files/images/a108-96.pdf">Bill of Rights</a>, for instance, guarantees everyone the “right (a) to an environment that is not harmful to their health or well-being; and (b) to have the environment protected”. </p>
<p>Elsewhere, we see rights to a “<a href="https://envirorightsmap.org/listing/fiji/">healthy</a>” environment, or obligations to “<a href="https://pib.gov.in/newsite/printrelease.aspx?relid=105411#:%7E:text=Article%2051%2DA%20(g),ideals%20of%20building%20welfare%20state.">protect and improve</a>” the environment. </p>
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<a href="https://theconversation.com/one-of-the-most-progressive-and-environmentally-conscious-legal-texts-on-the-planet-chiles-proposed-constitution-and-its-lessons-for-australia-189389">‘One of the most progressive and environmentally conscious legal texts on the planet’: Chile’s proposed constitution and its lessons for Australia</a>
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<p>Unfortunately, these constitutional laws reflect only broad aspirations. They don’t always lead to meaningful environmental protection. This is largely because short-term, <a href="https://www.thelancet.com/journals/lanplh/article/PIIS2542-5196%2818%2930008-1/fulltext?%7B%24trackingTag%7D=">myopic</a> economic concerns often act as counterweights blocking effective environmental action. South Africa itself provides <a href="https://www.researchgate.net/publication/281019735_Environmental_Protection_in_South_Africa_Human_Rights_Approach">one example</a> where courts balance environmental ideals in the constitution against economic factors.</p>
<p>What I call “fixed constitutional commitments” are precise constitutional guarantees, like carbon reduction targets. Since they fix a specific quantity of commitment, they can be resistant to the judicial balancing that usually <a href="https://academic.oup.com/icon/article/16/3/836/5165825">neuters</a> environmental constitutional clauses.</p>
<h2>Precedents abroad, and even in Australia</h2>
<p>While this idea is largely novel, it has some precedents. <a href="https://www.constituteproject.org/constitution/Bhutan_2008.pdf?lang=en">Bhutan</a>, <a href="https://www.constituteproject.org/constitution/Kenya_2010.pdf">Kenya</a> and <a href="https://ballotpedia.org/Article_XIV,_New_York_Constitution#:%7E:text=Section%201,-Text%20of%20Section&text=The%20lands%20of%20the%20state,be%20sold%2C%20removed%20or%20destroyed">New York State</a> each specify a minimum amount of forest coverage. On this, New York was the trailblazer: the state’s constitutional protections for forests date back to 1894. </p>
<p>Just last year in Australia, Victoria constitutionally entrenched a <a href="https://content.legislation.vic.gov.au/sites/default/files/2022-03/75-8750aa224%20authorised.pdf">ban on fracking</a>. To do this Victoria used a simple legislative process for constitutional entrenchment available to each state under the <a href="https://www.legislation.gov.au/Details/C2004A03181">Australia Act 1986</a>. </p>
<p>This makes Victoria one of a handful of jurisdictions that have also set precise environmental targets in constitutional law. In this case, a commitment to zero fracking. </p>
<p>After the Victorian constitutional reform, one opposition member raised an <a href="https://www.theage.com.au/national/victoria/victoria-s-constitution-should-not-be-used-to-prop-up-fracking-ban-20200417-p54ko8.html">important objection</a>: that putting environmental policy in the constitution takes it out of the democratic sphere. </p>
<p>This is true to an extent. But there are important responses.</p>
<p>First, fixed constitutional commitments may correct failures of democracy. Elected representatives often represent the preferences of citizens on the environment weakly, at best. </p>
<p>And despite <a href="https://climatecommunication.yale.edu/wp-content/uploads/2022/06/international-public-opinion-on-climate-change-2022a.pdf">overwhelming popular support</a> for a strong response to the climate emergency, many politicians worldwide oppose such responses – and not because they know better. Many believe their <a href="https://silo.tips/download/environmental-and-business-lobbying-alliances-in-europe-learning-from-washington">real constituents</a> to be the businesses and other interests that underwrite electoral campaigns. </p>
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Read more:
<a href="https://theconversation.com/climate-wars-carbon-taxes-and-toppled-leaders-the-30-year-history-of-australias-climate-response-in-brief-169545">Climate wars, carbon taxes and toppled leaders: the 30-year history of Australia’s climate response, in brief</a>
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<p>Moreover, the “<a href="https://theconversation.com/climate-wars-carbon-taxes-and-toppled-leaders-the-30-year-history-of-australias-climate-response-in-brief-169545">climate wars</a>” have long held Australia in legal limbo. We can’t take significant action on the climate as long as politicians can’t agree for long about what actions to take. </p>
<p>Before a community can begin to hash out new policy, it has to settle its basic policy priorities – such as net-zero carbon emissions by a given year. A democracy that’s stuck at the priority-setting stage can’t go on to <a href="https://www.tandfonline.com/doi/abs/10.1080/09644016.2014.924199">work out the details</a> of policy. And deliberation about policy details is where most of our democratic activity generally lies. </p>
<h2>Fixing democratic failures on the environment</h2>
<p>There has been much <a href="https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/06/09/remarks-by-president-biden-to-u-s-air-force-personnel-and-families-stationed-at-royal-air-force-mildenhall/">talk in recent years</a> about whether the world’s remaining democracies are too prone to division, and too weak to take action against long-term problems. </p>
<p>Can democratic systems still adequately address challenges – such as climate change – almost tailor-made for disinformation, political polarisation and gridlock? Or do we need new tools to avoid the policymaking quagmires that have so often kept democracies from tackling complex problems? </p>
<p>The best solutions will invent new ways of getting things done while preserving, and even improving, democracy. Fixed constitutional commitments on climate change may demonstrate a democratic society can indeed remain responsive to our most complex and urgent problems. </p>
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Read more:
<a href="https://theconversation.com/now-we-begin-10-simple-ways-to-make-australias-climate-game-truly-next-level-190427">Now, we begin: 10 simple ways to make Australia's climate game truly next-level</a>
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<img src="https://counter.theconversation.com/content/190048/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ron Levy has received funding for work on deliberative democracy and law from the Australian Research Council. </span></em></p>
Australia needs a set of clear numeric targets entrenched in our highest laws, namely our constitutions. Constitutions spell out our most sacrosanct commitments. They are hard to budge once enacted.
Ron Levy, Associate professor, Australian National University
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/176675
2022-02-11T01:09:43Z
2022-02-11T01:09:43Z
Non-Indigenous Australians shouldn’t fear a First Nations Voice to Parliament
<p>The 2017 <a href="https://ulurustatement.org/the-statement/">Uluru Statement from the Heart</a> is one of the most significant documents on constitutional change in Australian history. The result of extensive consultation and debate, it explains how First Nations want to be included in the constitution. </p>
<p>Despite the enormous moral authority of the statement, its call for a constitutionally enshrined Voice to Parliament was <a href="https://www.theguardian.com/australia-news/2017/oct/26/indigenous-voice-proposal-not-desirable-says-turnbull">immediately rejected</a> by then-Prime Minister Malcolm Turnbull. His successor, Scott Morrison, is also opposed. </p>
<p>Instead, Morrison has proposed a legislated Voice to Government. In December, his government published a <a href="https://voice.niaa.gov.au/sites/default/files/2021-12/indigenous-voice-co-design-process-final-report_1.pdf">report</a> on how that might work. The Indigenous co-design group who worked on it was not allowed to consider whether the Voice should be put in the Constitution. </p>
<p>Opponents of the Voice to Parliament have used three main arguments. In a technical sense, they have claimed it will make our current Westminster system unworkable. Morally, they argue it is undemocratic and creates privilege for a specific group. And pragmatically, they have said the Voice is “<a href="https://www.malcolmturnbull.com.au/media/response-to-referendum-councils-report-on-constitutional-recognition">not capable of winning acceptance in a referendum</a>”.</p>
<p>The Uluru Statement concludes by inviting non-Indigenous Australians to “walk with us”. In that spirit, we published a <a href="https://www.tandfonline.com/doi/full/10.1080/10361146.2022.2028720">journal article</a> defending the statement against common criticisms and explaining why non-Indigenous Australians should not fear a Voice to Parliament in the Constitution.</p>
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<a href="https://theconversation.com/voice-to-parliament-design-report-still-doesnt-meet-international-human-rights-standards-174861">Voice to Parliament design report still doesn't meet international human rights standards</a>
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<h2>A constitutional Voice is workable</h2>
<p>The Voice to Parliament was initially rejected by <a href="https://www.theguardian.com/australia-news/2019/jul/12/peter-dutton-rules-out-voice-to-parliament-labelling-it-a-third-chamber">leading Coalition MPs</a> on the basis it distorts Australia’s bicameral system by introducing a “third chamber”. This fear is based on the false assumption the Voice could block legislation or dictate government policy. </p>
<p>The Voice does not include any veto power, but simply allows First Nations to advise the parliament on laws and policy that will affect them. As one of the chief architects of the Uluru Statement, Professor Megan Davis <a href="https://www.quarterlyessay.com.au/content/correspondence-megan-davis">has explained</a> it is focused on ensuring “Aboriginal participation in the democratic life of the state”.</p>
<p>Putting the Voice in the Constitution is not only workable within Australia’s parliamentary system, it is key to its success. Earlier Indigenous advisory bodies created by parliament have been disbanded by parliament. The most notable example is the Aboriginal and Torres Strait Islander Commission, which functioned for 14 years before being <a href="https://www.theage.com.au/national/howard-puts-atsic-to-death-20040416-gdxoqw.html">abolished</a> in 2004. </p>
<p>Protecting the Voice in the Constitution will also make it more effective. As <a href="https://www.abc.net.au/religion/megan-davis-voice-to-parliament-our-plea-to-be-heard/%2011300474">Davis explains</a>, constitutional entrenchment would improve the likelihood that government actually listens to Indigenous people.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1485849004223397893"}"></div></p>
<h2>A constitutional Voice means equality, not privilege</h2>
<p>A philosophical criticism of the Voice is it violates the democratic principle of “one person, one vote” and allows special treatment for a particular group. In a legal sense, Indigenous Australians enjoy the same rights as others at an individual level. What is frequently denied — and what the Voice addresses — are collective rights. </p>
<p>In our article, we use the term “<a href="https://www.tandfonline.com/doi/full/10.1080/10361146.2022.2028720">egalitarian nationhoods</a>” to describe a scenario where both individual and collective rights are respected. A key plank in this theory is acknowledging that Aboriginal and Torres Strait Islander communities are legitimate nations which exercised sovereignty over their lands for thousands of years before British colonisation. </p>
<p>Nationhood is not the same as statehood. It is a psychological bond which can include cultural, linguistic, religious or ethnic identities as well as shared symbols, memories and traditions. Non-Indigenous Australians already enjoy individual rights and collective rights as members of the Australian nation. The Voice would promote equality by allowing First Nations peoples to also enjoy collective rights as members of distinct and legitimate nations.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/our-research-shows-public-support-for-a-first-nations-voice-is-not-only-high-its-deeply-entrenched-172851">Our research shows public support for a First Nations Voice is not only high, it's deeply entrenched</a>
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</em>
</p>
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<h2>A constitutional Voice can win a referendum</h2>
<p>Carrying a referendum in Australia is difficult as it requires the endorsement of an overall majority of voters and a majority of states. The last successful referendum was in 1977 and no government has even tried to change the Constitution this century. </p>
<p>Despite this, there is evidence a constitutionally enshrined Voice can pass a referendum. </p>
<p>A survey of poll data since 2017 conducted by the <a href="https://caepr.cass.anu.edu.au/research/publications/support-constitutionally-enshrined-first-nations-voice-parliament-evidence">Centre for Aboriginal Economic Policy Research</a> suggests 70–75% of voters with a committed position support the Voice. That study also found a referendum on a Voice to Parliament would likely be carried, especially if the Coalition leadership approached it “with a more positive frame than in 2017”. </p>
<p>Public consultation on the co-design process also overwhelmingly supported putting the Voice in the Constitution. <a href="https://theconversation.com/what-did-the-public-say-about-the-governments-indigenous-voice-co-design-process-163803">Analysis</a> of the more than 2,500 public submissions received by the co-design group reveals 90% wanted the Voice to be constitutionally enshrined.</p>
<p>The <a href="https://aiatsis.gov.au/explore/1967-referendum">most successful referendum</a> in Australian history removed constitutional discrimination against First Nations in 1967. It was carried with over 90% support. Similarly, there is <a href="https://theconversation.com/most-australians-support-first-nations-voice-to-parliament-survey-157964">wide public support</a> and good will for the Voice to Parliament in both Indigenous and non-Indigenous communities. This is the key ingredient for a successful referendum.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/black-lives-matter-has-brought-a-global-reckoning-with-history-this-is-why-the-uluru-statement-is-so-crucial-149974">Black Lives Matter has brought a global reckoning with history. This is why the Uluru Statement is so crucial</a>
</strong>
</em>
</p>
<hr>
<h2>Why this matters</h2>
<p>It has been over 14 years since then-Prime Minister John Howard <a href="https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressrel%2FL41P6%22;src1=sm1">promised Indigenous recognition</a> in the Constitution and almost five years since First Nations explained what they want that to look like in the Uluru Statement.</p>
<p>Since then, understanding and awareness about the Voice to Parliament has grown. A Voice to Parliament is workable, will promote equality, and can win a referendum.</p>
<p>It is time for the government to put the question to the people.</p><img src="https://counter.theconversation.com/content/176675/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
Putting the Voice to Parliament in the constitution is not only workable within Australia’s parliamentary system, it is key to its success.
Harry Hobbs, Senior lecturer, University of Technology Sydney
Benjamin T. Jones, Senior Lecturer in History, CQUniversity Australia
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/175661
2022-01-27T15:09:47Z
2022-01-27T15:09:47Z
Why The Gambia should fast-track gender quotas for women
<figure><img src="https://images.theconversation.com/files/442685/original/file-20220126-19-gyuv41.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Supporters of incumbent president Adama Barrow’s National Peoples Party (NPP) during a campaign rally in Banjul in November 2021.
</span> <span class="attribution"><span class="source">Photo by Guy Peterson/AFP via Getty Images</span></span></figcaption></figure><p>Women have <a href="https://reliefweb.int/report/gambia/gambia-s-women-demand-seat-political-table">historically</a> been poorly represented in positions of power and decision-making in The Gambia. Out of 58 National Assembly members, only six are women lawmakers and only three of these are elected. Women make up more than half of the Gambian population, yet they account for <a href="http://archive.ipu.org/wmn-e/classif.htm">only 10% of parliamentarians</a>, including the speaker.</p>
<p>This poor representation is just as evident in <a href="https://allafrica.com/stories/202108090284.html">the political parties</a>. None of the 18 <a href="https://iec.gm/political-parties/registered-parties/">registered political parties</a> is led by a woman. A few have women serving as deputy party leaders. But for the most part, women are assigned token positions that lack the necessary power and authority. They are deployed as mobilisers, campaigners and cheerleaders. </p>
<p>Little wonder then that during the December 4, 2021 elections, only one woman, Marie Sock, filed her nomination for the presidency. Even then her application was <a href="https://allafrica.com/stories/202111100022.html">rejected</a> by the Independent Electoral Commission (IEC) as she failed to declare her assets. She also did not have the <a href="https://www.lawhubgambia.com/electoral-laws">legally required number</a> of registered voters to support her nomination.</p>
<p>This left the field open to a contest between six male candidates in which Adama Barrow <a href="https://www.aljazeera.com/news/2021/12/6/the-gambias-barrow-wins-second-term-opposition-reject-results">secured his second term</a>. </p>
<p>Adama Barrow was voted into office in December 2016, <a href="https://constitutionnet.org/news/new-gambia-and-remaking-constitution">ending 22 years of autocratic rule</a> under Yahya Jammeh. In the democratic transition that followed, Barrow pledged a <a href="https://crc220.org/">reformed constitution</a> and transitional justice for victims of Jammeh’s brutal dictatorship. </p>
<p>But the <a href="https://www.lawhubgambia.com/latest-news/publication-constitutional-developments-in-2020-gambia">constitution-making process is stalled</a>. The proposed Constitution Promulgation Bill of 2020 was <a href="https://allafrica.com/stories/202009230283.html">rejected</a> by the National Assembly owing to <a href="https://blog-iacl-aidc.org/2020-posts/2020/9/29/attempts-at-constitutional-reform-in-the-gambia-whither-the-draft-constitution">political party disagreements</a>. </p>
<p>The draft constitution outlined several provisions to accelerate substantive equality between men and women. Among its transformative provisions was a section that explicitly forbids discriminatory treatment based on gender. </p>
<p>Section 55 further provided equal treatment between men and women. This included equal political, economic and social opportunities. Section 74 set out general principles for the electoral system. This included fair representation of all genders in elective public bodies. The draft constitution also provided a quota system that reserves 14 seats in parliament for women.</p>
<p>The failure to pass the bill represents a loss in the momentum for gender reforms. </p>
<p>But, in my view, there is still an opportunity to address the issue of women’s representation in politics. This is in the form of a <a href="https://thepoint.gm/africa/gambia/headlines/women-seek-16-parliament-reservation-seats">private member bill</a> which seeks to increase women’s representation in the National Assembly.</p>
<p>The bill presents a timely opportunity to rectify imbalances in political representation by guaranteeing a number of seats for women. Arguments against it might be that it’s only a temporary measure. But, I would argue, temporary measures such as legislative gender quotas can increase women’s access to political participation. </p>
<p>It’s true that over the past few decades the principle of equality between women and men has become increasingly <a href="https://constitutions.unwomen.org/en">constitutionalised</a>. These include gender-specific constitutional provisions on women’s rights, the right to reproductive healthcare, access to education, protection from violence.</p>
<p>But a number of <a href="https://www.un.org/womenwatch/daw/cedaw/recommendations/General%20recommendation%2025%20(English).pdf">temporary special measures</a> have also been put in place. One is the quota system. </p>
<h2>Support for quotas</h2>
<p>Gambians are ready for change.</p>
<p>A nationwide <a href="https://www.researchgate.net/publication/331260768_'Women's_Political_Participation_and_Representation_in_The_Gambia_One_step_forward_or_two_back">study</a> on women’s political participation and representation showed that 89% of all respondents supported the introduction of the quota system.</p>
<p>In 2018, a <a href="https://afrobarometer.org/sites/default/files/publications/D%C3%A9p%C3%AAches/ab_r7_dispatchno338_gambias_draft_constitution_reflects_citizen_preferences.pdf">survey</a> by Afrobarometer – the pan-African research network – showed overwhelming support (85%) in the country for constitutional change that would mandate a quota system for women’s representation in the National Assembly.</p>
<p>But this support has not yet been translated into the statute books.</p>
<p>Gender rights in The Gambia are governed by the <a href="https://www.lawhubgambia.com/1997-constitution">1997 constitution</a> and other relevant laws. These laws include the <a href="https://www.ilo.org/dyn/natlex/docs/MONOGRAPH/90619/115464/F-1335047347/GMB90619.pdf">Women’s Act 2010</a> which has general provisions to support women’s political participation and representation. </p>
<p>The Gambia is also one of few countries in Africa that has <a href="https://www.hhrjournal.org/2019/12/the-gambias-political-transition-to-democracy-is-abortion-reform-possible/">enacted</a> specific legislation to <a href="https://www.researchgate.net/publication/331260847_The_impact_of_the_African_Charter_and_the_Maputo_Protocol_in_The_Gambia">domesticate</a> African and international norms and standards that recognise the human rights of women and girls. </p>
<p>But the legal framework in its present form is not comprehensive in securing a substantive right for women in the political realm. Take section 15 of the Women’s Act. It provides a general obligation to adopt temporary special measures. But it does not make a definitive prescription such as electoral gender quotas.</p>
<p>In addition, existing laws are grossly inadequate given the <a href="https://www.researchgate.net/publication/331260768_'Women's_Political_Participation_and_Representation_in_The_Gambia_One_step_forward_or_two_back'?_sg=WRVtUl1YUavXBZSSNsLQEjiyRFEUtNBOxlLPqKAqiTQKdOhGY-h2p_s0n-zQKA265YaXx99x8J8B9PivTjbP17OHETYsPlsPy-CU54Cm.6wvKJV6BgmNiDlJocFXUEfaJvYbcl6MujA4VelILKp3f9NzI5ObDTfnj7n_KB6zvxsRZ7IKzA2cOTHsC4IBCYw">socio-cultural barriers</a> that are well entrenched in society against women. </p>
<h2>An alternative route</h2>
<p>The private member bill before parliament presents an opportunity to embrace reform. The bill proposes increasing the total number of seats in The Gambia’s National Assembly from 58 to 71, reserving 16 seats for women assembly members. Fourteen would be elected from each region; people with disabilities will elect one woman from among them, and the president would appoint one. </p>
<p>In my view the private member bill effort would be beneficial for advancing women’s rights. </p>
<p>However, a key question has arisen as to what will be the modalities for electing the women parliamentarians. It would be helpful to draw from other countries with a quota system to address this. For example, the <a href="https://ulii.org/akn/ug/act/statute/1995/constitution/eng%402018-01-05">revised 1995 Constitution of Uganda</a> institutionalised the quota system by providing for a number of reserved seats in the national parliament equal to the number of districts in the country. Each district elects a female parliamentary representative. </p>
<p>In this case, reserved seats are organised as <a href="https://www.cambridge.org/core/journals/journal-of-modern-african-studies/article/recruitment-mechanisms-for-reserved-seats-for-women-in-parliament-and-switches-to-nonquota-seats-a-comparative-study-of-tanzania-and-uganda/4ADE9AFC34E95A7F163588EF62629F88">single-member “women’s districts” constituencies</a>, designed as first-past-the-post districts. In essence, a one-woman representative is elected by universal suffrage in each district – which may consist of multiple counties (constituencies) – indirectly contested “female candidate only” elections.</p>
<p>Equally, in the case of The Gambia, it is proposed that parliamentarians for the female-reserved seats be elected and not appointed to enhance the legitimacy of these parliamentary seats. Some have <a href="https://academic.oup.com/sp/article-abstract/15/3/345/1616342">argued</a> that this may promote a static view of “women” as a group and push for a parallel process that affects equal voting rights. But in this case this is necessary as a time-limited positive measure that is intended to provide opportunities for a historically and systematically disadvantaged group.</p>
<p><em>A longer version of this article was <a href="https://blog-iacl-aidc.org/spotlight-on-africa/2022/1/25/womens-political-participation-in-the-gambia-gender-quotas-as-fast-track-to-equality">published</a> by International Association of Constitutional Law.</em></p><img src="https://counter.theconversation.com/content/175661/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Satang Nabaneh does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
Temporary measures such as legislative gender quotas can increase women’s access to political participation.
Satang Nabaneh, Director of Programs, University of Dayton
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/174861
2022-01-20T00:50:52Z
2022-01-20T00:50:52Z
Voice to Parliament design report still doesn’t meet international human rights standards
<p>Last month, the Australian government published the <a href="https://voice.niaa.gov.au/final-report">Indigenous Voice co-design final report</a>. It’s the latest step in the debate about how Australia should and shouldn’t recognise a distinctive Indigenous presence in public life.</p>
<p>Some of the report’s recommendations, which the government <a href="https://ministers.pmc.gov.au/wyatt/2021/indigenous-voice-co-design-final-report">accepts</a>, will help policy-making to work better for Indigenous people. But they don’t go far enough to meet international human rights norms by supporting <a href="https://press.anu.edu.au/publications/%E2%80%98we-are-all-here-stay%E2%80%99">self-determination</a> as a right that belongs to Indigenous peoples as much as to anybody else.</p>
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<p>
<em>
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Read more:
<a href="https://theconversation.com/from-dispossession-to-massacres-the-yoo-rrook-justice-commission-sets-a-new-standard-for-truth-telling-170632">From dispossession to massacres, the Yoo-rrook Justice Commission sets a new standard for truth-telling</a>
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<h2>What is self-determination and why is it so important?</h2>
<p>Self-determination is the right to exercise authority over one’s own affairs and to participate fairly in public decision-making. It encompasses the right to make decisions about things like health, education, natural resource management and economic development. It doesn’t stop the state’s right to govern. But as the <a href="https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx">International Covenant on Civil and Political Rights</a> puts it, the state’s right to govern doesn’t override an obligation to recognise that:</p>
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<p>All peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.</p>
</blockquote>
<p>The Voice co-design report is limited in the opportunities it provides for Australia to meet these obligations. Furthermore, it doesn’t give effect to the UN <a href="https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf">Declaration on the Rights of Indigenous Peoples</a>, which says:</p>
<blockquote>
<p>Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the state.</p>
</blockquote>
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<p>
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Read more:
<a href="https://theconversation.com/most-australians-support-first-nations-voice-to-parliament-survey-157964">Most Australians support First Nations Voice to parliament: survey</a>
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<h2>The Uluru Statement from the Heart</h2>
<p>One limitation is the local and regional bodies will be referred to as “Indigenous”, not “First Nations” Voices. <a href="https://voice.niaa.gov.au/final-report">The co-design committee</a> wasn’t allowed to consider First Nations’ Voices, as the Referendum Council proposed in its Uluru Statement from the Heart in 2017. </p>
<p>The <a href="https://www.referendumcouncil.org.au">Referendum Council</a> was established in 2015 by then-Prime Minister Malcolm Turnbull and the leader of the opposition, Bill Shorten. Its job was to recommend amendments to the Constitution to “recognise” Australia’s first peoples.</p>
<p>The significance of the term “First Nations” is that nationhood implies distinctive and enduring political community, whereas the term “Indigenous” refers only to prior occupancy. </p>
<p>Under instruments like the <a href="https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf">Declaration on the Rights of Indigenous Peoples</a>, “Indigenous” is a politically significant concept. But it’s not the same as nationhood. This is important because the Referendum Council made its recommendations after widespread consultation with First Nations people and most said they preferred to be recognised as members of First Nations because of its more significant political meaning.</p>
<p>The <a href="https://www.referendumcouncil.org.au">Uluru Statement from the Heart</a> recommended amending the Constitution to create a permanent First Nations’ Voice to Parliament. However, amending the Constitution requires a referendum. </p>
<p>The Voice was to be complemented by Makarrata, a process of “coming together after a struggle”. Makarrata would lay the foundation for agreement-making. </p>
<p>Discussions are underway on what agreement-making through treaties might look like in Queensland, Victoria and the Northern Territory. However, the Commonwealth doesn’t like the idea of recognising Indigenous peoples’ nationhood, which treaties would require.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1481218532692340741"}"></div></p>
<h2>The co-design report</h2>
<p>The <a href="https://fromtheheart.com.au/uluru-statement/the-statement/">Uluru Statement from the Heart</a> was a plan to recognise human equality by accepting that enduring nationhood, cultural perspectives and colonial experiences legitimately influence the way people want to participate in public life. However, the Coalition government immediately <a href="https://parlinfo.aph.gov.au/parlInfo/download/media/pressrel/5596294/upload_binary/5596294.pdf;fileType=application%2Fpdf#search=%22media/pressrel/5596294%22">rejected</a> the statement. </p>
<p>More than four years later, <a href="https://voice.niaa.gov.au/final-report">the co-design report</a> proposed to create 35 local and regional voices to government. How these voices will collectively appoint a 24-member National Voice to Parliament and government is yet to be worked out. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1471619074488627201"}"></div></p>
<p>There isn’t time to pass the legislation to set up these Voices before the federal election, due by May. However, the Labor party says if it is elected, <a href="https://www.sbs.com.au/nitv/article/2021/08/06/burney-and-labor-criticise-indigenous-voice-timeline">it will support a referendum</a> to establish a national Voice to Parliament as a permanent institution.</p>
<p>The co-design committee <a href="https://voice.niaa.gov.au/final-report">wasn’t allowed</a> to consider a referendum to change the Constitution. However, it did report that constitutional entrenchment was what many of the <a href="https://voice.niaa.gov.au/final-report">9,400 people</a> it spoke to actually wanted.</p>
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<p>
<em>
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Read more:
<a href="https://theconversation.com/what-did-the-public-say-about-the-governments-indigenous-voice-co-design-process-163803">What did the public say about the government’s Indigenous Voice co-design process?</a>
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<h2>The next steps for the Voice to Parliament</h2>
<p>There is potential for these Indigenous regional voices to help improve public administration and contribute to better policy-making. But it’s not a guaranteed contribution at a national level. Also, because the plan is to set them up by legislation, not by referendum, they could be abolished at any time.</p>
<p>Standalone concepts like “co-design” and “partnership” can’t assure First Nations people of the decision-making authority that self-determination requires. An entrenched Voice to Parliament also won’t provide this, but the Voice was only one part of the Referendum Council’s proposal. Taken alongside truth-telling and Makarrata, there is potential for politics to work differently and inclusively.</p>
<p>For example, in New Zealand, there are <a href="https://www.rnz.co.nz/national/programmes/the-house/audio/2018658559/maori-seats-what-are-they">guaranteed Maori seats in parliament</a>. In Victoria, the <a href="https://www.firstpeoplesvic.org/media/big-steps-taken-on-the-path-to-treaty-in-victoria/">First Peoples’ Assembly</a> is considering whether it wants to propose a similar kind of arrangement so First Nations people actually get to make policy.</p>
<p>This is why, in spite of consultation’s benefits for effective policy-making, the co-design report is not significant from a human rights perspective. </p>
<p>Only a positive referendum vote would give Australia a better chance at recognising Indigenous peoples human rights.</p><img src="https://counter.theconversation.com/content/174861/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dominic O'Sullivan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
Last month, the government published the Indigenous Voice co-design final report. However, ways to ensure First Nations self-determination remain lacking in the strategy.
Dominic O'Sullivan, Adjunct Professor, Faculty of Health and Environmental Sciences, Auckland University of Technology and Professor of Political Science, Charles Sturt University
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/172851
2021-12-08T19:19:37Z
2021-12-08T19:19:37Z
Our research shows public support for a First Nations Voice is not only high, it’s deeply entrenched
<p>Much has been written about why Indigenous recognition is important. <a href="https://voice.niaa.gov.au/sites/default/files/2021-01/indigenous-voice-codesign-process-interim-report-2020.pdf">Such</a> recognition would be a legal change to address the dispossession of Indigenous peoples from their lands and rights, and the widescale damage to Indigenous lives and culture. </p>
<p>At the top of the <a href="https://voice.niaa.gov.au/sites/default/files/2021-01/indigenous-voice-codesign-process-interim-report-2020.pdf">recognition agenda</a> is a national First Nations Voice to Parliament. This would be an advisory body made up of Indigenous Australians that would interact with parliament and review bills affecting Indigenous people. </p>
<p>Currently, the <a href="https://www.theguardian.com/australia-news/2021/nov/19/indigenous-voice-to-parliament-legislation-imminent-coalition-sources-say">reform</a> enjoys support from both the federal government and opposition, though exactly how to achieve this reform remains a point of contention.</p>
<p>If the Voice goes ahead, one big question is whether the change should be made via the Constitution – and the level of public support for such a change. </p>
<p>Our research suggests support for legal reform on Indigenous issues is not only high, it’s also durable. Public attitudes have shifted to such an extent in the last 40 years, there is little reason to think a constitutionally enshrined Voice wouldn’t pass a referendum if it was held today.</p>
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Read more:
<a href="https://theconversation.com/why-delaying-legislation-on-a-voice-to-parliament-is-welcome-it-allows-more-time-to-get-things-right-165799">Why delaying legislation on a Voice to parliament is welcome — it allows more time to get things right</a>
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<h2>Governments believe public support for change is weak</h2>
<p>The views of both the Turnbull and Morrison governments have been that the Voice to Parliament needn’t be enshrined in the Constitution. </p>
<p>However, this view goes against the <a href="https://www.indigconlaw.org/home/submission-the-imperative-of-constitutional-enshrinement">advice of experts</a>, who strongly favour enshrinement to give the Voice stability – especially to prevent its disbandment, as <a href="https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/Publications_Archive/CIB/Current_Issues_Briefs_2004_-_2005/05cib04">happened</a> with past Indigenous governing bodies. The Voice may also need constitutional status to have a genuine impact on law-making. </p>
<p>It’s never easy to change the Constitution. It requires a referendum, with 50% of voters and 50% of the states voting “yes”. Of the 44 referendums since 1901, only eight have been successful. </p>
<p>Recent governments have <a href="https://www.malcolmturnbull.com.au/media/response-to-referendum-councils-report-on-constitutional-recognition">argued</a> public support for constitutional enshrinement is too weak to lead to success in a referendum.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1465786661657141248"}"></div></p>
<h2>But here’s what the polling says</h2>
<p>The government’s pessimism here is belied by recent polls suggesting very high support for Indigenous recognition. </p>
<p>In the <a href="https://australianelectionstudy.org/voter-studies/">Australian Election Study</a> surveys conducted by the Australian National University, around three-quarters of voters were prepared to support a change to the Constitution to recognise Indigenous Australians in both 2016 and 2019.</p>
<hr>
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<div style="width:100%!;margin-top:4px!important;text-align:right!important;"><a class="flourish-credit" href="https://public.flourish.studio/visualisation/8042210/?utm_source=embed&utm_campaign=visualisation/8042210" target="_top"><img alt="Made with Flourish" src="https://public.flourish.studio/resources/made_with_flourish.svg"> </a></div>
<hr>
<p>However, recent polls tell just part of the story. Our study of several decades of Australian Election Study polling shows not just transient support for Indigenous recognition, but something potentially deeper. </p>
<p>There has been a gradual firming up of positive attitudes towards legal reform for Indigenous people overall. Because of this, support for a constitutional change is unlikely to collapse in the course of a referendum campaign.</p>
<p>In surveys over 40 years, the results tell a remarkably consistent story. Though it would have been unthinkable in the 1980s, the clear trend since then is towards more favourable attitudes on Indigenous issues. </p>
<p>In the early period of the surveys in the 1980s, only one in five voters thought support for Indigenous Australians – whether it was land rights or assistance from government – had “not gone far enough”. </p>
<p>In 1987, voters who thought that land rights had “gone too far” outnumbered those who thought they had “not gone far enough” by almost <a href="https://dataverse.ada.edu.au/dataset.xhtml?persistentId=doi:10.4225/87/PQFNYM">five to one</a>.</p>
<hr>
<iframe src="https://flo.uri.sh/visualisation/8042319/embed" title="Interactive or visual content" class="flourish-embed-iframe" frameborder="0" scrolling="no" style="width:100%;height:600px;" sandbox="allow-same-origin allow-forms allow-scripts allow-downloads allow-popups allow-popups-to-escape-sandbox allow-top-navigation-by-user-activation" width="100%" height="400"></iframe>
<div style="width:100%!;margin-top:4px!important;text-align:right!important;"><a class="flourish-credit" href="https://public.flourish.studio/visualisation/8042319/?utm_source=embed&utm_campaign=visualisation/8042319" target="_top"><img alt="Made with Flourish" src="https://public.flourish.studio/resources/made_with_flourish.svg"> </a></div>
<hr>
<p>By 2019, however, those believing support for First Nations people had “gone too far” and those believing it had “not gone far enough” were almost equal. This shows a considerable decline in voter hostility towards Indigenous affairs.</p>
<p>Notably, the consistent upward trend is also “secular”, meaning it is unrelated to whichever party is in government and the policies they promote. The long-term change in public opinion seems to rest instead with long-term social and economic changes and a gradual liberalising of attitudes in the country.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/most-australians-support-first-nations-voice-to-parliament-survey-157964">Most Australians support First Nations Voice to parliament: survey</a>
</strong>
</em>
</p>
<hr>
<h2>Why have attitudes changed?</h2>
<p>Since the 1960s, attitudes towards a wide range of social issues have become more liberal in almost all established democracies. Numerous studies show dramatic changes on issues associated with equality, such as <a href="https://academic.oup.com/sf/article-abstract/83/2/759/2234759">women’s rights</a>, <a href="https://www.jstor.org/stable/10.1111/1468-2508.t01-1-00133">same-sex marriage</a> and <a href="https://www.routledge.com/Between-Two-Absolutes-Public-Opinion-and-the-Politics-of-Abortion/Cook/p/book/9780367012458">abortion</a>. </p>
<p>The causes of these long-term changes in attitudes are often traced to shifting value systems creating a <a href="http://www.brandonkendhammer.com/challenges_of_democratization/wp-content/uploads/2013/12/OUP_ch09-libre.pdf">more tolerant and egalitarian society</a>. Underlying this fundamental shift are unprecedented increases in economic prosperity, physical security and educational opportunities.</p>
<p>We assessed several factors in our study. One possibility is younger generations are more likely to vote “yes” to constitutional reform than older generations. Older generations tend to prioritise physical security and economic well-being as opposed to <a href="https://www.tandfonline.com/doi/abs/10.1080/01402380701834747">equality and personal fulfilment</a>. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/indigenous-recognition-is-more-than-a-voice-to-government-its-a-matter-of-political-equality-154057">Indigenous recognition is more than a Voice to Government - it's a matter of political equality</a>
</strong>
</em>
</p>
<hr>
<p>Our data show, however, that factors such as age were not necessarily significant. There were other explanations for the shift in people’s attitudes that were stronger.</p>
<p>Especially significant was whether a person has pursued higher education – a category that, since the 1960s, includes many more Australians than before. Australia has been a world leader in the expansion of higher education. In 2018, just over half of 25- to 34-year-olds had a <a href="https://data.oecd.org/eduatt/population-with-tertiary-education.htm">tertiary education</a>.</p>
<p>A greater proportion of people are now better educated, meaning they have received training in the cognitive skills needed to evaluate complex political issues and come to a more considered personal view on Indigenous issues. </p>
<h2>Lessons for referendum design</h2>
<p>Importantly, education does not take place in schools alone. Some referendum processes do more than others to <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2302915">inform voters</a> through things like online tutorials, televised (including reality-style) programs and “voting advice applications” (like <a href="https://act.smartvote.org/en/home">smartvote</a>). This may counter some of the lack of knowledge among voters. </p>
<p>Citizens’ assemblies are another possible tool. These involve recruiting randomly selected citizens as decision-makers and thoroughly informing them on the issues so they can take the lead in <a href="https://sites.psu.edu/citizensinitiativereview/">writing referendum ballots and information materials</a>.</p>
<p>Our results suggest cautious optimism should replace cynicism about the prospects of constitutional recognition. Unprecedented rises in educational attainment may have brought Australian voters at least part way towards a more nuanced and open-minded understanding of Indigenous affairs. </p>
<p>Referendum education programs in the lead-up to the vote itself may take Australians even farther along this path.</p><img src="https://counter.theconversation.com/content/172851/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ron Levy has received funding from the Australian Research Council. </span></em></p><p class="fine-print"><em><span>Ian McAllister receives funding from the Australian Research Council</span></em></p>
There has been a clear trend since the 1980s towards more favourable public attitudes on Indigenous issues. The reason? A better-educated citizenry.
Ron Levy, Associate professor, Australian National University
Ian McAllister, Distinguished Professor of Political Science, Australian National University
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/166587
2021-08-24T14:15:10Z
2021-08-24T14:15:10Z
Kenyan judges stop president’s reforms as attempt to ‘dismember’ the constitution
<figure><img src="https://images.theconversation.com/files/417560/original/file-20210824-13-1jqi8fu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">President Mwai Kibaki holds up Kenya's new constitution soon after promulgating it on August 27, 2010.</span> <span class="attribution"><span class="source">Tony Karumba/AFP via Getty Images</span></span></figcaption></figure><p>The Court of Appeal of Kenya has <a href="https://www.businessdailyafrica.com/bd/economy/appeal-court-upholds-ruling-against-bbi-3519108">upheld</a> the High Court’s <a href="https://www.afronomicslaw.org/sites/default/files/pdf/BBI%20Consolidated%20Judgment%20-%20Final%20Version%20-%20As%20Delivered.pdf">ruling</a> that attempts to <a href="http://kenyalaw.org/kenyalawblog/wp-content/uploads/2020/10/Constitution-of-Kenya-Amendment-Bill-25-11-2020.pdf">overhaul the country’s constitution</a> violated its basic structures.</p>
<p>The <a href="http://kenyalaw.org/kenyalawblog/wp-content/uploads/2020/10/Constitution-of-Kenya-Amendment-Bill-25-11-2020.pdf">mega-constitutional amendment bill</a> proposed amending virtually every major part of Kenya’s constitution. It ran to 45 pages, contained 74 amendment articles, and included two schedules appended to the main text.</p>
<p>The Constitution Amendment Bill 2020 emerged from a political initiative launched by Uhuru Kenyatta and his political rival Raila Odinga, the leading contenders for the presidency in 2017. The poll was <a href="https://www.hrw.org/news/2017/08/27/kenya-post-election-killings-abuse">marred</a> by serious human rights violations, including unlawful killings and beatings by police. The initiative – called the <a href="https://www.bbi.go.ke/">Building Bridges Initiative</a> – was touted as a means to improve governance and prevent future post-election violence.</p>
<p>The dozens of amendments would have effectively left none of the existing constitution unchanged – either expressly or by implication. Among its most controversial amendments were proposals that would have undermined the separation of powers among the executive, parliament and the judiciary. </p>
<p>The Court of Appeal accordingly concluded that the bill amounted to a dismemberment of the Kenyan constitution. Among the seven judges, four referred to the concept of “constitutional dismemberment” in arriving at their <a href="https://www.standardmedia.co.ke/national/article/2001421302/live-blog-the-bbi-judgement">collective conclusion</a> that the constitutional bill exceeded the <a href="https://www.the-star.co.ke/news/2021-08-20-live-text-court-of-appeal-delivers-bbi-judgment">authority of amending actors</a>.</p>
<p>Justice Daniel Musinga, president of the Court of Appeal, observed that </p>
<blockquote>
<p>any amendment that alters the constitution fundamentally is not an ordinary constitutional amendment. It amounts to the dismemberment of the constitution.</p>
</blockquote>
<p>For her part Justice Hannah M. Okwengu seized on the </p>
<blockquote>
<p>distinction between amendment and dismemberment or change and remaking of a constitution.</p>
</blockquote>
<p>Justice Patrick O. Kiage described the Building Bridges Initiative as </p>
<blockquote>
<p>effectively dismembering the constitution, blasting so huge a hole in it as to pulverise, and essentially create a new constitutional order.</p>
</blockquote>
<p>And Justice S. Gatembu Kairu stressed that the initiative was possible “provided the amendments proposed do not amount to dismemberment.”</p>
<p>What are the conceptual foundations of <a href="https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1685&context=yjil#:%7E:text=A%20constitutional%20dismemberment%20alters%20a,time%20the%20change%20is%20made">constitutional dismemberment</a> in the context of this historic judgment?</p>
<h2>Constitutional amendment versus dismemberment</h2>
<p>A <a href="https://utexas.box.com/v/RA-ConstitutionalAmendments">constitutional amendment</a>, properly defined, is a constitutionally continuous change to higher law. It is a change whose content and form are consistent with the existing design, framework and fundamental presuppositions of the constitution. </p>
<p>A constitutional amendment entails unbroken unity with the constitution being amended. It therefore continues the constitution-making project in line with the existing design of the constitution. </p>
<p>An amendment may:</p>
<ul>
<li><p>improve on the constitution’s design where necessary or useful to align expectations about how it should function,</p></li>
<li><p>fix a constitution’s design flaws when they are discovered,</p></li>
<li><p>restore a constitution’s earlier meaning, or </p></li>
<li><p>reform the structure of government. </p></li>
</ul>
<p>But in all cases, an amendment must cohere with the constitution. An amendment must never push the boundaries of the constitution any further than its outermost limits.</p>
<p>The Court of Appeal concluded that the proposed changes exceeded the boundaries of the constitution of Kenya. </p>
<p>It was not an amendment, properly understood. It was a constitutional dismemberment.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/why-kenyas-constitutional-duels-are-all-about-power-struggles-among-the-elite-147471">Why Kenya's constitutional duels are all about power struggles among the elite</a>
</strong>
</em>
</p>
<hr>
<p>A constitutional dismemberment entails a fundamental transformation of the constitution’s core commitments. Constitutional dismemberment alters the identity, the fundamental rights, or the structure of the constitution. It intends deliberately to disassemble one or more of a constitution’s elemental parts. It can occur suddenly in a big-bang moment or gradually by erosion or accretion. </p>
<p>To use a rough shorthand, the purpose of a constitutional dismemberment is to unmake and remake the constitution.</p>
<p>The point is that a constitutional dismemberment is a far-reaching alteration that is incompatible with the existing framework of the constitution. It exceeds the boundaries of amendment and it endeavours to set the constitution and the country on a new course.</p>
<p>Efforts to dismember constitutions are quite common. We have seen amending <a href="https://oxford.universitypressscholarship.com/view/10.1093/oso/9780190640484.001.0001/oso-9780190640484#:%7E:text=%2C%20test%20...-,Constitutional%20Amendments%3A%20Making%2C%20Breaking%2C%20and%20Changing%20Constitutions%20is%20both,the%20rules%20of%20constitutional%20change.">actors around the world</a> pass constitutional dismemberments that defy the basic structure of the constitution. This happened in Brazil, Turkey, Albania, Japan, Colombia and Greece. Sometimes courts have intervened – as was the case in Kenya.</p>
<p>We can now explain why the Kenyan Court of Appeal described the constitutional bill as a constitutional dismemberment. It tried to override the fundamental features of the constitution using the ordinary procedures of constitutional amendment. </p>
<p>But changes as far-reaching as these cannot be made using ordinary amendment procedures. And that is a significant part of the reason why the Court of Appeal declined their appeal.</p>
<p><em>An earlier version of this analysis was published by <a href="http://www.iconnectblog.com/2021/08/constitutional-amendment-and-dismemberment-in-kenya/">I-Connect</a></em></p><img src="https://counter.theconversation.com/content/166587/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Richard Albert does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
The purpose of a constitutional dismemberment is to unmake and remake the constitution.
Richard Albert, Professor of World Constitutions and Director of Constitutional Studies, The University of Texas at Austin
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/165088
2021-07-29T15:12:27Z
2021-07-29T15:12:27Z
Tanzania’s Hassan faces her first political test: constitutional reform
<figure><img src="https://images.theconversation.com/files/413335/original/file-20210727-13-1q0wsuk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Tanzania opposition party leader Freeman Mbowe (centre) after being released from prison in Dar es Salaam in 2020.
</span> <span class="attribution"><span class="source">Photo by Ericky Boniphace/AFP via Getty Images</span></span></figcaption></figure><p>After the death of Tanzania’s president John Pombe Magufuli in March 2021, his successor Samia Suluhu Hassan began her tenure by departing from his undemocratic style. President Hassan inherited a <a href="https://theconversation.com/tanzanias-samia-hassan-has-the-chance-to-heal-a-polarised-nation-157523">divided nation</a>. But in her <a href="https://www.theeastafrican.co.ke/tea/news/east-africa/100-days-of-samia-3452986">first days</a> in office she created a sense of optimism, not just through her calls for reconciliation and national unity but her candour. </p>
<p>Careful not to upset the hardliners in her party, Chama Cha Mapinduzi, she was calculating in achieving her boldest reversal – the country’s <a href="https://qz.com/africa/2006013/tanzania-president-samia-hassan-issues-new-covid-19-restrictions/">COVID-19 ambivalence</a>. An advisory expert committee helped <a href="https://www.africanews.com/2021/06/25/tanzania-expert-committee-recommends-covid-19-figures-re-publication//">pave the way</a> for Tanzania to join the COVAX programme and begin vaccinating its citizens – with the president <a href="https://nation.africa/kenya/news/africa/president-samia-suluhu-becomes-first-tanzanian-to-officially-get-covid-19-jab-3489668">taking the lead</a>.</p>
<p>The new president also spoke against suppressing <a href="https://ipi.media/new-tanzania-president-to-lift-ban-on-media-organizations/">media freedom</a>. She <a href="https://apnews.com/article/africa-tanzania-0dd64ce8844163886f1b997461bd0441">released</a> dissidents and pledged to meet the opposition.</p>
<p>But now her leadership is under scrutiny over her handling of demands led by opposition leaders for a new constitution. On 21 July, Chama cha Demokrasia na Maendeleo party leader Freeman Mbowe was arrested as he prepared to address a constitutional forum arranged by his party. He was slapped with <a href="https://www.aljazeera.com/news/2021/7/22/tanzanian-opposition-leader-to-face-terrorism-charges-party">terrorism</a> charges.</p>
<p>The continued harassment of the opposition, arbitrary arrest and trumped up charges are a reminder of the inadequacies of the current constitution and the need for constitutional reforms.</p>
<h2>How Tanzania got here</h2>
<p>One of the promises that Hassan made as she assumed office was her willingness to meet the opposition. Previously, opposition party leaders and members were harassed and brutalised and political party activity was unlawfully banned in July 2016. But the clamour for constitutional reform has set her and the opposition on a <a href="https://www.thecitizen.co.tz/tanzania/news/-you-ve-still-not-met-with-us-mbowe-reminds-samia-3431964">collision course</a>. </p>
<p>Chama Cha Demokrasia na Maendeleo has <a href="https://www.thecitizen.co.tz/tanzania/news/chadema-will-not-participate-in-the-2025-polls-without-a-new-constitution-says-mbowe-3416198">vowed</a> not to participate in another election under the current constitution. It has called for reforms to the management of elections, which can often be <a href="https://tanzaniaelectionswatch.org/download/tanzania-elections-watch-final-report/">shambolic</a>. </p>
<p>There have also been demands for an independent electoral commission as well as the restructuring of the union between Tanganyika and Zanzibar. These two make up the United Republic of Tanzania. </p>
<p>One of the defining features of Tanzania’s current constitution is the imperial powers vested on the head of state. Founding leader Julius Nyerere once <a href="https://constitutionnet.org/news/consolidating-democracy-tanzania-presidential-powers-under-proposed-constitution">remarked</a> that the constitution gave him the status of a god. Together with the need to curtail the powers of the president, there has been a <a href="https://www.thecitizen.co.tz/tanzania/news/chadema-s-mbowe-adds-voice-to-demand-for-new-constitution--3247724">demand</a> for a progressive law that is anchored by the principles of human rights, freedoms and institutional accountability.</p>
<p>The <a href="https://www.constituteproject.org/constitution/Tanzania_1995?lang=en">current constitution</a> came into effect in 1977 during single-party rule. By design, this constitution consolidated one-party dominant rule, which has been the defining feature of Tanzania’s politics. </p>
<p>Recent constitutional reforms in Tanzania began in 1991 with the setting up of the <a href="https://www.thecitizen.co.tz/tanzania/news/-nyalali-commission-recommends-restoration-of-multi-party-politics-2708724">Nyalali Presidential Commission</a> to advise on the transition from single-party rule to multiparty democracy. This commission made a host of recommendations which led to other reform demands such as the restructuring of the union between Tanganyika and Zanzibar.</p>
<p>In 2010, Tanzania’s fourth president, Jakaya Kikwete, initiated a process to comprehensively review the 1977 constitution. Led by Judge Joseph Warioba, it culminated in a draft constitution that was presented to a Constituent Assembly for debate. One of the changes proposed was a three-tier union structure. But political intrigue stifled this. </p>
<p>A new draft constitution was produced in October 2014. The proposed new constitution was to be subjected to a referendum in 2015, but this failed to happen. When Magufuli became president in 2015, he <a href="https://constitutionnet.org/news/tanzanian-president-indicates-constitutional-reform-not-priority">said</a> a new constitution was not part of his agenda.</p>
<h2>Why a new constitution?</h2>
<p>The <a href="https://www.theeastafrican.co.ke/tea/news/east-africa/clamour-for-new-katiba-tanzania-3461544">clamour</a> for a new constitutional dispensation in Tanzania is not new. However, the country’s <a href="https://www.aljazeera.com/opinions/2020/12/2/magfulis-growing-authoritarianism-is-not-an-exception">slide to authoritarian</a> and repressive rule in the past few years has reignited the hunger for change.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/how-magufuli-has-steered-tanzania-down-the-road-of-an-authoritarian-one-party-state-149760">How Magufuli has steered Tanzania down the road of an authoritarian one-party state</a>
</strong>
</em>
</p>
<hr>
<p>Constitution making through popular participation is crucial in strengthening national unity and empowering public support for nation building. Countries such as South Africa and Kenya have demonstrated that such reforms are possible.</p>
<p>Tanzania has enjoyed relative political stability over the years. But, it needs a new constitution to address contemporary challenges such as poverty, inequality and corruption. A constitution could strengthen public institutions through good governance and accountability. </p>
<p>President Hassan still enjoys public goodwill early in her term. She, therefore, has a historic chance to peacefully steer Tanzania towards a new constitution. She can draw on this goodwill, her collegial approach and her experience as the vice chair of the 2014 Constituent Assembly to take control. If not, today’s political demands could evolve into tomorrow’s political crisis.</p><img src="https://counter.theconversation.com/content/165088/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Nicodemus Minde does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
Despite the relative political stability over the years, Tanzania needs a new constitution to address contemporary challenges and strengthen institutions.
Nicodemus Minde, PhD Fellow, United States International University
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/164530
2021-07-21T15:29:59Z
2021-07-21T15:29:59Z
Plans for ministers who aren’t in parliament raise concerns for UK democracy – constitutional expert
<figure><img src="https://images.theconversation.com/files/412153/original/file-20210720-13-17uw6bk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">UK Prime Minister Boris Johnson at the weekly PMQs session in the House of Commons where he can be challenged by members of parliament</span> <span class="attribution"><span class="source">Jessica Taylor/UK Parliament</span></span></figcaption></figure><p>The UK prime minister currently chooses his or her ministers from membership of the Houses of Parliament. But a new commission has suggested that the PM should be able to appoint ministers who don’t take seats in the Commons or the Lords.</p>
<p>The recommendations come from a report by <a href="https://www.governsmarter.org/">the Commission for Smart Government</a>. Set up as a cross-party initiative in 2020, the independent body has been tasked with examining ways in which the machinery of government can be more effective.</p>
<p>The commission argues that giving prime ministers the ability to appoint this new type of minister would allow “talent to be brought in from outside” and so have more specialists within government. The plans <a href="https://www.thetimes.co.uk/article/no-reason-for-ministers-to-be-politicians-insists-michael-gove-jlsfbrf0b">have been endorsed</a> by Minister for the Cabinet Office, Michael Gove.</p>
<p>But, if implemented, what would this mean for <a href="https://theconversation.com/brexit-the-differing-versions-of-democracy-deployed-by-both-sides-of-britains-political-impasse-114868">democratic accountability?</a></p>
<p>Currently ministers can be called before parliament (either the House of Lords or House of Commons) to be questioned within the chamber about what is going on in their departments, actions that might be controversial, or problems that are being reported in the news. But parliament would not have the power to call in one of these new types of ministers to appear in the chambers of the houses at minister’s questions. This matters as it weakens the lines of accountability between parliament and government.</p>
<p>The proposed new route for appointing ministers raises concern on two fronts:</p>
<p>First, it is ingrained within our current system that the legislature (parliament) holds the government to account for its policies and decision making (via a system of <a href="https://publications.parliament.uk/pa/cm201415/cmselect/cmpolcon/351/35108.htm">checks and balances</a>). </p>
<figure class="align-center ">
<img alt="Bim Afolami MP addresses the House of Commons" src="https://images.theconversation.com/files/412155/original/file-20210720-27-147t3q8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/412155/original/file-20210720-27-147t3q8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/412155/original/file-20210720-27-147t3q8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/412155/original/file-20210720-27-147t3q8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/412155/original/file-20210720-27-147t3q8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/412155/original/file-20210720-27-147t3q8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/412155/original/file-20210720-27-147t3q8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Bim Afolami MP addresses the House of Commons during the weekly Prime Minister’s Questions session.</span>
<span class="attribution"><span class="source">Jessica Taylor/UK Parliament</span></span>
</figcaption>
</figure>
<p>Having non-parliamentarian ministers would weaken the mechanisms available to MPs to hold the government to account and create distance between government and parliament. It has the potential to reduce the number of opportunities for shadow ministers and other MPs to question those minister’s policies, while also undermining the function of <a href="https://www.parliament.uk/site-information/glossary/opposition-days/">debates scheduled by the opposition</a>, because non-parliamentarian ministers would presumably not be able to participate. </p>
<p>Foreseeing inevitable questions of accountability to the UK parliament, the commission <a href="https://www.governsmarter.org/publications">report</a> has suggested the creation of oral committees that can summon these appointees. No one knows, as of yet, what form these committees will take.</p>
<p>Second, this could be a way for the PM to wield too much arbitrary power, where he or she can appoint their contacts from outside parliament to high status positions. </p>
<h2>Presidential style ambitions?</h2>
<p>Moving towards external appointments is something akin to a <a href="https://presidentialsystem.org/2016/04/30/what-is-the-presidential-system/">hybrid-presidential system</a> (which the UK does not currently have the infrastructure safeguards in place to support). </p>
<p>For example, in the US, once the <a href="https://www.whitehouse.gov/administration/">president</a> is elected, he or she is able to nominate non-politicians, such as academics or business leaders, to serve in their <a href="https://www.whitehouse.gov/administration/cabinet/">cabinet</a>. Those proposed for appointment as a secretary of state “serve at the pleasure of the president”, but are voted upon and given hearings by elected <a href="https://www.cop.senate.gov/artandhistory/history/common/briefing/Direct_Election_Senators.htm">senators</a>. The senate votes whether or not to confirm that individual for cabinet appointment. Importantly, the US cabinet is more of an advisory body to the president. It does not have any collective executive powers. </p>
<p>US cabinet members are also subject to impeachment by the House of Representatives and trial in the Senate for treason, bribery, and other misdemeanours. By contrast, impeachment proceedings are considered <a href="https://commonslibrary.parliament.uk/research-briefings/cbp-7612/">obsolete in the UK, although they still exist.</a> </p>
<p>We need to consider whether the proposals give too much discretionary power to the prime minister, and whether others should be involved in the processes, as well as what mechanisms are needed to critique proposed appointees. Thought should also be given as to whether there are certain ministerial posts that must always be held by an elected MP, and whether caps on the number of non-parliamentarian appointments are needed.</p>
<h2>Legal background</h2>
<p>Perhaps surprisingly, there are few legal restrictions placed upon the PM in deciding the composition and structure of their government. The few that exist include <a href="https://www.legislation.gov.uk/ukpga/1975/27">the Ministerial Act 1975</a>, which limits the number of paid ministerial posts to 109, and <a href="https://www.legislation.gov.uk/ukpga/1975/24/contents">the House of Commons Disqualification Act 1975</a>, which states that no more than 95 ministers may sit and vote in the Commons. However, there are no equivalent legal restraints on ministerial numbers in the Lords.</p>
<p>In theory, a minister <a href="https://commonslibrary.parliament.uk/research-briefings/sn05226/">does not have to be a member of the Houses of Parliament</a> but, in practice, <a href="https://www.parliament.uk/site-information/glossary/conventions/">constitutional convention</a> (tradition) dictates that they need to be, primarily to ensure accountability to parliament. </p>
<p>To meet these convention requirements, in the past prime ministers have appointed those from outside parliament to a ministerial job by first giving them a place in the House of Lords. This practice was adopted by <a href="https://www.politics.co.uk/news/2007/06/29/brown-to-complete-government-of-all-the-talents/">Gordon Brown</a> when he announced his “government of all the talents” in 2007, and has continued under Boris Johnson’s administration.</p>
<p>Concerns have already been raised about such existing practices, specifically the accountability of these ministers to the Commons. There is a <a href="https://press.lse.ac.uk/site/chapters/10.31389/book1.m/download/2120/">democratic deficit</a> in having unelected, appointed, government ministers sitting in the Lords, whom are beyond the scrutiny of elected MPs in the Commons chamber. To try and address these criticisms, albeit weakly, in 2009, it was agreed to set aside time, once a month, for questioning secretaries of state sitting <a href="https://commonslibrary.parliament.uk/research-briefings/sn05226/">in the Lords.</a></p>
<p>Also, since the 1998 appointment of Chief Constable Keith Hellawell to advise the home secretary on anti-drugs policy, the government already makes use of specialists advisers, otherwise known as <a href="https://publications.parliament.uk/pa/cm200910/cmselect/cmpubadm/330/330.pdf">tsars</a>. The key distinction here is that tsars report directly to ministers with membership of the Houses of Parliament. Therefore ministers answer questions about the tsars’ work or behaviour in parliament. If these proposals are seen as an alternative route for bringing in specialists, they have the potential to circumvent these direct lines of accountability. </p>
<p>In their current form, the proposals could undermine the democratic function of what happens within parliament. Instead, attention should be given to strengthening the means by which ministers sitting in the Lords and tsars are held to account, while safeguarding already fragile UK democratic accountability processes.</p><img src="https://counter.theconversation.com/content/164530/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Stephen Clear does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
Appointing ministers who aren’t MPs or lords would weaken parliament’s ability to hold the government to account.
Stephen Clear, Lecturer in Constitutional and Administrative Law, and Public Procurement, Bangor University
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/163803
2021-07-06T00:53:30Z
2021-07-06T00:53:30Z
What did the public say about the government’s Indigenous Voice co-design process?
<p>In January, the Australian government released the Indigenous Voice co-design group’s <a href="https://voice.niaa.gov.au/sites/default/files/2021-01/indigenous-voice-discussion-paper_1.pdf">interim report</a>. This was followed by a public consultation process led by a senior advisory group, chaired by Marcia Langton and Tom Calma, and supported by the work of a national co-design group and a local/regional co-design group. </p>
<p>Together, these groups were <a href="https://ministers.pmc.gov.au/wyatt/2019/voice-co-design-senior-advisory-group">tasked with</a> advising the minister for Indigenous Australians, Ken Wyatt, on “options for models that will ensure that Indigenous Australians are heard at all levels of government – local, state and federal.”</p>
<p>The public consultation process sought feedback on design options for the Voice, through written submissions, an online survey, public consultation hearings and closed stakeholder meetings. It concluded on April 30. </p>
<p>As public law academics working with the Indigenous Law Centre at the University of New South Wales, we have followed this process carefully and analysed all consultation documents. </p>
<p><a href="https://static1.squarespace.com/static/602f123f11087d603fa92730/t/60d99592da8f7d71d41240a7/1624872348089/INDIGENOUS+VOICE+CO-DESIGN+PROCESS+Expert+Analysis+Report+-+29+June+2021.pdf">Our analysis</a> revealed:</p>
<ul>
<li><p>overwhelming public support for a constitutionally enshrined First Nations Voice</p></li>
<li><p>a sense of momentum and urgency for the government to take this reform to a referendum</p></li>
<li><p>deep concerns the government is not listening to First Nations people in designing the detail of this Voice.</p></li>
</ul>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/indigenous-recognition-is-more-than-a-voice-to-government-its-a-matter-of-political-equality-154057">Indigenous recognition is more than a Voice to Government - it's a matter of political equality</a>
</strong>
</em>
</p>
<hr>
<h2>Constitutionally enshrined First Nations Voice</h2>
<p>There were extremely high levels of engagement with the public submissions process. As of June 9, 2,554 <a href="https://voice.niaa.gov.au/resources">public submissions</a> had been uploaded to the National Indigenous Australians Agency (NIAA) website. </p>
<p>Of these submissions:</p>
<ul>
<li><p>90% believe the First Nations Voice should be constitutionally enshrined in line with the Uluru Statement from the Heart </p></li>
<li><p>a third of public submissions stated explicitly that a referendum on the Voice needs to be held before the Voice is legislated</p></li>
<li><p>only four submissions indicated a preference for a legislate-first approach. </p></li>
</ul>
<p>Submissions in support of constitutional enshrinement were made by:</p>
<ul>
<li><p>non-Indigenous individuals organisations and groups (including corporate organisations (61%) </p></li>
<li><p>First Nations community organisations and groups (17%)</p></li>
<li><p>First Nations people (3%).</p></li>
</ul>
<p>Some pragmatists argued constitutional enshrinement of the Voice is needed to protect it from being removed by future governments. <a href="https://haveyoursay.voice.niaa.gov.au/submissions/view/sbm1770b5a593fe9d64fb0c1">Denise McConnachie</a> from Wollongong says: </p>
<blockquote>
<p>I have observed what occurred to The Aboriginal and Torres Strait Islander Commission at the hands of a hostile government. Legislated bodies can be unlegislated, at a whim. The Voice to Parliament needs to be secure, consistent and an inalienable right for First Nations people… </p>
</blockquote>
<p>Others said constitutional enshrinement was about observing the wishes of First Nations people. The <a href="https://haveyoursay.voice.niaa.gov.au/submissions/view/sbm17b7729f68766db9a194b">Ngalaya Indigenous Corporation</a> said: </p>
<blockquote>
<p>The delivery of the Uluru Statement from the Heart was a watershed moment for this nation. […] The path forward requires that a structural promise to listen to Aboriginal and Torres Strait Islander voices be enshrined in the Australian constitution. </p>
</blockquote>
<p>Other submissions said constitutional enshrinement of the Voice is essential for recognising the unique status of First Nation people via substantive structural reform. As primary school students N (age 9) and E (age 10) said in their <a href="https://haveyoursay.voice.niaa.gov.au/submissions/view/sbm16f9beac16f378f58c246">submission (prepared alongside their year ¾ classmates)</a>:</p>
<blockquote>
<p>[First Nations people] should have a say because everyone’s voice and point of view is important and it should be listened to because they have been here for 65,000 years and they are no different than everyone else. They have the right to say what they need to say. </p>
</blockquote>
<p>Submissions also strongly opposed the government establishing a legislative Voice before deciding whether to progress constitutional enshrinement.</p>
<p>Submissions further argued this approach would set the Voice up to fail, and it would reduce momentum and support for a referendum.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/toxicity-swirls-around-january-26-but-we-can-change-the-nation-with-a-voice-to-parliament-153623">Toxicity swirls around January 26, but we can change the nation with a Voice to parliament</a>
</strong>
</em>
</p>
<hr>
<h2>Concerns the government hasn’t engaged with First Nations people</h2>
<p>The interim report says the national Voice co-design group’s work was informed by a number of discussion papers prepared by the NIAA. These were not publicly available and we ultimately accessed them via a freedom of information request. </p>
<p>The papers revealed options for the design of the Voice were never properly canvassed in the interim report, nor put to the public for feedback. </p>
<p>Options not included in the report included </p>
<ul>
<li><p>support for a stronger relationship between the Voice and parliament</p></li>
<li><p>ensuring the Voice has secure and independent funding </p></li>
<li><p>envisioning the Voice be empowered to conduct audits and evaluations of government policy, administration and service delivery.</p></li>
</ul>
<p>Community consultation summaries also indicate there is widespread criticism of the interim report, including concerns it lacked First Nation community involvement in the selection of advisory group members and in developing the design options. </p>
<p>An individual who attended the <a href="https://voice.niaa.gov.au/sites/default/files/2021-06/perth-consultation-session-2-summary-notes.pdf">Perth community consultation</a> expressed frustration that co-design members were a top-down, government-appointed group, with little involvement from community people leading and driving the work.</p>
<p>The <a href="https://haveyoursay.voice.niaa.gov.au/submissions/view/sbm17b78ebef769c88472b0c">Central Land Council</a> also said in a submission it had:</p>
<blockquote>
<p>concerns about transparency and accountability in the processes that have led to the release of the report, and in the stage two consultation processes planned. </p>
<p>We are concerned that the current process does not appear to have been a genuine, fully equitable and participatory co-design with Aboriginal and Torres trait Islander peoples in full partnership. </p>
<p>This is particularly worrying, given the extensive discussions and consultation we carried out among our own people, which led to the Uluru Statement. </p>
</blockquote>
<h2>Where to from here?</h2>
<p>The co-design process has substantially progressed the concept of an Indigenous Voice, what its functions will be, and how it might be designed. There is now a foundation of information sufficient to take the Voice to a referendum. </p>
<p>It’s important to remember that only the existence of the Voice as a First Nations’ representative institution and its core function will be constitutionally enshrined. The rest of the details will be established through legislation. </p>
<p>Four years after the Uluru Statement from the Heart, the time is now to put a referendum to the Australian people.</p><img src="https://counter.theconversation.com/content/163803/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Gabrielle Appleby worked as a pro bono constitutional adviser to the Referendum Council during the Regional Dialogues and the Constitutional Convention in 2016-2017 that led to the Uluru Statement from the Heart. </span></em></p><p class="fine-print"><em><span>Dani Linder and Emma Buxton-Namisnyk do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
A public consultation process sought feedback on design options for the Indigenous Voice to parliament. Our analysis shows the findings of these sessions.
Dani Linder, Lecturer/Deputy Director of the Indigenous Law Centre, UNSW Sydney
Emma Buxton-Namisnyk, Researcher, PVCI UNSW, UNSW Sydney
Gabrielle Appleby, Professor, UNSW Law School, UNSW Sydney
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/160014
2021-05-09T08:23:47Z
2021-05-09T08:23:47Z
Choosing Lesotho’s judges on merit should be only the start of judicial reforms
<figure><img src="https://images.theconversation.com/files/398672/original/file-20210504-13-ecx2u3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The move towards an open process for appointing judges is unprecedented in Lesotho.</span> <span class="attribution"><span class="source">shutterstock</span></span></figcaption></figure><p>Lesotho’s Judicial Service Commission has started a process to recruit seven judges of the High Court through a merit-based process. In February 2021, the Commission issued a <a href="https://www.gov.ls/documents/public-announcement-of-judicial-vacancies-in-the-high-court-of-the-kingdom-of-lesotho/">public advertisement</a> announcing the vacancies and spelling out the competencies required. The vacancies follow a slew of deaths and retirements of judges. </p>
<p>The High Court is the second highest court in <a href="https://www.britannica.com/place/Lesotho">Lesotho</a>; after the Court of Appeal. But, the High Court is more important as it is the highest court with unlimited original jurisdiction to hear and determine any civil or criminal proceedings, and the power to review the decisions or proceedings of any subordinate court or tribunal. Since 2000, the court sits as a constitutional court when it decides on <a href="https://lesotholii.org/legislation/sl/194">constitutional matters</a>.</p>
<p>The <a href="https://www.constituteproject.org/constitution/Lesotho_2011.pdf?lang=en">Constitution</a> provides that the High Court shall comprise the Chief Justice and any number of judges as the Act of parliament may determine. Judges are appointed by the King on the advice of the Judicial Service Commission (JSC). The JSC is a constitutional structure responsible for the appointment, conduct and removal of judicial officers.</p>
<p>The advertisement was intended to culminate in public interviews of shortlisted candidates in May. But the process has been suspended due to <a href="https://he-il.facebook.com/Informativenewspaper/posts/10160934367678989">lack of funding</a>. </p>
<p>Nevertheless, the move to appoint judges through an open process based on merit is unprecedented in Lesotho, a small nation that is completely landlocked by South Africa, and thus laudable. So far, the appointment of judges has been an obscure and oftentimes clandestine affair between the Commission and government. This has produced incompetent judges and claims that the judiciary is beholden to the executive. </p>
<p>Welcome as it is, the move towards an open process is only a small step in reforming the country’s judiciary. The appointment of judicial officers in Lesotho is beset with much deeper systemic problems that need urgent attention.</p>
<h2>The practice so far</h2>
<p>In the past, the public used to simply see a person being announced as a judge of the High Court by the JSC. The usual practice has been to appoint a person as an acting judge, which would ordinarily attract little public scrutiny, and later confirm the person as a permanent judge. </p>
<p>This deplorable practice is arguably a factor, among others, contributing to the current <a href="http://www.icj.org/wp-content/uploads/2014/10/Lesotho-Crisis-judicial-leadership-Publications-Mission-report-2014-ENG.pdf">state of incompetence</a> in the High Court. The Court of Appeal often <a href="https://lesotholii.org/ls/judgment/court-appeal/2019/2-0">decries</a> the quality of the <a href="https://lestimes.com/mosito-slams-high-court-judges/">judgments</a> of the High Court judges.</p>
<p>Until now, the JSC and government have tended to promote either magistrates or registrars of the High Court to the bench. The registrar is the chief accounting officer for the judiciary. Even this practice was not based on any objective criteria. </p>
<p>Sometimes, very junior magistrates would be appointed over more senior and competent ones. That practice excluded other areas of the legal profession, such as private legal practitioners (lawyers) and legal academics.</p>
<figure class="align-left ">
<img alt="A man wearing a suit and tie stares in the distance" src="https://images.theconversation.com/files/398885/original/file-20210505-15-j9khe2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/398885/original/file-20210505-15-j9khe2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=899&fit=crop&dpr=1 600w, https://images.theconversation.com/files/398885/original/file-20210505-15-j9khe2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=899&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/398885/original/file-20210505-15-j9khe2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=899&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/398885/original/file-20210505-15-j9khe2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1130&fit=crop&dpr=1 754w, https://images.theconversation.com/files/398885/original/file-20210505-15-j9khe2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1130&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/398885/original/file-20210505-15-j9khe2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1130&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Lesotho’s constitutional monarch, King Letsie III.</span>
<span class="attribution"><span class="source">Photo © Crozet / Pouteau</span></span>
</figcaption>
</figure>
<p>Perhaps the new approach to recruiting judges is inspired by the practice <a href="https://www.judgesmatter.co.za/jsc-candidates-april-2021-and-april-2020/">in South Africa</a>, and the fact that Lesotho is in the process of constitutional reforms.</p>
<p>Hopefully, the drive for meritocracy in the High Court will be applied across all facets of the judiciary to make it genuinely meritorious. </p>
<h2>The bigger problem</h2>
<p>While the new move is welcome, a lot still remains to be done to enhance merit in the appointment of <a href="http://trc.org.ls/wp-content/uploads/2019/09/JUDICIAL-REFORMS-IN-LESOTHO-A-CASE-FOR-CHANGING-THE-BASE-AND-THE-SUPERSTRUCTURE.pdf">judges of the superior courts</a> in Lesotho. </p>
<p>The problem is that meritocracy is currently not a constitutional requirement. The Constitution is still cast in the <a href="http://trc.org.ls/wp-content/uploads/2019/09/JUDICIAL-REFORMS-IN-LESOTHO-A-CASE-FOR-CHANGING-THE-BASE-AND-THE-SUPERSTRUCTURE.pdf">colonial mould</a> whereby the executive dominates the appointment of judges. That needs to change. </p>
<p>The problem is more acute when it comes to the appointment of judicial leaders – the Chief Justice and the President of the Court of Appeal. They are appointed through a purely political process.</p>
<p>The Constitution provides that the King appoints them on the advice of the Prime Minister. There is no constitutional requirement for competition or scrutiny. Consequently, successive PMs have treated it as an executive prerogative and exploited this deficiency to their political advantage. Hence the judiciary has been <a href="https://freedomhouse.org/sites/default/files/Politics%20%20of%20Judicial%20Independence%20in%20Lesotho.pdf">enmeshed in politics</a>. The high turnover in the offices of President of the Court of Appeal and that of Chief Justice in recent times is testament to the manner in which the judiciary is entangled in politics.</p>
<p>When it comes to the appointment of other High Court judges, other than the Chief Justice, it is slightly better. That’s because the Constitution created the Judicial Services Commission as an interlocutor. But the Commission is weirdly constituted. </p>
<p>In terms of section 132(1) of the <a href="https://www.constituteproject.org/constitution/Lesotho_2011.pdf?lang=en">Constitution</a>, the Commission consists of four members: the Chief Justice as chairperson, the attorney general, chairman of the public service commission and a judge or former judge chosen by the King, on the advice of the Chief Justice.</p>
<p>The Commission’s composition is skewed in favour of the executive as all its members are direct or indirect appointees of the executive. This is not surprising as the entire relationship between the three arms of government - parliament, the executive and the judiciary - in Lesotho turns on the strong executive that overshadows the other two branches. This is a profoundly ingrained constitutional problem.</p>
<h2>Move towards meritocracy</h2>
<p>The new move towards openness comes after a previous process to appoint High Court judges was invalidated by the Constitutional Division of the High Court <a href="https://lesotholii.org/ls/judgment/high-court-constitutional-division/2020/57-0">in December 2020</a>. </p>
<p>It found the process to have been clandestine and irregular. The former acting Chief Justice and former Attorney General had secretly constituted themselves into a Judicial Services Commission, and appointed their preferred five candidates to the bench.</p>
<p>The registrar, who was allegedly <a href="https://lestimes.com/clash-of-the-titans-4/">on the list of candidates</a>, then wrote to King Letsie III to advise him to appoint those candidates. The registrar is the secretary to the Commission. </p>
<p>The King <a href="https://africanlii.org/article/20200910/litigation-lesotho-king-declines-appoint-judges">declined to appoint the judges</a>, citing irregularity in the appointment process. The then Minister of Justice, <a href="https://www.thepost.co.ls/news/mahao-back-at-varsity/">Nqosa Mahao</a>, also openly opposed the appointment as <a href="https://allafrica.com/stories/202010070537.html">irregular</a>. The Constitutional Division of the High Court <a href="https://lesotholii.org/ls/judgment/high-court-constitutional-division/2020/57-0">confirmed this view</a>.</p>
<h2>What needs to happen</h2>
<p>There is, therefore, a need for a more comprehensive judicial reforms in Lesotho. Fortunately, the country is in a somewhat sluggish <a href="http://democracyinafrica.org/perilous-state-national-reforms-lesotho/">constitutional reform programme</a> which includes, among others, the reforms of the judiciary.</p>
<p>It is vital that the reforms recast the relationship between the executive and judicial branches of government to reduce the executive’s excessive powers over the judiciary, including the appointment of judges. </p>
<p>The JSC, as the buffer between the two branches, will also have to change. Its composition, processes of appointment and powers over the judicial officers will have to change significantly. Its membership will have to be more diverse and reduce executive dominance.</p>
<p>Its mandate will then have to be expanded to include the appointment, discipline and removal of all judicial officers - including the Chief Justice and the President of the Court of Appeal.</p><img src="https://counter.theconversation.com/content/160014/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Hoolo 'Nyane does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
The appointment of judges has hitherto been an obscure and oftentimes clandestine affair. This has produced incompetent judges and led to claims that the judiciary is beholden to the executive.
Hoolo 'Nyane, Head of Department, Public and Environmental Law Department, University of Limpopo
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/149368
2020-11-23T15:23:02Z
2020-11-23T15:23:02Z
Young Kenyans have their say about politics, corruption and their sense of belonging
<figure><img src="https://images.theconversation.com/files/370275/original/file-20201119-15-19wxsbt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Students of St. George's Girls' Secondary School in Nairobi. </span> <span class="attribution"><span class="source">Photo by Simon Maina/AFP via Getty Images</span></span></figcaption></figure><p>Reflecting on the divisions and conflict that arose during Kenya’s contested 2017 elections, President Uhuru Kenyatta recently said:</p>
<blockquote>
<p><a href="https://www.bbc.com/news/world-africa-50603137">We were not in a good place as a country</a>. </p>
</blockquote>
<p>Uhuru and his main opponent in that election, Raila Odinga, closed ranks after the contest with a symbolic handshake and a pledge to reform the political landscape. And so was born the Building Bridges Initiative and a taskforce charged with examining the <a href="https://www.the-star.co.ke/news/2019-11-26-nine-key-issues-bbi-report-addresses/">nine key challenges</a> facing Kenya since independence. </p>
<p>Just recently released, the taskforce’s recommendations for constitutional change are being hotly debated. Among the issues somewhat buried in the 204-page <a href="https://www.bbi.go.ke/ethnic-antagonism-competition">report</a> is a section on “inclusivity”. It calls for the meaningful involvement of youth in the country’s future. This includes taking up youth issues, like jobs, and putting young people in elected and appointed leadership positions.</p>
<p>This is hardly surprising. Young Kenyans – those aged 18-34 – now comprise more than <a href="https://edition.cnn.com/2017/08/02/africa/kenya-election-youth-vote/index.html">half of the electorate</a>. In fact, young people 34 and below constitute <a href="https://metropoltv.co.ke/2020/02/24/75-percent-of-kenyas-population-is-aged-below-35-years/">75%</a> of the country’s population. This demographic profile is often represented as a problem. For example, young people are reported to have made up <a href="https://www.mercycorps.org/sites/default/files/2020-01/full_report_-_kenya_youth_and_conflict_study.pdf">70% of the participants in the 2007/8 post-election violence</a>. There are also <a href="https://www.foreignaffairs.com/articles/kenya/2013-01-10/jihad-comes-kenya">concerns</a> about youth radicalisation leading to militancy and terrorist activity.</p>
<p>Our recently published <a href="https://www.tandfonline.com/doi/full/10.1080/17531055.2020.1831846">research</a> sought to document the views of young Kenyans about politics, the state and the future. Our study was based on a survey of more than 4,750 students in the final year of secondary school in Nairobi, which is home to <a href="http://housingfinanceafrica.org/app/uploads/VOLUME-I-KPHC-2019.pdf">10%</a> of the national population. </p>
<p>The young people we surveyed in May and June 2017 were perceptive about the challenges facing the country, civically engaged, and hopeful about the future. Our data presents important insights on many of the high-stakes issues currently up for debate. </p>
<p>Our findings suggest that it is time to take youth seriously as politically important actors.</p>
<h2>What they said</h2>
<p>The survey sample covered girls (52%) and boys (46%); Christians (88%) and Muslims (10%). The diversity of ethnic groups included Kikuyu 28%, Luo 21%, Luhya 16%, Kamba 10%, Kisii 5%, Somali 4% and others. Participants came from diverse economic backgrounds too.</p>
<p>Below we summarise findings as they relate to the main themes of the Building Bridges Initiative report.</p>
<p><strong>On corruption, shared prosperity, and safety and security</strong></p>
<p>Nairobi secondary school students identify corruption and trust in national institutions among top issues of concern. Most strongly agreed that “there is too much corruption in Kenya”. Likewise, most youth strongly agreed with the statement that</p>
<blockquote>
<p>there is too much inequality between rich Kenyans and poor Kenyans.</p>
</blockquote>
<p>On that same scale, respondents overall were neutral when asked about their “trust in the Kenyan national government”. </p>
<p>Across ethnic groups, we found that Kikuyus reported the highest levels of trust in the national government and Luos reported the lowest levels. </p>
<p>Referring to the April 2015 <a href="https://www.start.umd.edu/publication/al-shabaab-attack-garissa-university-kenya">attack by al-Shabaab at Garissa University</a> in northeast Kenya, which left 147 people dead, we asked how often students had “worried about another attack like Garissa”. Nearly two thirds (60%) had worried about an attack at least once in the month prior to our survey. More than a quarter had worried about it four or more times in that period. </p>
<p><strong>On divisive elections</strong></p>
<p>Just over 20% of the young people involved in our survey reported that they had received money to participate in a political event in the previous 12 months. Male respondents, and those from the two lowest socio-economic quartiles, were most likely to report this practice in their communities. </p>
<p><strong>On ethnic antagonism and competition</strong></p>
<p>Kenya has more than 40 ethnic groups and inter-group friction and conflict has been pervasive. <a href="https://www.tandfonline.com/doi/abs/10.1080/14678800903553936">Inequalities along ethnic lines</a> are an important factor and ethnic antagonism and competition have been particularly acute surrounding <a href="https://www.tandfonline.com/toc/rjea20/2/2?nav=tocList">elections</a>.</p>
<p>Did our respondents “think that the government treats people from your ethnic group fairly”? The average score across survey participants was neutral. Respondents agreed only very slightly more with the question of whether “people from your ethnic group are fairly included in opportunities to get a good education”. </p>
<p>In contrast, respondents tended towards agreeing when asked whether they “feel like people from a different ethnic group are given unfair advantages”. This highlights some feeling of unfairness. There were statistically significant differences among respondents of different ethnic groups. Kikuyu participants consistently responded with higher ratings on the fairness of government than respondents who self-identified as belonging to other groups. </p>
<p>Respondents reported very positive personal interactions between people of different ethnic groups. An overwhelming majority expressed willingness to accept someone of a different ethnic group as a friend (96.12%) and accept marrying someone of a different ethnic group (86.92%). </p>
<p><strong>On lack of a national ethos</strong></p>
<p>The young Kenyans who completed our survey expressed a very strong sense of belonging to Kenya – an average score of 4.23 on our 5-point scale. But the responses differed according to socio-economic background. Respondents from the two lowest socio-economic quartiles reported stronger belonging to Kenya than wealthier Kenyans. </p>
<p>In contrast, respondents felt a lesser, but still important, belonging to their ethnic group and a similar level of belonging to people who spoke their mother tongue. </p>
<p><strong>On responsibilities and rights</strong></p>
<p>Many of the respondents appeared to take their responsibilities seriously, alongside their rights. Most reported that in the past year they had “volunteered without pay on a community service project” (60.33%) and more than half were “a member of a community group or youth organisation” (54.53%). </p>
<p>Some had taken more difficult actions, such as reporting corruption to an official (10.13%). And 17.13% of respondents reported that they had “supported an organisation that fights for something they believe in even though it broke the law” while 7.34% confirmed that they had “attacked police that they saw beating someone unfairly”. Also 5.17% “continued to attend a demonstration that turned violent”. </p>
<h2>Our most remarkable findings</h2>
<p>Collectively, these findings echo the diagnosis of some of the main challenges facing Kenya as set out in the Building Bridges Initiative report. Other findings from our survey, though, challenge it and add nuance. </p>
<p>It is important to emphasise that, although “youth” are often referred to as a single category, not all young Kenyans are the same. Even among the group participating in our research, we saw patterns emerge between youth of different ethnic groups, genders, and socio-economic backgrounds. </p>
<p>These differences are critical in understanding both the challenges facing youth and how to engage them politically.</p>
<p>We argue that any effort to move Kenya forward to a positive future must take the power and promise of youth seriously and meaningfully include a diverse set of youth views and empower young people to act on them. It is not clear that the key recommendations of the Building Bridges Initiative, focusing largely on political elites, are sufficient to make this happen. </p>
<p>One of our most remarkable findings is that despite the disillusionment, sense of injustice, and insecurity that youth reported, our respondents still perceived that they hold a relatively high ability to effect change. Kenya needs them to do so. </p>
<p><em>Project director Simon Grinsted co-authored the research on which this article was based.</em></p><img src="https://counter.theconversation.com/content/149368/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Elisabeth King receives funding from the Spencer Foundation and the Folke Bernadotte Academy. </span></em></p><p class="fine-print"><em><span>Dana Burde receives funding from Spencer Foundation, Porticus Foundation, LEGO Foundation, Open Society Foundation, World Bank/UK FCDO. </span></em></p><p class="fine-print"><em><span>Daphna Harel receives funding from the Spencer Foundation. </span></em></p><p class="fine-print"><em><span>Jennifer Hill receives funding from the Spencer Foundation, Joyce Foundation, Arnold Ventures, National Institutes of Health, Office of Naval Research, Institute of Education Sciences, and the Vera Institute of Justice.</span></em></p>
Our findings suggest that it is time to take Kenyan youth seriously as politically important actors.
Elisabeth King, Associate Professor of International Education and Politics, New York University
Dana Burde, Associate Professor and Director of International Education, New York University
Daphna Harel, Associate Professor of Applied Statistics, New York University
Jennifer Hill, Director of PRIISM; Professor of Applied Statistics, New York University
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/140747
2020-06-22T14:32:50Z
2020-06-22T14:32:50Z
Lesotho can’t afford incremental changes to its constitution: it needs a complete overhaul
<figure><img src="https://images.theconversation.com/files/342974/original/file-20200619-43214-hhxia0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Moeketsi Majoro, Lesotho's new Prime Minister. A minor constitutional amendment enabled his ascension to power. </span> <span class="attribution"><span class="source">GCIS/Flickr</span></span></figcaption></figure><p>Ever since Lesotho, the mountainous southern African constitutional kingdom of about 2.2 million, attained independence from Britain in 1966, its development has been punctuated by all manner of constitutional breakdowns. These have ranged from coups, dictatorships and military rule. </p>
<p>Among the long list of factors that account for the <a href="https://www.tandfonline.com/doi/abs/10.1080/10246029.1995.9627804?journalCode=rasr20">long-running political instability</a> in the country, the flawed <a href="https://www.constituteproject.org/constitution/Lesotho_2011.pdf?lang=en">constitution</a> ranks high.</p>
<p>It is now a matter of common course that successive interventions by the Southern African Development Community, in a bid to bring peace to Lesotho, <a href="https://theconversation.com/south-africas-efforts-to-stabilise-lesotho-have-failed-less-intervention-may-be-more-effective-137499">have failed</a>. One of the main reasons is that the solutions often provided are palliative; they ignore the need for fundamental constitutional reform. </p>
<p>The organisation of Lesotho’s state institutions is fundamentally flawed. Almost every institution is an appendage of the executive: oversight institutions, security agencies, parliament, and the judiciary. There is a very weak balance between key state institutions. </p>
<p>Despite the fact that it was adopted only as recently as 1993, Lesotho’s constitution is fairly outmoded. The country had a chance to adopt a new constitution when it emerged from dictatorship under <a href="https://uca.edu/politicalscience/dadm-project/sub-saharan-africa-region/lesotho-1966-present/">Prime Minister Leabua Jonathan</a> and <a href="https://journals.co.za/content/afrins/20/4/AJA02562804_1157">rule by a military junta</a>, both of which lasted for about twenty years. Instead, what followed was a mere rehash of the 1966 constitution. </p>
<p>As such, the current constitution is cast in the <a href="http://www.cplo.org.za/wp-content/uploads/2015/02/BP-380-South-Africas-Parliamentary-System-May-2015.pdf">classical Westminster conceptions</a> that countries in Africa and elsewhere have long jettisoned. The fundamental structure of the constitution is bad and unsuited for modern-day constitutionalism.</p>
<h2>Different approaches</h2>
<p>While there is some consensus about the need for constitutional changes, there is considerable disagreement in the country about the kind of constitutional changes that are needed, and how extensive they should be. </p>
<p>There are those who say that the changes must be <a href="https://www.gov.ls/documents/expert-report-of-constitutional-reforms/">incremental and phased</a>. The justification for this approach is that there are minor and urgent changes that can be effected with relative ease. These can be carried out within a short space of time, and without a need for huge resources. This include, for example, reducing the powers of the Prime Minister in relation to other branches of government.</p>
<p>This justification is largely based on expediency. The proponents of this approach use the recently adopted <a href="https://www.reuters.com/article/us-lesotho-politics/lesothos-king-assents-to-bill-limiting-pm-thabanes-powers-idUSKBN22J2UD">Ninth Amendment to the constitution</a>
as an example of the success of the incremental approach. The amendment, in the main, prevents a Prime Minister who has lost a vote of no confidence in parliament from calling an early election. It leaves him or her with just one option; to resign. The amendment had an <a href="https://theconversation.com/lesothos-new-leader-faces-enormous-hurdles-ensuring-peace-and-political-stability-139320">immediate application</a> in May 2020 after then Prime Minister Tom Thabane lost the confidence of the National Assembly.</p>
<p>On the other hand, there are those who believe that this success is shorlived; that the country should seize this opportune moment to change the entire constitution. I belong to this group. Lesotho needs a new constitution altogether, and as a matter of urgency. A new constitution is needed that will design new institutions that work in a balanced manner and contribute to the <a href="https://journals.co.za/content/ju_slr/22/1/EJC54773">transformation of the country</a> from its historic <a href="https://www.tandfonline.com/doi/abs/10.1080/10246029.1996.9627810?journalCode=rasr20">shackles of instability</a>, poverty and abuse of fundamental rights.</p>
<h2>What’s wrong</h2>
<p>The fundamental principles on which the current constitution is based are outmoded. It is based, among other things, on a very weak model of separation of powers and <a href="https://brill.com/view/journals/ajls/6/1/article-p49_3.xml">checks and balances</a>. </p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/342972/original/file-20200619-43229-64gt5e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/342972/original/file-20200619-43229-64gt5e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=805&fit=crop&dpr=1 600w, https://images.theconversation.com/files/342972/original/file-20200619-43229-64gt5e.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=805&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/342972/original/file-20200619-43229-64gt5e.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=805&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/342972/original/file-20200619-43229-64gt5e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1012&fit=crop&dpr=1 754w, https://images.theconversation.com/files/342972/original/file-20200619-43229-64gt5e.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1012&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/342972/original/file-20200619-43229-64gt5e.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1012&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">PM Tom Thabane recently stepped down as Lesotho’s PM.</span>
<span class="attribution"><span class="source">EFE-EPA/MIchael Reynolds</span></span>
</figcaption>
</figure>
<p>The executive is virtually untrammelled. It appoints and dismisses, almost single-handedly, the heads of security agencies, heads of oversight institutions, and the heads of the superior courts. It even appoints all chief accounting officers in the civil service. </p>
<p>This kind of institutional design is typical of classical <a href="https://parliament.nt.gov.au/__data/assets/pdf_file/0009/379278/The-Westminster-System.pdf">Westminster constitutions</a>. Most of them are cast on monarchical prerogative. Thus, when political power in Lesotho shifted from the palace to cabinet with the 1993 constitution, <a href="http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602020000100011&lng=en&nrm=iso&tlng=en">all the prerogatives of the monarch shifted to the Prime Minister</a>. The Prime Minister, therefore, virtually exercises all the erstwhile prerogative powers of the King.</p>
<p>When power is so concentrated in the hands of one person, abuse is inevitable. Indeed, the office of the Prime Minister has been the fulcrum of instability in Lesotho. The successive incumbents have used other state institutions to suppress dissent and perpetuate administrative malfeasance. The army, the parliament, and the judiciary have been the major instruments in this onslaught.</p>
<p>Another fundamental problem with the constitution is that the country has a bad <a href="https://journals.co.za/content/lesotho/23/1/EJC185615">Bill of Rights</a>. All the rights in it are fraught with claw-back clauses, to the extent that the “fundamental rights” it supposedly enshrines are reduced to an empty list of promises.</p>
<p>For instance, section 18 provides for the freedom from discrimination. But it then provides for a long list of limitations to the right. It even outrageously includes one that says freedom from discrimination does not apply to members of the “disciplined forces” such as members of the army, police and correctional services. It also says that the right does not apply when the basis for the violation is customary law. </p>
<p>Effectively, women whose rights are often <a href="http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812019000100027">suppressed through the use of customary law in Lesotho</a>, can hardly expect meaningful protection of their rights from the Bill of Rights. Most importantly, it excludes social and economic rights. This is despite the fact that Lesotho is trapped in the <a href="https://www.un.org/development/desa/dpad/least-developed-country-category-lesotho.html">least developed countries category</a>.</p>
<p>The importance of having <a href="http://www.saflii.org/za/journals/LDD/1998/9.pdf">enforceable economic rights</a> is that it changes the constitutional orientation of the country entirely, from a liberal constitution to a post-liberal one. A <a href="https://heinonline.org/HOL/LandingPage?handle=hein.journals/tlj54&div=4&id=&page=">post-liberal </a> constitution - such as neighbouring South Africa’s - embodies the positive obligations of the state to remedy historical realities. It’s imperative for Lesotho to move in this direction. </p>
<h2>Time for boldness</h2>
<p>There is no amount of gradual change that can remedy these fundamental deficiencies. It’s time for an overhaul of the entire constitution. Its deficiencies are both structural and fundamental. </p>
<p>Lesotho would do well to follow the example set by the likes of <a href="https://www.justice.gov.za/legislation/constitution/SAConstitution-web-eng.pdf">South Africa</a> and <a href="http://kenyalaw.org/kl/index.php?id=398">Kenya</a>, whose constitutional projects became a success. Instead of just tinkering, they bravely adopted completely new constitutions that marked a clear break with the past. </p>
<p>This is the path that Lesotho needs to take. The incremental approach only adds to the already existing confusion about relations between state institutions in the country. That will only amount to an unsustainable patchwork.</p><img src="https://counter.theconversation.com/content/140747/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Hoolo 'Nyane does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
The fundamental structure of the current constitution, which is cast in classical Westminster conceptions, is unsuited for modern-day constitutionalism.
Hoolo 'Nyane, Head of Department, Public and Environmental Law Department, University of Limpopo
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/116141
2019-05-07T03:22:38Z
2019-05-07T03:22:38Z
Constitutional reform made easy: how to achieve the Uluru statement and a First Nations voice
<figure><img src="https://images.theconversation.com/files/272417/original/file-20190503-103045-idjbxu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">shutterstock</span> </figcaption></figure><p>The <a href="https://www.referendumcouncil.org.au/sites/default/files/2017-05/Uluru_Statement_From_The_Heart_0.PDF">Uluru Statement from the Heart</a> is almost two years old and now enjoys bipartisan political support. Labor’s policy, if elected, is to hold a referendum on enshrining a First Nations voice in the Australian Constitution in their first term. The Coalition, while supporting the Uluru Statement from the Heart following the report of the <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Constitutional_Recognition_2018">Joint Select Committee</a> on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples, has budgeted for a design process to establish a model of the First Nations voice to parliament before going to referendum.</p>
<p>The support for the Uluru statement is a remarkable turning point in the history, and future, of the Australian nation. By issuing the Uluru statement to the Australian people, rather than to politicians, participants at the First Nations National Constitutional Convention in 2017 invited all Australians to “walk with us in a movement of the Australian people for a better future”. This invitation has been resoundingly embraced.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-uluru-statement-showed-how-to-give-first-nations-people-a-real-voice-now-its-time-for-action-110707">The Uluru statement showed how to give First Nations people a real voice – now it's time for action</a>
</strong>
</em>
</p>
<hr>
<p>At the core of this invitation is the principle of being heard. Australians have come to understand that First Nations peoples have a political and cultural right to be heard and to determine their own affairs.</p>
<p>Many also understand that this power is key to addressing what the Uluru statement termed “the torment of our powerlessness”. This means a new relationship between Indigenous and non-Indigenous peoples in Australia that establishes the foundations for a better future.</p>
<p>The establishment of this new relationship is also why it is important to enshrine these changes in the constitution before negotiating what this relationship will be.</p>
<p>The Australian Constitution is the foundation of the Australian nation, and it must be changed to enable a renewed relationship. Without addressing this first, any future changes implemented outside of the constitution will remain susceptible to the current arrangements that do not appropriately recognise First Nations peoples.</p>
<p>However, the need for constitutional change has been conflated with concerns about the need for a detailed design of the First Nations voice before a referendum, and misrepresentations of the process that is required to achieve this change. First, change the constitution. Then, negotiate the design of the voice.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-indigenous-community-deserves-a-voice-in-the-constitution-will-the-nation-finally-listen-107710">The Indigenous community deserves a voice in the constitution. Will the nation finally listen?</a>
</strong>
</em>
</p>
<hr>
<p>The deferral of the detail of what the voice might be is a normal process of constitutional reform. Effective constitutional reform requires that any new addition to the constitution be explicit enough to provide for the establishment of the voice while being subject to the constitution. But it should not be so detailed that it becomes restrictive and meaningless to Indigenous and non-Indigenous peoples into the future.</p>
<p>There already exists significant research on the future design of a body that could be the First Nations voice. This includes eight reports since 2012, including the First Nations-led <a href="https://www.referendumcouncil.org.au/">Referendum Council</a> dialogues that produced the Uluru Statement in 2017 and the 2018 report of the joint select committee.</p>
<p>Participants in the regional dialogues of the Referendum Council and the First Nations National Constitutional Convention in 2017 provided a clear pathway forward. This is represented by <a href="https://www.aph.gov.au/DocumentStore.ashx?id=797348c1-a197-451b-96d2-2c19042643ac&subId=662831">submission 479</a> to the joint select committee. Importantly, the submission was written by experts who advised the regional dialogues and is representative of the desires of First Nations participants. </p>
<p>Submission 479 detailed the insertion of a new “Section 129: The First Nations Voice” and a simple referendum question to achieve this as detailed below. </p>
<p><strong>Proposed Amendment</strong></p>
<p>Chapter 9: First Nations</p>
<p>Section 129: The First Nations Voice</p>
<p>(1) There shall be a First Nations Voice.</p>
<p>(2) The First Nations Voice shall present its views to Parliament and the Executive on matters relating to Aboriginal and Torres Strait Islander peoples.</p>
<p>(3) The Parliament shall, subject to this Constitution, have power to make laws with respect to the composition, functions, powers and procedures of the First Nations Voice.</p>
<p><strong>Referendum question</strong> </p>
<p>Do you approve an alteration to the Constitution that establishes a First Nations Voice?</p>
<p>YES / NO</p>
<p>This is a simple but powerful amendment. It provides recognition and the ability of First Nations peoples to negotiate with government while also respecting the place and authority of parliament and the constitution. This is, importantly, not a simple inclusion but rather a representation to the Commonwealth that is respectful of First Nations political and cultural identity and authority.</p>
<p>Conventional wisdom tells us that achieving constitutional reform can be difficult. But too much can be made of conventional wisdom, to the point that it stymies progress. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/lessons-of-1967-referendum-still-apply-to-debates-on-constitutional-recognition-76725">Lessons of 1967 referendum still apply to debates on constitutional recognition</a>
</strong>
</em>
</p>
<hr>
<p>Laws are meant to change. <a href="http://classic.austlii.edu.au/au/legis/cth/consol_act/coaca430/s128.html">Section 128 of the constitution</a> specifically provides for that ability and the successful <a href="https://theconversation.com/lessons-of-1967-referendum-still-apply-to-debates-on-constitutional-recognition-76725">1967 referendum</a> is an example of what can be achieved.</p>
<p>In 1967, it wasn’t the technical change to the constitution that held weight, nor was any specific detail about the future of Indigenous affairs entered into the constitution. Rather, it was the principle of “vote yes for Aborigines” that resonated.</p>
<p>Today, it is that same principle of respect and recognition for First Nations peoples that can deliver reform for a better future.</p><img src="https://counter.theconversation.com/content/116141/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Eddie Synot does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
First, change the constitution. Then, negotiate the detailed design of the First Nations voice to parliament: this is the only way to bring about meaningful reform.
Eddie Synot, Senior Research Assistant, Griffith University
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/96986
2018-05-22T05:17:27Z
2018-05-22T05:17:27Z
Politics podcast: Dean Smith on the pros and risks of new religious freedom protections
<p>The Liberal party is currently fighting fires on various fronts - from a revolt on the live sheep trade to preselection power struggles.</p>
<p>Western Australia Liberal Senator Dean Smith is putting up another push, as he <a href="https://theconversation.com/liberal-rebel-dean-smith-to-fight-party-decision-not-to-contest-perth-byelection-96950">challenges</a> the decision not to run Liberal candidates in the two WA byelections. </p>
<p>In this podcast he also speaks about the need for rigorous debate on religious freedoms, diversity in the Liberal party, and his opposition to constitutional reform of section 44.</p><img src="https://counter.theconversation.com/content/96986/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Grattan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
Western Australia Liberal Senator Dean Smith is a man of forthright opinions, not afraid to take on fights within his party.
Michelle Grattan, Professorial Fellow, University of Canberra
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/68891
2016-11-17T12:10:34Z
2016-11-17T12:10:34Z
Is Italy about to feel the Trump effect? Matteo Renzi’s referendum and the populist threat
<p>The election of <a href="https://theconversation.com/uk/topics/2016-us-presidential-election-23653">Donald Trump</a> to the American presidency is causing turmoil in Italian politics in the run up to a constitutional referendum to be held on December 4.</p>
<p>The referendum sets the stage for Italy to host the third major anti-establishment protest shock of 2016, before we’ve even had the chance fully to digest the news of Trump and <a href="https://theconversation.com/uk/eu-referendum-2016">Brexit</a>.</p>
<p>The referendum is on a wide-ranging constitutional reform designed by prime minister Matteo Renzi and his government. It took more than two years to navigate through parliament and was put to the public vote once it had failed to win a two-thirds majority in parliament.</p>
<p>Renzi claims the reform will make Italian governments more stable and efficient. But the worry is that Trump’s election increases the likelihood that the reform will be rejected by voters.</p>
<p>That’s not because of the merits or flaws of the reform itself but because of the politics surrounding it. Renzi has effectively staked his all on the outcome of this referendum. In December 2015, with his personal poll ratings riding high, he announced, in De Gaullean style, that if he were to be defeated in the referendum he would <a href="http://www.cnbc.com/2016/04/13/italys-prime-minister-renzi-plans-to-resign-if-referendum-fails.html">resign</a>.</p>
<p>This manoeuvre, which he assumed would convince any waverers to support the reform, turned out to be a catastrophic tactical misjudgement. It effectively turned the referendum into a plebiscite on Renzi.</p>
<p>That provided a theme for the anti-establishment Five Star Movement, which has campaigned vehemently for a No vote purely to remove Renzi from office.</p>
<p>The <a href="https://www.theguardian.com/world/five-star-movement">Five Star Movement</a> has crowed Donald Trump’s election as evidence of a protest movement sweeping the West. It is calling on Italians to seize the opportunity of the referendum to join in. And indeed, support for the reform has consistently declined throughout the year. Polls now show a small majority in favour of voting No – although the large number of undecided voters leaves the outcome in the balance.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/146109/original/image-20161115-31126-1u1wvix.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/146109/original/image-20161115-31126-1u1wvix.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/146109/original/image-20161115-31126-1u1wvix.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=408&fit=crop&dpr=1 600w, https://images.theconversation.com/files/146109/original/image-20161115-31126-1u1wvix.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=408&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/146109/original/image-20161115-31126-1u1wvix.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=408&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/146109/original/image-20161115-31126-1u1wvix.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=513&fit=crop&dpr=1 754w, https://images.theconversation.com/files/146109/original/image-20161115-31126-1u1wvix.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=513&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/146109/original/image-20161115-31126-1u1wvix.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=513&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Monthly average poll of polls, created from a total of 95 polls throughout the year.</span>
<span class="attribution"><span class="license">Author provided</span></span>
</figcaption>
</figure>
<p>Renzi, since the summer, has attempted to <a href="http://www.reuters.com/article/us-italy-referendum-renzi-analysis-idUSKCN11K1GQ">change tack</a> and depersonalise the referendum, separating its outcome from his own future. But the genie can’t be put back in the bottle. Polls <a href="http://www.youtrend.it/2016/07/19/renzi-si-gioca-sullaffluenza-cresce-sale-si">indicate</a> that over half of Italians intending to vote view the referendum as a judgement on the Renzi government and not the reform. </p>
<p>Renzi will surely be thinking of former British prime minister David Cameron, who famously argued that he would not resign if he lost the Brexit referendum, when most observers knew that it would be inevitable. A No vote in the referendum would signal not just the rejection of the reform but the end of the Renzi experiment.</p>
<h2>A very big constitutional problem</h2>
<p>If this is to be Renzi’s fate, the result will be instability, if not chaos. That’s not because the country will immediately go to an election, but rather because it will be unrealistic to do so.</p>
<p>To try and reinforce support for the constitutional reform, Renzi has also carried through an electoral reform of the lower house (the Chamber of Deputies), which came into effect in July. This new electoral law (the <em>Italicum</em>) was expressly designed to reinforce the constitutional reform, which reshapes the Senate, curtailing its powers compared to the Chamber of Deputies – the only house to be directly elected under the new scheme – by ensuring that a stable governing majority would always emerge from the ballot box.</p>
<p>However, if the constitutional reform is rejected, Italy would be left with two completely different electoral systems for the two parliamentary houses. It would provide the basis for two separate majorities in a system where both houses currently have identical powers.</p>
<p>The potential paralysis that this would create makes it inevitable that further electoral reform would immediately have to follow a rejection of the constitutional reform. And if Renzi resigned, it would mean bringing in yet another transitional government to implement such a reform.</p>
<p>This would probably be a “technical” or “institutional” government along the lines of those led by Renzi’s two immediate predecessors, Mario Monti and Enrico Letta. These administrations were installed under the auspices of the non-partisan Italian president with a specific programme of reform to implement, based on the (fragile) support of different political forces in parliament. Yet, the divisions between the parties over the sort of electoral reform needed would cause months of negotiation, instability, lack of direction and possible stalemate.</p>
<p>The elections that would surely follow electoral reform could result in the Five Star Movement emerging as the largest party. Successive <a href="http://www.sondaggipoliticoelettorali.it">opinion polls</a> reveal a situation of tripolarity, with Renzi’s Democratic Party, the Five Star Movement and the centre-right parties (Silvio Berlusconi’s Forza Italia, the Northern League and Brothers of Italy) commanding about 30% of the vote each.</p>
<h2>Trumped?</h2>
<p>All this will have reverberations beyond Italy because of the way Renzi has been able to convince international elites (most notably the European Union and President Obama) that the constitutional reform will increase Italy’s capacity to deliver on the <a href="http://www.bbc.co.uk/news/world-europe-37702921">EU’s economic agenda</a>. Indeed, some of Renzi’s supporters in Italy are arguing that expectations abroad about the reform are now so high that its rejection would send a shock wave through international circles, damaging Italy’s credibility abroad and leaving it at the mercy of the markets.</p>
<p>For Renzi, there is bitter irony in the way this referendum has turned into an impending watershed for Italian politics. He stands to lose both the reform and possibly his political career on a wave of anti-establishment protest when his own emergence as leader of the Democratic Party and then as Prime Minister was precisely on the basis of an anti-establishment programme. He swept to power promising to scrap the old political class (<em>rottamazione</em>) and lay the foundations for a “new politics” in Italy. That was barely two years ago, but Renzi has learnt to his cost that an anti-establishment profile does not last long once in office.</p><img src="https://counter.theconversation.com/content/68891/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Martin J Bull does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
The PM came to power as the anti-establishment candidate. Now he could be the next victim of populist ire.
Martin J Bull, Professor of Politics, University of Salford
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/63844
2016-08-15T11:18:22Z
2016-08-15T11:18:22Z
Italy’s looming referendum is giving PM Matteo Renzi sleepless nights
<p>European Democracy is in a state of crisis. The <a href="https://theconversation.com/uk/topics/brexit">British referendum</a> on EU membership has just backfired spectacularly on its promoters, Austria’s far-right <a href="https://theconversation.com/a-new-era-may-be-dawning-again-for-radical-right-populists-in-austria-and-europe-61662">Freedom Party</a> recently came within a hair’s breadth of capturing the presidency, and in France, Marine Le Pen’s Front National looks set to make it through to the second round of voting in the French presidential elections next year.</p>
<p>Now Italy is facing its own moment of reckoning with a referendum on constitutional reform, likely to go ahead this autumn. Like Brexit, the decision to hold this vote might end up destroying the man who sponsored it – Prime Minister <a href="https://theconversation.com/uk/topics/matteo-renzi">Matteo Renzi</a>.</p>
<p>The reform is a package aimed at reducing the fragmentation that causes so many problems in Italian politics. The idea is to increase executive stability and the efficiency of the whole system. But Renzi has staked his political future on the outcome having said, earlier in the year, he would resign if the vote went against him.</p>
<h2>The reform explained</h2>
<p>The main proposal is to reform the Senate, which has hitherto enjoyed the same powers as the lower house, the Chamber of Deputies in Italy’s parliament (which is “<a href="https://en.wikipedia.org/wiki/Bicameralism">symmetrically bicameral</a>”). This is thought to be inefficient because it supposedly obliges bills to shuttle back and forth between the two chambers until identically-worded texts can be agreed by both.</p>
<p>If passed, the proposals will limit the Senate’s legislative powers. It will no longer be able to pass votes of confidence in the government and, importantly, it will no longer be directly elected. Instead, a reduced membership will be selected by the regions from among their councillors and local mayors. The president will also appoint five members directly.</p>
<p>Linked to these Senate changes are newly introduced electoral reform laws for the lower house. These will have to be repealed if the Senate reform doesn’t go ahead. The new law introduces a list system of proportional representation for votes in 100 constituencies. The list with the most support nationally (provided it represents at least 40% of the vote) will automatically receive 340 of the 630 seats in the lower house of parliament (if not entitled to at least that proportion anyway). If no list achieves 40%, there will be a run-off between the two most voted lists, with the winner being awarded the 340 seats. The remaining seats will be shared among the remaining lists according to their first-round totals (aside from 12 seats reserved for Italians living abroad).</p>
<p>Those who support this change point out that only single lists are allowed to run, not coalitions of lists. They argue that this, and the fact that a single list is guaranteed an overall majority, will increase the power and stability of the executive.</p>
<h2>Renzi’s problem</h2>
<p>Renzi’s referendum is the latest in a long line of attempts to address Italy’s democratic problems through constitutional overhaul. </p>
<p>His ascent to the premiership, and his career since, have been built on an attempt to cultivate an image as a man able to root out old vested interests in politics. His promise is to usher in a new era of decisiveness in Italian politics. He has framed the vote as a competition between the “old”, poor performing, Italy and the “new” – a message that went down well at first. </p>
<p>Opinion polls in the early months of 2016 suggested a sure win for the PM. But the gap has narrowed considerably. Renzi is vulnerable to defeat in the vote on a number of fronts, and he has lately sought to row back from his pledge to resign if he loses but it has come too late. All the parties of opposition are already lining up on the “no” side. They’ve spotted an opportunity to use this referendum to oust the prime minister, thereby hastening their own return to power.</p>
<p>It is always dangerous for a PM to frame such a vote as a plebiscite on their own performance. That’s especially true for Renzi now that his honeymoon period is over and his approval ratings are running at <a href="http://tradebridgeconsultants.com/news/government/renzi-down-in-the-polls-but-still-best-leader/">about 25%</a>.</p>
<p>Renzi’s authority was also been dented by his party’s poor performance in local council elections in <a href="http://blogs.lse.ac.uk/europpblog/2016/06/22/the-five-star-movements-victories-in-italys-mayoral-elections-a-major-blow-for-renzi-and-the-pd/">June</a>. Now he faces considerable opposition to the reforms from within his own party. On top of that, he is under pressure to manage an influx of refugees and faces a possible <a href="https://theconversation.com/how-brexit-opened-up-the-pandoras-box-of-italys-banking-malaise-62329">banking crisis</a> thanks to Brexit. </p>
<p>Brexit must be giving him sleepless nights for another reason too. Not many Italian voters will have much real understanding of the substance of his reforms and Brexit teaches us that when European voters are presented with the task of voting on complex issues they use it as an opportunity to vent their frustrations about the political establishment. Brexit became as much a vote on austerity and feelings of political inefficacy as a decision about EU membership, and the same could be true in Italy. </p>
<p>For Renzi personally, the stakes are enormous. If he loses, it is difficult to see him continuing to survive as PM for very long. If he wins, then he will be able to pose as the father of a new constitutional settlement. He can continue to dominate Italian politics for a long time to come.</p>
<h2>Rising stars</h2>
<p>Whether the stakes for Italian democracy are actually as high as this implies are to my mind extremely debatable – although, needless to say, they have been portrayed as such by both sides in the campaign.</p>
<p>It’s not clear that the current system really does hold up progress, or indeed that the new one will make things more efficient. </p>
<p>The new electoral law seeks to enhance executive power by providing an absolute seat majority to the most popular list. This marks a crucial difference with the previous system, through which parties could field their candidates as coalitions of lists in a bid to win power. This led to the creation of large, unwieldy alliances designed to win elections but incapable of governing. </p>
<p>Yet the majority premium, together with a 3% representation threshold, gives parties an incentive to continue this practice. The new law will allow them to strike short-term agreements to field combined lists and do nothing to stop them splitting into autonomous entities again after entering parliament. </p>
<p>This has been a feature of all election outcomes since the 1990s. And, given the depth and variety of the divergences separating the Italian parties, it seems naive to think a new law will do much to change things.</p>
<p>Italy’s political elites are currently getting excited or agitated (depending on where they stand) about the prospect of the anti-political, populist, eurosceptic <a href="https://www.theguardian.com/world/five-star-movement">Five Star movement</a> rising to power as a result of the changed electoral system.</p>
<p>The prospect arises from the outcome of the June local elections which, in the larger municipalities were also fought through two-round contests. The Five Stars managed to make it through to the second round in only 20 ballots but, having made it that far, they won all but one contest. </p>
<p>Why? Because as an anti-political party that wins support from across the political spectrum, when it finds itself up against just one competitor (whether of the right or left) only, is in a strong position. In a head-to-head race, it can rely on backing not only from its own habitual supporters but also from people opposed to whichever party it finds itself up against.</p>
<p>In other words, in a straight fight of the kind characterising a run-off ballot, the Five Stars become formidable. So an electoral law originally conceived as a means of excluding them from power might actually assist their rise. The law makes a single-party, Five Star government possible – not to say likely. The current divisions between the parties of the right mean that the chances of the Five Stars being involved in any Chamber of Deputies run-off ballot in the first place would be rather good.</p>
<p>So while it is always hazardous to make predictions in politics, and especially in Italian politics, it seems to me that whatever the outcome of the referendum the symptoms of democratic crisis in Italy will probably persist for some time, whether or not Renzi is in power after the vote.</p><img src="https://counter.theconversation.com/content/63844/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>James Newell is affiliated with the Labour Party.</span></em></p>
What should have been a debate about constitutional reform has turned into a battle for the premiership, thanks to a schoolboy error by the incumbent.
James Newell, Professor of Politics, University of Salford
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/55870
2016-07-07T20:05:21Z
2016-07-07T20:05:21Z
UK and EU both need major democratic reform to survive Brexit fallout
<figure><img src="https://images.theconversation.com/files/128107/original/image-20160625-28366-1sh2u59.jpg?ixlib=rb-1.1.0&rect=597%2C313%2C4394%2C2839&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Without democratic reform, the time ahead for both Britain and the EU looks bleak indeed. </span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/garryknight/27695343075/in/photostream/">Gary Knight/flickr</a></span></figcaption></figure><p><em>This article is part of the <a href="https://theconversation.com/au/topics/democracy-futures">Democracy Futures</a> series, a <a href="http://sydneydemocracynetwork.org/democracy-futures/">joint global initiative</a> with the <a href="http://sydneydemocracynetwork.org/">Sydney Democracy Network</a>. The project aims to stimulate fresh thinking about the many challenges facing democracies in the 21st century.</em></p>
<hr>
<p>The <a href="http://www.bbc.com/news/uk-politics-32810887">Brexit referendum vote</a> on June 23 was the outcome of the <a href="https://theconversation.com/sheffield-what-happened-in-this-city-explains-why-britain-voted-for-brexit-61623">disillusionment and disengagement</a> that permeated the UK for <a href="https://he.palgrave.com/page/detail/Why-Politics-Matters/?K=9781403997395">much of the 2000s</a>. Sections of the British public (<a href="https://theconversation.com/the-geography-of-brexit-what-the-vote-reveals-about-the-disunited-kingdom-61633">predominantly English and Welsh</a>) voted resoundingly to leave the European Union, a basic pillar of Britain’s economic successes for the past 40 years. </p>
<p>With the weight of expert opinion, geopolitical leaders and the major political parties stacked against them, these voters’ disengagement turned into anger. Rather than being repelled, the voters were driven to the polls in defiance and revolt. </p>
<p>The immediate impact is <a href="https://theconversation.com/brexit-impact-will-be-worse-than-the-2008-crash-61648">clearly economic</a>, but this is only the symptom of a deeper democratic crisis. Resolving this crisis will go hand in hand with mitigating the economic fallout of the referendum result.</p>
<h2>Economic solutions include political reform</h2>
<p>Economically, the time ahead looks bleak. If anything, the immediate shock of Brexit may be less important than the long-run cultural and social fallout that will drag inward investment away from the UK. </p>
<p>Perhaps even more worryingly for the EU, stockmarkets have tumbled throughout the member states. The eurozone will not be immune from this shock and other members, goaded by a belligerent far right, may seek to trigger exit votes.</p>
<p>There is a temptation in the face of financial crisis to focus on steering the economic ship through choppy waters. Brexit itself will take many years to negotiate, and the UK parliament (the majority of whom were for Remain) may well block any law to enable <a href="https://theconversation.com/what-is-article-50-the-law-that-governs-exiting-the-eu-and-how-does-it-work-60262">Article 50</a> to be triggered. </p>
<p>Brussels may become more accommodating to a nuanced resolution, depending on the strength of economic shock felt through the EU and their patience with the UK’s negotiators. It may well end up with the UK being given an intermediary status of some sort, but the years of uncertainty are likely to leave growth, taxes and inflation extremely volatile.</p>
<p>This volatility is hard enough to manage without the UK’s underlying sociopolitical divisions opening up even further. Perhaps clearest in the referendum result is the UK’s remarkably dislocated ideological landscape. Northern Labour heartlands like Rotherham, Doncaster, Stoke-on-Trent, Sunderland and Wigan gave thumping majorities for Leave. Scotland, Northern Ireland and the metropolitan cities of London, Manchester and Liverpool voted the other way, albeit with less enthusiastic turnouts. </p>
<p>These divisions are complex, yet stark. With immigration the number one grievance for Leave voters, there is a clear feeling of cultural, alongside economic, injustice.</p>
<p>Worryingly, these tensions appear to be spreading throughout Europe. We see far-right movements in <a href="https://theconversation.com/a-new-era-may-be-dawning-again-for-radical-right-populists-in-austria-and-europe-61662">countries like Italy, France, Austria and Germany</a>, and worrying signs of racially driven attacks. </p>
<p>These problems must be tackled alongside attempts to stabilise economic growth. This can only be done by political leaders genuinely reforming. This needs to happen in UK parties and parliamentary democracy, but also in the EU.</p>
<h2>Britain needs a representative Labour Party</h2>
<p>Aside from the future of the United Kingdom as a “whole”, the breakdown in party-political allegiances poses a monumental challenge for British parties. How can they realign themselves to represent the desires of their traditional supporters? </p>
<p>Given that any strong democracy requires a strong opposition, how might Labour in particular deal, ideologically, with issues close to the hearts of working-class communities? </p>
<p>While some <a href="http://blogs.lse.ac.uk/politicsandpolicy/53094-2/">“blue labour”</a> advocates have highlighted for a while the dangers of ignoring local community and identity, the party has struggled with being pulled in different directions over the immigration issue. Should social democratic thinkers pay more attention to community cohesion and identity as well as economic inequality? Would reforms to address the latter necessarily ameliorate the former? </p>
<p>As former Labour leader Ed Miliband <a href="https://theconversation.com/if-it-is-sensible-labour-wont-erase-ed-miliband-from-its-collective-memory-42792">found out</a>, this connection cannot be engineered. It must grow from the bottom up and inform the very heart of a party and its ideas.</p>
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<h2>We need a constitutional convention</h2>
<p>In Westminster, MPs from both major parties have turned against their leaders. Really, they should be looking at the country’s democratic system. In the 2015 general election, the first-past-the-post system <a href="https://theconversation.com/the-case-for-proportional-representation-in-the-uk-just-became-clearer-41544">gave UKIP one seat</a> for its 3.9 million votes – 12.7% of the total. This built up even more resentment from UKIP voters that the “elite” was rallying against them. </p>
<p>Now Scotland may well seek independence. Pro-Remain London may want special dispensation in protest against this savagely majoritarian referendum result. </p>
<p>The splits in British society are becoming reminiscent of countries wracked by historic internal divisions, like Belgium or Spain. These tend to be kept together by proportional electoral systems and highly decentralised, federalist structures. We should consider adopting similar arrangements.</p>
<p>All major parties need to hold a joint constitutional convention to look at ways of reforming our broken system. They need to set up a coherent <a href="http://www.democraticaudit.com/?p=22508">federal constitution</a>. This should give each part of the country clear autonomy from Westminster and enshrine explicit responsibilities to appropriate levels of government. </p>
<p>The <a href="http://blogs.lse.ac.uk/politicsandpolicy/the-strange-resurrection-of-the-british-political-tradition/">British “political tradition”</a> of parliamentary sovereignty can no longer be allowed to get in the way when the country’s politics have fragmented so dramatically and dangerously.</p>
<h2>We need a democratic Europe</h2>
<p>In the European Union more generally, there will be a temptation to close ranks, get the negotiations over with, and proceed with business as usual. However, the UK’s vote not only reflects domestic political dynamics, but is the culmination of a more long-term democratic deficit in the EU’s governance structures. A range of possible reforms can be made, all of which have knocked around for some time. </p>
<p>Potentially, more extensive, transparent and (crucially) well-resourced <a href="http://fpc.org.uk/publications/eudemocratic">stakeholder engagement</a> with a broader range of groups in European society could improve EU legitimacy. This “incremental” democratisation is necessary to bring a far greater range of citizens to the table and to ensure EU governance has tangible meaning for them. </p>
<p>In the wake of Brexit, however, reform must be far broader. The European Parliament, for example, must become recognised by countries beyond the most “Europhile” ones as a legitimate centre of political debate and decision-making. </p>
<p>Also, countries from across the EU need to find a way of getting citizens talking to each other about common European problems and ways to solve them collectively. Fostering and enabling a <a href="http://onlinelibrary.wiley.com/doi/10.1111/polp.12163/abstract?userIsAuthenticated=false&deniedAccessCustomisedMessage=">European public sphere</a> is not simply a fanciful wish of political theory; it is now a political and economic necessity.</p>
<h2>Why we need democratic reform</h2>
<p>At a national and transnational level, democratic reform is desperately needed in both Britain and the EU to prevent the tensions in this referendum becoming more protracted or even violent. </p>
<p>In his post-referendum speech, Leave campaign leader Boris Johnson claimed Britain still had a place in Europe and British people were “proud Europeans”. I suspect many voting Leave and some politicians within touching distance of power disagree with him profoundly. </p>
<p>Whatever happens in coming months and years, the negotiations to come should be used as a crucial turning point for democratising both national and transnational politics.</p><img src="https://counter.theconversation.com/content/55870/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Matthew Wood receives funding from the UK Economic and Social Research Council, for research informing his contribution to the Foreign Policy Centre's recent report Europe and the People: Examining the EU's Democratic Legitimacy.</span></em></p>
The Brexit vote was the outcome of the disillusionment and disengagement that have permeated the UK. Many Europeans share that mood, which is why both the UK and EU need radical democratic surgery.
Matthew Wood, Postdoctoral Research Associate, University of Sheffield
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