LocationsThe Role of Constitutions in Enabling Rights-Based Governance through Participatory Accountability
By Christina Murray | Visiting Fellow, Kellogg College, Oxford University & Professor Emeritus, University of Cape Town
& Gideon Basson | PhD Candidate, University of Oxford
The realization of rights outlined in constitutions crucially depends on the creation and sustenance of accountable institutions, together with independent oversight bodies that enable affected groups to demand reasons, challenge priorities, and participate meaningfully in decision-making.
Constitutions have long been influenced by practices elsewhere. In some contexts, constitutional arrangements were imposed through conquest or colonial rule. In others, constitution-makers deliberately looked outward for ideas capable of addressing domestic challenges. What is different now is the growing influence of comparative constitutional experience and internationally articulated norms in constitution-making.
Of course, each country’s constitution must reflect choices made by that country. Those constitutional choices then acquire real significance when they are embedded in institutions and processes that enable people to contest and influence the exercise of power, and to hold those in power to account. In this sense, constitutional rights shape governance by requiring the exercise of public power to be justified and those exercising it to be answerable.
States now draw on international norms and standards as well as comparative constitutional experience when framing rights and designing institutions. Comparative constitutional practice and international norms do not offer uniform solutions, but they provide shared vocabularies of obligation and accountability for domestic adaptation. What links these developments is an increasing emphasis on institutional arrangements that enable people to influence decision-making, and to hold those exercising power to account.
Over time, and against this broader constitutional landscape, many constitutions, including the Constitution of Pakistan, have become more ambitious, going beyond the essentials of providing a framework for government. They frequently articulate a vision for a shared future, as reflected in the commitments made in preambles, such as in Pakistan’s Constitution, to ‘democracy, freedom, equality, tolerance, and social justice’, and set out expectations about the kind of society in which a polity seeks to live together.
Constitutions also recognize the provision of services as key components of an expanding range of social, economic, developmental, and environmental rights. The realization of these rights crucially depends on the creation and sustenance of accountable institutions, together with independent oversight bodies that enable affected groups to demand reasons, challenge priorities, and participate meaningfully in decision-making. As the following examples show, constitutions can provide the basis for tackling some of today’s most difficult problems.
Consider access to healthcare. When South Africa’s 1996 Constitution included a right of access to healthcare, many said that was unwise, asking too much of government. Soon, however, the Constitutional Court held that the State was required to provide antiretroviral medication to HIV-positive pregnant women to reduce mother-to-child transmission. The Court did not prescribe a comprehensive health system, but required a reasonable policy informed by constitutional values and obligations and open to challenge by those affected. Litigation, civil society mobilization, and public scrutiny were central to this process.
Colombia’s experience with health provides an even richer example. Its constitution elaborates the State’s obligations in relation to health services, and sustained engagement among the legislature, executive, Constitutional Court, and civil society has progressively clarified their content. Emergency healthcare has been interpreted to include vaccinations and treatment for ‘catastrophic illnesses’ such as cancer. Colombia’s approach builds on international human rights law and simultaneously contributes to it, inspiring others.1
Concerns are often raised that such rights-based approaches are unrealistic in low-income contexts. Burundi provides a counter-example. The right to health is constitutionally protected, giving expression to State obligations even under severe resource constraints. In 2022, the Human Rights Measurement Initiative assessed Burundi as achieving the highest possible score for the right to health among the 141 countries assessed.2 This suggests that constitutional commitments can orient governance choices and bring about change.
Constitutions do not enforce themselves. Their significance lies in how they structure accountability through institutions, democratic decision-making procedures, and legally protected avenues for challenge and review.
Environmental rights similarly depend on their constitutional entrenchment. Like the Constitution of Pakistan, Kenya’s Constitution recognizes the right to a clean and healthy environment and imposes environmental obligations on the State. Drawing on comparative experience and international standards, these provisions were intended to enable communities to contest environmental harm. More recently, villagers secured compensation for serious violations of the right, including loss of life, in a widely noted decision that drew on international standards.3 The case, however, took many years to resolve. Even statutory bodies established to protect environmental rights had failed to implement them. The constitutional provisions ultimately proved important, but the case illustrates that their realization requires sustained political energy and institutional creativity.
Climate change has emerged as a significant issue within contemporary constitutional frameworks. For example, Germany amended its constitution in 2002 to include responsibility towards future generations. In 2021, the Constitutional Court held that parts of the Climate Change Act were unconstitutional for failing to address emissions adequately beyond 2031, emphasizing intergenerational equity and requiring the State to justify present policy choices in light of future burdens.4
Every one of these examples of the implementation of constitutional rights depended on the active engagement of the people empowered by political arrangements that secured their right to engage. The examples thus also underscore a central point: constitutions do not enforce themselves. Their significance lies in how they structure accountability through institutions, democratic decision-making procedures, and legally protected avenues for challenge and review. For instance, to ensure that people can engage in democratic decision-making to secure rights in practice, South Africa’s and Kenya’s constitutions require legislatures to facilitate meaningful public participation in law-making, and failure to do so may render legislation invalid.5
Together, these examples demonstrate the role of constitutions in enabling rights-based governance by embedding participatory accountability within institutions and decision-making processes.
1. International Commission of Jurists, ‘Constitutional protection in practice: Venezuelan nationals’ right to health in the Colombian Constitutional Court’s jurisprudence’, International Commission of Jurists, January 2025. https://www.icj.org/wp-content/uploads/2025/01/Right-to-health-in-the-Constitutional-Jurisprudence-1.pdf
2. Ravelo, Jenny Lei, ‘The best and worst countries for ensuring the right to health’, Devex, 23 June 2022. https://www.devex.com/news/the-best-and-worst-countries-for-ensuring-the-right-to-health-103485
3. EPZA & 10 Others v National Environment Management Authority & 3 Others, Supreme Court of Kenya, [2024] KESC 75 KLR, 6 December 2024. https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/75/eng@2024-12-06
4. Bundesverfassungsgericht, ‘Constitutional complaints against the Federal Climate Change Act partially successful’, Press Release No. 31/2021, Bundesverfassungsgericht, 29 April 2021. https://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2021/bvg21-031.html
5. Doctors for Life International v Speaker of the National Assembly and Others, Constitutional Court of South Africa, Case No. CCT 12/05, 17 August 2006. https://www.saflii.org/za/cases/ZACC/2006/11.html