Constitutional Theory and Design

The 2009 Honduran constitutional crisis, in which sitting President Manuel Zelaya was captured from the Presidential Palace and flown to Costa Rica under the cover of night, illuminated the danger of entrenched and eternity clauses in fledgling democracies. This paper discusses the way such clauses have been used in the past, identifying three general categories of historical eternity clauses. These categories include clauses that address the character of the government, the spirit or principles of the constitutional regime and finally the character of the country. The article also discusses potential problems that arise when such clauses are written into constitutions of transitional democratic regimes.

Public participation in constitutional reform can play a key role in legitimizing and constructing a lasting constitution. However, few resources have been invested in determining why exactly this is, and what factors should be considered when designing such a process. This paper tackles these difficult questions, investigating the justifications for including public participation in constitutional reform processes and outlining the factors that seem to be the most important to consider when creating a public participation program. After examining how public participation programs were run in Uganda, Kenya, and South Africa during their periods of constitutional reform, the paper then turns to outlining a design for a public participation mechanism for Liberia's current reform processes.