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The Journey Embassy


Writing a Constitution

Definition of a Constitution

The South African Constitutional Court

  • A body of fundamental principles or established precedents according to which a state or other organisation is acknowledged to be governed.
  • A written record of this.

If you had the chance to write a nation's constitution from scratch - where would you start?

Former Chief Justice Ismail Mahomed spoke of the new South African Constitution in the following terms:

"All constitutions seek to articulate, with differing degrees of intensity and detail, the shared aspirations of a nation; the values which bind its people; and which discipline its government and its national institutions; the basic premises upon which judicial, legislative and executive power is to be wielded; the constitutional limits and the conditions upon which that power is to be exercised; and the moral and ethical direction which that nation has identified for its future." [1]

The American Constitution

We know that historically constitutions have taken years to draft, and in their relative fixity have represented significant power claims by one generation over another. Think, for instance, about how the 18th century founding fathers tower over American life today.

‘We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.’

As Carl Gardner suggests in his Resident Thinker contribution, the American constitution 'sets up the branches of government: the legislative, executive and judicial branches. Then after some brief provision about states, it lays down apparently technical – but in truth absolutely crucial – rules about the status of the constitution, and how it can be amended. Finally, rights of the citizen are set out in a series of amendments now called the "Bill of Rights".'

South Sudanese independence, 9 July 2011

South African Chief Justice Ismail Mahomed goes onto say, 'In some countries, the constitution only formalises, in a legal instrument, a historical consensus of values and aspirations evolved incrementally from a stable and unbroken past to accommodate the needs of the future. The South African Constitution is different: it retains from the past only what is defensible and represents a decisive break from and a ringing rejection of that part of the past which is disgracefully racist, authoritarian, insular and repressive, and a vigorous identification of and commitment to a democratic, universalistic, caring and aspirationally egalitarian ethos, expressly articulated in the Constitution. The contrast between the past which it repudiates and the future to which it seeks to commit the nation is stark and dramatic... What the Constitution expressly aspires to do is to provide a transition from [the] grossly unacceptable features of the past to a conspicuously contrasting future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex." [1]

The Nowhereisland Declaration

The Nowhereisland Declaration

The Transitional Constitution of the Republic of South Sudan, 2011, the constitution of the world's newest nation state, was drafted by a Southern Sudan Constitutional Drafting Committee and came into force on the day of independence of South Sudan 9 July 2011. Recently, the South Sudanese Women Empowerment Network has called for greater participation of women in the constitutional review committee.

The UK does not have a written constitution. The Magna Carta, written in 1215 AD, has formed the basis of many constitutions, including the US above. Most importantly for Britain, it ‘limited the king's authority by establishing the crucial principle that the law was a power in its own right to which the king was subject.’ See here for arguments as to why Britain should have a written constitution.

The Declaration of Nowhereisland sets out that, 'Nowhereisland’s constitution is and will be cumulative and consensual, open to all citizens and subject to change during the nation’s lifetime.' The writing of this constitution is 'open to all citizens' and you are invited to contribute to its contents through making a proposition. But 'writing the constitution' also involves ranking those propositions. As writer and lawyer Carl Gardner has suggested in his Resident Thinker piece, the Nowhereisland Constitution 'will always be speaking – but listening is a part of our drafting work, too.' Take part here.

Perhaps we should bear in mind Thomas More's consideration of law in his 16th century book 'Utopia':

'They have but few laws, and such is their constitution that they need not many. They very much condemn other nations, whose laws, together with the commentaries on them, swell up to so many volumes; for they think it an unreasonable thing to oblige men to obey a body of laws that are both of such a bulk, and so dark as not to be read and understood by every one of the subjects.

They have no lawyers among them, for they consider them as a sort of people whose profession it is to disguise matters, and to wrest the laws; and therefore they think it is much better that every man should plead his own cause, and trust it to the judge, as in other places the client trusts it to a counsellor.

Every one of them is skilled in their law, for as it is a very short study, so the plainest meaning of which words are capable is always the sense of their laws. And they argue thus; all laws are promulgated for this end, that every man may know his duty; and therefore the plainest and most obvious sense of the words is that which ought to be put upon them.'


[1] Quoted by Kate O'Regan, Judge of the Constitutional Court, South Africa. Download a full version of her lecture here.


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Nowhereisland is a Situations project led by artist Alex Hartley, one of 12 Artist Taking the Lead projects for the London 2012 Cultural Olympiad funded by Arts Council England. We also gratefully acknowledge the support of the University of the West of England, Bristol; Bloomberg; Nicky Wilson Jupiter Artland; the Norwegian Ministry of Foreign Affairs; the Royal Norwegian Embassy and Yellowbrick Tracking.

Identity designed by Fraser Muggeridge studio and Wolfram Wiedner, website by Wolfram Wiedner.