There is little specific guidance for international actors in the constitutional-assistance field. Further, few international actors have reviewed the results of their constitutional-assistance efforts. The United Nations is an exception. It commissioned a report on UN constitutional assistance (Brandt 2005) and late in 2005, participants at a high-level meeting reviewed the United Nations’ experience in supporting constitution-making processes. They concluded that while the United Nations had provided various forms of assistance to those processes, the results had been mixed and the assistance given had been improvised. They recommended that the United Nations receive doctrinal guidance and that it establish a central agency to be responsible for the coordination of United Nations constitutional assistance. They underscored that constitutional expertise was primarily located outside the United Nations system, and that it was important for the United Nations to link with external partners. It was also agreed that a systemwide guidance note should be adopted and an address for the coordination of constitution- making assistance designated.
In 2009, the Secretary-General circulated a guidance note on United Nations assistance to constitution-making processes. The note provides the guiding principles and framework for United Nations constitution-making assistance and underscores that when such assistance is requested by national authorities it should do the following:
- capitalize on the opportunity for peacebuilding that such a process affords in conflict and postconflict countries;
- promote compliance with international norms and standards;
- recognize that constitution-making is “a sovereign national process, and that to be successful the process must be nationally owned and led”;
- promote “inclusive, participatory, and transparent constitution-making processes”;
- make available, when needed, a wide range of expertise, both inside and outside the United Nations system; and
- promote adequate follow-up after adoption of the constitution.
It also designated the Rule of Law Coordination Resource Group, supported by the Rule of Law Unit, as the convening mechanism for United Nations constitutional assistance, with the following responsibilities:
- ensure policy coherence and development;
- document United Nations experiences;
- build institutional capacity and record lessons learned;
- mobilize and coordinate the efforts among the various United Nations departments and agencies providing constitutional assistance; and
- lead a consultative process to further develop United Nations policy on constitutional assistance.
To date, the Rule of Law Coordination Resource Group has not built its capacity to implement this mandate. The authors also are not aware of any other similar constitutional assistance guidance mechanism for members of the international community. The guidance note was an important first step for the international community to understand the importance of the process of constitution-making and the broad principles that should be followed.
This handbook discusses and provides guidance on wide-ranging aspects of constitution-making processes. It provides very specific tips on the principles of participation, inclusion (including the full participation of women), and national ownership. The tips emphasized here are only brief reminders of matters already discussed in-depth. However, we focus on these abbreviated points with particular emphasis on how, in processes where particular international actors play leading roles, they can improve their efforts and reduce the likelihood of encountering the problems and pitfalls just discussed:
- At all times, be conscious that constitution-making is a sovereign process, and a deeply political one.
- Seek to promote genuine public participation, inclusion, and nationally owned and led processes, and avoid imposition of conditions, such as artificial and compressed timetables, that meet the interests of international actors but at the same time generally undermine the possibility of the process being participatory, inclusive, and nationally owned.
- If asked to provide assistance, take time to understand the complex political nature, as well as the logistical and resource needs, of a process, and ensure that assistance is appropriate, promotes democratic principles, does not sideline national actors, and is provided in a coordinated manner, so as to avoid problems such as duplication of effort and waste of resources.
- Do not fund or support processes that claim to be “people driven” where the conditions do not exist to conduct a participatory process (e.g., a legal framework that puts politicians clearly in the lead, a lack of political will of the leaders to engage the public, a lack of security or the ability of the people to speak freely, or a lack of independent media). The international community may end up bolstering the legitimacy of a process that has largely excluded the people and is manipulated by only a few elites.
- Remember that the principle of “national ownership” requires not only that national actors lead the process but also that civil society and the broader public are provided with opportunities to “own” the process, as well as the outcome. This requires engagement at every stage of the process—even during early phases of negotiation about establishing the process.
- International actors should be careful not to sideline local actors through their engagement in the process. The timetable should be realistic to allow for local actors to prepare for their roles and carry them out effectively (with international technical assistance where needed and requested).
- The extent of local capacity should be assessed before bringing in foreign technical experts or advisers. Such technical experts or advisers should have as part of their terms of reference capacity development of nationals where appropriate and requested.
- When providing advice on options for the structure of the process, consider what mechanism, including but not limited to elections, will lead to a constitutional process with institutions representative of the diversity of the people to the greatest extent possible and will allow for members with specific professional skills to contribute to the process. The mode of appointment or election of such delegates should be transparent and, where possible, can even be participatory.
- Assist with ensuring the conditions for a participatory and deliberative process to take place— one that takes advantage of peacebuilding opportunities.