4.2.1 Common pitfalls of processes led or heavily influenced by the international community

It is not possible here to review the full range of experience of constitution-making processes where the international community has played leading roles of one kind or another, save to note that there are conflicting opinions regarding each case and what may have been helpful or harmful forms of engagement. For example, some analysts would argue that the United States’ role in Afghanistan led to undue influence over the content of the final constitution. Others would assert that without United States involvement warring factions would not have come to an agreement at Bonn and the new constitution would have been shaped largely by warlords who were not legitimate representatives of the people and who wished to create a more conservative Islamic state than was finally adopted. There are also many views in between these two positions. Each case is unique of course and the role of the international community will differ. There are, however, some pitfalls common to most situations where the international community has a significant influence on a process, either officially or unofficially.

Lack of doctrinal or practical guidance for constitutional assistance

Occupying governments or governments with a high level of influence over another country (e.g., the United States in Bosnia-Herzegovina [1995] and Iraq [2005]) or multilateral bodies playing similar roles (e.g., the United Nations in Timor-Leste [2002] or the European Union in parts of the former Yugoslavia) have largely determined their approach to domestic constitution- making in such countries on an ad hoc basis and without guiding principles. This has led to mixed results. Success or failure has often depended on the quality of leadership and decisions taken in the field without appropriate consideration of the range of options and comparative experiences in constitution-making assistance (Brandt 2005).

For example, the United Nations played key roles in the constitution-making processes in Namibia [1990], Cambodia [1993], Timor-Leste [2002], Afghanistan [2004], Iraq [2005], Nepal [ongoing process], Somalia [ongoing process], and Zimbabwe [ongoing process], but did so without the benefit of a focal point or department at United Nations headquarters to provide doctrinal guidance, access to appropriate resources, and a point of reference on lessons learned elsewhere.

In Timor-Leste (formerly East Timor), the director of political affairs for the United Nations Transitional Administration in East Timor proposed a constitution-making process similar to that followed in the United Nations-assisted Cambodia process a decade earlier—a ninety-day affair that excluded the public and even a majority of the constitution-makers and was largely conducted in secret. (See the Timor-Leste case study, appendix A.11.) The transitionalPart 4: Guide to key external actors in the process: Civil society, the media, and the international community administration did not take notice of the increasing trend toward more participatory processes that had emerged in the decade after the Cambodia experience. There was no focal point on constitution-making assistance at United Nations headquarters that could reflect on the lessons of the Cambodian and subsequent experiences and highlight emerging good practices. The short time frame and lack of real popular participation in the Timor-Leste process were probably factors in the emergence of conflict soon after the constitution was adopted. Yet these deficiencies in the process could have readily been avoided (Brandt and Aucoin 2010).

The international community does not have the resources to support constitution-making processes to nearly the same degree as it has for other elements of peacebuilding and democratic transitions. This is true despite the centrality of constitutional exercises to many peace processes and their importance to achieving durable peace. The contrast with available resources for technical advice and support that is available for electoral assistance is instructive. For example, the United Nations Electoral Assistance Division exists to undertake assessments of needs; develop operational strategies for electoral components of United Nations operations in the field; maintain a roster of electoral experts; review lessons learned; and document and standardize good practices.

The failure of the international community to similarly prioritize constitutional assistance has meant that there has been little institutional learning from process to process in the United Nations and elsewhere in the international community, continued improvisation, and poor results in some processes.

The imposition of tight timetables

Some countries emerging from conflict may require relatively short political transitions because of security issues, donor fatigue, or other political imperatives. Tight timetables are not always essential, yet in highly internationalized processes the timetables are almost always short—at times as little as ninety days to draft, debate, and adopt the constitution. Such timetables usually reflect the needs of international funding and planning cycles or the desire for the international community to have an exit strategy, rather than the requirements of the local context. In some cases, timetables have been rushed because of another country’s internal political agenda. In Iraq, the United States administration pushed for the process to conclude before scheduled United States national elections because it was perceived that a new Iraqi constitution would improve President Bush’s chances at the polls.

Late in 2001 a consortium of civil society actors in Timor-Leste wrote the United Nations Security Council to express the view that the United Nations was rushing the constitution- making process because it needed an early end point for the process and a rapid exit from its role in establishing the new state. The letter that follows made the following points:

A Constitution is a complex document embodying fundamental choices about the type of country an independent East Timor will be. This Constitution has to be a living document, which reflects how the East Timorese as a people see themselves, relate to each other, and finally, after many centuries, govern themselves…

For this to happen, the East Timorese people have to be provided with the information on the choices that have to be made, information on what a Constitution is, and information on the options available to them on the fundamental issues. They will then need time to consider and debate so that they are able to form opinions, time to hold discussions in order to seek consensus where opinions are divided, and finally time to officially record their views. None of this can happen in three months.

All the legitimate constitutional processes that have taken place in recent years [in other countries] were carried out over a period of three to four years. The public consultation process for the South African Constitution lasted over three years. A three-month process would rob the East Timorese of their right to contribute to the future of their country and it will alienate them from the very document that should voice their aspirations.

As this handbook emphasizes, constitution-making can provide an opportunity to undertake a deliberative and democratic process that promotes national reconciliation, public participation, national ownership of the constitution, conflict resolution, and a cohesive drafting process. Postconflict situations in divided societies are highly sensitive and, if unduly rushed, can lead to greater polarization of society rather than building peace. This can be the case if local actors view the constitution as the product of only a few key stakeholders and not as a consensus-based document that reflects the aspirations of the broader community (e.g., Timor-Leste [2002]).

Public participation that is not viewed as credible

Several nationally owned and led constitution-making processes that have been “people-driven” have been recognized as making contributions to conflict resolution and peacebuilding (e.g., in South Africa and Uganda). Significant time and resources have been dedicated in these processes to preparing the people to participate, to consult with the public and to serious consideration of the views of the public. (See part 2.2.) This type of dedication to public consultation and dialogue has not yet been seen in processes led or heavily influenced by the international community. In part 2.2 we discuss the principles and procedures that can secure genuine engagement with the public.

Although the international community often states that public participation is critical to democratic transitions, the imposition of tight timetables or other international agendas often curtails genuine public participation in highly internationalized settings (e.g., Cambodia [1992], Bosnia-Herzegovina [1994], and Timor-Leste[2002]). In Iraq [2005], it was international NGOs that largely led the public consultation process, and although thousands of submissions were received there was no time to analyze the views, in part, because the United States had pressured the constitution-makers to conclude the process by a particular date. Although the United States could claim that the process was participatory it yielded little democratic benefit to the country, and could potentially have increased mistrust of governing elites and processes touted as “democratic.” When a process will be primarily driven by elites or politicians (even where this is justified by the political or security situation) it is better to explain that this will be the case and why rather than claim that it will be “people” driven when the conditions are not present or there is no time or plan to conduct a participatory process. (See part 2.2.)

Engaging primarily political elites or warring factions

If the international community intervenes through negotiations or mediation efforts to end a conflict, it will typically do so by engaging with the actors who are left holding the guns and with political elites. However, a constitution-making process in a divided society should promote national unity, consensus building, reconciliation, and a sense of a shared national unity. This can only be achieved through an inclusive process. Several Security Council resolutions call for more inclusive processes (e.g. Security Council Resolution 1325 on Women and Peace and Security calls for women’s full participation in peacebuilding and postconflict reconstruction). The constitution-making process can be an important catalyst for the wider peacebuilding process if it includes the broader public and not just elites. To the extent possible, even the early negotiation phase should be as participatory as possible.

An extreme example of an elite process was seen in Bosnia-Herzegovina, where the Dayton conference and the resulting national constitution negotiated in the United States excluded any input from the people of Bosnia. They were not consulted about the content or given an opportunity to reflect on the constitution contained in the peace agreement before it came into force. The focus was on ending the war and ensuring agreement among the previous warring factions. There was no room for a focus on building a culture of constitutionalism or enhancing the legitimacy of the agreement even at a later stage. (See appendix A.4 for a case study on Bosnia-Herzegovina.) Even in contexts of violent conflict there may be ways of opening up the process (albeit in a limited way) through reaching out to civil society actors, local community leaders, etc.

Treating constitution-making as primarily a technical exercise

International constitutional assistance often focuses on the technical aspects of the exercise rather than on the political dynamics or how to structure the process to best take advantage of peacebuilding opportunities. In particular, the international community has focused on the drafting and content of the constitution rather than on creating the conditions for genuine public participation, peaceful negotiations, civil society involvement, and dialogue and deliberation on key issues. This has meant that in many cases the international community’s main effort is to hire a constitutional professor (often with no experience in a postconflict environment) to advise the national actors. Such a focus can also contribute to a tendency for international experts to push for reforms drawn from their own countries rather than to support national actors in solving their problems using solutions arrived at locally. (See parts 2.3.6 and 3.4.1.) Most importantly, this type of assistance fails to consider the broader needs of the process, such as development of the skills of national actors in other key areas such as negotiations, financial management, or public consultation skills.

Stressing electoral solutions to problems of representation and legitimacy

The international community tends to emphasize the use of elected bodies in postconflict constitution-making processes, seeing such representative institutions as the most legitimate bodies to prepare and adopt a constitution. However, particularly in the first postconflict elections, parties may be nascent and based on ethnic affiliation or linked with a particular leader or personality rather than with a set of proposals for the constitution. Groups that were marginalized during the conflict or in society (such as women, youth, or minorities) may not have access to membership in the parties. Therefore a reliance on elections alone may not lead to a legitimate body to prepare a constitution, the expression of the people’s constitutional aspirations in the draft, or consensus-building. As a result, there can be advantages in considering other approaches (as discussed in part 3—e.g., using a constitutional commission or similar institution to consult widely with the people and develop a draft that is eventually debated by an elected assembly—which could also have membership through some selection procedures) (Brandt 2005: 30). The international community must reflect on the purpose of the constitution-making process in a divided society first and consult with the people about how to create legitimate bodies and processes to realize the vision.

In Timor-Leste [2002], the director of political affairs for the United Nations Transitional Administration in East Timor argued that the only way for a proposed independence constitution to be legitimate was for it to be drafted, debated, and adopted by an elected constituent assembly. Civil society and other national leaders were calling for an independent constitutional commission to prepare a draft and an elected constituent assembly to adopt it; this was a common two-stage process at the time, and arguably more suited to the Timorese national context. Indeed, as predicted a single Timorese political party dominated the constituent assembly. This domination meant that Timor-Leste lost the opportunity to promote a more inclusive process and encourage a broader set of stakeholders to seek consensus on the constitution. The constitution the assembly created was viewed by most as a one-party constitution, this being one of the reasons why violence flared up a few years later.

In contrast, in Afghanistan [2004], a constitutional commission developed a draft constitution, and it was an elected assembly (the Constitutional Loya Jirga) that considered the draft and had responsibility for deciding on and adopting the new constitution. The United Nations advised that special seats in the Constitutional Loya Jirga should be set aside for marginalized groups. The inclusion of women and minorities had an impact on the final draft of the constitution and gained them greater constitutional rights (Brandt 2005). (See part 3.1 for a discussion of the range of mechanisms for creating representative bodies.)

Failure to develop capacity of national actors and promote national ownership

A process that is rushed by the international community in postconflict environments (where many educated national actors may have fled the country) will often lead to international technical advisers taking over certain aspects of the process rather than finding the appropriate national actors to do the job. In Somalia in 2010, the United Nations imposed a deadline of sixty days for the inexperienced constitutional commissioners to deliver a draft constitution, resulting in heavy reliance on foreign expertise to meet the deadline. In Timor-Leste [2002] international actors were put in charge of directing the constituent assembly’s secretariat rather than developing the capacity of a national actor to perform the task.

A process that is rushed will also limit the amount of capacity development or training available to national actors to ensure that they perform their tasks effectively. This can lead to poor results and a missed opportunity to build the capacity of national actors to lead and manage key democratic activities. For example, if civic educators are trained well these same persons can be used to conduct voter education in the future. (Related issues concerning problems in the use of foreign advisers more generally are discussed in parts 2.3.6 and 3.4.1.)

“National ownership” of a process and the constitution emerging from it involves not only government or the elites owning and leading the process. Ownership of the process should also extend to the people more generally. In a postconflict context there may be few legitimate representatives of the people. Early in the process, efforts will need to be made to understand the concerns and aspirations of the people and to take these into full account in the approach to be taken. Input from a wider range of actors can improve the prospects of the process contributing to a national consensus on the way forward.

Assistance or engagement ends with adoption of a constitution

To breathe life into the constitution, attention must be given to how it will be implemented after it is adopted (See part 2.7.2.) Funding, resources, and assistance (provided in ways that promote national ownership) are likely to be needed postadoption to encourage national actors to give effect to the constitution and to support the enhancement of a culture of constitutionalism. However, where the international community has played the dominant role in the constitution- making process, there has been little evidence of understanding of the need for ongoing support in relation to implementation.