2.3.5 Capacity development

In a country emerging from conflict, capacity development can be an extensive task, and perhaps costly, because institutions that develop skills and knowledge relevant to a constitution-making process—such as parliaments, academic institutions, and civil society organizations—will often have collapsed. In these cases, developing the skills and knowledge necessary for staff members to carry out their tasks is essential if the process is to be nationally owned and led. This can include providing training on how to plan, take minutes of meetings, use the Internet, conduct civic education, administer and manage a process or run a referendum.

Ideally, all staff members should have a basic understanding of the whole idea of a constitution and constitution-making. The more the members of the staff understand, the more committed they will feel to the project. Staff members who are in contact with the public, or are involved in the production of documentation, or who analyze submissions, will need more. Different levels of training will be needed for different types of staff members. Training in the terminology of constitutions will be essential for translators and interpreters.

When the international community has a stake, it often rushes the process and provides foreign advisers who perform key tasks, such as drafting the constitution or devising the rules that govern the process. While this may speed up the process, it blocks the opportunity to build capacity for other democratic tasks and more importantly may lead to the people not feeling a sense of ownership over the results.

Taking the time to develop capacities strengthens the foundation and sustainability of other democratic institutions that emerge. For example, in Afghanistan [2004], many of the trained personnel of the secretariat for the constitution-making process later managed and staffed the newly formed electoral management body and secretariat for the legislature.


2.3.6 Foreign advisers

We use the term “foreign adviser” broadly to mean any international actor who supports the administrators, managers, or constitution-makers in planning and carrying out their tasks, regardless of whether such actors serve as mentors, technical advisers, or substantive advisers on the content of the constitution.

Why are foreign advisers needed? Preparing a constitution is not an everyday event. In some countries few if any local actors may have ever participated in or witnessed a constitution- making process; local actors may have little or no experience with governance, and professionals may have fled the conflict. Foreign advisers have played effective advisory and mentoring roles in many such contexts and have assisted with a variety of tasks, including sharing their comparative constitutional experience on how to structure the process, the content of the constitution, setting up websites, information technology systems, and financial systems, supporting the running of large assemblies, coordinating security, and observing electoral processes. Here we focus mainly on the roles of advisers other than those with expert specialist knowledge of constitutional issues and the drafting of the constitution whom we categorize as “experts” (adopting a term for such persons used in a number of processes). We discuss “experts” (local and foreign) in part 3.4.1.

Ideally, the foreign adviser will not simply take over a position but also serve as a mentor to appropriate counterparts, helping them develop the capacity to do the job. However, this requiresthe foreign adviser to have not only skills in transferring knowledge, but also a good understanding of the local context (history, culture, and so on)—and not all do. Moreover, for foreign advisers to succeed, they should view the transfer of knowledge as a reciprocal process, and so should not just read books and papers to research the historical, political, and cultural contexts in which they are working (many do not even do that) but should also seek assistance from the national staff they work with in an effort to better understand local context and how it may best be taken into account to improve the effectiveness of their work.

Avoiding common pitfalls of using foreign advisers

When foreign advisers are involved, careful planning is required to avoid common problems. Some foreign advisers have been inexperienced, have provided advice that did not suit the context, have taken over the jobs of national actors without developing local counterparts, have pushed the agendas of their home countries, or have advanced their own personal interests. In this section, we discuss some practical tips for avoiding these pitfalls.

Before hiring or accepting foreign advisers or mentors, managers should ensure that local knowledge and expertise are harnessed by the local constitution-making bodies. It is best to determine needs through the strategic planning process and request the types of foreign advisers, if any, that will further the process. Such advisers have ranged from experts on analyzing public consultation views to graphic designers.

Some countries do not attract much international attention, and if foreign advisers are needed they must be requested. But in higher profile processes, embassies or international organizations are usually keen to provide advisers. Before accepting assistance, the constitution-makers should determine whether the foreign adviser or mentor will be viewed as an unacceptable foreign intervention in the process—in particular by spoilers. In some contexts, the international community is viewed as having caused the conflict. If the context is sensitive, all foreign advisers (or those from a particular country) may be refused, or other measures may be taken, such as having the advisers sit separately from the constitution-makers or even answer questions via the Internet or telephone.

The constitution-making body may be able to select and budget for its own foreign advisers. However, they can be costly. Embassies or other international actors will sometimes offer advisers at their own expense. In this case, the constitution-makers or managers should request to see the qualifications, evidence of experience, and references of the proposed advisers, or else suggest their own. Managers will have to be diligent in seeking out the right types of advisers. To give an example relevant to the category of experts (discussed more in part 3.4.1), if advice is needed on an issue such as federalism, Western countries tend to offer only Western advisers, from countries such as Australia, Canada, Germany, or Switzerland, when experts from India, Malaysia, Nigeria, or elsewhere may be more relevant or better qualified. There should be a trial period to see if the foreign adviser is well suited for the task at hand and fits the context.

To ensure that managers and advisers both understand what is expected, the foreign adviser or mentor should be provided with clear information about tasks, length of trial period and employment, reporting lines, expectations of confidentiality, and the like. If the adviser is being seconded from an international agency or organization, it will be important to be clear about who will manage the foreign adviser and to whom he or she will report.

It is essential that foreign advisers understand the context in which they are working—both the historical and the cultural context—and also the aspects of culture that can affect working life and relationships where absence of understanding and sensitivity can lead to misunderstandings and conflict in the workplace. Ideally, the foreign advisers selected should be persons who already have an extensive knowledge of the country in question, or have worked in countries with similar circumstances. If the only ones available have little or no knowledge of the local context, the foreign advisers should be briefed. A packet of reading material illuminating the local history, politics, and culture—or at least a reading list—should be put together. If there is a group of foreign advisers, it might be possible to arrange a briefing seminar. Neither the host country nor the advisers should feel that this is inappropriate; ignorance or biased knowledge derived from casual conversations with interested actors will not enhance the contribution of the experts.

Ideally, foreign advisers will be accountable to and report to the national managers of the constitution-making process. There should be a duty of confidentiality if they are advising on sensitive matters, and the advisers should sign a contract to this effect. In one instance, a constitutional adviser helped with a sensitive process, and then upon returning to his academic institution wrote an article divulging information that endangered the process.

It may not always be possible to find an adviser with both the necessary expertise and the relevant language skills. The adviser should be offered the necessary translation or interpretation services (see part 2.3.9) and whatever material resources are needed, such as a cell phone, computer, desk, transportation, and housing.

When managed properly, foreign advisers have played effective roles in many contexts and have assisted with a variety of tasks. In general, foreign advisers who have been effective:

  • had relevant experience in a number of diverse constitution-making processes;
  • were good listeners and humble and remained in the background;
  • either knew the local context well, or learned and worked closely with and respected those who did;
  • did not advise on issues or aspects of the process for which they were not qualified, and helped find qualified advisers when necessary;
  • supported a nationally owned and led agenda without attempting to take over the process or take credit for the official work of the constitution-makers (as one South African noted, “if I had a dime for every international who has claimed to write the South African constitution I would be rich”);
  • emphasized the development of national actors rather than always doing the task themselves; and
  • remained engaged in the process over the long term (although sometimes it is helpful for specific experts to fly in for a short time to advise on a specific issue or problem or assist with a discrete task). In some processes, foreign advisers have remained in-country or have returned regularly to work closely for years with the constitution-makers, managers, and staff members turned implementers.

2.3.7 Making a historical record of the process

Constitution-making processes are rare and often defining moments in a country’s history. The process should be carefully documented, using photography and videography as well as archiving all of the important documents. Some countries have created national museums or special exhibits that display original drafts and final versions of their signed constitutions, and that educate and promote awareness about the constitution, the role it plays in society, and how it was made.

Even if a decision has not been made about how the process will be preserved and shared with future generations, managers should plan from the outset, if possible, to document and preserve the process. Some processes have had photographers, videographers, and archivists on staff.


2.3.8 Keeping records

Why record keeping?

A constitution-making process creates an astonishing quantity of words: public and other submissions, deliberations of commissions, committees, and assemblies, and, of course, the words of the constitution, as well as various drafts. Careful planning is necessary for keeping records of these words (and for deciding which words are to be discarded and which retained). Records may need to be kept for a variety of purposes:

  • Records of what people say to the constitution-making bodies, whether orally or in written form; important because public participation is meaningless if there is no way of recording it and ensuring that it can be used in the constitution-making process; also because the people want to know that what they say is being treated with respect, even if they realize that not everyone’s point of view can have an impact on the final document.
  • Records of the deliberations of the bodies responsible for making the constitution; important because in the future lawyers and courts may come back to the records for assistance in interpreting the constitution, and because there are likely to be disagreements during the constitution-making process about what was said, and these can be resolved only by referring to the records.
  • Records of the actual decisions made; important for obvious reasons—this is the immediate basis for the constitution; but also difficult because in the heat of debate, unless there is firm leadership and impeccable note-taking, it may not be possible to reconstruct later what was decided, especially as some people will have vested interests in distorting what was decided.
  • The developing text of the final document: this must be kept in reliable custody to avoid the risk of its being lost or even tampered with.

These points concern the integrity of the actual process. In addition, making a constitution is an important national event, and future historians ought to be able to study its various stages.

In many legal systems it is permissible to look at the record of lawmaking bodies as a guide to interpretation. Such reference to sources has become much more prevalent in recent years, and is perhaps particularly common in constitutional interpretation. Many courts will permit this only if the records are publicly available, because any other procedure would be unfair. To make this possible, the proceedings of many constitution-making processes have been published. An early example is the verbatim record of the debates in the constituent assembly of India—similar to the verbatim reports of parliamentary debates, often known as Hansard in common-law systems.

Issues in record keeping

The steps that need to be taken to ensure proper record keeping can include:

  • acquiring the necessary equipment and staff in advance to record oral submissions;
  • establishing good filing systems in advance for submissions and other documentation;
  • setting up a good system for analyzing submissions and communicating them to the decision- making bodies (this is looked at in some detail in part 2.2.4);
  • supporting each committee with a secretarial staff, including someone with knowledge of the substance of the process to make notes and keep formal minutes of decisions;
  • having available the staff and equipment necessary to record the deliberations of decision- making bodies and their committees, including transcribing the records and (ideally) publishing them. Whether a verbatim record of committee meetings will have to be determined, but a full record, like that normally kept of the proceedings of legislatures, should be kept of the meetings of a constituent assembly or similar body; and
  • arranging for full records to be kept after the constitution-making process is completed. One copy (indeed, perhaps originals, for which this concept makes sense) should be deposited in the national archives, but if there is any rule in the particular country that records in the archives are not open for public use until a number of years have passed, that rule should be waived for the constitution-making records.

Among the factors that should be taken into account are the risks of records being destroyed (by vermin or damp in the case of paper; by fading in the case of photocopies) or lost. National archives are not necessarily immune from these problems (in the 1990s the national archives of Vanuatu were seriously damaged by a typhoon), so more than one depository should be identified. Reliance on modern technology may have its own hazards; it may be superseded, and websites may cease to be maintained. University libraries may be less efficient than one would wish. (Copies of important documents donated to some university libraries seem to have disappeared.)

It would be wise to have several copies in different places. It may indeed be wise to keep copies of documents in more than one country.

Maintaining security of documents connected with the process can be an important during a process, not least because of the dangers of sensitive issues being misunderstood or deliberately manipulated by opponents of the process, or simply by people seeking their own political advancement through a controversy arising from the process. For example, at a very early stage of one process, a foreign adviser produced a draft document intended to be seen only by the chair of the process, generating some ideas about structures. But a member of the constitution- making body stole the document, removed the cover sheet that explained its purpose, and passed it on to political interests who wanted to stop the process and who used it in attempts to discredit the process. While as much transparency as possible in a process is both desirable in principle and makes the burden of maintaining security lighter, this example illustrates the point that there are likely to be stages in a process and some categories of documents generated where secrecy will be required. In such instances, it needs to be made clear who has rights of access to any restricted document. Measures need to be put in place to ensure that no one else has that access.

More on records and record keeping

As noted, some countries have contemplated establishing special archives—indeed, museums— of constitution-making. The verbatim records of the constituent assembly debates in India were published, and they are available on the Internet: http://parliamentofindia.nic.in/ls/debates/debates.htm.

There is also a useful search engine at:

http://viveks.info/search-engine-for-constituent-assembly-debates-in-india.

Many modern constitution-review processes have websites, and they may even have full records on these. However, websites are ephemeral; there is no guarantee that they will be maintained after the review processes are completed. For legal purposes it may be difficult to persuade a court to accept a document taken from a website.

A constitution itself may contain provisions about interpretation that have implications for record keeping. The Papua New Guinea constitution says:

(1) The official records of debates and of votes and proceedings–

(a) in the pre-independence House of Assembly on the report of the Constitutional Planning Committee; and

(b) in the Constituent Assembly on the draft of this Constitution, together with that report and any other documents or papers tabled for the purposes of or in connection with those debates, may be used, so far as they are relevant, as aids to interpretation where any question relating to the interpretation or application of any provision of a Constitutional Law arises.

An act of parliament provides how these records are to be used in court. The records of the constituent assembly were published to enable them to be referred to in this way.

 


2.3.9 Translation and interpretation services

Especially in divided societies, language can be a highly politically sensitive issue as well as a logistical hurdle. Constitutional deliberations require clear communication among those involved. Tensions have arisen when documents as important as drafts of the constitution have been put forward in the dominant language and other members have waited for the documents to be translated into their language, or when the translations are so poor they cannot be understood. Other key challenges involve ensuring inclusive communications with the public. The process should reach all members of society. This takes careful planning and significant resources if more than one and sometimes even dozens of languages are spoken. Finally, communicating with foreign advisers and donors may require another set of translators and interpreters altogether.

Translation for nationals

In some countries there are people with a great deal of experience in translation, Neglect of certain communities in other countries may have been among the causes, or the consequences, of conflict. Linguistic chauvinism in Nepal on the part of the dominant caste groups was entrenched, and an element of the People’s Movement of 2006 was the demand for rights for all, including distinct language groups—symbolized by the members of the constituent assembly being able to take the oath in their own languages (of which there are perhaps a hundred in the country). But in other countries there may still be those whose attitudes are stuck in the past. In Somalia, for example, speakers of the dominant language, Af-Maxaa Tiri, will sometimes insist that Af-Maay (classified in Somalia as a version of Somali) is a dialect of Somali, although the two are largely mutually unintelligible, and the Af-Maay speakers have always felt marginalized, especially because official Somali orthography is based on Af-Maxaa Tiri.

Translation is both time-consuming and expensive, and common sense as well as sensitivity is required. It is not possible to translate materials into many languages, and there may be few literate members of some linguistic communities. While the actual text of a constitution ought to be available in major languages, few will read the text in any language, and leaflets making the main points in some other languages may be enough.Part 2: Tasks in a constitution-making process

All the problems of translation from foreign languages highlighted below may be more acute when there is a need to translate into languages that—along with the communities that speak them—have been somewhat neglected in the past, with the result that constitutional terms have never been developed in those languages. This raises the question of whether it is appropriate to invent new words, or use existing words in a new sense. Though this may be a long-term solution, it hardly helps comprehension in a popular-consultation exercise, which is often the reason for the translation. It may be necessary to insert an explanation rather than an obscure or invented word.

Translation for foreigners—and of foreign material for nationals

Unfortunately, in some processes there is no foreign member of a team who has a command of the constitutional and political terms needed in a given local language, and no local staff member who has that same degree of facility in the foreign language or languages. This means that there is no quality check on translations, which may actually be almost incomprehensible.

All too often the issue of translation is not addressed early enough. And the need to recruit translators quickly may lead to the recruitment of quite unsuitable individuals. Although most people realize that simultaneous interpretation is a highly skilled task, they may not realize that the skills needed for translation of technical documents are equally great, if different. In one process an international organization recruited as a translator a young man whom they met while he was working in a bar. His English was indeed excellent, but his knowledge of constitutional law was nonexistent. In Timor-Leste, the secretariat did not realize it needed interpreters until the constituent assembly held its first session and it became evident that the younger members could not follow debates in Portuguese. Interpreters were found, but some were poorly trained, and communications problems among the members existed throughout the process.

Box 26. Translating the language of constitutions

“Convention” has two quite different meanings, one referring (in only a few countries) to an established constitutional practice, and the other (more common) sometimes referring to a constitution-making assembly.

“Proportional representation” usually refers to an electoral system designed to ensure that the votes each party receives are reflected in the number of legislative seats it wins; the phrase is now used in Nepal to refer to the ethnic, religious, community, or caste representativeness of a body.

“Federalism” is a system of government under which power to make and administer laws, collect taxes, and the like is divided between the national government and governments at one or more lower levels—used by some purists to refer only to a country such as the United States, where preexisting units came together to form a new state.

“Penitentiary” means “prison” in the United States, but the word isn’t used in the English of many other jurisdictions, though people there would likely understand it.

Not only is the language of constitutions technical; it is also specific to countries. A camshaft may not vary in its nature from country to country, but legal terms are not necessarily understood in just the same way everywhere, and constitutional terms also have political overtones. While a person who has some knowledge of constitutional concepts in English and some knowledge of French and Latin might be able to translate a constitutional text from Spanish or Portuguese into English with a little help from a dictionary and an online translation program, there will inevitably be significant gaps in his or her understanding of what the terms would mean to a Spanish or Portuguese lawyer. This is a matter of constitutional knowledge as much as of translation; it points to the need to be careful not to make use of terms in any language without knowing what they mean. This serves as another reminder that foreign experts need adequate preparation and briefing. Only a dictionary focused on a particular discipline is likely to include many of the necessary words and phrases. A bilingual dictionary is unlikely to include phrases such as “parliamentary system” or “proportional representation.” This is true particularly because these are concepts, not just labels.

Some concepts have no exact equivalent in some languages. In Nepal the word “democracy” was translated in two ways, each version having political overtones. In Somali, “democracy” seems to be viewed as a foreign term, and there is no clear word for “federalism”; any word for it that does exist is essentially Arabic.

Practical tips

Both local and international actors should focus as soon as possible on whether translation is going to be a problem. Some of the strategies listed below may be helpful. But it must be emphasized that translation is a technical matter; ideally it should no more be carried out by an amateur than technical constitution drafting should be. The first strategy should be to locate the people with the necessary skills and knowledge:

  • Recruit a group of good translators and train them in the concepts and the language they will need; this will probably require a short course in constitutions. A well-run course in constitutional and political translation would be a useful contribution to the country’s future development.
  • Identify as soon as possible a good bilingual dictionary that focuses on the range of vocabulary likely to be used.
  • Prepare a glossary of words in the relevant local languages and the relevant foreign languages; this should not just be a dictionary, but should explain the use of the words, at least in the foreign languages. It is important to address the problem of words with no translation and agree on how to handle them. (This may have its risks; one writer observed that the English phrase “Lord Chancellor” was translated into Turkish as “Lordlar Kamarası Baskanı,” meaning the “head of the House of Lords” (Anthroscape n.d.). The Lord Chancellor still exists, but is no longer the head of the House of Lords!
  • Train the translators and interpreters in the use of the glossary, and insist that they use it.
  • Emphasize the importance of always using the same words for the same concepts, resisting any temptation to sacrifice accuracy for elegance. Resist also the urge to use “politically correct” terms if these were not used in the original—for example, it is not proper to use the word “gender” when translating into English instead of “sex” just because this is the United Nations’ favored word. This is particularly important when drafting a legal text as opposed to a piece of political analysis.
  • Obtain a bilingual version of the existing or most relevant previous constitution, especially if there is what is professionally thought to be a good translation, and insist that translators consult this when translating a new draft.
  • Try to persuade translators not to adopt dying usages in other languages; for example, modern drafters in English are moving away from “shall” to indicate obligation (a word that modern nonlawyers would read as a statement of what will happen in the future) and toward using “must” or some other clear word of obligation. However, when translating into the local language, it is perhaps not a good idea for international actors to try to “improve” local usages, though some education about the existence of alternatives might be permissible.
  • Establish cooperation among organizations so that only one translation needs to be prepared for each new document.
  • Explain the problem to foreign experts and insist that they do not use obscure words in their presentations and written documents—there is no point if the words, when translated, will be nonsensical.
  • Ask speakers in a foreign language to discuss their topics with the interpreters in advance, so that the latter can ask for guidance on meaning and be forewarned about possible difficulties.
  • Discourage foreign experts from asking for complex writings to be translated, thus taking up the valuable time of translators to produce something that is unlikely to be read.
  • Consider using a commercial translation agency; in Iraq it proved possible for documents to be sent to agencies in a different time zone and for translations of fairly short documents to be made overnight. This, however, has the obvious shortcoming that it bypasses local workers and does not contribute to the development of their skills—and quality control may be a problem.

2.3 Administering and managing the process and its resources

Participatory constitution-making processes can require the planning for, coordination of, and implementation of hundreds of complex and politically sensitive tasks, and the management of hundreds of people over an extended period. In a postconflict environment these tasks can become formidable. Infrastructure may be scarce or seriously damaged, human resources diminished by warfare or exile, and mistrust rife between communities and leaders. Managers have had to overcome these constraints and many others to raise funds, refurbish buildings, hire and train large numbers of personnel at short notice, fly in photocopiers and computers and vast quantities of paper, accommodate the media of many countries, pay staff members and send money to field offices with no functioning banking system, secure the process, and handle members of the international community who want to influence the process, as well as slow- moving or corrupt bureaucracies. Administrators and managers have accomplished this and more with little time for advance planning.

The administrative and management requirements of a constitution-making process are often not well understood by the designers of the process. In this section, we alert our readers to the administrative and management tasks that are unique or critical to constitution-making. The tasks discussed in this section do not involve policy decisions taken by the political leaders of the constitution-making body. These are primarily the tasks that are carried out in support of the constitution-making body. A closely related discussion about the bodies that perform these tasks and how those bodies are structured and managed can be found in part 3. In particular, part 3.3 deals with the administrative management body that may be responsible for many of the tasks described below.


2.3.1 The core tasks of administering and managing a process

The administrative tasks of a constitution-making process may be broadly outlined in the legal framework, but the process will often entail far more tasks, such as:

  • strategic planning;
  • financial matters, including budgeting, fiscal record keeping, auditing, fundraising, and donor relations;
  • personnel issues, including recruitment and management;
  • logistics, including bringing people from far away for meetings and arranging accommodations;
  • procurement of transportation, equipment, supplies, and services;
  • security, including making policies and procedures and implementing them;
  • refurbishing or securing buildings and maintaining equipment;
  • conference management and catering (possibly for five hundred or more people);
  • translation and interpretation services;
  • information and communications technology, including setting up networks and database systems as well as repairing computers;
  • capacity development and orientation for personnel and constitution-makers;
  • research, drafting of constitutional provisions, archiving, and record keeping;
  • secretarial tasks, including note taking, minute taking, and distributing agendas;
  • printing and publishing books, pamphlets, questionnaires, or leaflets; and
  • public outreach, including civic education and public consultation.

A wide range of expertise will be needed to carry out such diverse tasks, each of which will involve many more specific activities. Here is a glimpse of the variety of possible tasks:

  • organizing a pop concert, song contest, or soccer game as part of a civic education and youth outreach program;
  • translating the draft constitution into several languages and printing millions of copies of it prior to public consultation;
  • hiring tents to serve as meeting rooms for a large constituent assembly or constitutional convention;
  • designing security passes to indicate who has access to which parts of the constitution-making grounds and meeting rooms;
  • arranging for daily tea service and meals for up to a thousand people for a national convention; and
  • designing the logo and official stationery for the constitution-making body.

2.3.10 Security

Today, many conflicts end in stalemate, and the constitutional process is one of negotiation among previously warring factions. Spoilers may remain outside the process and pose serious threats. Managers have to face the possibility, often quite real, that constitution-related activities will be disrupted by violence. In Iraq and Somalia constitutional commissioners were murdered and in Afghanistan rockets were launched in an attempt to hit the tent of the Constitutional Loya Jirga. Security procedures need to be developed to suit the context and all constitution-makers, staff members and those participating in the process should be briefed about them, such as what do to in case an armed intruder enters the constitution-making area or a vehicle is attacked.

Security is also essential to guarantee that a participatory process protects the rights to freedom of speech and assembly as well as personal security. In Zimbabwe [ongoing process] people participating in a public consultation meeting were beat up and even arrested for observing the process. Managers must determine the level of security needed to safeguard the process. In postconflict contexts in particular, official security forces may not be trusted; private security companies (even international ones) may be required (though their record has not always been good). And if there is a severe shortage of local security options, the international community may play a role. In insecure environments, constitution-makers or others may demand excessive security protection. Constitution-making venues of all types (for public consultation as well as deliberations) must be carefully selected to avoid security risks. It may be necessary to decide the context is so volatile that public consultation and travel must be limited.

Constitution-makers have addressed the issue of security in different ways. In Eritrea, management went directly to the heads of the military and negotiated with them for security for all aspects of the process. In Albania, local police and constabulary forces were enough to counter threats of violence. In Afghanistan [2004], the army checked every car entering the constitution-making area for bombs, perhaps now a common post-9/11 practice. Managers should be specific with security providers about their needs, and enter into a written agreement about such issues and how many security officials will cover each event and what they will be expected to do.

Handling security requires more creative solutions when the police or the military may have committed human rights abuses, may represent a particular interest and be considered biased, or may be viewed as poorly trained. In some contexts, police or other officials may be an impediment to public participation; in Kenya [2005] the police were asked to keep out of public consultation meetings because people feared to speak openly in their presence. Commercial security firms may sometimes be used instead of the police, either because of the inadequacy of the latter or because of their perceived loyalties.

The international community has helped provide security. These efforts have ranged from United Nations peacekeepers or other security forces providing security at constitution-making events or meetings to their providing security information. The international security providers should work in close coordination with the national actors so that no steps are taken that will undermine the process.

Outreach teams and field offices will need communications systems so that they can be in touch with their base. When the United Nations is involved, it judges security situations on a scale and takes corresponding precautions, including sometimes prohibiting United Nations employees or consultants from traveling by anything other than a United Nations vehicle, and barring them from going to certain places.


2.3.11 The media

“Media” refers to the printed press, radio, and television. The term now also includes the Internet, as well as short messaging services for mobile devices. The media play two key roles: informing and educating the public about the process (see part 2.2.2 for examples) and playing a traditional “watchdog” function, whereby they investigate and assess whether the process is being properly conducted. (For tips on how the media can do this effectively, see part 4.1.) These two functions can cause tensions between the constitution-makers and the media.

On the one hand, media outlets cannot always be relied upon to report the news in a neutral fashion. In many countries they are owned by one of the major political forces, such as the state, a political party, even politically active individuals, or a major economic interest. These media outlets often report stories that promote their own concerns and interests, which could be biased, or at least decline to publish or heavily edit “unfavorable” matter. Even where media diversity exists, journalists may lack experience and fail to report on important matters, or may misinform the public about constitutional issues or the constitutional process. In some countries, because journalists are poorly paid they may want to be paid for printing stories. Even when journalists are well trained and experienced they may still fail to report on issues of substance because they are looking for stories that are sensational.

On the other hand, the media can become frustrated by the failure of constitution-makers to provide them with access and information about the process and the constitutional issues at hand. In some cases, media outlets have complained that the process was being conducted in secret. Constitution-makers have failed to provide the media with regular press releases or briefings, clear and accurate information, or guidelines about access to proceedings or information. These and other tensions have lead to negative reporting in the media and the lowering of the credibility of the process.

The media strategy

Developing a media strategy (i.e., a strategy to communicate with the people as widely as possible by using radio, television, newspapers, the Internet, or social media technologies) can reduce the tensions between constitution-makers and media actors, and ideally ensure that the media is used to inform and educate the public and encourage its engagement in the process. Components of a media strategy may include:

  • identifying key media outlets, bloggers, methods such as Twitter and Facebook, or newly emerging media innovations that can be used to reach the people (see box 22 on how Iceland is using the media to reach the people);
  • organizing regular briefings for the media or bloggers, etc.;
  • distributing regular press releases that are clear and accurate;
  • organizing training for the media about key aspects of the process;
  • recommending a suitable spokesperson for the process, and training him or her;
  • hiring a dedicated staff to coordinate with the media and communicating important information about upcoming events or new developments;
  • having the leaders of the process be as accessible as possible to the media, and attending public events as often as possible;
  • issuing regular press releases that highlight newsworthy stories and summarize essential facts;
  • providing sample interview questions to journalists in advance of interviews with members of the media, particularly in countries where media development is in its infancy;
  • inviting journalists to attend internal meetings (in South Africa, journalists were welcome to attend nearly all of the administration and management meetings, which promoted transparency);
  • developing alternatives to state controlled media outlets (e.g., distributing shortwave radios); and
  • developing rules regarding media access.

Developing rules regarding media access

Ensuring media access at appropriate stages of the process can promote accountability, transparency, the public’s right to information, and the people’s right to political participation. At the same time, media access needs to be managed. There should be a presumption of access unless there is a good reason to exclude the media. The extent of access at any particular time will depend on a range of issues, including the stage of the process and the nature of the work being carried out.

It would be expected that the media will have access to the public deliberations and debates of a constitution-making body. However, some deliberations are best held in closed sessions. For example, it may be helpful to ban television coverage at certain stages where such coverage might encourage the “grandstanding” of members for political gain and discourage consensus building and compromise.

The rules concerning media access should adhere to international standards and to any local legislation that defines the types of information to which the public has a right of access from their public institutions.

It may be useful to meet with key media professionals to get feedback on the rules, explain them, and answer questions. To promote openness, a small handbook for the media could be developed to inform them about:

  • the constitution-making body and the process;
  • times of press conferences and briefings;
  • where relevant information can be found (e.g., the official website for the process);
  • what access the media will have, and at which stage of the process;
  • how, when, and where members of the media will be accredited and be given security clearances if required; and
  • whom to turn to with questions, complaints, or requests for assistance about access or accreditation.

2.3.12 “Managing” relationships with the international community

Who is the “international community” in a constitution-making process?

For the purposes of this handbook, the “international community” is a collective term that refers to the broad range of countries and other international actors that may influence, directly or indirectly, a constitution-making process. The international community is not a homogenous group and it does not represent a single policy or viewpoint. There are at least six main categories of international actors that may make up the international community in any postconflict context:

  • International, regional, and multilateral organizations, such as the United Nations, the African Union, the European Union, the League of Arab States, and the South Pacific Forum, may initiate, or at times lead, the constitution-making process or provide political legitimacy and legal authority—for example by passing resolutions in support of the process. They may also deploy missions to support the process, provide special representatives to help out, and provide funds.
  • International agencies, such as United Nations agencies—most often the United Nations Development Programme; the United Nations Development Fund for Women; the United Nations Children’s Fund; and the Office of the United Nations High Commissioner for Human Rights—or international financial institutions, may provide expertise and assistance programs and may also serve as donors.
  • Individual countries may have a direct interest in the process and provide diplomatic influence or skills, technical assistance, or resources. They may be from the region or beyond it; Australia (Australian Agency for International Development), Canada, the Scandinavian countries, Switzerland, the United Kingdom (Department for International Development), and the United States (especially through the Office of Transition Initiatives of the United States Agency for International Development) often play this role.
  • International NGOs may provide expertise and resources or run programs related to the constitution-making process.
  • Sometimes, essentially domestic organizations from one country take an interest in another country’s constitution-making affairs. They do not tend to interact with other international organizations, and may be secretive. For example, it is clear that churches from the United States were funding parts of the “No” side in the Kenyan 2010 constitutional campaign (primarily because of the abortion issue).
  • Individual advisers are often provided and remunerated by a particular international institution or government but generally do not represent them. (For more on management of foreign advisers, see part 2.3.6, and for more on roles played by constitutional experts—a specialist category of foreign adviser—see part 3.4.9.)

The interests and roles of the international community

Historically, countries have made their own constitutions. For many years law was considered to be largely irrelevant to development, and the United Nations, donor agencies, and other international actors were concerned with the latter. Now any developing country that wants to make or review a constitution is likely to find itself drowning in a positive alphabet soup of United Nations and aid agencies as well as international NGOs that wish to engage in the process. There can often be pressure on constitution-making processes to accept support from the international community (e.g., limited domestic funding for constitution-making processes in postconflict countries makes donor funds attractive—issues discussed further under the next subheading—as does limited availability of expertise in respect of offers of foreign advisers, as discussed in part 2.3.6). But acceptance of foreign funds and advisers often comes together with pressures to meet particular interests on the part of the international community offering the assistance or cumbersome financial management requirements.

Where the international actors are offering support to the process, they may do so for a variety of reasons. Their interests may include promoting rights, democracy, or international standards, preventing terrorism, improving regional or national security, preserving or expanding business or natural resource interests, or ensuring that the new system of government is similar to that of their own countries. At times these interests will coincide with those of the constitution- makers and at other times they will conflict with them. For example, the international community might attempt to keep references to Sharia law out of a constitution in an Islamic country because it believes that such law clashes with human rights.

The international community has exerted substantial pressure in favor of particular outcomes in many processes—most notably in Bosnia-Herzegovina and Iraq. The United Nations has also played a key role, often in partnership with other major actors, in countries such as Afghanistan, Cambodia, Namibia, and Timor-Leste. In other contexts (such as Peru and Sudan), regional associations have taken the lead in negotiating peace and also in shaping the constitutional process. The United States in Afghanistan and Iraq significantly shaped the processes and influenced the contents of the constitutions.

Some international actors may emphasize empowering constitution-makers to design and implement their own processes, but others become involved in constitution-making primarily to advance their own interests. Their interests can be advanced through involvement in the initial negotiation about the design of the process, the provision of experts or technical assistance and resources, the use of incentives, the application of political pressure, lobbying, controlling the flow of resources to the process, or even threatening to use or using military intervention or action. It is also worth remembering that even such international actors as United Nations agencies and international NGOs can seek involvement in a constitution-making process more out of self-interest than out of a true desire to assist the process. International NGOs and United Nations agencies have to justify their existence; they constantly have to develop projects to raise funds, and if they see the opportunity of getting project funding because of their involvement in a “significant” constitution-making process, they will rarely decide that they are either not needed or not the most relevant body to help the process.

The international community also plays other important roles in constitution-making processes, as in various cases of mediation to end a conflict through constitutional means rather than arms. At times the international community may even create the conditions for the process to proceed, as in Somalia where the United Nations enabled the constitution-makers to be based in Djibouti so they could do their work in a secure environment.

Some constitution-making processes, especially those connected to peace processes intended to end significant conflicts, can attract heavy involvement from regional bodies, United Nations agencies, international NGOs, and embassies, some offering support to the constitution-making process, some to the peace process, some providing humanitarian or development assistance, and almost all monitoring the situation. All will need national staff of one kind or another, and will usually pay higher salaries or fees than local institutions, such as constitution-making bodies. As a result, they often lure the best-qualified national actors into working for them— sometimes taking them from the constitution-making bodies, thereby undermining local capacity (and sometimes making it more necessary for constitution-making bodies to rely on foreign advisers). Such problems are not readily resolved, though they have sometimes been helped a little where donors have been persuaded to supplement salaries of national staff, to make their conditions of employment more attractive.

Donor funding to the process

The significance of the extent of donor funding in support of constitution-making processes varies greatly, from situations where a single donor provides small amounts of funding targeted to support a particular activity to others where one or more donors together fund virtually all aspects of the process. Funding the entire process tends to occur mostly in situations where international community actors are not so much donors to the process as they are leaders of a political transition process in one way or another (e.g., in Cambodia [1993], Bosnia-Herzegovina [1995], Timor-Leste [2002], Afghanistan [2004], Iraq [2005], and Somalia [ongoing process]).

There are other situations in which limited availability of domestic funds results in heavy reliance on donors even in processes initiated and run by domestic actors. Even where the donors are not pursuing their own political or strategic interests, such funding is usually subject to conditions about use of democratic and transparent mechanisms, financial management and reporting procedures, regular meetings with the embassy, and perhaps the dominating presence of foreign advisers supplied by the donor country. Results of such arrangements can include widespread suspicion in the host country of foreign interference. Even in the more common situations where donor funds merely supplement significant levels of domestic funding for the process, such perceptions can arise. A perception of foreign interference can undermine any sense of national ownership, and damage the legitimacy of the process and perhaps of the constitution it produces.

Such dangers might be reduced by constitution-makers releasing regular media statements about the roles of donors, and the extent of conditions of engagement and reporting requirements, emphasizing both that these are normal aspects of donor funding arrangements and that the donors play no role in determining the agenda of constitutional issues or the options for contents of the constitution that are being considered.

There are also quite different situations where donor funds may be needed for a process to operate but where donors may be reluctant to become involved, because of poor records of effective and accountable spending by a government, or because prospects for peace and security seem poor. In such circumstances, entering into a constitution-making process may be seen as a sign of new beginnings, which may provide opportunities for those involved in the development of the process to work closely with prospective donors to encourage an interest in and understanding of the new possibilities.

Other problems can be experienced in processes either where there is a need to rely on numerous donor inputs, or where the international community interest in the process is so great that there are pressures from many sources to accept technical and other forms of support (or both, as has been the case in Nepal [ongoing process]). In such circumstances there may be considerable overlap in what is being offered by different donors, and managing the proposals from and various conditions and reporting requirements demanded by them can be an extremely onerous task for constitution-makers to manage. Constitution-making bodies that are overwhelmed by offers may be tempted to reject all assistance, or to pretend to accept advice or other forms of assistance but then ignore it. It will be more productive to determine what is needed through the strategic planning process, ask for what is needed, carefully assess what is offered, and reject (politely but firmly) what is not helpful. Staff members put in charge of interacting with the international community should have knowledge and experience in working with aid agencies, embassies, and international NGOs.

Sometimes such difficulties are responded to by efforts to bring some coordination into dealings with the donors. Planning meetings are held with key donors. If this occurs first at an early stage, when the process is being created, early versions of a strategic plan and budget for the process can be presented to the donors, and they can be requested to consult among themselves and with the constitution-makers and agree on the aspects of the process they will fund or otherwise support, thereby reducing overlap and duplication, and establishing a single mechanism for dealing with donors collectively. Such a mechanism can be used on an ongoing basis, for briefing the donors on developments, and even as a forum where financial reporting and other aspects of accountability are handled.

Box 27. Establishment of a donor group: Afghanistan [2004]

In Afghanistan, the United Nations Assistance Mission to Afghanistan established a donor group. Although the constitution-making exercise was considered an important benchmark in the political transition process, donors were initially reluctant to fund the process because they perceived it as poorly planned. They felt that previous contributions to hold the Emergency Loya Jirga had not been properly accounted for and similar problems would arise in the constitution-making process. Some donors also did not realize the centrality of the constitution-making process to the political transition and what a complex and expensive undertaking it would be. International constitutional experts, with approval from the leaders of the process, met with individual donors to urge their support for the process.

The United Nations Assistance Mission, in partnership with the head of the Afghan secretariat, then called the donors together to discuss how the process advanced the Bonn Agreement, the details of the strategic plan, the budget, and the role the United Nations would play to ensure proper implementation as well as reporting and financial accounting for donor funds. Through these efforts, the process became fully funded. The United States, however, opted to channel its support directly to the Afghan secretariat. It provided a financial adviser to the secretariat who worked with a national counterpart to establish financial systems and to meet reporting requirements.

In some processes, memoranda of understanding about the terms of assistance between a donor and a constitution-making body have been developed, defining assistance to be provided by agreed dates and the responsibilities and duties of each party. For example, if an international organization agrees to lend cars to the process, it should be clear who will maintain the vehicles, who will pay for the fuel, when the cars will arrive, and if (and if so when) they will need to be returned. The memorandum ensures that expectations are clear, and is useful for reference when problems or disagreements arise.

Donors should be encouraged to contribute to the entire budget rather than pick and choose which activities to fund. This will discourage donors from funding only what they might regard as the more attractive civic education or public consultation activities and ignoring other essential costs, such as utilities, computers, rent, and the like.

Donors often have a limited understanding of what is involved in a constitution-making process—particularly the complexities, stages, and costs of participatory constitution-making processes, and the ways in which they may contribute to peacebuilding and transition. Donors tend to be more familiar with the goals and modalities of elections, and as a result are often ready to provide substantial support for elections seen as part of a transition or democratic consolidation. In such cases it may be important for leaders of the constitution-making process, as well as local political leaders, and perhaps friends of the country in question in the international community, to spend time with donor country representatives to explain the importance of the process, its role in peacebuilding, and the plan and costs for the process.