Experts play critical roles in constitution-making. But the roles have changed over a long period, as have the types of experts. The roles depend to a considerable degree on the relationship of experts to the constitution-makers. Until recently, lawyers, often academic lawyers, played a central role. They would draft constitutions on behalf of monarchs. With the rise of parliamentary institutions, the role of experts became that of advisers to political parties, who made the final decisions. During the decolonization period, academics in the metropolitan states would be recruited to advise on, and often draft, the constitution. Sometimes the whole process would be dominated by the expert, within the overarching aims of the colonial power or the newly emerging elite. With the shift to mass participation, the locus has moved, not disregarding experts but reducing their role increasingly to technical matters. Mass politics and mass participation have dented the mystique of experts and their monopoly on knowledge.
Changing roles of experts
The roles and types of experts have also changed with the changing nature of the constitution. The contexts of constitution-making have altered significantly in the last fifty years or so (after the wave of decolonization). Many constitutions have been made in the wake of, or to settle, internal conflicts. In such circumstances, the skills of the traditional adviser, whom we may call the “generalist,” covering all aspects of the constitution, were not sufficient. The specialist entered the field. The need for specialists increases when the constitution-making process is embedded in complex processes of peacebuilding and the sharing of power (as in Bosnia- Herzegovina, Northern Ireland, and Sudan); they must address such issues as what to do with weapons disposal, merger of armed militias, return of refugees, and transitional justice. There are now competing theories of how peace and harmony are to be achieved, and of the negotiating process (each with its special jargon). Some constitutions, in the post–Cold War period, aimed at democratization, have been dominated by theories of transition to democracy.
Another change is in the scope of constitutions. The lawyer-generalist sufficed when the focus was on systems of government, informed by the theory of the separation of powers, particularly the independence of the judiciary, and occasionally the protection of minorities, restricted to civil and political rights. The lawyer-generalist was often not well versed in the policies or intricacies of electoral systems or the politics of ethnicity, the complexity of land issues, or concerns with social justice. For the most part these were omitted from the constitution and left to the political process. Today people look to a constitution to solve a myriad of political and social problems, including representation (of women, the disabled, minorities), exclusion (when the state is dominated by one or two communities), social justice (perhaps through affirmative action), power sharing (including decentralization), identity (particularly in multicultural states), social reforms (for example, addressing oppression within society), environmental sustainability, accountability of security forces, and tighter financial and budgetary processes. Increasingly these require specialist knowledge, and so the range of experts who become involved in advising on the constitution has increased exponentially. And the coordination of these experts becomes critical.
A further development is the enlarged role of the international community (defined to include participation of other states, regional or international organizations, and international NGOs) in national constitution-making processes. This may come about because of the collapse of a state or other serious circumstances that require international help and assistance (such as in Cambodia , Bosnia-Herzegovina , Timor-Leste , Afghanistan , and Kosovo ). The role of the foreign expert has been facilitated by the desire of some countries to play an international role, the emergence of international norms whose incorporation in a constitution is deemed to require specialist help (indigenous peoples’ rights, gender issues, environmental sustainability, transitional justice), and the rise of international NGOs, funded mostly by Western governments, which can be sustained only if they generate business. International institutions such as the United Nations Development Programme also seek to play a role. Consequently a class of professional experts (as opposed to other types, who are at best part-timers) has arisen, assuming the dimensions of an industry, with an interest in conflict.
The internationalization of constitution-making processes also means that experts come from many different legal traditions. Few are comparative lawyers; certainly few common lawyers know much about civil law systems, and the converse is also true. This may make it difficult for them to work well together, because approaches, concepts, and preferred institutions may vary among them. A commentator on the Dayton process for Bosnia-Herzegovina noted the clash of legal traditions and styles, and said that cultural differences among lawyers (some from the United States, some from Europe, some from the Balkans) slowed the drafting but also allowed ideas to be examined carefully and provided for cross-fertilization among traditions while keeping Yugoslav notions foremost (O’Brien 2010: 337).
Presumably the varied background of experts matters less in more technical areas such as security, environment, and electoral systems. The role of experts has also been greatly affected by the rise of the participatory process. No longer is it the case that experts are invitees of the government. International agencies bring their own experts, without clearance from the government. Many experts come on the invitation of local NGOs, but they are usually funded by grants from outside. Both special groups and individuals consider that they have the necessary expertise to negotiate and decide on constitutional issues; many want to draft the text. These groups and individuals do not generally operate under the auspices of political parties, and thus it is difficult to bring them under “control.” The tendency to usurp the role of experts
is accentuated if the legislature or the constituent assembly sets up thematic committees for decision-making. And there is serious danger of poor drafting and an overall lack of coherence in the document.
Functions of experts
Experts perform different functions. Some transmit foreign examples, in the hope that there is something to be learned from what has occurred elsewhere. (An advantage of this is that the experts do not need to show any knowledge of the local scene—but they should be careful not to suggest that institutions from other countries can necessarily be copied, and their listeners should scrutinize those experiences carefully.) Some perform a more exalted role; they may be experts in conflict resolution. Some play their most effective role as negotiators (often in postconflict situations). In South Africa, apart from experts brought in by local groups, the constituent assembly appointed a panel of local experts to advise it on interpretations of the draft constitutions and to help resolve differences, particularly on legal issues. Frequently experts’ views are sought on a draft constitution before final revisions and adoption (as in Eritrea, Kenya, Nepal, and South Africa).
Experts, particularly perhaps generalist lawyers with a range of legal knowledge, can play a useful role if they have a good understanding of the local context (including culture) and can establish a good rapport with their clients (for more discussion of such issues see the discussion of foreign advisers more generally, in part 2.3.6). Sometimes parties who are negotiating an issue are not really well acquainted with the issue and are afraid to take a position, which they fear will disadvantage them. If the other party suffers from the same syndrome, negotiations can be complicated, drawn out, and bitter—full of suspicion. But if each party has an expert whose advice it respects, a lot of issues can be addressed, leaving the critical questions to be resolved at the level of principals. South Africans used experts from political parties to great advantage in this way.
Some experts come for a specific task: for example, “Tell us what electoral system will ensure that more women or more marginalized groups or more persons with disabilities can be elected to the legislature.” Or “What shall we do about land?” Some advise on how to plan and administer civic education, or analyze public views given to the constituent assembly. Some may be asked to advise on the actual design of the constitution-making process. Many experts may appear only as speakers at workshops. A useful role for experts may be at the start and at the close of the process, the former for an idea of what may be entailed in a good process and some useful comparative perspective, and the latter for comments on the draft constitution before it moves to final approval and ratification. Sometimes experts can be of great help when the issue is either controversial or complicated (such as devolution or federalism); here a panel of two or three experts may show the way forward as well as warning of risks and dangers.
Some experts are closely associated with decision-makers, as advisers to political parties or to the constitutional commission or the constituent assembly. Others operate at the periphery, nested in a local or international NGO. Many come unsolicited, often without a clear role, and offer their services on arrival. Some experts are part of teams and some operate on their own. A foreign expert backed by her government may enjoy privileged access to decision makers.
Local versus foreign experts
In recent years, foreign experts have begun to play an important role in advising on constitutional issues. At the same time, the number of nationals with knowledge of comparative constitutions has increased. What are the comparative advantages of foreign versus local experts?
Sometimes foreign experts are seen as better able to provide objective advice. When Malaya’s independence constitution was to be drafted, agreement seemed difficult due to local political differences. Consequently a panel of international experts was set up to make recommendations, which were largely, but not completely, accepted. Similarly, Namibia’s constitution was drawn up, at the request of the constituent assembly, by three foreign experts, within a broad set of principles agreed to among the political parties. The foreign experts were South Africans who were acceptable to all key political and other interests. In 1996, when Fiji had to draw up a new constitution, the process was held up for several months, as one side wanted a person to serve as chair of the constitutional commission, but that person was distrusted by the other side; progress was possible only after an agreement was reached on a foreign dignitary to serve as chair. And in a situation such as Sri Lanka before the government unleashed an all-out war on the Liberation Tigers of Tamil Eelam, or in the negotiations between the two parts of Sudan, the role of foreign advisers (at the political and technical levels) seemed inevitable. Since the 2008 political election violence in Kenya, most commissions established under new processes intended to resolve deadlock on constitutional and political issues have included foreign members in order to provide objectivity and impartiality.
If experts are sometimes necessary, it is also generally more important for them than most other categories of foreign advisers (see part 2.3.6) to be well informed about local history and contemporary circumstances. Those who are not attuned to local circumstances may tend to rely on what they feel has worked successfully in other countries, in which case some local factor of critical importance is likely to be overlooked. The chances that there are solutions that will work universally are slender. Local experts would generally have a better understanding of local circumstances and nuances. Third World experts, who would have a better understanding of local social and political circumstances, have been not favored by international agencies, much less Western governments.
Experts have important roles to play in constitution-making and implementation processes. With increasingly participatory processes, it is necessary to work out the precise role of experts and the modality of their contribution and participation. The role of the generalist (often a lawyer) as a person to integrate different inputs and ensure the coherence of the constitution needs to be recognized.
With the proliferation of “experts” and their sponsors in some processes, it has become evident that control and coordination become necessary, although neither is easy. Competition among states and international organizations to provide experts (and advocacy of their national models as the answer for another country’s problems) has often undesirable consequences. And to increase the usefulness of foreigners, the suggestions made in part 2.3.6 in relation to foreign advisers generally should be applied with rigor (that is, such foreigners should either already have extensive knowledge of the local context or be required to take courses or be given prescribed readings in local social, political, and constitutional history, demography, and economics. (For more on the role of the international community, see part 4.)