Brooklyn Journal of International Law

First Page



This Article explores the public participation process conducted during the drafting of Afghanistan’s 2004 Constitution. It examines scores of questionnaires, public comments, written submissions and minutes of town hall meetings that the framers used to gather public opinion and input. The Article highlights that the makers of the 2004 Constitution of Afghanistan designed and implemented an extensive public participation process, but public opinion did not have a real impact on constitutional outcomes. Instead, the content of the constitution was settled by the political elites whose agreement was needed for constitutional ratification. Drawing on this case study, the paper suggests that in post-conflict, unsteady political environments—where elite “buy-in” and agreement is indispensable for successful constitution- making—framers may decide which aspects of the constitution could be made available for public input and comment, and what elements of the constitution should be reserved for elite bargaining and compromise. This approach to public participation in post-conflict constitution-making, the Article indicates, may be productive for two key reasons: (1) conflict-ridden environments usually lack the prerequisites – such as resources and tools, the required outreach, civic education and public awareness – that can facilitate effective and meaningful public input; and crucially (2) extensive public participation in these contexts may endanger elite “buy-in” and agreement among the politically powerful actors, agreement of the type essential for successful constitution-making.