ConstitutionMaking And Peace Building Lessons Learned From The ConstitutionMaking

constitution-making and peace building: lessons learned from the constitution-making processes of post-conflict countries jamal benomar

Constitution-Making and Peace Building:
Lessons Learned From the Constitution-Making Processes of
Post-Conflict Countries
Jamal Benomar

August 2003
Executive Summary
As Iraq engages in the process of drafting a new constitution, it
encounters questions and dilemmas, which have been addressed by a
number of countries over the past couple of decades. Although each
country’s history and institutions greatly determine the answers to
these questions, examining the experiences of others may be
insightful.
This paper surveys the lessons drawn from the experiences of a number
of post-conflict states in drafting their constitutions. It focuses
mostly on the process of constitution drafting and the institutions
established for the duration of this process. It is based on the
findings of a joint project sponsored by UNDP/BCPR in partnership with
the United States Institute of Peace. The project has examined case
studies and drew lessons on the process of constitution making, peace
building and national reconciliation. The Working Group of the project
includes well known international experts who have provided expertise
and advice to various countries in developing new constitutions.
Experts, who often played a prominent role in the constitution making
process in these countries, drafted the fourteen case studies. The
present paper summarizes the lessons learned from these processes. It
provides also a comparative analysis that could serve as a guiding
document for the ongoing debate in Iraq about the nature, structure
and modalities of a constitution making process that could lead for
the first time to a national consensus on the key parameters of
democratic governance in the country.
The following countries are surveyed: Bosnia and Herzegovina, Brazil,
Cambodia, Colombia, East Timor, Eritrea, Ethiopia, Fiji, Namibia,
Nicaragua, South Africa, Spain, Venezuela and Zimbabwe.
The paper captures through comparative analysis the following themes:
First, there are benefits in separating the termination of violent
conflict and the signing of a peace agreement from the process of
drafting the constitution. The cases surveyed point out that, when
these two processes are collapsed into one, long-term concerns of
institution building may be compromised. Also, in such cases, public
participation is usually minimal.
Second, it is beneficial for purposes of conflict resolution to
broaden the number of groups participating in the constitution-making
process. Exclusion of key actors from the drafting process may
undermine the legitimacy of the final outcome. When dominant groups
are excluded, the constitution adopted has dim prospects of enduring.
Experience demonstrates that, for purposes of conflict resolution, an
initial or interim power-sharing agreement guaranteeing representation
to the main parties is beneficial. Ideally, such an agreement should
develop into an arrangement, which relies on democratic mechanisms to
resolve inter-group disputes rather than on fixed guarantees to each
party.
Third, a process of negotiations among stakeholders on key
constitutional principles is crucial. Extended deliberation and
consultation among key groups clarifies the commitment of the
participants to the constitution-making process and lays the
groundwork for a political culture of multiparty consultation and
cooperation.
Fourth, the participation of the public in the drafting of the
constitution is a crucial component of the process. It adds
indispensable legitimacy to the final document adopted. It also
assists the definition of a national identity and the articulation of
common popular aspirations for the future.
Introduction
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Societies emerging from conflict face the difficult task of channeling
future political contestation through institutional paths. Their
endeavors often take place in the context of weak or even collapsed
state institutions, weak political will for reconciliation, and
distrust. The goal is to build political systems based on democratic
and constitutional principles. Democracy ensures the alteration of
power and rule by changing majorities, while constitutionalism defines
the limits within which such majority may exercise power. The
constitution-making process attempts to represent the will of the
people, to achieve a consensus on the future of the state, and to
ensure respect for universal principles such as respect for human
rights and democratic governance.
In Iraq, the constitution-making process faces the difficult task of
carrying out broad-based consultations among the main political groups
as well as extensive public participation. It also confronts the
short-term priority of resolving disagreements among key stakeholders
and the long-term priority of creating stable institutions. The
constitution drafting process and the resulting constitution will not
alone resolve inter-group conflict. Nevertheless, if the
constitution-making process is inclusive and transparent, it may
succeed in managing conflict and in facilitating bargaining,
reciprocity and collaboration.
There is potentially a tension between democratic principles and
constitutional principles, which is reflected in the
constitution-drafting process. Constitutionalism limits majority
decisions. A constitution is a set of norms and principles limiting
the political power of the majority and protecting the rights of
individual and minority groups. Constitutions form an obstacle to
certain political changes, which would have been carried out had the
dominant majority had its way. Another tension between democracy and
constitutionalism is that democracy institutionalizes uncertainty,
while constitutionalism institutionalizes long-term principles, which
are very difficult to change. While democratic principles dictate that
political outcomes are to some extent indeterminate and that noon can
be certain that their interests will ultimately triumph,
constitutional principles limit this uncertainty by defining the
boundaries within which political power can be used.
There are several reasons why a government should be restrained and
uncertainty reigned. Very importantly, there is a risk that a
government might use its powers to serve the interests of a narrow
interest group and that it will violate the rights of some individuals
simply to promote the interests of other individuals. Also,
constitutionalism creates the expectation of stability and duration of
political institutions and therefore allows for long-term planning for
the members of the society. If state institutions are constantly
changing, individuals in power will be tempted to exploit their
positions for private purposes and those outside positions of power
will hesitate to invest in long-term projects.
During the constitution drafting process, decisions are made as to the
limits and practices of the new regime, and the rights and duties of
the citizens. The process is a rare moment in a state’s history when
detailed discussion rises above the give-and-take of everyday majority
politics and focuses on the nature and future of the state. The
process of drafting a constitution may significantly contribute to
national reconciliation. It requires negotiations among key groups on
constitutional principles. It also requires public participation in
order to gain legitimacy and to reflect popular aspirations. Thus,
constitution-making has the potential of contributing both to the
short-term goal of conflict resolution and peace-making and to the
long-term goal of peace-building and strengthening of the state
institutions. Also, it has the potential of ensuring that universal
principles such as respect for human rights are enshrined in the new
constitution.
The following discussion elaborates in detail the ways in which a
number of countries have balanced the different priorities present
during the process of constitution-making.
1. SEPARATE THE PEACE AGREEMENT AND THE CONSTITUTION-MAKING PROCESS
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Constitution-making is a vital component of conflict resolution and
national reconciliation. Nevertheless, not all disputes can be
resolved through the process of constitution-making. Specifically,
military and security-related issues are preferably addressed
separately and before the advent of the constitution-making process.
Past experiences demonstrate the advantage of separating the
negotiations of a peace agreement from the drafting of the
constitution. The termination of the war and the conclusion of a peace
agreement are of vital importance in setting the stage for the
constitution making process.
The negotiations leading to a peace agreement are concerned with the
short-term issue of conflict termination. Combining these negotiations
with constitution drafting often compromises the long-term concerns on
the nature of state institutions. The termination of armed hostilities
and the signing of a peace agreement are therefore pre-conditions that
enable the constitution-making process to contribute to peace
building. Namibia is an example of a country where the peace agreement
was concluded before the drafting of the constitution. In Namibia,
conflict resolution and peace building went hand in hand with
constitution making. Nevertheless, the conclusion of a peace agreement
was a precondition, which enabled the negotiations among the
interested parties on the future of the state.
Lessons regarding the relationship between constitution-making and
security concerns
Do not combine the conclusion of a peace agreement with
constitution-making. Bosnia and Herzegovina and Zimbabwe are
quintessential examples of countries where the peace agreement and the
drafting of the constitution were combined into one negotiation
process. In both cases, the constitution entrenched disagreements
without providing avenues for political change.
In the Bosnian case, the exclusively elite-based 1995 Dayton
negotiations focused on satisfying the interests and demands of the
actors with the capability to continue the violence. The emphasis was
on the termination of armed hostilities. As a result, the new
constitution did not mirror an agreement among the warring parties on
a common future in one state. It rather entrenched their disagreements
and power positions. As a result, the constitution does not have the
capacity to ensure the longevity of the current political system.
In Zimbabwe, the militarized nature of the conflict conflated the
peace-making process with the making of the 1980 constitution. The
constitution was not conducive to the resolution of conflicting
interests in the long-term. The deeply entrenched protection of white
farms, a necessary component of the peace-making process, proved to be
an intractable problem. The Zimbabwean case indicates that, although
co-ordination between the constitution-making and peace-making
processes may be beneficial, their coincidence is not.
Address the security concerns preventing an open and transparent
constitution-making process from taking place. The experiences of
Ethiopia and Cambodia demonstrate that unresolved security threats
could significantly hamper the constitution drafting process.
Political leaders often use security concerns to justify inadequate
public participation in the drafting of the constitution.
In Ethiopia, the turbulent security situation rendered the
constitution-making process difficult. There was no legally
constituted national army or police force to ensure the security
necessary for elections, nor was there adequate time to establish the
conditions for effective local participation.
In Cambodia, the main parties agreed to a comprehensive political
settlement, the Paris Agreements. The settlement was implemented under
United Nations supervision. Nevertheless, the implementation of the
military and security aspect of the Agreements, such as disarmament,
demobilization and cantonment of forces, and prevention of cease-fire
violations, was unsuccessful. The UN took the calculated risk to
proceed with the elections of the Constituent Assembly, which would be
responsible for drafting the constitution, despite the failure to
implement the military provisions of the Agreements. As a result,
political violence continued to the run up to the election, during the
voting and before the installation of the interim government. The
elections were free and fair and enjoyed massive participation by the
Cambodian people. Nevertheless, the continuation of violence was used
as a justification for the brevity and secrecy of the
constitution-making process, as will be discussed later in this paper.
Address security issues inhibiting meaningful debate and
consensus-building among all stakeholders. In Nicaragua and Colombia,
the armed conflict continued during the constitution-making process
and significantly impaired the ability of stakeholders to reach a
consensus on the future of the state. In both cases, the continuation
of violent conflict jeopardized the durability of the constitution.
In Nicaragua, the process of constitution-making and the 1987
Constitution contributed to the resolution of the armed conflict,
which only ended in 1990. Nevertheless, the continuation of the
conflict during the constitution drafting process meant that the 1987
Constitution left many issues undecided. The need to engage in
extensive compromises among the participants prevented the emergence
of a substantive consensus on the nature of the state. For example,
the type of democracy that Nicaragua was to be was not agreed upon in
the 1987 Constitution. When the conflict ended, these issues needed to
be addressed and the Constitution was amended.
In Colombia, the 1991 Constitution was an attempt to mitigate the
ongoing violent conflict. The constitution drafting process provided
for substantial public participation and guaranteed the representation
of a wide range of political actors. Nevertheless, the two main
guerrilla groups, the FARC and the ELN, did not participate. Their
absence from the process served a blow to the capacity of the
constitution to achieve peace. The country’s combination of internal
conflict, narcotics trafficking and a weak state has defied the
capacity of Colombian democratic institutions to achieve peace and
stability through the country.
In summary, past experience demonstrates that when the conflict has
not ended and the negotiations on a peace agreement and on the
constitution are conflated, constitutional principles may be
compromised. Experience of constitution-making, while conflict
continues, demonstrates that constitution-making cannot serve as a
peace process. Minimum conditions need to be in place before
constitution-making commences. When peace negotiations and
constitution-making are collapsed, attention is paid to short-term
considerations of conflict termination as opposed to long-term
concerns of institution building. It is therefore advisable for these
two processes to be separated.
2. Enhance the Benefits, & Manage the Risks of an Inclusive
Constitution-Making Process
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A constitution contributes to peace and stability, when it reflects an
acceptable political compact between those who control political power
and capital in the post-conflict context. In the case of countries
exiting civil conflicts, the vanquished party is not always included,
as the case of Cambodia indicates. Nevertheless, even parties of
questionable moral standing have in the past been included in the
constitution-making process, as the South African case demonstrates.
This is a delicate process. On the one hand, accommodation of powerful
actors is crucial for the survival of any post-conflict agreement. For
purposes of conflict resolution, it is important to broaden the number
of elite groups participating in the constitution-making process. In
certain situations, such as the Balkans, it is difficult to envisage a
post-war political settlement that does not guarantee to all the major
antagonists some permanent political representation, decision-making
power, and autonomous territory in the post-war period.
On the other hand, a broadening of the participants in the
constitution-making process carries risks. An emphasis on
accommodation of diverse interests may lead to an agreement lacking a
common vision for the future of the state. When the
constitution-making process is purely an exercise in political
compromise, it risks producing a short-term accord serving the
interests of elite groups at the expense of building strong democratic
institutions and long-term stability. It also risks compromising key
principles of international law and respect for human rights. The
constitution-making process should be an instance of principled
discussion on the future of the society and the state, and not a
negotiation over narrow interests.
Experience demonstrates that, for purposes of war termination, an
initial or interim agreement guaranteeing representation and
decision-making power to all parties is beneficial. Ideally, such an
agreement should be short-term. It should develop into an arrangement,
which relies on the democratic process to resolve inter-group disputes
rather than on power-sharing guarantees to each party. Thus, a
constitutional process, which ensures power-sharing, does not
necessarily lead to a federal or decentralized state.
Lessons regarding the importance of an inclusive constitution-making
process
Include key stakeholders in the drafting of a new constitution for
purposes of conflict resolution as well as to ensure the longevity of
the new constitution. South Africa is the quintessential example of
how constitution-making can contribute to conflict resolution through
power-sharing among key groups. Namibia and Spain also demonstrate the
advantage of an inclusive constitution-making process, while Ethiopia,
Venezuela and Colombia confirm the detriments of exclusion of major
elites.
In South Africa, power-sharing and a culture of bargaining existed
from the early stages of the transition to democratic government. The
1993 Interim Constitution was a political pact, a power-sharing
agreement. The basic rationale for power-sharing was to prevent a
counter-revolutionary threat to the new political order emanating from
the bureaucracy and security forces. Concessions were given to
potential spoilers of the pact and brought these parties into the
power-sharing agreement, the Government of National Unity. Very
importantly, the South African power-sharing arrangement was to expire
within five years and indeed it withered away and was replaced by a
modified majority-rule democracy. Nevertheless, the culture of
inter-group bargaining persists and is deeply embedded in many sectors
of South African society, including its new political institutions.
In Namibia, all interested parties reached in 1981 an agreement on the
Principles concerning the Constituent Assembly and the constitution of
an independent Namibia. After its election in 1989, the Constituent
Assembly unanimously adopted the Principles as a framework for drawing
up a constitution for the country. Furthermore, without the broadening
of the elite group participating in the process, the final phase of
the constitution-making process would not have had its successful
outcome. When the elites of a dominant group in a country have left or
are excluded from the process, the eventual constitution-making in
that country has few prospects of lasting success.
In Spain, except for a very small but vocal minority, the majority of
all relevant groups chose to participate in the process rather than
creating obstacles. There seemed to exist a general willingness by the
major actors to move closer to the political center in order to create
a democratic regime.
Avoid exclusion of key stakeholders in order to ensure that genuine
agreement on key issues is reached. Ethiopia, Venezuela and Colombia
exemplify the dangers of a process, which excludes some significant
actors.
The Ethiopian opposition resented its exclusion from the transition
agenda and the constitution drafting process. Opposition leaders
rejected the legitimacy of the Constitutional Commission and its
project, and called for its resignation. Also, the fact that the
Commission worked behind closed doors did not contribute to its
legitimacy. Furthermore, the lack of debate among the various
political groups meant that important and controversial issues
regarding ethnicity, self-determination and federalism were never
adequately deliberated.
One group used the 1999 constitutional process in Venezuela to
facilitate the take over of the state. The Constituent Assembly was
dominated by representatives of one party and almost all opportunities
for inclusion of a large number of political forces and for public
participation were squandered. As a result, the central concerns of
the people of Venezuela, such as decentralization and political party
reform, were not addressed. The Venezuelan political system is still
in need of significant reforms. Observers predict that the new
constitution will be as durable as the current elites.
As has already been mentioned, the Colombian constitution-making
process did not succeed in achieving peace mainly due to the absence
of the two main rebel groups from the negotiating table.
Ensure that the constitution is based on a substantive consensus on
key constitutional principles. The Nicaraguan and Brazilian
constitution-making processes demonstrate the disadvantages of greatly
broadening the number of participants and of emphasizing compromise
among actors to the point of failing to achieve a substantive
consensus on the nature of the state.
The Nicaraguan process emphasized the importance of conflict
resolution. The dominant political force in the country, the political
party FSLN, could have imposed a constitution that was completely
unacceptable to the opposition. Instead, the FSLN reached out to
diverse sectors of society and accommodated a number of key opposition
concerns in an attempt to resolve conflicts. Nevertheless, the
Constitution’s appeal to a broad audience meant that key differences
among actors were not resolved. Rather, the Constitution contained
contradictory principles and ambiguities. Thus, the consensus that
emerged was superficial.
In Brazil, the country’s Congress was responsible for drafting the
1988 constitution, thus, combining normal legislative functions with
constitution-making functions. Because political parties were weakly
organized and the country’s political forces were divided, the
Congress was susceptible to pressures from societal interest groups.
Since no single political group dominated the Congress, majority
voting resulted from prolonged negotiations and bargaining. As a
result, the 1988 constitution lacks organic unity and a coherent
vision for Brazil. It is a mixture of inconsistent and unnecessarily
complicated provisions. Although Brazil has successfully transitioned
to a democratic regime, its political institutions are still weak.
In summary, past experience indicates that an inclusive
constitution-making process is beneficial to the legitimacy and
longevity of the constitution. When one group dominates the process,
it fails to reach a genuine consensus among all significant political
actors. On the other hand, inclusiveness should not compromise
substantive agreement on key constitutional principles.
3. Design an Inclusive Constitution-Making Process: Elected
Constituent Assemblies versus Appointed Constitutional Committees
The structure of the constitution-making process is frequently an
issue of contention among the key participants. The type of
institutions chosen for the duration of the process, and the timing
and sequence of the drafting stages is significant. The goal of
institutional choice should be to prevent the domination of the
process by one group or political party and to ensure the legitimacy
of the process through public participation. As has been discussed, an
inclusive process is for the most part beneficial to the longevity of
the constitution and contributes to national reconciliation.
Inclusiveness is a difficult goal to achieve, since elections for
constituent assemblies often legitimize the domination of the
constitution-drafting process by the winner of the elections. The
winners consider their electoral victory a mandate for exerting
decisive influence over the constitution. The constitution-making
process must resolve the struggle between the interests of particular
groups, on one hand, and ensure the long-term interests of society as
a whole, on the other. Nevertheless, elected statesmen often have a
short-term perspective dictated by their concerns for re-election.
Appointed Constitutional Committees, on the other hand, may not enjoy
the legitimacy of an elected body, but have several advantages.
Constitutional Committees contribute to an informed drafting process
and provide equal access to all sides of the debates to research and
information. Ideally, Committees should be independent and capable of
considering the long-term interests of the state and society, instead
of the short-term interests of political factions eager for
re-election. The combination of an appointed Committee with an elected
assembly or a public referendum might solve the dilemma about the
Committee’s legitimacy.
Lessons regarding the choice between appointed and elected
constitution-drafting bodies
Ensure that substantial preparatory work has been conducted before the
election of a Constituent Assembly. Preparatory work might include
civic education campaigns and opportunities for consultation and
debate among all stakeholders. In South Africa and Namibia, elections
were preceded by long-term and substantial negotiations among elite
groups. When elections for Constituent Assemblies were finally held,
considerable preparatory work had already been conducted thus
preventing a single group from determining the outcome.
In South Africa, as already discussed, an Interim Constitution
preceded the 1996 constitution. The Interim Constitution was born out
of intense negotiations among the key stakeholders. The Interim
Constitution set out the principles governing the election of a
Constituent Assembly through a proportional representation system.
Before the election of the Constituent Assembly, while the Interim
Constitution was in force, a government of National Unity was in power
and ensured that one group would not dominate the process of
transition.
In Namibia, substantial and long-term discussions among all actors
resulted in the agreement that elections would be held to select a
Constituent Assembly, which would adopt the constitution of
independent Namibia. There was also a Constitutional Committee, which
scrutinized the draft constitution after it was submitted to the
Constituent Assembly.
Ensure that the Constituent Assembly is not dominated by one political
force. In Nicaragua and Colombia, elected Constituent Assemblies did
not lead to the domination of the constitution drafting process by one
political force.
In Nicaragua, elections were held for a National Constituent Assembly
in 1984 and the leading party (FSLN) won by 66.8 per cent. The
Assembly was mandated to produce a Constitution within two years.
Nevertheless, the FSLN was willing to offer concessions to the
opposition and to engage in an extensive campaign of public
participation in the process of constitution-drafting.
In Colombia, a referendum was first held on whether a Constitutional
Assembly should be convened. Subsequently, the Assembly was elected.
One third of the voters voted for independent political forces, thus,
breaking the Colombian tradition of a bipolar political system
dominated by the Liberals and the Conservatives. The discussions
within the Assembly were therefore not dominated by one political
force.
Nevertheless, elected Constituent Assemblies often are dominated by
the political force, which wins an overwhelming electoral victory and
eschews in-depth negotiations with other actors on constitutional
principles. East Timor, Ethiopia and Venezuela offer examples of this
dynamic.
In East Timor, there was disagreement on the type of institution,
which would be responsible for initially drafting the constitution. A
large number of political and civic leaders preferred that a
non-elected Constitutional Commission or Convention work on a draft.
The argument in favor of this option was that a non-elected Commission
would not suffer from political pressures and would be open to public
participation. A different proposal argued that an elected Assembly
should draft the constitution in order for the constitution to enjoy
legitimacy. In the end, a small political elite opted for the latter
option and decided that an elected body should draft the Constitution
within 90 days. The 2001 elections led to the overwhelming victory of
one party (Fretilin), which as a result did not need to build
consensus for its preferred constitution. Fretilin leaders were not
inclined to consult the public on the draft, because they felt they
had received a mandate through the elections. Critics argue that this
process did not contribute significantly to nation-building.
In Ethiopia, a similar but more pronounced dynamic emerged. Given the
decisive victory of one political party, early elections probably did
not serve to open up the political stage to broad popular discussion
over constitutional issues. As already discussed, this victory
prevented extensive debate between the victorious party and the
opposition. A variety of institutions were created to handle the
constitution-making process. A couple of conferences and councils were
held before the Constitutional Commission was charged with drafting
the 1994 constitution. Finally, the Constitution Assembly was charged
with ratifying the constitution. Nevertheless, the emphasis on
appropriate constitution-drafting procedures came late, since the
domination of the constitution-making process by one party had already
occurred.
Finally, in Venezuela, the domination of the 1999 Constituent Assembly
by supporters of the government party resulted from fragrant
violations of the existing constitution and of the principles of
dialogue and collaboration. The elected Constituent Assembly excluded
all the traditional political parties. The Assembly proceeded to usurp
the powers of other governing bodies and to assume powers, which were
not provided for in its mandate. The Venezuelan constitution-making
process, therefore, was not a process of reconciliation and consensus
building.
In summary, the above cases demonstrate that elected Constituent
Assemblies enjoy the vital legitimacy of an elected body.
Nevertheless, they also bring with them the risk that adequate debate
among the key participants will not occur and that public
participation may be minimal. The combination of an appointed
Committee with an elected assembly or a public referendum might solve
the dilemma about the Committee’s legitimacy.
4. Ensure a Process of Consensus-building on Constitutional Principles
through Consultations and Negotiations among Concerned Stakeholders
As has already been discussed, the constitution-making process should
ideally not be burdened by peace-making. Nevertheless, when
appropriately designed, constitution-making processes may contribute
to peace-building. If constitution-making is not rushed and allows
amble time for negotiations under conditions of fair-play, a genuine
agreement among key stakeholders may be reached.
Some of the more successful post-conflict constitutions have resulted
from lengthy political negotiations among the main stakeholders
addressing core constitutional principles. These broadly based
discussions constitute part of the extensive consultations that the
constitution-making process ideally includes. Discussions among key
stakeholders hopefully lead to areas of possible compromise that will
move the process forward. In addition, international norms dictate
that these negotiations are respectful of universal principles, such
as human rights, and that they aim toward the establishment of a
democratic state governed by the rule of law.
Substantial deliberation contributes to the longevity of the
constitution and the durability of the political system in two ways.
First, extended deliberation clarifies the commitment of political
actors to participate in constitution-making as a means of achieving
stability and national reconciliation. Therefore, it is crucial that
all interested parties commit to constitution-making as a way of
managing competing visions and interests. Second, extended
deliberation lays the groundwork for a political culture of multiparty
consultation and cooperation.
Lessons regarding the importance of consultations on constitutional
principles
Ensure lengthy consultations and negotiations among key stakeholders.
The experiences of Namibia, South Africa and Spain demonstrate the
usefulness of extensive consultations in reaching agreement on key
constitutional principles. On the other hand, Bosnia and Herzegovina
exemplifies the drawback of a hasty process.
In Namibia, the constitutional debate lasted several years, pervaded
the political scene and influenced all political developments. The
process provided a means to stimulate active politics and debate on
the future of the country for more than fifteen years. It also offered
political parties the opportunity to activate political life, and to
strengthen themselves. Resulting at least partly from this extensive
deliberation, an agreement was reached among all the interested
parties on the 1982 Constitutional Principles, which guided the
Namibian constitution and set the stage for the negotiation of the
constitution. These principles stated: “Namibia will be a unitary,
sovereign and democratic state.” This definition guided several
aspects of the constitutional discussions for several years. All
participants strongly supported the concept of the unitary state, and
recognized that the foundation of a sovereign, unitary and democratic
Namibia depended on the outcome of the constitution making process.
In South Africa, also, initial talks on the country’s constitutional
future occurred among the country’s key stakeholders. As a result of
substantial negotiations, the positions of the various parties were
known and each party was knowledgeable of the options they faced.
South Africa’s path to democracy was a series of political pacts that
established informal institutions of negotiation and power-sharing.
Over time, the “Record of Understanding” of November 1992 was reached
and formed the essential core of the June 1993 Interim Constitution.
In Spain, the initial phase of the constitution-drafting process
created the framework for the new constitution. Seven of the most
prominent political leaders of the country participated. During this
phase, a Consensual Coalition emerged, which represented extremely
diverse interests and which became the dominant political force behind
the constitution-making process in Spain. The process addressed core
issues such as the parameters of the new political system, the
territorial organization of Spain, the guarantee of fundamental
freedoms and the elimination of Franco’s political institutions.
Bosnia and Herzegovina offers a very different example of a country
where the constitution was adopted under extreme time pressure. The
Bosnian constitution as elaborated at Dayton did not reflect the
agreement of the stakeholders on the nature of the state and of the
political system. The constitution, as a result, does not reflect a
vision of a common future within a shared state.
In summary, experience demonstrates that substantial deliberation
among key groups contributes to the longevity of the constitution and
the durability of the state institutions.
5. Ensure Extensive Public Participation
Experience demonstrates that the constitution-making process
contributes significantly to nation-building. The constitution and the
legal order may lose legitimacy, when the constitution drafting
process has not encouraged civic education, political participation,
civic activism and respect for civil and human rights. Laws and
institutions cannot be imposed from above. They must reflect an
agreement within the population about how to live together. Widespread
participation in the process allows citizens to claim the constitution
as their own. Through civic education on constitutional issues and
through national dialogue, a constitution can help address the
underlying causes of the past conflict and assist citizens to define a
national identity and their aspirations for the future. Constitution
making is an exercise in democratic empowerment.
Although international law does not specifically define appropriate
policies and processes for the drafting of constitutions, an
international norm requiring public participation in the
constitution-making process is emerging. The norm prescribes the
participation of the general public and of civil society in the debate
over a new constitution. Most countries, which have undergone
constitution-making processes in the past two decades, have in various
ways attempted to incorporate the public.
Public participation is more effective, when it is preceded by civic
education on constitutional principles and the constitution-making
process. Transparency and clarity on the rules and procedures followed
at the various stages of the process are crucial. Such an educational
campaign ensures that the public’s contributions to the debate are
more constructive. It also ensures that the public has confidence that
the constitution-drafters will respect its contributions.
Lessons regarding the importance of public participation in the
constitution-making process
Broad public participation contributes to the constitution’s
legitimacy. Different countries have handled the balance between the
need for public participation and the concern with stability in
different ways. As South Africa, Namibia and Eritrea demonstrate,
extensive public participation leads to a constitution enjoying
considerable legitimacy.
In South Africa, given the country’s recent experience with violent
conflict, the stakes of the negotiations were high in the period prior
to the establishment of the Interim Constitution. Once the basic
principles of the constitution were agreed upon in late 1993 and 1994,
the process was opened up for extensive public participation in the
1994-96 deliberations by the elected Constituent Assembly. The
proceedings of the 1996 constitution were open and transparent with a
very high level of public education on the issues and public input
(via email, meetings, surveys, and contributions on the internet).
Public participation in South Africa included several components:
publication and media broadcasts of all the constitutional debates,
consultation by each of the parties at the village level, radio
broadcasts educating the public on the constitutional process, and 2
million submissions from the general population. As a result, the
constitution enjoys an extraordinarily high degree of legitimacy.
In Namibia, there was intense and long-term public participation in
the constitution-making process. The public was well informed about
constitutional issues through the election campaigns of political
parties. Also, the well-developed radio system contributed to the
public’s education on the key issues.
The Eritrean constitutional process included one of the most extensive
programs of public participation. The program included a public
education phase, which consisted of a series of seminars conducted at
the village level by more than 400 specially trained instructors. The
second phase included a consultation with the population on their
response to the proposals prepared by the Constitutional Commission.
In the third phase, the Commission received comments on a draft
constitution from regional assemblies, localities, and members of
profession and civic organizations as well as individual citizens. The
Eritrean also constitution enjoys a high degree of legitimacy.
Public participation should ideally comprise a process of substantial
consultations among stakeholders and public awareness raising
campaigns leading to more formal mechanisms of public participation
such as inviting submissions on a draft constitution or a referendum.
The Nicaraguan, Colombian and Brazilian experiences demonstrate that
extensive public participation does not necessarily lead to an
enduring Constitution. In these two cases, key groups did not share
the consensus on constitutional principles and eventually disrupted
the effectiveness of the new constitutions.
In Nicaragua, despite the overwhelming victory of one political party
in the 1984 elections and the continuation of the armed conflict,
public participation was extensive. The dominant political force in
the country, the FSLN, supported an elaborate process of public
participation. After the election of the National Constituent
Assembly, a Constitutional Commission was appointed to prepare an
initial draft constitution. The Commission invited the input of civic
groups before presenting a first draft to the National Constituent
Assembly. The Assembly, then, distributed 150,000 copies of the first
draft throughout the country. Subsequently, seventy-three town hall
meetings were held around the country to solicit further public input
to this first draft. The meetings were broadcast live on radio and
highlights were published in newspapers and covered on television.
Approximately 100,000 people attended the meetings. Based on these
public comments, a second draft was prepared and delivered to the
Assembly. The Assembly vetoed the final draft.
Nevertheless, although the Nicaraguan constitution-making process of
1985-87 achieved significant levels of citizen involvement, it
achieved only minimal elite consensus. As had been discussed, the
process of drafting the Nicaraguan constitution did not achieve a
substantive agreement among key groups on the nature of the state and
on key constitutional principles.
The Colombian process also included substantial public participation.
The government set up more than 1,500 working groups throughout the
country to receive proposals from diverse social groups ranging from
academics and lawyers to laborers and farmers. Over 100,000 proposals
on constitutional issues were submitted. Nevertheless, public
participation did not ameliorate the fact that the two main guerilla
groups refused to participate in the process. The new constitution did
not strengthen the Colombian state, which remains weak.
In Brazil, as have been mentioned, the country’s Congress was
responsible for drafting the 1988 constitution and proved susceptible
to considerable influence from societal interest groups. The Congress
was subject to an unprecedented amount of popular participation. About
61,000 amendments were proposed. A computerized data bank contained
the thousands of popular suggestions. Proposals by civic organizations
were automatically submitted to subcommittees, which were required to
hold public hearings on them. Nevertheless, this extensive public
debate did not lead to a constitution with a coherent vision for
Brazil. The constitution remains a mixture of inconsistent and
unnecessarily complicated provisions. Nevertheless, it is important to
emphasize that partly due to the constitution-making process, Brazil
has successfully transitioned to a democratic regime, although its
political institutions are still weak.
Constitution-making processes lacking transparency and adequate public
participation produce constitutions, which will inevitably lack
legitimacy. In Cambodia, Ethiopia, East Timor and Fiji public
participation was limited either due to the secrecy of the
negotiations or due to the inadequate time dedicated to public
deliberations. In these cases, the constitutions suffer from lack of
legitimacy.
In Cambodia, the intensity of the violence up to the commencement of
negotiations led to hesitation, as in the South African case,
regarding the openness of the process to the public. Some observers
note that, given the violent nature of the conflict and the delicate
nature of the transition to peace, public participation needed to be
balanced against the potential of instability resulting from
unhindered deliberation. Nevertheless, unlike South Africa, in
Cambodia there was never a point in the process where the public was
allowed to participate. The public did not have access to the
constitution drafting sessions and did not influence the text of the
constitution. Most of the discussions were not open to the public.
Critics of the secrecy of the Cambodian constitution-making process
argue that the continuation of political violence does not justify the
secrecy of the process. They further argue that Cambodia’s
constitution established a weak democratic structure.
Cambodia also suffered from a lack of any tradition of civil society,
which posed a challenge to those who attempted to foster public
participation. Nevertheless, Cambodian human rights organizations,
with significant assistance from the UN Mission-UNTAC, engaged in
civic education, since participation in the drafting of the
constitution was not possible. They worked on raising public awareness
of the significance of the constitution and its importance for the
human rights of the population. Also, the Buddhist clergy was a
particularly effective vehicle for reaching the public at large,
especially in remote areas. NGOs held public workshops and workshops
with elected members of the Constituent Assembly in an attempt to
create open dialogue among Cambodians. Approximately 120,000 people
were reached directly by the education and training efforts. The
number of persons reached by the awareness-raising efforts is in the
millions, if one considers the hundreds of thousands of leaflets,
brochures, stickers, posters, and radio and television programs.
In Ethiopia, public participation began only after two years of
transition. Nevertheless, observers note that the closed nature of the
Ethiopian constitution-making process cannot be justified by the same
factors as in the Cambodian and South African case. The lack of public
participation came too late and contributed to the domination of the
process by a single party. The closed nature of the process has
detracted from the constitution’s legitimacy. Additionally, there were
a number of difficulties and obstacles constraining the development of
meaningful grass roots participation in Ethiopia. Poverty, the lack of
communication and transportation systems, and a political tradition
that worked against political participation rendered participation in
the constitution-making process difficult.
In East Timor, there were calls for a process, which would allow ample
time for civic education and for popular consultation. Nevertheless,
the model ultimately adopted prescribed a 90-day period of
deliberation of the constitution by an elected body, the Assembly. The
various committees of the elected Assembly invited members of civil
society, international organizations and the Church to prepare
submissions. Nevertheless, these actors were not given adequate time
to prepare their submissions. Furthermore, the general impression was
that these submissions were rarely referred to in the deliberations of
the Assembly. There were some attempts to inject transparency to the
process. The plenary sessions of the Assembly and its Committee
hearings were made available to the public. The Assembly also
developed daily briefings and posted its agenda at the entrance of its
building.
The East Timorese process has met significant criticism, because it
attempted to conduct civic education and popular consultation in too
short of a time period. These critics argue that the process did not
emphasize the development of a constitution from the ground up.
Overall, the public had little awareness of the contents of the
constitutional draft. This was despite efforts at public participation
taken by UNTAET. UNTAET organized public consultations in all of East
Timor’s districts. Also, thousands of drafts of the Constitution and a
magazine summarizing the drafting process were printed. Nevertheless,
the results of the process were totally ignored by the Assembly.
In Fiji, the Constitutional Commission did not present a draft for
public discussion and did not undertake any form of civic education.
The population was largely uninformed about the details of the
constitutions, which had prevailed in the country, and about the
available options. Before the enactment of the final document, the
process was closed to the public and focused on satisfying the views
of the two main parties. The public was presented with a fait
accompli. The inadequate communication with the public continued after
the enactment of the constitution, which was not translated into the
two main local languages, Fijian and Hindi. The Fijian experience
demonstrates that it is important for the public to be given some
basic information about what a constitution might do, before they are
asked for their opinions.
In summary, experience demonstrates the vital importance of extensive
public participation in the constitution-drafting process. In
post-conflict countries, political leaders often hesitate to include
the public in the debate over the future of the country. Nevertheless,
as the examples of South Africa and Namibia demonstrate, public
participation can be constructive after initial elite-based
negotiations. It is crucial that political elites reach a consensus on
key constitutional principles before opening the process to public
debate.
6. Human Rights Safeguards
When a society agrees to a constitution, it cannot abandon the
obligations it subjected itself to under international law. Very
importantly, societies should remain loyal to common principles of
humanity. The majority of the constitutions adopted in the past ten to
fifteen years by post-conflict societies have been deeply influenced
by the centrality of human rights and universal principles in
international law.
For example, the human rights provisions of the East Timorese
constitution have been inspired by international law, since all the
recognized civil and political rights and many of the economic, social
and cultural rights have been included. Also, the Nicaraguan
constitution explicitly acknowledged the importance of international
law in the protection of human rights. The constitution incorporated,
among other international documents, the Universal Declaration of
Human Rights, the International Pact of Economic, Social and Cultural
Rights, and the International Pact of Civil and Political Rights of
the United Nations. The East Timorese and Nicaraguan examples are
representative of the experiences of most post-conflict states.
7. The Importance of Expertise on Constitutional Issues
=======================================================
The participants of the constitution making process must have
knowledge of what a constitution is and what its impact on the affairs
of the state is. For this reason, trusted constitutional advisors and
expert committees may contribute positively to the process.
In Namibia, the participants engaged in serious debate among
themselves on the meaning and importance of democratic institutions.
Many evening lectures, seminars, discussions, and workshops were held
to study a wide range of topics pertaining to constitutions, systems
of government, the role of political parties in a multiparty
democracy, and the international protection of human rights.
In South Africa, the expertise of the parties and their ability to
negotiate obviated the need for a pre-constitutional commission or
group of experts. The constitutional specialists in the two main
political parties grew to respect each other’s expertise.
In East Timor, the Asia Foundation provided constitutional experts,
who worked with the various committees of the elected Assembly
drafting the constitution. The foundation emphasized its role in
enhancing the capacity of the Constituent Assembly to draft the
constitution, while responsibility for the preparation and
implementation of the constitution remained with the people of East
Timor. East Timorese participants of the constitution-making process
frequently requested the services of the experts working for the
foundation. Technical assistance was welcomed and the requests for
advice and discussions increased as the process progressed.
In Nicaragua, also, political leaders sought insight from the
experiences of other countries. They traveled to a number of countries
to study their constitutions and participated in workshops and working
groups with international experts. The input of international experts
was helpful in pointing out problem areas in the organization of the
public participation process.
Expertise contributes to a productive and efficient debate. Past
experience demonstrates that countries have been interested in
benefiting from both domestic and international experts.
Conclusions
The process of drafting a constitution in a post-conflict society is a
complex one. The institutions and procedures chosen for the duration
of the constitution-making process may make a difference in the
legitimacy and longevity of the adopted constitution.
The paper has focused on the following themes.
First, there are benefits in separating the termination of violent
conflict and the signing of a peace agreement from the process of
drafting the constitution. The cases surveyed point out that, when
these two processes are collapsed into one, long term concerns of
institution building may be compromised. Therefore,
constitution-makers should address security issues that may prevent an
open constitution-making process from occurring and a consensus among
key stakeholders from emerging. Security concerns should be ideally be
resolved in order for extensive public participation to take place.
Second, it may be beneficial for purposes of conflict resolution to
broaden the number of key stakeholders participating in the
constitution-making process. Key groups should be included both for
purposes of conflict resolution and for ensuring that a substantive
consensus on key principles has been achieved. When dominant groups
are excluded, the constitution adopted has few chances of success.
Experience demonstrates that an initial or interim agreement, which
guarantees representation and decision-making power to all parties, is
beneficial for the purposes of war termination. However, ideally, such
an agreement should develop into an arrangement, which does not
guarantee specific powers or rights to each party, but rather relies
on democratic principles and processes to resolve inter-group
disputes.
Third, it is advisable that substantial preparatory work has been
conducted before the election of a Constituent Assembly. This work may
be conducted through informal negotiations among key stakeholders or
by an appointed Constitutional Commission. Furthermore, if possible,
the rules governing the work of the Constituent Assembly should
encourage compromise and coalition-building in order to avoid the
Assembly’s domination by one political force.
Fourth, a process of consultations and negotiations among key
stakeholders leading to a consensus on key constitutional principles
is beneficial. If constitution-making allows sufficient time for
consultations, a genuine agreement among stakeholders may be reached.
In this manner, constitution-making may contribute to peace-building
and reconciliation. Some of the more successful post-conflict
constitutions have resulted from lengthy political negotiations among
political elites addressing key constitutional principles.
Fifth, the participation of the public in the drafting of the
constitution is a crucial component of the process. Experience
demonstrates that the constitution-making process may significantly
contribute to nation-building. It assists the definition of a national
identity and of common popular aspirations for the future. Finally,
constitution-making is an exercise in democratic empowerment. When the
population feels that its views are reflected in the
constitution-drafting process phase, democratic participation is
enhanced.
Sixth, past experience demonstrates the importance of universal
principles of human rights, including the right to participation, and
democratic governance, both in the process of drafting a constitution
and in the content of the final constitution adopted. It is important
that new constitutions are compatible with international law.
Seven, constitution-making process have benefited from the assistance
provided by international and domestic experts as well as from the
lessons derived from the experiences of other countries.