Women and Participatory Constitution-making

Popular participation has become a hot topic in constitution-making. Referendums, deliberative assemblies, popular consultations and broad civic education programmes have increasingly been resorted to alongside, and sometimes instead of, traditional mechanisms of constitutional change. Exponents of ‘democratic constitutionalism’ argue that recourse to the people is mandated by normative commitments to legitimate constitution-making. They also invoke practical benefits deriving from popular constitution-making, such as more inclusive and sustainable constitutions. Generally missing from these accounts, however, has been an investigation into the capacity of participatory mechanisms to incorporate and respond to the views of women. Insufficient attention has been paid to the question of who, precisely, participates when popular mechanisms are set up and whether women are adequately represented and listened to. This paper contributes to filling this gap. It aims to provide initial answers to the question of whether and how participation in constitution-making delivers for women. I first outline the contours of the debate surrounding popular participation in constitution-making, identifying the benefits and potential pitfalls such participation may yield. I then examine three case studies: the 2014 Scottish independence referendum, the 2012-14 Irish Constitutional Convention, and the 2011-14 Tunisian constitution-making experience, analysing the level and nature of women’s participation in all these processes. Subsequently, I evaluate the success of participatory mechanisms such as referendums, constitutional conventions, and public consultations in empowering women as equal participants, and their ability to ensure gender-sensitive deliberations. I also raise questions as to whether participation should be resorted to in all cases of constitutional reform and the propensity for it to be an obstacle to, rather than a vehicle for, gender equality. I conclude that careful institutional design, comparative learning and looking beyond tokenism remain necessary in order to ensure that participatory mechanisms do indeed empower rather than fetter women as agents of constitutional change.