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Post-Conflict Constitution-Making Processes

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Post-Conflict Constitution-Making Processes POST-CONFLICT CONSTITUTION- MAKING PROCESSES LESSONS AND BEST PRACTICES FOR SOUTH SUDAN FINAL REPORT 2020 i TABLE OF CONTENTS ACRONYMS .................................................................................................................. iv MESSAGE FROM THE INTERIM CHAIRPERSON OF RJMEC ................................................... v EXECUTIVE SUMMARY ..................................................................................................... viii 1.0 INTRODUCTION ...................................................................................................... 1 2.0 COMPARATIVE EXPERIENCES OF CONSTITUTION-MAKING ..................................... 2 2.1. Benin ................................................................................................................................... 3 2.2. East Timor ............................................................................................................................ 6 2.3. Afghanistan ......................................................................................................................... 9 2.4. The Central African Republic (CAR) .................................................................................... 12 2.5. Colombia ........................................................................................................................... 15 2.6. Eritrea ................................................................................................................................ 16 2.7. Burundi .............................................................................................................................. 18 2.8. Ethiopia ............................................................................................................................. 19 2.9. Somalia .............................................................................................................................. 21 2.10. Rwanda ............................................................................................................................ 23 2.11. South Africa ..................................................................................................................... 24 2.12. Iraq .................................................................................................................................. 26 2.13. India ................................................................................................................................ 29 2.14. Kenya ............................................................................................................................... 30 2.15. Uganda ............................................................................................................................ 33 2.16. Nigeria ............................................................................................................................. 35 2.17. Bosnia & Herzegovina (B&H) ............................................................................................ 36 2.18. The Democratic Republic of the Congo (DRC) ................................................................... 38 2.19. Pakistan ........................................................................................................................... 39 2.20. Sudan .............................................................................................................................. 41 2.21. Poland ............................................................................................................................. 42 Table A: Key Highlights of the Constitution-Making Processes within the Case-Studies ............. 44 3.0. EMERGING ISSUES, TRENDS AND BEST PRACTICES ............................................... 49 ii 3.1. Structure of Implementing Organs ............................................................................... 50 3.2. Judicial Review of Draft Constitutions .......................................................................... 51 3.3. Negotiations and Transparency .................................................................................... 52 3.4. Public Participation and ownership .............................................................................. 53 3.5. Public Education and Consultation ............................................................................... 54 3.6. Linking Consultation to Drafting ................................................................................... 55 3.7. Timing of the Process ................................................................................................... 55 3.8. Democratic Representation .......................................................................................... 56 3.9. Party Drafting versus Consensus Drafting ..................................................................... 57 3.10. The Role of the International Community and ExPerts .................................................. 58 4.0. OBSERVATIONS AND CONCLUSIONS .................................................................... 59 4.1. Trends and best Practices ............................................................................................. 60 4.1.1. Guiding principles ................................................................................................... 60 4.1.2. Constitution-making bodies ................................................................................... 60 4.1.3. Public education and popular participation .......................................................... 61 4.1.4. Judicial oversight over the Constitution-Making Process .................................. 61 4.1.5. Adoption of final draft constitution by referendum ............................................ 62 4.1.6. Timing and transition contexts .............................................................................. 62 4.1.7. Involvement of external actors ............................................................................... 63 4.1.8. Involvement of particular domestic constituencies ............................................. 63 4.1.9. Post-adoption safeguards ........................................................................................ 64 REFERENCES .................................................................................................................... 65 APPENDIX: MATRIX OF SELECTED CASE STUDIES .............................................................. 70 iii ACRONYMS B & H Bosnia and Herzegovina CAR Central African Republic CNRT National Congress of the National Council for Timorese Resistance CODESA Convention for a Democratic South Africa CoE Committee of Experts CPA Comprehensive Peace Agreement DDRR Disarmament, Demobilization, Reintegration and Repartriation DRC Democratic Republic of the Congo EPRDF Ethiopian Peoples Revolutionary Democratic Front KRG Kurdistan Regional Government MINUSCA United Nations Multidimensional Integrated Stabilization Mission in the Central African Republic MPNP Multi-Party Negotiating Process NCC National Constitutional Conference NRM/A National Resistance Movement/Army PDPA Peoples’ Democratic Party of Afghanistan R-ARCSS Revitalized Agreement on the Resolution of the Conflict in the Republic of South Sudan RJMEC Reconstituted Joint Monitoring and Evaluation Commission RTGoNU Revitalized Transitional Government of National Unity TAL Transitional Administrative Law UCC Uganda Constitutional Commission UNTAET United Nations Transitional Administration in East Timor iv MESSAGE FROM THE INTERIM CHAIRPERSON OF RJMEC As the Interim Chairperson of the Reconstituted Joint Monitoring and Evaluation Commission (RJMEC), I am honored to bring to you this very detailed comparative report on the “post-conflict constitution making-processes”. This report builds on our continuous and ongoing efforts, to help the people of the Republic of South Sudan in their search for enduring peace, justice and good governance based on the rule of law and constitutionalism. It is intended to provide a useful reading and background material for the parties and stakeholders in the country as they consider the best possible path towards the making of a permanent constitution. There are many cases documented in this study and many lessons to be drawn by any country embarking on such an important journey. As indicated in the report, the making of a permanent constitution is not an easy task, especially in transitioning countries emerging from conflicts. Many of the case studies were countries which were grappling with a myriad of issues akin to South Sudan today. However, some of these countries that have navigated this path before, did it successfully, but others not very successfully. Having examined about twenty-one of such countries, with similar experiences and different outcomes, the study report offers a wide range of examples and approaches for the South Sudanese parties to learn from. It is my hope that it will contribute to their choices of a combination of approaches that would yield positive results within the South Sudan context. The R-ARCSS already lays a framework for the making of a permanent constitution which mirrors many of the processes highlighted in the study. Under Chapter Six of the R-ARCSS, amongst other things provides that: it is the responsibility of the RTGoNU to initiate and oversee the permanent constitution making process; the RTGoNU is required to adequately budget for the process; there are
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