63. It emerges from this provision that the organisation of powers and the choice
of the form of State is the prerogative of the people, who must exercise free
choice. The Court observes that the right to self-determination confers on
the people economic, political and social prerogatives including, in
particular, the right to determine its own political status, to dispose freely of
its resources, to choose its own Government, to define the legal framework
within which it intends to live, to determine the organisation of powers and
the methods of delegation of powers. As the people are the depository of
power, they exercise it either directly, through universal suffrage, or
indirectly through their elected representatives.
64. The Court further observes that the right to self-determination is in essence
a participatory right and requires the people’s approval in taking decisions
and undertaking acts that affect the country. It also notes that drafting and
adoption of the Constitution as the fundamental law of the country and the
embodiment of the people’s aspirations is part of a consultative institutional
framework that must also be broadly participatory, from start to finish.
65. In this regard, several consultative procedures are possible, including
referendums, which call on the people to accept or reject a draft
Constitution, whether it originates from a parliament, in this case the
National Constituent Assembly, or from a commission specially set up to
draft it.
66. The issue is whether the failure to submit the draft 27 January 2014
Constitution to a referendum deprived the people of their right to participate
in its approval.
67. Article 13(1) of the Charter provides that:
“Every citizen shall have the right to participate freely in the government
of his country, either directly or through freely chosen representatives
in accordance with the provisions of the law”.
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