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 , Bosnia-Herzegovina , Timor-Leste , Afghanistan , Iraq , 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 
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.