Handbook Explains How to Create Durable and Inclusive Constitutions

The book is called Constitution-Making and Reform: Options for the Process.
Its authors say the process for designing and implementing a constitution is important: it is instrumental in rebuilding or strengthening states and political systems, and securing a durable peace.

For that reason, they say the guide pays particular attention to the special needs of constitution making in divided societies. It also focuses on ways to make sure the process is inclusive, transparent, participatory and nationally owned and led. The guide draws from the decades of experience of the authors as well as dialogue with dozens of practitioners in global workshops to discuss what has worked where -- and why.

Scott Weber is the director-general of Interpeace, a Geneva-based international organization that helps societies afflicted by war to build a durable peace. It works with more than 300 peace builders, the United Nations and other partners in 16 conflict zones around the world, including, Burundi, Rwanda, Guinea-Bissau, Liberia and the Somali region.

He said the handbook is not meant as a one-size-fits-all recipe for every country. Constitution makers are invited to use those parts of the guide that work best based on the historical, cultural and political context of a given country.

"That’s why the handbook is so important," said Weber. "It’s not a cookbook that says you start with this and you end up with this. It’s a guide that helps practitioners in society make choices when there are many options available to them and helps them to see the pros and cons of each."

Handbook overview

The handbook, which is also available online on Interpeace’s website is divided into four parts, including an overview of the roles played by constitutions and of the challenges involved in creating them in conflict situations.

The opening chapters look at some of the tasks that are part of the constitution-making process and the institutions and procedures often used to achieve them. Among the tasks are establishing timetables, creating interim constitutional arrangements and conducting public education and consultations.

Other parts of the book look at the various institutions that can play a role in establishing rules, topics for consideration and drafting of a constitution. Among the institutions and bodies that can be used to help ensure a participatory and inclusive process are roundtables, constitutional commissions and assemblies, the courts and legislatures.

The final section provides guidance for civil society, media and other external parties involved in constitution-making.

Lessons drawn from experience

Weber said the handbook includes several lessons learned from decades of experience.

One of them involves ownership of the (constitution-making) process. He says priorities must be determined locally and determined by dialogue that will lead to a document based on consensus.

"These processes should not be designed by the outside," said Weber. "Too often when you have a large international involvement, there’s a sense that part of the process to bring closure to conflict is going to be the drafting of a constitution. There’s no more sovereign act for a society than to draft its own constitution, and when you have too much of an international presence in a society it tends to influence the process too much."

Role of the international community

Michele Brandt is a constitutional lawyer with experience in constitution-making in several countries, including Afghanistan, East Timor and Cambodia.

She is currently advising on several Arab Spring countries and is one of the authors of the handbook.

"The international community should respect that the constitution-making is a sovereign process and is also deeply political," said Brandt. "This is not to say that there is no role for the international community. At times, international actors play a key role in brokering a peace agreement.

"When the international community is involved in advising on peace agreements, it should ensure that it does not repeat common mistakes from the past. For example, suggesting [as in Cambodia and East Timor] that the process adopt a constitution within a 90 day time frame.


"That’s not enough time," she continued, "to educate the public, build trust between the key actors, and consult either before – or after – they draft the constitution. This can be contrasted with truly nationally led and owned processes like in South Africa, which took many years.

"Short-time frames prevent a participatory process because there is not sufficient time to educate to promote dialogue, and also build consensus. This precludes the ability of the process to serve as a peace-building and conflict resolution tool. When it is requested to do so, the international community should share comparative examples and not simply advocate for a constitutional model used in its own country."

Weber warns against a rushed process, whether the timetables are set by foreign partners or by domestic actors.

"We have situations like in Egypt right now where the authorities are trying to rush the process far too quickly," he said. "The result of that is a constitution that might be adopted in a national referendum, but will always have a contested legitimacy."

Participation

Scott Weber said another lesson taken from the experience of constitution-builders is the importance of including a broad section of society in the process, including in the make-up of the constitutional assembly.

Among its duties is the supervision of the process from the draft of the proposed constitution through its final approval.

The assembly may be a forum for debate or amendment of the draft and of certain details. Its members may be chosen in a number of ways, including by direct election by the public or indirectly by local government councils or other political bodies.

Weber said Interpeace suggests including in assemblies or other negotiating bodies as many stakeholders as possible.

Sometimes, that may mean including warlords, or politicians tied to the existing order.

"It represents a certain power structure, a certain level of vested interests, and, [if not included], they can often spoil a process if they feel like it’s running away with itself," he said. "

"So this is how we [at Interpeace] deal with spoilers in constitution-building and in a peace process: it’s to include them and everyone else at the same time. It dilutes their influence; they can’t say they were left out. It does integrate the good ideas they may have because that old elite often has technocratic experience. So you involve them but by involving a much wider cross section of society you dilute that influence as well. You get the best of both worlds."

However, Brandt said it’s not always possible or even desirable to have elements of a (discredited) regime in negotiations.

"The goal of a constitution-making process is to end up with a legitimate constitutionm," she said. "If the inclusion of a discredited regime would discredit the process, the old elite may be excluded. However, the goal is to have all key stakeholders around the constitution-making table.

"It may not be possible to include all groups at the start of a process. However, the goal is to make the process as inclusive as possible in divided societies and to build in enough time for key actors or communities who have been in conflict to gain more trust as they go through the process. And as you make the process inclusive, you build in more participation."

Strengthening bonds

Building trust must not take place between the constitution-makers but also within the broader society. In a divided society public participation can bring a break with the past where voices were suppressed at the point of a gun.

When possible, the handbook recommends a public awareness campaign, including public information and civic education.

"People need to understand what’s at stake, what are the options," said Weber. "[They need to know] how those messages are transmitted upstream to the experts and to the constitutional commission or constitutional assembly. That’s where you often have a contested process.

"So it’s important to have feedback loops built into the system so people feel what they are contributing is being heard. If you have that, at least if their ideas are not adopted, it’s OK, they’ll accept that. But if it goes into a black hole [is not considered at all], and what emerges at the end of the process is so vastly different from the subjects discussed with them, then you have a problem."

Referendum – pros and cons

Many countries offer the public a chance to show their support or disapproval of the proposed constitution through a referendum at the end of the process.
Brandt says the handbook includes the benefits and drawbacks of such a vote.

It also includes ways to improve referenda.

One suggestion encourages having the public participate in the earlier stages of the constitution-making process. This way, people become aware of the issues and the debates and are able to make an informed choice at the referendum. Another suggestion includes a code of conduct that prohibits political parties from hate speech and the deliberate misleading of voters about the draft.

"What the handbook says," explained Brandt, "is that a referendum in a divided society can often undo the careful compromises that have been taking place through a representative process. That’s because the constitution can become about one issue like in Kenya abortion became a big issue in the referendum and spoilers can come in and manipulate the voters about what the key issues are in the constitution. The handbook stresses that if the process is representative, inclusive and participatory a referendum is not necessary for the final constitution to be considered legitimate."

Weber said one lesson that Interpeace has learned is the occasional confusion between peace-making and the process of creating a new constitution.

"The issues that need to be negotiated and resolved in a peace process," he explained, "are ones that are quite different from the issues that need to form the basis of a national dialogue on the future of the country and ultimately into a constitution that might emerge after a conflict."

Others say constitutional making issues, if central to the resolution of a conflict, must be addressed in the peace agreement.

Interim alternative

The handbook does however note that there are other options aside from adopting a finalized constitution. Instead, parties may wish to adopt an interim one.

The guide notes that it’s important that an agreement on a cease-fire during conflict be concluded quickly. But it says a long-term settlement, often seen as including a new constitution dealing with the underlying causes of conflict usually needs more time. The book says it may be premature to start negotiations on a new political order when many issues normally dealt with in a peace agreement have not been resolved -- including disarmament, integration of armies and resettlement of the displaced.

The handbook says it may be necessary to delay creating a constitution until the opposing parties have an interim period in which they can build trust. A transitional document may be needed to provide the legal framework for the running of the country. During this time, former enemies may decide to share state power and conclude the peace process.

A final constitution may still be negotiated, but at a later date.

An Arabic version of the guide is scheduled for release within the next few months.