1.4.5 The form of the agreement

An agreement on constitutional reform can take various forms, depending on the context. When the international community, especially the United Nations, becomes involved, there may be a multilateral treaty or a Security Council resolution (as in Cambodia and Timor-Leste). When the debate is among political parties—a common occurrence—there may be one or more agreements among the parties (as in Nepal and South Africa). Even in such cases, it may become necessary to have some legislation to give effect to the agreement, as it may affect the power of an existing institution (e.g., the legislature) or even the normal method of amending the constitution. Legislation (even entrenched) may also be required if there is little trust among the key parties, as was the case in Kenya [2010] following the undermining of the 2005 process, which was attributed in part to the lack of entrenchment. Legislation will also be required if new institutions are to be set up for the process (e.g., an independent commission, although this may be done under an existing law authorizing the head of state or the government to set up such bodies administratively). Legislation, especially if entrenched, reduces flexibility, but adds security to the process (which is sometimes more important than flexibility). Under exceptional circumstances, the whole process, which entails fundamental constitutional changes, can be carried out purely on the basis of mutual understandings. (Hungary and Benin are good examples.)