Acknowledgments

Over the course of four years, dozens of experts and practitioners contributed to the development of this handbook by participating in global meetings and workshops organized by Interpeace on constitutional issues. Some of the reports (and the names of those participating) from these discussions are available within the handbook. Dozens more were interviewed on specific issues as part of our research for this handbook.

They represented every region (although primarily from the Global South), were a gender balanced group, and had experience in constitution-making processes from a variety of perspectives: as advisers, as leaders of constitution-making or administrative bodies, as members of political parties, and as members of civil society. They hailed from or worked in such diverse countries as Afghanistan, Benin, Bolivia, Bougainville, Cambodia, Colombia, the Democratic Republic of the Congo, Timor-Leste, El Salvador, Eritrea, Fiji, Georgia, Hungary, Iraq, Kenya, Nauru, Nepal, Puntland, the Solomon Islands, Somalia, South Africa, Thailand, and Uganda. We are most grateful for their contributions.

Although the focus of this handbook is practical rather than scholarly, we would like to acknowledge the debt we owe to a number of scholars whose studies have informed this text. In appendix D you will find references to works we have referred to. We are grateful to Nicholas Haysom and Professor Jennifer Widner for helpful comments on a draft of the handbook.


How to use this handbook

This handbook draws on experiences of constitution-making in all parts of the world. Those experiences show that there is no single correct approach to constitution-making. Furthermore, unlike elections or other tasks involved in creating a democracy, constitution-making does not follow neatly prescribed stages. A wide range of tasks can be carried out as part of a constitution- making process, and in designing and developing a process, many choices are made that result in major differences between processes. Similarly, there are many choices that can be made about the institutions or procedures used to carry out any particular task. As a result, there was no point in organizing this handbook in a linear fashion, starting with a particular task that should ideally be carried out by a specific institution. Instead we have organized the main discussion (in parts 2 and 3) around, first, the tasks, and second, the institutions and procedures that can be used to carry out those tasks. They are the common elements of a constitution-making process from which to choose when designing a process. Many factors can influence the choices made when designing a particular process. Some institutions are commonly used in countries with particular legal and political traditions but rarely used elsewhere. At the same time, ideas about both constitution-making and the contents of constitutions that originate in one place are often copied or modified in other places. As a result, even an institution that might at first sight seem quite exotic can be of interest in other places. For that reason alone we need to be comprehensive in our coverage of the wide variety of experiences of constitution-making processes.

Even if institutions do not always travel well between countries, the tasks that need to be performed as part of a constitution-making process tend to be similar. For example, it is usually necessary for constitution-makers to do most of the following:

  • think through and research the issues facing the country;
  • consider the choices of constitutional arrangements that will best respond to the issues;
  • educate and consult the people about the issues and the choices;
  • negotiate among major political groups and those with powers of decision-making about the constitutional choices;
  • administer and manage the constitution-making process;
  • draft, debate, and adopt a new constitutional document; and
  • make arrangements for implementation of the new constitution.

Although some of the main tasks involved in constitution-making have to be carried out in nearly any process, the institutions used to carry them out tend to be quite different from country to country. It is in part for this reason that we have separated the discussion of tasks from the discussion of the institutions and procedures used to carry them out. Additionally, certain groups that often play key roles in a process (e.g., media, civil society, government departments, political parties, and the international community) are in many ways outside the process, so we discuss them separately from tasks and institutions.

We must emphasize that we are not recommending that any particular set of tasks should always be undertaken, or that any particular institutions should be used to carry them out. Instead, we offer a wide menu of options that can be considered by anyone designing a constitution-making process (or even gradually developing one in response to ever-changing circumstances).

We have divided the handbook into four main parts:

Part 1 is an introduction to constitution-making processes. It outlines the key issues about the roles of constitutions (the main reasons why they are made) and some of the challenges, dilemmas, and opportunities involved in constitution-making, especially in situations of conflict.

Part 2 discusses common tasks carried out in constitution-making processes. Although we seek to impose a degree of order through the sequence of our discussion of these tasks, they cannot be dealt with entirely in chronological order; constitution-making processes do not all do the same things, nor do they do them in the same order, and many tasks are done simultaneously or repeatedly.

Part 3 is concerned with the institutions and procedures commonly established to carry out the tasks. These include commissions, constituent assemblies, and national conferences, as well as bodies created for other purposes but that may be involved in the constitution-making process by necessity or in exceptional circumstances—including a parliament, the secretariat of a parliament, the courts, and the election-management authorities. We have also included here what we refer to as “procedures,” such as referendums.

Part 4 provides guidance for external actors in the process, who may act on their own initiative or be linked with the official process. This section focuses on the role of civil society and the media in activities such as starting the process, voting, civic education, public consultation, making submissions, research, lobbying, and monitoring the process. It also discusses the common pitfalls for constitution-making processes when the international community has taken a leading role, either officially or unofficially. It concludes with an observation about the lack of guidance in this area for international constitutional-assistance actors and some brief practical tips for improving international engagement in these situations.

A series of appendices provides case studies, a glossary of terms as specifically used in this handbook, examples of codes of conduct, references, and suggested readings. Appendix A introduces the reader to a range of constitution-making processes. Short case studies are included to help the reader in a number of ways. Although there are numerous examples of tasks, institutions, devices, and dilemmas included in the main text, we are conscious that these are not organized in a way that provides a reader with a strong sense or overview of how institutions, processes, and tasks fit together in a process. The case studies illustrate how these various elements have been combined in actual processes.

Each case study provides an overview of why a new constitution was prepared, how long the process took, what institutions and processes (including referendums) were involved, whether it was broadly a participatory process, how much international involvement took place, and whether the process led to a constitution that was adopted. The cases were chosen to be geographically balanced and to illustrate the diversity of constitutional objectives, circumstances, tasks, institutions, involvement of external groups, and outcomes. In appendix D the reader will find references to other works, in particular case studies that go more in depth to particular processes.

Some of the country examples that appear in the body of the handbook to illustrate particular points refer to the case studies in appendix A. By referring to the case study from which the example was taken, the reader will be able to understand the overall structure of the process in that country.

We have designed this handbook to be used in a flexible way depending on the needs of the reader. Some people might read it from beginning to end. Others are more likely to be interested in certain aspects, or will focus on particular sections as they become relevant to them. Although we have tried to make each section as self-contained as possible, we do recommend that all readers begin with part 1. It is essential to a better understanding of key aspects and challenges that are referred to in the rest of the handbook.

Because the book cannot be organized in tidy stages, we include many cross-references. These will help the reader move readily between widely separated parts of the handbook that are related. For example, there will be a cross-reference from a discussion of the tasks of managing a process (in part 1) to an exploration of the bodies that manage processes (in part 3), and from a discussion of referendums to one on the task of adopting a constitution and one on dealing with a divisive issue (all discussed in part 2). Cross-references are provided to case studies in appendix A and to material in other appendices, which include sample codes of conduct and a glossary of the terms used by constitution-makers and those who write about them.

Throughout the text, a year that appears in square brackets following the name of a country (e.g., “Afghanistan [2004]”) indicates the year that a given constitution-making process ended, whether or not the process resulted in the adoption of a constitution or a proposed set of reforms. Where the phrase “[ongoing process]” appears after the name of a country, it indicates that a process was still under way in that country at the time of writing (mid-2011).

Table 1 sets forth the country contexts referred to in the handbook and notes those that have a corresponding case study in the appendices.

Table 1: Countries/regions discussed in handbook

Afghanistan (see case study) Madagascar
Albania Malawi
American Samoa Malaya
Angola Malaysia
Australia Maldives
Austria Mali
Bangladesh Mauritania
Belgium Mauritius
Benin (see case study) Montenegro
Bolivia (see case study) Mozambique
Bosnia-Herzegovina (see case study) Myanmar (formerly Burma)
Bougainville (see case study) Namibia
Brazil Nauru
Bulgaria Nepal (see case study)
Burkina Faso New Caledonia
Burundi New Zealand
Cambodia Nicaragua
Cameroon Niger
Canada Nigeria
Central African Republic Northern Ireland
Chad Norway
Chile Pakistan
Colombia Papua New Guinea (see case study)
Croatia Peru
Cyprus Philippines
Czechoslovakia Poland (see case study)
Democratic Republic of the Congo Portugal
Ecuador Puntland (Somalia)
Egypt Qatar
El Salvador Republic of the Congo
Eritrea Russia
Ethiopia Rwanda
Fiji Saint Kitts and Nevis
Finland São Tomé and Principe
France Saudi Arabia
Gabon Serbia
Georgia Sierra Leone
Germany Solomon Islands
Ghana Somalia
Great Britain South Africa
Greece South Korea
Guatemala South Sudan
Haiti Spain
Hungary Sri Lanka
Iceland Sudan
India (see case study) Sweden
Indonesia Switzerland
Iran Tanzania
Iraq (see case study) Thailand
Ireland Timor-Leste (formerly East Timor) (see case study)
Israel Togo
Italy Uganda (see case study)
Japan United Kingdom
Jordan United States
Kashmir USSR
Kenya (see case study) Vanuatu
Kosovo Venezuela
Kuwait Zambia
Kyrgyzstan Zimbabwe
Lithuania  

Impacts of adherence to guiding principles

Designing a constitution-making process on the basis of such principles is regarded by some as likely to have a range of beneficial effects, including:

  • providing a framework within which divided groups can work toward consensus on addressing causes of conflict and a governance framework promoting a durable peace;
  • influencing the contents of the constitution by reflecting the concerns and rights of minorities;
  • informing constitution-makers about the aspirations of the people;
  • creating political space for the emergence of new actors and strengthening civil society actors;
  • building trust between communities and leaders through dialogue;
  • educating the public about constitutionalism;
  • improving public ownership of the resulting constitution;
  • laying foundations for democratic and participatory government and a culture that respects the rule of law;
  • enhancing public willingness to defend the constitution and achieve its implementation; and
  • contributing to future conflict prevention and transformation by encouraging conflict resolution through constitutional means.

While research has yet to provide clear evidence for beneficial effects of the kind just outlined, it can be expected that designing processes around such principles will often have a positive impact. On the other hand, there are no one-size-fits-all prescriptions for constitution-making processes leading to such outcomes. Such processes are intensely political and each context will have unique challenges and opportunities.

Inclusive, participatory, transparent, and nationally owned processes usually take a considerable amount of time to complete. In the constitution-making processes in Uganda [1995], South Africa [1996], and Bougainville–Papua New Guinea [2004], national actors took years to deliberate on their new constitutional order because of the special measures they adopted for greater public participation, transparency, and inclusion at each stage of the process. They did so in processes that involved little international guidance (though in Uganda and Bougainville there was international support in terms of funding, and a limited provision of advisers).

In each case the opportunity was seized to use the constitution-making process to promote national identity and national ownership through direct public participation, civic education campaigns, dialogue, reconciliation and conflict resolution among estranged communities, public consultation about constitutional options, and a process of consensus-building among all key stakeholders. Leaders of these nationally owned processes more readily understood the benefits of focusing on the process and not just the content of the constitution. This can be contrasted with intensely international settings where short timetables are imposed, which have led to the exclusion of civil society and the broader public. (See part 4.2.)

While these guiding principles are referred to at various points in this handbook, they are not promoted as the key to success if applied uniformly. In some circumstances it may be necessary to implement a process that does not adhere in full to the principles. Accommodation of elites may be necessary at particular stages. For example, processes that lead to interim constitutions, and processes conducted in the context of high levels of instability, may require that parties to the conflict negotiate constitutional change to reduce conflict in the absence of fully participatory and transparent means (e.g., negotiations for the changes to the Papua New Guinea constitution agreed to in the Bougainville Peace Agreement of 2001).

During violent conflict, constitution-makers may need to limit public participation because a lack of security prevents the public or just key groups from being consulted. Popular participation can be hard to manage, does not readily involve people from all social groups, and can be manipulated by entrenched political interests, sometimes contributing to division and uncertainty. True inclusiveness is almost impossible to achieve, and efforts to achieve it can make a process unwieldy or unmanageable. Taken too far, it adds to the difficulties for decision-makers in making balanced and informed decisions. Transparency, while a laudable goal, may derail the process if deliberators are forced to try to reach constitutional compromises under the public’s gaze.

Practice shows that these principles should be applied in ways that minimize risks and contribute to a durable peace by taking into consideration the unique circumstances of each case. This handbook provides guidance on the application of these principles, but always with reference to the political and social realities that constitution-makers face.


Need for and purposes of this handbook

Making available knowledge of options for the processes of constitution-making and reform

Until now there has been nothing like this handbook available to constitution-makers. Since the end of the Cold War in the late 1980s, there has been a dramatic increase in constitution- making, in large part aimed at ending violent conflict or deep divisions. Yet constitution-makers and international constitutional-assistance actors have had little guidance or information about the process of making constitutions, the wide range of past experience of constitution-making processes in both postconflict situations and more generally, and the range of possible outcomes. Anyone contemplating what might be involved in designing, starting, and carrying out a process of constitution-making could look at case studies of particular processes and comparative academic analyses of a few particular institutions or procedures. But there are thousands of design, implementation, and other choices involved in developing a process, especially where such difficult goals as conflict transformation and resolution are involved. Yet until now there has been nowhere for a constitution-maker to explore practical knowledge about the range of tasks and institutions that might need to be considered as part of such a process.

We have been in the shoes of such constitution-makers. Among us, we have been involved in leading or advising dozens of constitution-making processes. We have had to learn on the job— sometimes from one another or from other practitioners—but without the knowledge of the full range of options and relevant experiences from the last forty years of constitution-making.

This handbook attempts to meet that need. Much of the knowledge required to prepare it was not available in the academic literature. To survey the range of options and experiences in constitution-making, we conducted workshops and interviews over a period of three years with more than 120 practitioners and academics from every region and from dozens of countries.

Although constitution-making processes often have unique contexts, procedures, and bodies, this handbook identifies the myriad tasks that need to be carried out, the variety of institutions and procedures that can be used to carry out those tasks, and who can do them. It also discusses the opportunities and dilemmas sometimes involved in carrying out specific tasks or using particular institutions. This handbook is not about the contents of a constitution (about whether to have a presidential system or a parliamentary one, whether to have a right to food, or an audit court, and so on), but just about the processes that can be used to make the decisions about contents.

The handbook emphasizes the goal of making a constitution in a democratic, participatory, transparent, inclusive, and representative way while underscoring the deeply political nature of constitution-making and the risks and opportunities that relate to applying these principles in a sensitive manner at each step in the process. For example, the promotion of dialogue and debates on constitutional issues may be helpful in some contexts but could derail the process at an early stage in a deeply divided society where such discussions could increase levels of polarization.

At the same time, the handbook emphasizes that there is no single correct way of designing a constitution-making process. There are endless variations in the tasks carried out, the sequence in which they are executed, and the institutions and processes involved in getting that work done.

The handbook pays particular attention to the special needs of constitution-making processes intended to end violent conflict, or to contribute to reconciliation and consensus in otherwise deeply divided societies. It alerts readers to both the opportunities and the dilemmas that are peculiar to constitution-making in conflict or postconflict situations. And it emphasizes that the constitution-making process will not serve so constructive a role as it might unless peacebuilding opportunities are maximized and constraints overcome. For example, we note that in a conflict or postconflict context the designers of the process may need to consider the purposes of a process other than simply creating the framework for governance and adopting a constitution, such as:

  • identifying the underlying societal issues and defining the agenda for reform;
  • developing a national consensus on the goals of the constitution;
  • resolving outstanding national or regional issues and difficulties;
  • promoting a national identity (a particular problem in multiethnic states);
  • educating the people in principles of democratic theory as well as democratic practice— through the experience of making a constitution in a deliberative and participatory fashion;
  • ensuring wide public participation in the process and knowledge of the constitution—in part to facilitate its implementation, protection, and legitimacy;
  • negotiating entry into the international community; and
  • transitioning to a democracy, civilian rule, or social justice.

Another goal of this handbook is to bring a particular focus to the importance of the processes by which constitutions are made. There is much study (by constitutional lawyers and political scientists, among others) of the effect on conflict and deep division of choices on the content of constitutions. There has so far been limited research on the impacts of constitution-making processes, either on conflict resolution and reduction of deep divisions or on the success or failure of constitution-making more generally (for example, as when observers might attempt to measure success by longevity). As discussed further in part 1, the little research done to date has so far not provided the evidence that permits prediction of effects arising from the use of one procedure over another or in particular combinations. Some scholars have broadly noted that more democratic processes tend to produce more democratic constitutions, and that the more representative the constitution-making body, the greater the likelihood that the country will not return to violence.

The lack of such evidence is related to the immense variety in both the shape of processes and the context in which the processes take place. Context alone tends to ensure that in any case there are multiple variables that have a great effect on the outcomes of a constitution-making process that cannot readily be taken into account in either evaluating a process or determining lessons from past processes when planning later ones. Such variables include culture, history, leadership, resources and economic activity, the nature of the conflict or division, numbers of languages, geography, and degree of strategic interest on the part of international actors. Another reason why an assessment of outcomes is difficult is that processes are often not so much designed as negotiated through intensely political interactions usually dominated by politicians and often behind closed doors. (See the discussion of this issue in part 1.) Extensive public participation can generate involvement of new actors, which can make what is often an ongoing series of negotiations about the process ever more unpredictable.

Accordingly, outcomes of a process or procedure may depend less on its design and implementation than on other dynamics: whether political leaders or spoilers derail the process; the levels of resources available for the process; the availability of skilled political leaders or negotiators; a change in the international community’s agenda or commitment to the process; and the cost of failure (for example, whether it might mean a return to war); and the like.

Even determining what is a “success” or a “failure” for a constitution-making process is difficult. A legitimate constitution may be an element of success. But who defines what is a “legitimate” outcome, and how is this measured? Longevity of a constitution may be seen as a measure of success of the process that adopted it. But many people assert that constitutions made to assist in the transition from war to peace may succeed in that role at that time, but then need to be changed to meet the needs of more stable times. It may also be difficult to link longevity to procedural or implementation choices. A constitution may be short-lived for reasons little related to the process by which it was made. Moreover, a process that does not result in a constitution may set the stage for future constitutional reform and more democratic institutions and practices. For example, extensive civic education in a “failed” process may lead to demands for a consensus-based constitution in the future, or even have positive impacts on constitutionalism under the existing constitution.

Despite the lack of evidence about the effects of constitution-making processes and procedures, there are clear trends toward new standards in such processes and general principles about what may support a more durable peace in conflict and postconflict contexts. As discussed further in parts 1 and 2, this handbook places a particular emphasis on public participation, which is closely connected to gradually broadening concepts of people’s democratic rights. There are other broad principles of constitution-making—inclusiveness, representation, transparency, and national ownership—that, together with public participation, are seen by some as part of a “new constitutionalism.” Those principles and their potential benefits are discussed toward the end of this section.

The intended audience for the handbook

Our intended readers include anyone who may be engaged in a process or who is interested in improving constitution-making practice. They could include members of constituent assemblies or constitutional commissions, government officials, politicians, civil society, activists, donors, foreign advisers, policy analysts, academics, and international-aid actors. We have tried to cover a wide range of issues, ideas, experiences, problems, and successes, and to provide practical tips, in the hope that the book will be helpful to the greatest possible range of people.

Although we have prepared this handbook to be of use to a wide audience, we pay special attention to the needs of the reader undertaking a constitution-making process in a conflict or postconflict country. Divided societies face unique challenges in achieving a consensus-based constitution. Mistrust may be endemic among communities or between new and old leaders. Spoilers may remain outside the constitution-making process or emerge as it proceeds. Leaders or institutions involved in the process may have fuelled the conflict. International actors may have assisted in promoting constitutional negotiations, but may also be exerting pressure for particular outcomes.

Our focus on conflict and postconflict situations does not mean we are ignoring any aspect of the tasks, procedures, and institutions found generally in constitution-making processes. Processes of constitution-making during or after conflict are as varied as they are in any other situation. However, our focus on constitution-making as a means for conflict resolution and transformation has led us to consider particular aspects more intensely. One example concerns interim constitutional arrangements, which can often play an especially prominent role in a postconflict process. It also means that we discuss the conflict issue at each step of the process, including the first decision: whether a new constitution should be prepared. In some cases, the process of creating an entirely new constitution may risk exacerbating or restarting the conflict.

The handbook as a tool in ongoing dialogue with constitution-makers

It is our hope that this handbook will become a tool in the continuing dialogue with a variety of practitioners and experts to improve constitutional practice. A key challenge in preparing this handbook was organizing the wide range of knowledge, experiences, and complex combinations of institutions, tasks, and procedures into a format that could be easily accessed and digested. For these reasons Interpeace has placed this first draft of the handbook on the Internet, for feedback and to promote continued discussion. After each section of the handbook on the website, there is a space for readers to provide comments. We would be grateful if readers would enlighten this first draft of the handbook with their experiences, observations, and suggestions with regard to the content and how to improve the accessibility of the material. In 2012 we will be providing a mechanism on the website whereby those involved in a process can get answers to their constitution-making questions.


Some emerging guiding principles

The broad principles of “participatory” constitution-making can be summarized as public participation, inclusiveness (including gender equity) and representation, transparency, and national ownership.

Public participation

Political elites inevitably play a major role in making decisions about how to structure a new state. However, there is now an established trend to build into the process broad participatory mechanisms in order to avoid a constitution that simply divides the spoils among competing factions, and to improve the chances of the new constitution enjoying a high degree of popular legitimacy. The forms of public participation now go beyond voting for constitutional representatives or in a referendum. Instead, they include civic education and media campaigns, public consultation (both on how the process should be undertaken and on the substance of the constitution), national dialogue, and other creative means. We discuss throughout this handbook opportunities to make the process more genuinely participatory, along with the potential risks associated with public participation and how to minimize these risks. (See, in particular, part 2.2.)

Inclusiveness (including gender equity) and representation

An inclusive process will attempt to draw in all key stakeholders to the constitutional negotiations (see box 9). Special efforts will be made to reach out to marginalized segments of society, such as the disabled, women, youth, indigenous populations, and the poorest of the poor. This handbook discusses how to design a process that is inclusive at all stages. Some recent constitutional processes have deliberately undertaken special measures to ensure that women are represented by at least 25 percent in constitution-making bodies, and that they participate more fully during each stage of the process (e.g., Afghanistan [2004]). We provide examples throughout the handbook of how to ensure women’s full participation in the process, including in the institutions’ rules of procedure, during civic education and public consultation, as staff members or leaders of an administrative management body, and in playing a role in civil society activities such as lobbying and monitoring the constitution-makers. These gender equity tips are provided in each relevant section rather than having a specific section on gender issues.

Transparency

In contrast with the elite-dominated processes that occurred in closed conference rooms that were the rule until the 1970s, a transparent process enables the public, the media and civil society to participate by keeping them informed about how the process will be conducted, the modes of appointment and election of their representatives, the adoption process, their role in the process, and providing feedback about the results of public consultations. Transparency also involves providing for media access at appropriate times. This handbook discusses throughout when transparency is a benefit and when a more open process can be a drawback.

National ownership

Solutions to conflict and division must come from within a country if a durable peace is to have a chance. There is a need, in contexts where educated or experienced professionals or political actors have fled the country, to provide the space, time, and resources to develop the capacity of inexperienced national actors to manage and implement the process effectively. We discuss in several sections what national actors can do to manage or relate to international actors, in particular the international community, to reduce the influence of competing or foreign agendas that do not support the national objectives for the process. The handbook is also focused throughout on promoting a broader national ownership of the public through participatory mechanisms such as civic education and public consultation, etc.