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.

2.3.13 Making the rules of procedure and decision-making— when and who?

An existing constitution, a law, or a peace agreement may set the general course of the process. But detailed rules will be needed about procedures for the various bodies. They will cover, in particular, public participation, management (including financial management), and decision-making.

Rules will be needed especially for a constituent assembly; even the regular legislature may need some special rules for making a constitution, different from its regular rules of procedure. Smaller bodies, such as constitutional commissions, may not have such complex sets of rules, but will still need rules on matters such as how it makes decisions, finances, and how many members must be present to make up a quorum for a meeting.

Codes of conduct will also likely be drawn up: these may not be “laws” in the sense that breaking them is a crime, but they set down ideas of “proper” conduct—and members or staff who disobey may be liable to removal or disciplinary action.

People actively involved in a constitution-making process may have little experience of similar activities. Rules need to be clear and detailed to prevent confusion.

Who makes the rules?

If there is resistance to the constitution-making process on the part of government and the existing ruling groups, it may be wise to try to insist that the reviewing bodies can make their own rules (within reasonable limits). But existing rules of financial probity, covering audits, procurement, and so on, may be appropriately applied to the constitution-making bodies— which should not be held to a lower standard than are existing governmental bodies. For a body that is set up under an existing law (such as a committee of inquiry), there will probably be well-established rules of procedure, though they may not fit this sort of task perfectly.

It is common for a constituent assembly to be given power to adopt its own rules. This reflects the common practice for legislatures; the right to adopt their own rules was a victory for parliaments asserting themselves against monarchies. The dilemma is that a truly democratic constituent assembly (more democratic than the country’s legislature perhaps) ought to decide on its rules, but may include many people who have little experience. The constitution-making road map could set out guidelines for the rules, but this does not guarantee that the rules will be simple and clear.

Adopting the rules can be time-consuming. In Bolivia it took five months to decide on the rules of procedure. In Timor-Leste, where the Constituent Assembly had ninety days to adopt a constitution, the first two to three weeks were taken up by the adoption of rules of procedure. The issue that has often delayed rule-adoption processes (including Bolivia’s) has been that of the decision-making majority: should adoption of the constitution require a two-thirds, a three- quarters, or even a simple majority? (In some countries, including Nepal, this percentage is prescribed by the existing constitution or legal system.)

If the constituent assembly is to make its own rules, it will probably do so through a committee; it is not realistic for a large body to draft rules. Where political parties are dominant, they will probably insist on dominating the rule-making committee, and also on proportionate representation of parties on that committee. But if possible, the committee should include representatives from various groups in the country, and it should not comprise only lawyers and people with parliamentary experience. This way, all members can have a fair chance to participate.

In many countries it is possible for a body set up by law to be given the power to make rules that have the force of law—called “subordinate” or “subsidiary” legislation in some systems. The steering committee of a constituent assembly or the chair of a constitutional commission might be given such a power. In many countries such rules would have to be reported to the legislature, which might have the power to negate them by a resolution.

When a process is set up by a peace agreement or a roundtable, it is unlikely that the same body will prescribe detailed rules for any of the organs of the process. But if a legislature designs the process, it may also design the rules.

If a decision-making body is to make its own rules, clearly these cannot be prepared in advance. Some provisional rules will be necessary to cover the period until the final rules are ready. This also means that members cannot know the rules well in advance. In Afghanistan it has been suggested that late release of rules for the Emergency Loya Jirga that adopted a provisional constitutional arrangement created problems.

Box 28. Who makes the rules?

In Bolivia, India, and Timor-Leste, the constituent assembly made its own rules of procedure.

In Kenya the rules for the national constitutional conference were prepared, as required by the Constitution of Kenya Review Act, by the commission that prepared the draft constitution and provided the constituent assembly’s secretariat.

In the revived Kenya process, the committee of experts made its own rules, except that the quorum was prescribed by law, as was the obligation to work for consensus, and failing that, to decide by a two-thirds majority.

Sources for rules

For a small body, rules about meetings can be based on common practices concerning meetings—the role of the chair, how to indicate a wish to speak, time limits, quorums, voting procedures, and so on.

Rules about finance can be usually based on those used for other public bodies, such as audit and procurement rules, even if these are not directly applicable.

Many constitution-making bodies will need rules and procedures that address processes not commonly addressed by public bodies, such as civic education.

In a large body such as a constituent assembly, members who are used to parliamentary procedure will often assume that the rules should be based on the rules of parliament. (This is how Bangladesh managed to adopt its rules in two days.) But there are good reasons why this may not be appropriate; a constituent assembly is different from an ordinary legislature in many ways, as set out in part 3.1.2. A constitution-making body typically must build consensus and the parliamentary rules may not be well suited for this task.

What are rules for?

The functions of rules about finance and about procedures for civic education and the like are perhaps fairly obvious. But it may be helpful to reflect briefly on the functions of rules that concern discussion and decision-making. It is suggested that their functions include ensuring that:

  • consensus is built where appropriate;
  • decisions are made—and are made neither too hastily nor in too protracted a manner;
  • it is clear what has been decided, and why;
  • decisions are made on the basis of the best available input in terms of factual analysis and reasoning;
  • irrelevant matters are not taken into account;
  • all members are able to participate;
  • each group within the assembly or the country is able to participate (this may be a particularly delicate issue when a country is made up of different elements coming together—as was the case in India, where the constitutional adviser looked at the procedures that had been used in the Australia, Canada and the United States to ensure participation of their provinces or states);
  • all members feel that they have had a fair opportunity;
  • the dignity of the institution is upheld;
  • the dignity of members is protected;
  • publicity is achieved when appropriate, and secrecy maintained when appropriate;
  • a good record can be and is kept of decisions and processes;
  • outside participation is possible when appropriate; and
  • irrelevant pressures are excluded.

2.3.14 Dealing with problems in the process

The path of constitution-making rarely runs smoothly. Indeed, only around 50 percent of processes result in the adoption of a new constitution.

We can look at these problems from several perspectives: Why? How? And (perhaps) when? We should also recognize that not every “failure” means that the process has been a waste of time, and that there may even be situations in which “failure” is not the right word at all for a process that does not end in a new constitution. For example, it may be possible to reach a settlement of the issues dividing a country by nonconstitutional means.

Why processes come to a halt

Processes come to a halt for a variety of reasons:

  • Government officials or others in powerful positions are simply opposed to a new constitution.
  • It has proved impossible to reach agreement on contentious issues between parties.
  • It proves impossible to produce a document that the people will accept.
  • Those involved have such a personal stake in extending the process that they are able to drag it out until there is a new government, or the money runs out.
  • War or an insurgency commences or resumes.
  • It is decided that other approaches—such as a gradual process of lawmaking or amendment— can achieve the objectives.

The last is more likely to be a consequence of “failure” rather than a cause—it will probably result from one of the other “whys” on this list.

How processes come to a halt

Here we are concerned with the mechanisms or processes by which the constitution-making process grinds, or shudders, to a halt.

  • A document is rejected in a referendum (a process that may be genuine popular reaction or the result of political, personal, or ethnic manipulation).
  • The money runs out.
  • Politicians refuse to play a constructive part in the process.
  • Other things (such as a constitutional assembly needing to act in its other role as legislature, political wrangling, wars, or natural calamities) delay matters so that patience is exhausted, deadlines are missed, money runs out, and so forth.
  • Those with the power to do so call a halt to the process by, for example, disbanding a commission.
  • An interim constitution is amended to become a permanent or long-lasting document.
  • An election removes from power those with an interest in continuing the process.
  • A coup has the same result.
  • The courts are used to declare that a process is inadequate or a draft constitution does not meet certain standards or requirements.

When processes come to a halt

This may happen at almost any stage (and the stages vary from process to process).

  • In Pakistan the constituent assembly met only a few times and adopted a resolution setting forth its objectives (1949), but did little else because of political instability, and was ultimately dismissed by the head of state (1954).
  • In Israel the constituent assembly turned itself into the parliament (Knesset) and put the constitution-making on hold because of the invasion by the Arab states immediately after the declaration of the state of Israel. It later proceeded to make a constitutional structure by passing different pieces of legislation over the years.
  • In Nepal in 1951 a constituent assembly was never set up; the interim constitution was amended so that it provided for all that was necessary to run the country, and it lasted for eight years—because the king lost his commitment to a process of constitution-making that involved the people.
  • In Kenya, a court, in a decision rendered immediately after the national constitutional conference had adopted a draft, which was supposed to go to parliament for enactment or rejection as a whole, held that the process used to adopt the draft constitution was invalid, and that there must at least be a referendum. This gave the government the chance to take over and amend the draft—but it was unable to win the subsequent referendum [2005].
  • In several countries (e.g., Zimbabwe [2000]) a constitution has been completed and then rejected in a referendum.
  • In Nigeria in 1966 a conference of “leaders of thought,” set up to discuss a new constitution, was aborted within months because of the threatened, and ultimately real, attempt of part of the country to secede, and the consequent three-year civil war.
  • In Eritrea [1997], the constitution was completed, but it required the signature of the president to come into effect (which is true in many cases). The president failed to sign it for some time.

So sometimes processes have been aborted when little progress has been made, while in other cases progress was halted when there was already a draft, or even a complete constitution ready to be put into operation. Sometimes it is not possible to avoid the abortion of the process; the cross-references indicated above will lead the reader to discussions of preventive or remedial measures. And in part 2.1.10 we discuss briefly issues concerning restarting such stalled or aborted processes.

It is beyond the scope of this handbook to discuss one of the most common types of failure of constitution-making processes—that is, the failure to bring the constitution fully into effect. This may be an almost wholesale failure to do anything that the government finds inconvenient, as was the situation in Eritrea even after the president belatedly signed the constitution into law. (This was attributed by some to a failure to include a date for its becoming operative, but others believe this would have made no difference.)

More often, the problem arises from the failure to pass laws that in theory the constitution requires. In Papua New Guinea, although the constitution, passed in 1975, requires the passing of an “organic law on the integrity of political parties,” no such law was passed until 2001.

Most implementation failures result from corruption or incompetence on the part of courts and parliaments, a lack of resources, or the failure of the people to make active use of the implementation provisions that do exist. No constitution is self-executing; each one requires the people to use their votes wisely, to go to court, to complain or to petition, and to refuse to participate in the subversion of the constitution.

Finally, we should note another type of failure: one in which a constitution is adopted and comes into force and then is overtaken by a coup or a civil war or some similar cataclysmic event. These events likely lead to the constitution being consigned to the dust-heap, whether by being suspended or abrogated or being so totally disregarded that it might as well not exist. Nigeria amended its 1960 independence constitution in 1963. There was a coup in 1966; various attempts were made to produce a new constitution, which were largely thwarted by a civil war and other coups until a new constitution was adopted in 1979; this was overthrown by a coup in 1983; a new constitution was adopted in 1989; this was ended by a coup, and yet another constitution was adopted in 1999. Fiji’s 1997 constitution has had the novel experience of being “couped” three times: in 2000, then restored as the result of a court case in 2001; modified and partly suspended by a supposedly “proconstitution” coup in 2006; and abrogated as a response to a “constitution-restoring” court decision in 2009.

2.3.2 Strategic and operational planning

By strategic planning we mean establishing a plan for implementing the broad policy decisions of the constitution-making body. The strategic plan should set out where the process is going and how to get there, including detailed operational plans about how every task will be carried out, by whom, and what resources will be needed to carry it out. This helps with the next step in the planning phase: creating the budget. The more detailed plans are critical, because indifficult circumstances—perhaps with inexperienced staff members, changing deadlines, and political crises looming—even basic tasks can be overlooked. For example, in past processes administrators and managers have failed to:

  • secure, in plenty of time, a meeting place for the constitution-making body, which led to the need to pay for an expensive hotel for months on end so meetings could be held;
  • order enough paper or toner cartridges for the printer, which prevented members from receiving drafts of the constitution to review and led to lengthy delays until more paper and cartridges arrived;
  • realize that the members would be speaking different languages, and that translators and interpreters would be needed for several languages on a daily basis, which slowed down the process considerably and left many constitution-makers feeling excluded from participating;
  • train note takers or establish a system to record decisions, which led to confusion about what had been decided and charges of manipulation against the leaders of the constitution-making body because certain constitutional provisions had been changed and members could not recall if this had been agreed to;
  • realize the need for analyzing submissions, which has led to various difficulties including delays in the process, use of ineffective methods of analysis, or the abandonment of any serious attempt to analyze the views received, and pressures to obtain funds and specialist staff members at short notice; and
  • deliver copies of the draft constitution to a minority community before the public consultation process began, which led the community to accuse the constitution-makers of manipulation and secrecy.

The strategic plan is developed by the managers or leaders of the process and includes some or all of the following components:

  • the overall goals and objectives (which may be defined in a legal mandate for the process or may need to be developed further for the strategic plan) for the administration and management of the process;
  • the core tasks that will achieve the objectives of the process;
  • an overall timetable for the main tasks that need to be completed and coordinated mapping of what will be needed to implement the tasks in the time frame provided, including personnel, materials, and financial resources as well as external partnerships;
  • identification of who or which department or body needs to do what and by when; and • how the tasks will be monitored and evaluated.

The plan should be realistic both in terms of what can be achieved in the time frame given and the resources available for the process, including funds. Ideally, the key personnel or managers implementing the strategic plan will help develop the detailed operational plans. These plans describe specifically how each task will be carried out and how success will be monitored. This handbook, in part, has been prepared as a planning tool to identify the tasks, personnel, institutions, procedures, resources, and external relationships that may be needed. A quick perusal of the detailed table of contents of this handbook can assist with the planning process.

Box 23. Example of a strategic planning process

To provide an example of strategic planning, let us assume there has been a decision to have a constitutional commission that will prepare a final report and a draft constitution that will go to the parliament. The overall road map for the process might include the following stages:

  • preliminary civic education;
  • public consultation;
  • analysis of views collected;
  • first draft;
  • consultation on the draft;
  • final decisions;
  • legal drafting; and
  • debate in parliament.

The commission is appointed and it has several months to prepare its strategic plan. It has one chief administrator and three other administrative staff, one of whom is an accountant. It has access to the ministry of finance and other ministries for guidance.

For each stage, the commission must decide whether, and to what extent, the various tasks involve it. For example, by the time the final stage (debate in parliament) takes place, the commission may be winding up.

The strategic plan involves broad activities and time frames. After the plan has been created, the commission will have to break down those activities into more detailed tasks, then identify the resources that are needed to perform the tasks, and finally prepare the budget. There is a feedback loop covering the various stages; the commission can’t simply plan to do things with no idea of whether it will have the money.

The framework for the strategic plan must be the legal or policy document (here we call it the law) that enshrines the thinking to that point. Also crucial are the realities of the situation—and for this the commission should not hesitate to ask for information from all relevant sources, including ministries, research bodies, and international agencies.

In planning the first stage—on civic education—the commission would ask itself the following questions:

  • What does the law say? Is the commission required to carry out civic education? If not, is it able to do so, or is it expected to encourage others to do so? Or would it and other organizations all carry out civic education? Would it have—or should it seek—funding to pass on to others, or is it expected to remain entirely outside the education process? If the commission is to play no part, the planning process might stop there and move on to “receiving views.”
  • If the commission has a choice of what to do, what structure for civic education will make the best use of the available resources—of the commission and others? This will require assessment of the capacities of the commission and of other bodies.
  • What is needed—how much do people already know about the constitutional issues?
  • If the people have had some civic education already, who has done it? Was it well done? Are those bodies able to continue?If the commission is to be a funding body only, it will depend on other bodies to help it decide how much funding will be needed. If the commission is to do more, it should proceed to the following questions.
  • How much time is available?
  • How can marginalized or hard-to-reach groups be educated?
  • What methods should be used to communicate—radio, television, theater, books and pamphlets, comic books, meetings, art and writing competitions, and the like (see part 2.2.2). At this stage, much help will be needed from others—does someone have figures on newspaper readership, listeners to radio, literacy? Experts on civic education will be needed (the commission is unlikely to have any, or not more than one, among its members). What language or languages will be used? Eventually the commission will need to know how much these things cost. Do newspapers publish this sort of thing without payment? How will marginalized groups be reached, and who are they?
  • If the commission is to be involved in delivering, coordinating, or funding civic education, it should develop an overall plan to cover issues such as:
    • How are most people to be reached—by newspapers, face-to-face meetings, radio, television? And what type of electronic media programming: discussions, drama, phone- in programs?
    • At what level should meetings take place (every town, major headquarters)?
    • What sorts of publications will be needed?
    • Will the commission have a website, and will it use other online platforms such as Facebook?
  • Its strategic plan will need time frames—within those probably set by the law. Benchmarks will be mainly for internal purposes: by a certain date staff must be hired; by a certain date partner organizations, if any, must be identified; during a certain period public meetings must be held, and so on.

This may seem daunting—but in reality much of the work will be done by others. Some tasks can be postponed until more staff members are appointed (but not for long). Government agencies, consultants, and others can help.

This is not the end of the process. Next comes budgeting: how much will all this cost? Roughly, how many pamphlets at how much per copy? How many meetings at how much per average meeting? How much does a website cost? How many staff members will be needed, and how much will they cost? How much does it cost to translate a thousand words into another local language, and how many thousands of words will need to be translated?

And the art of budgeting is not a precise one: there must be contingency plans, chances to ask for more (within reason), and rough estimates.

This sort of planning has to be carried out for each step in the process.

A common management tool used for making strategic and operational plans is the analysis of the strengths, weaknesses, opportunities, and threats related to each component of the process. This is really just applied common sense. The idea is to assess the tasks to be accomplished, the resources and opportunities available, and the difficulties that lie ahead. The mention of strengths and opportunities as well as weaknesses is designed to encourage organizations not to ignore what they do have in the way of resources and circumstances—and not to focus only on the problems and the needs, which may lead to unnecessary pessimism and overspending on new people and resources. The analysis of potential threats or challenges will help managers when they are devising alternative plans for problems that may arise.

If managers have little or no experience with strategic planning, an external facilitator could help. However, it is not true that the same techniques necessarily work for producing a constitution as for producing paper clips, or even that public consultation on constitutional issues requires the same strategies as a participatory poverty assessment. Someone with planning experience may be useful for facilitating the development of a strategic plan. But to be useful, that person should be conscious of the particular features of a constitution-making process, including its technical nature and political sensitivity.

The overall strategic plan or parts of it could be a public document to inspire trust in the process and explain the road map of how the process will proceed. It could be placed on the official website or shared with key stakeholders, such as donors, the media, and civil society. This has been done to varying degrees in several places, including Afghanistan [2004] and Kenya [2005].

2.3.3 Financial management

Managers of a process in a conflicted or postconflict state—in particular, one where institutions have collapsed and are being reestablished—may have few or no financial procedures to follow and no government revenues to fund the process. The potential challenges include:

  • developing an internal financial management system from scratch;
  • the requirement by international donors to have an external actor (for example, the United Nations Development Programme) handle the financial management of the process, which can slow the process down if the financial systems are cumbersome (e.g., UNDP’s bureaucratic procedures for financially administering the process in Zimbabwe [ongoing process]) or the financial managers of the external organization are not competent and the constitution-makers do not have control over who is hired or fired;
  • securing funding from international donors who may then require some kind of management, oversight or advisory role while attempting to retain national ownership of the process;
  • handling complex and multiple financial reporting or auditing requirements required by international donors; and
  • needing to administer corruption-prone activities such as procurement, per diems, salaries, and the like entirely in cash because there are no functioning banks.

In states with functioning governmental institutions, financial management may be carried out according to preexisting systems and procedures, and at least some of the funds for the process come from contributions made by the government. When financial systems are in place, the existing governmental procedures can create other problems. They may involve reliance on a slow, corrupt, or incompetent bureaucracy. If the government has no legal obligation to fund the process, government actors may stop the funding if the proposed changes threaten those who have power over the money.

Some processes have received funds from governments and also from international donors, and their managers have had to deal with a combination of all of these problems. In this section, we discuss the challenges in a range of contexts. (Issues in relation to dealing with donors are discussed in part 2.3.12.)

Budgeting and costing for the process

Before costs for the process are determined, ideally a strategic plan has been created that has considered the level of funding available and has identified the realistic objectives, tasks, institutions, and resources needed. (See part 2.3.2 on strategic planning.) The next step is to develop a detailed budget that identifies the items and costs for each aspect of the process—for example, the costs of establishing and running each of the needed institutions and procedures, such as a constitutional commission, a constituent assembly, and a referendum. This can become complicated, because the establishment of institutions or procedures may depend on a precondition. For example, in Kenya the law provided that if a divisive issue could not be decided by the constitutional conference it would be decided by referendum. In a country where state institutions have broken down, there may be no electoral management body and no government funds for elections, yet managers must budget for the possibility of holding a referendum.

If the funding comes exclusively from international donors, one overall budget may be required and the approval process may be established by the donors. The process then resembles that of a civil society organization making a project budget and receiving funds from a donor. Additional budgets may need to be prepared if and when new components of the process are added, such as a decision at a later stage of the process to consult on the draft constitution. Establishing good relationships based on trust with the donors or government officials will help with the dilemmas that may emerge in planning for the process and getting funds released on time.

This handbook, in part, has been developed to serve as a planning tool and can assist with identifying budgetary items related to the potential tasks, institutions, procedures, and personnel required. Simply reviewing the table of contents will help in the creation of a budget.

Practical tips

  • The task of developing the budget should be led by experienced local financial managers (to the extent possible) and personnel who will understand the unique challenges and needs of the context. International actors with relevant experience in budgeting for a constitution- making process can assist but should not take over the process even if international donors are required to approve the budget.
  • Budgetary items that tend to be overlooked include audit fees; fuel for vehicles; maintenance and repair expenses; running costs such as rent, electricity, and gas bills; catering; cleaning services; security services; cell phones and usage costs; accommodations; the establishment of regional or district offices; the refurbishing of buildings; the extensive amount of paper as well as printing and photocopying expenses; interpretation and translation costs (especially if the constitution-making body is working in several different languages), graphic design work; salaries or per diems if necessary for future members of the constitution-making bodies; transportation costs (for personnel, members of the constitution-making body, and possibly for members of the public to get to public consultation meetings), the technical equipment and personnel required to record, secure and analyze public views for a widespread public consultation process; and capacity development or workshop costs so that staff members are adequately prepared to undertake their responsibilities.
  • A decision will need to be made about how much or whether to pay constitution-makers for their time and whether to provide them with transportation and living allowances. It is reasonable to compensate people for lost income from time spent away from their job. However, when the compensation is more than what they might expect to earn otherwise, this can lead to members purposely delaying the process. Remuneration should be modest, and it should be noted that for larger constitution-making bodies—ones that are convened only to adopt the constitution—members may expect no remuneration (though payment of daily allowances and travel expenses may still be required). Corrupt politicians or others may try to pad the budget so that large per diems are made available as a way for political parties to influence key actors to serve their interests.
  • To be cost-effective and promote national ownership of the process, requests for funds and in-kind contributions should be made not only to donors (from the international community) but also to local civil society organizations, the business community, the media (perhaps space in a newspaper for the draft constitution), and so on. Past processes have benefited from such offerings as secondment of staff and free radio time.
  • Many constitution-making processes are funded only until the adoption of the constitution, but this is not the end of the process. Many costs remain, including those for keeping some personnel on staff to ensure that all official documents and media materials (such as pictures and video) are properly archived, that civic education and outreach continues so people are aware of the contents of the constitution, and that key government officials understand the implementation requirements of the constitution. (See part 2.7.2 on implementation.) Any official website established as part of the process should be continued for a while at least (as it may play an important role in making the new constitution accessible and better understood). When it is no longer needed for such purposes, the website should be archived, so that the material is later available to researchers. Or the website could remain active and used as a tool to continue to engage the public on constitutional issues. These items should also be put in the budget.

Box 24. Benefits of a diverse staff

In Afghanistan [2004], the secretariat made it a priority to include women in leadership positions and to have a staff that was balanced in terms of gender and ethnicity. If the secretariat had not hired women it would have been difficult to speak with women leaders or organize elections in areas where women often are allowed to speak only to men from their families. Similarly, the secretariat communicated with marginalized groups more effectively because members from those groups were hired to perform outreach tasks. In contrast, in Iraq [2005], the committee secretariat had formed an outreach unit to handle the public consultation process. The Iraqi staff members recruited were predominantly Shia Arabs and they used predominantly Shia networks to gather input on the constitution. Far fewer Sunni Arabs or Kurds were consulted or had the opportunity to participate.

Financial accountability

Preventing corruption is a key challenge. In states emerging from conflict, there may be no financial systems in place. Policies for procurement may not be well established or understood, and where no bank exists, creating a system of cash disbursements that carefully tracks all financial transactions is tricky. If funds have been spent but there are no supporting documents in the form of receipts or vouchers, there may be accusations of corruption even if the problem is simply poor financial management. Accurate records of financial transactions are critical and must be reviewed regularly. All supporting documents should be gathered and filed in the order received, and cross-referenced to the books of account.

In contexts where the funds are controlled by a corrupt bureaucracy, managers may need to develop special methods of oversight to avoid problems. Even a slight misuse of government or donor funds can have serious consequences. In Uganda in 1992 a donor withheld critically important funding because of corruption in the ministry of constitutional affairs. The funding, however, was for the constitutional commission, and the corruption was identified by the financial managers at the commission. The withholding of funds delayed the drafting process and reduced the credibility of the process.

To ensure fiscal accountability, the expenditures should be audited. In Kenya, the chair of the Constitution of Kenya Review Commission (2001–3) invited the national auditor general to carry out an early audit, which enabled the return of funds that had been siphoned off through corruption. A code of conduct (see appendix C.1) should provide clear guidance about what practices are considered corrupt.

2.3.4 Personnel

Hiring or seconding personnel

In divided societies, the hiring process must be inclusive. It is not only the constitution-makers who should be representative of the nation, but also the administrative and management personnel. Such personnel are often the public face of the process. This is especially so when they are involved in civic education or public consultation efforts or in setting up field offices. Because of the important and sensitive roles that staff members play (including assisting with the drafting of the constitution), if a single ethnic or other group dominates the management bodies, there may be charges of bias in the whole constitution-making process.

Minorities, women, and other groups should have equal opportunities to manage and administer the process. Equal-opportunity, gender-sensitive, and diversity policies and procedures should be developed or adopted to guide hiring practices and should be followed in the work environment.

Table 6: Types of positions staffed in a constitution-making process

Staffing of positions

Archivists Interpreters/translators
Capacity development specialists/trainers Legal drafters
Catering staff Legal researchers
Civic educators Logistics and procurement personnel
Data-entry staff Managers
Drivers Media specialists
Electoral specialists Photographers
Empirical social scientists Public consultation/deliberation experts
Financial managers Secretarial staff, including transcribers
Fundraisers Security officers and guards
Graphic designers Specialists/librarians
Information personnel Translators
Information technology experts Videographers
Foreign advisers/mentors Website developers

Box 25. Examples of secondments: Timor-Leste [2002]

In Timor-Leste, a media group lent a media relations expert to assist with press conferences and daily communication with the press, and the Asia Foundation hired and managed translators and interpreters to assist the secretariat, which was managing the process. (The secretariat had not planned for these positions and did not have funding for them.)

Careful consideration should also be given to whether public servants should become staff members. Public servants may be aligned with or too easily influenced by the government because of their reliance on the government for their salaries. Parliaments require considerable support in the form of secretarial and administrative assistance, including procurement, drafting, research, record keeping, building management, and security. The same useful skills are often needed to support the constitution-making body. However, in South Africa [1996], the former parliamentary staff members who had worked under apartheid were not trusted by some of the other staff and constitution-makers.

An inclusive hiring panel can interview potential candidates from a less biased perspective. There should be strict rules against nepotism. In many countries, anyone charged with setting up a constitution-making body or process of any type could expect to be inundated with requests for jobs or contracts for relatives, friends, relatives of important people, and so on. Such persons should be chosen in part on the basis of capacity to resist such pressures, and should insist that proper processes are used from the outset. Failure to do so risks compromising the reputation, integrity, and legitimacy of the process. In one instance, the director of a secretariat hired his young and inexperienced cousin as a deputy. The resulting poor execution of many tasks led donors to threaten to cease provision of funds.

All of these considerations underscore the importance of planning the hiring process early and having hiring guidelines and procedures in place, especially for a process that requires a wide range of personnel.

The types and number of personnel will depend on both the availability of funds and the number of specialized tasks that must be carried out. Management will have to determine the qualifications, terms of employment, and levels for each position.

In postconflict situations especially, a large proportion of the country’s skilled professionals may have fled. Drawing members of the diaspora back to support the process can help inject needed expertise. Yet overreliance on returnees can create tensions, as local people who remained during the conflict may resent the diaspora members returning to take up important positions just as peace is taking hold.

Professional “headhunters” have been used to find appropriately skilled personnel. Civil society, academia, the media, and the private sector have also lent personnel to the process, and public service staff members have been seconded.

Employees, seconded personnel, and consultants

An official process will probably have to operate within existing national procedures for the recruitment and terms of service of staff. In many systems there might be three basic categories of staff.

An employee is someone who is under contract to work for the particular body, and paid a salary, usually a certain amount each week or month. Such an employee will probably have a contract for a fixed length of time—often with the possibility of premature termination by either side. There may be provision for some sort of benefit for an employee who works for a certain length of time. In the case of a short-lived body, this is likely to be a lump sum rather than a pension system.

A person may be seconded, usually from another government agency. Such a person would likely continue to receive the same pay and other benefits as in his or her regular job, though sometimes the person would receive some extra benefit during the period of secondment.

A consultant is someone who receives either a lump sum to do a particular piece of work, or a certain amount a day, perhaps for a limited number of days in a period. A consultancy contract is more likely to be used for a specific expert for a specific project, though it is sometimes used for people doing less specific tasks. Often a consultant will be required to produce one or more “deliverables”—reports, drafts, and so on, before being entitled to payment.

When deciding on the relevant basis for employing staff, the constitution-making body might wish to take into account factors such as:

  • will the staff member count as an “employee” for the purposes of the local law of employment, including liability of the body for accidents they might have, or even liability for their breaches of the law?
  • would certain types of arrangement have cost implications for travel, insurance, health, housing?
  • would a person seconded potentially have some kind of conflict of interest (for example, if they regularly work for parliament would they have an interest in certain provisions getting into the constitution)?
  • relationships between employees, especially resentments that may be created by marked differences between people doing similar work.

Accountability of personnel

Unfortunately, in countries where corruption is a significant issue (though hardly anywhere is

it not a problem at all), constitution-making processes are not immune. If “corruption” means allowing personal interest to conflict with one’s responsibilities (that is, excluding purely political interference), the following are examples of the problem:

  • obstructing work (perhaps by not turning up, or unnecessarily prolonging debate) in order to benefit more from salaries and allowances;
  • engaging in procurement scams, such as issuing purchase orders for goods that are not intended to be delivered (at the time of the constitution-making process in Uganda, this form of corruption was known as “air supply,” and there was at least one elaborate scam of this kind that caused major problems for the Uganda Constitutional Commission when the commission discovered it), or services that are not rendered or not rendered in full, or for which the price is inflated (airtime offers an easy example, as it is hard for auditors to check how many minutes of purchased airtime have been used);
  • employing, or secretly facilitating the employment of, one’s relatives and associates or their businesses (in one instance, commissioners employed their own relatives as drivers, insisting on having them paid through the commissioners, and then pocketing—stealing—some of the money); and
  • taking bribes to vote in a certain way.

How can this be handled? Other than insisting on background checks before people are appointed or hired, some possibilities are:

  • having and enforcing a code of conduct (see appendix C);
  • not permitting people whose job it is to draft a constitution to be involved in management activities that involve hiring or procurement;
  • asking for extra official audits;
  • insisting that existing procurement procedures be used;
  • using a private accounting firm to control certain activities (such as procurement);
  • being creative in checking on whether goods and services have been provided (insisting on seeing the stacks of photocopy paper; asking commercial companies that track media how many of your advertisements have indeed appeared); and
  • being alert to the “cash for votes” issue.

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.