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Constitutions

Leap worked a lot on constitutions, as we looked at them in undertaking assessments, and in they one step in legal entity establishment. There was so much poor practice in the development and writing of constitutions, that Leap spent gave this issue a lot of attention. 

What is a constitution?

In the context of land reform and communal property, the constitution is the founding document of an association (group) in terms of which a group of people define who they are, and the terms on which they will hold and manage land together. Once registered, it is a legal document that has public recognition. It is a record, providing evidence of the formation of a juristic person. It outlines the mechanisms by which land rights administration will work in practice.

The constitution is NOT the same thing as a legal entity. The constitution is a document, while the legal entity is a group of people who can carry out legal acts.

What are the purposes of a constitution?

The purposes of a constitution document are

  • To provide a record and evidence of the founding agreements between the members of the legal entity.
  • To provide guidance in day-to-day land rights administration, to which members can refer when in doubt.
  • Through processes of registration, to establish the legal entity and the structures which represent it so that both can carry out legal acts.
  • To provide a public document which outsiders can have access to information, for example, to find out how decision-making structures are constituted.
  • To function as one of the bridges between community systems of land rights administration and state run systems. In theory, this formalisation should support members of the group to assert and justify their rights to the property.

Problems with constitutions

Members of most of the associations with whom Leap has worked

  • Do not have copies of their constitution at all;
  • Can't understand their constitutions - which are often written in English legalese, badly organized and make use of unfamiliar or un-usable practices, authorities and recourse;
  • Can't use their constitutions for what is both urgent and important - constitutions focus on less important issues rather than on land rights and land rights administration to make them work in practice.

These all cause problems in themselves and they reflect that the attitudes and practices of officials and service providers need reform.

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Constitutions and community rules

LEAP works with two types of document. There is a need for a document, the constitution, which lays down the main principles of the founding agreements in terms of which the group holds and manages land together. The constitution also forms the keystone of the bridge between community and state land rights administration systems. It should be possible to change it, with appropriate safeguards.

In practice, tenure is dynamic. Land uses and rights holders change continuously, and sometimes very quickly. There is the need for something more flexible, the community rules or by-laws which people can change without reference to outside registration. The constitution keeps the community rules in line with main principles and the community rules should never contradict the constitution.

Practical tips for writing constitutions / community rules

We can use the indicators of effective constitutions to help us produce better constitutions.

Good constitutions start with the right kind of fieldwork. Start where people are now in terms of institutional arrangements for tenure and adapt, don't replace these. Record people's actual agreements. Where people can't agree, don't force false consensus - writing down agreements that are not real will not make people turn them into practice.

Write for all those who use constitutions. The main users of constitutions are insiders, but in order to function as a bridge to formal, legally recognized land rights administration systems, it is important to recognize that a lot of outsiders also use constitutions. Most of those who use constitutions do not have legal training.

Capture essential content, and don't try to put everything in the constitution. Essential content of constitutions / community rules is under hot debate. To write a constitution, we have to make some hard choices about what we put in and what we leave out.

Arrange information in a way that helps the main users and keeps the meaning clear. Note the indicators of clear constitutions above.

Make copies available in the vernacular language as well as in English. "Available" means two things:

  • people have it in their hands or can get hold of it easily;
  • when they have it they can read it or understand it when it is read to them.

In large groups people know where they can get it - it is good that it is held in different places both for ease of reference and to prevent information being cornered by a few people only. In small groups every household has a copy.

English and vernacular documents should as closely as possible be the same document - very different documents compound confusions.

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