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Constitutionalism and Development: A Mismatch or a Dream-Team?

  • Andrew Harding EMAIL logo

Abstract

This article examines the conceptual and historical relationship between constitutionalism and development. It argues that the communities that represent these two ideas have had little engagement, and yet there is a good deal of overlap between their areas of concern. Given that the Sustainable Development Goals 2015 have strongly embraced good governance, accountability and the rule of law, and we have become adept at defining and articulating the rule of law, the time seems ripe for development to engage with constitutionalism, and for constitutionalism to use “developmental operativity”, as I call it, to advance its objectives in practice.

Appendix

A Goal 16 of the SDGs

SDG Goal 16: Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels

16.1 Significantly reduce all forms of violence and related death rates everywhere

16.1.1 Number of victims of intentional homicide per 100,000 population, by sex and age

16.1.2 Conflict-related deaths per 100,000 population, by sex, age and cause

16.1.3 Proportion of population subjected to physical, psychological or sexual violence in the previous 12 months

16.1.4 Proportion of population that feel safe walking alone around the area they live

16.2 End abuse, exploitation, trafficking and all forms of violence against and torture of children

16.2.1 Proportion of children aged 1–17 years who experienced any physical punishment and/or psychological aggression by caregivers in the past month Report of the Inter-Agency and Expert Group on Sustainable Development Goal Indicators (E/CN.3/2016/2/Rev.1) 21/25 Goals and targets (from the 2030 Agenda) Indicators

16.2.2 Number of victims of human trafficking per 100,000 population, by sex, age and form of exploitation

16.2.3 Proportion of young women and men aged 18–29 years who experienced sexual violence by age 18

16.3 Promote the rule of law at the national and international levels and ensure equal access to justice for all

16.3.1 Proportion of victims of violence in the previous 12 months who reported their victimisation to competent authorities or other officially recognised conflict resolution mechanisms

16.3.2 Unsentenced detainees as a proportion of overall prison population

16.4 By 2030, significantly reduce illicit financial and arms flows, strengthen the recovery and return of stolen assets and combat all forms of organised crime

16.4.1 Total value of inward and outward illicit financial flows (in current United States dollars)

16.4.2 Proportion of seized small arms and light weapons that are recorded and traced, in accordance with international standards and legal instruments

16.5 Substantially reduce corruption and bribery in all their forms

16.5.1 Proportion of persons who had at least one contact with a public official and who paid a bribe to a public official, or were asked for a bribe by those public officials, during the previous 12 months

16.5.2 Proportion of businesses that had at least one contact with a public official and that paid a bribe to a public official, or were asked for a bribe by those public officials during the previous 12 months

16.6 Develop effective, accountable and transparent institutions at all levels

16.6.1 Primary government expenditures as a proportion of original approved budget, by sector (or by budget codes or similar)

16.6.2 Proportion of the population satisfied with their last experience of public services

16.7 Ensure responsive, inclusive, participatory and representative decision-making at all levels

16.7.1 Proportions of positions (by sex, age, persons with disabilities and population groups) in public institutions (national and local legislatures, public service, and judiciary) compared to national distributions

16.7.2 Proportion of population who believe decision-making is inclusive and responsive, by sex, age, disability and population group

16.8 Broaden and strengthen the participation of developing countries in the institutions of global governance

16.8.1 Proportion of members and voting rights of developing countries in international organisations Report of the Inter-Agency and Expert Group on Sustainable Development Goal Indicators (E/CN.3/2016/2/Rev.1) 22/25 Goals and targets (from the 2030 Agenda) Indicators

16.9 By 2030, provide legal identity for all, including birth registration

16.9.1 Proportion of children under 5 years of age whose births have been registered with a civil authority, by age

16.10 Ensure public access to information and protect fundamental freedoms, in accordance with national legislation and international agreements

16.10.1 Number of verified cases of killing, kidnapping, enforced disappearance, arbitrary detention and torture of journalists, associated media personnel, trade unionists and human rights advocates in the previous 12 months

16.10.2 Number of countries that adopt and implement constitutional, statutory and/or policy guarantees for public access to information

16.a Strengthen relevant national institutions, including through international cooperation, for building capacity at all levels, in particular in developing countries, to prevent violence and combat terrorism and crime

16.a.1 Existence of independent national human rights institutions in compliance with the Paris Principles

16.b Promote and enforce non-discriminatory laws and policies for sustainable development

16.b.1 Proportion of population reporting having personally felt discriminated against or harassed in the previous 12 months on the basis of a ground of discrimination prohibited under international human rights law

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Published Online: 2019-06-22
Published in Print: 2019-10-25

© 2019 Law and Development Review

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