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.