THE UN

CONSTITUTIONAL I

A Newsletter on United Nations Issue 1 Constitutional Support Winter 2013/2014

FOREWORD IN THIS ISSUE

FEATURED ARTICLES (p.2-7)

. Interview with Nicholas Fink Haysom (p.2) . Experience from UNDP’s work on Civic Education in Kenya (p.4) . Comments on the Nature and Importance of “Equal Citizenship” for Political Transitions (p.6)

UPDATES FROM THE FIELD & HQ (p.8-15) Graffiti for the Constitutional Assembly in Ecuador during the constitutional review process in 2007. Credit: ak.beck/Flickr . Iraq (p.8) . Liberia (p.9) We, the United Nations Department of Political Affairs (DPA) and Department of . Libya (p.10) Peacekeeping Operations (DPKO), the Office of the High Commissioner for Human Rights (OHCHR), the United Nations Development Programme (UNDP), the United . Mongolia (p.11) Nations Children's Fund (UNICEF), and UN Women are pleased to publish this . Nepal (p.11) inaugural issue of “The UN Constitutional.” . Somalia (p.12)

The UN, through its field presence and from headquarters, has been providing . Tunisia (p.13) assistance to constitution-making processes in a number of countries, including in

Afghanistan, Cambodia, Iraq, Kosovo and Nepal. In an effort to strengthen system- READER’s DIGEST (p.15) wide information sharing, coordination, and partnership in the area of constitutional assistance, DPA, DPKO, OHCHR, UNDP, UNICEF, and UN Women created an internal coordination structure dedicated to making UN constitutional support to Member ANNOUCEMENTS (p.16) States more effective and efficient. To this end, DPA and UNDP conducted joint constitutional assistance missions to Libya, Sierra Leone, and Somalia in 2013. . UN Women Database (p.16) Additionally, the six UN entities have undertaken several joint initiatives to improve . UNDP Arab Consultation: the quality of UN constitutional assistance and better share knowledge and lessons. Protection of Economic & “The UN Constitutional” is one manifestation of our collective desire to raise Social Rights in Post- awareness around the UN of constitutional issues and themes, share information, and Revolution Constitutions strengthen the provision of constitutional assistance. It is also a testament to the depth and breadth of constitutional support provided by UN Missions and Country (p.16) Teams.

This issue contains topical articles by constitutional experts, a Q&A with Fink Haysom, the UN deputy chief in Afghanistan, reports from the field, and a digest of SIGN UP recent constitutions-related publications. FOR THE NEWSLETTER Email: [email protected] OnThe June UN Constitutional25, 2003, Neil – Kritz Issue, director 1 of the Rule of Law Program, explored Issue 2013 1 some of the complicated issues surrounding transitional justice and constitution making in Iraq during testimony before a joint hearing of FEATURED: INTERVIEW WITH FINK HAYSOM

our efforts have been occasional, Interview with Nicolas “Fink” spread through the UN system and without a focal point to gather, Haysom evaluate and develop best practices. I Questions by The UN Constitutional Team would hope that the DPA initiative to establish this unit may reverse this. Overall, I am encouraged by the institutions – had no traction for any belated recognition of the importance Q. The UN provides constitu- Tutsi interlocutors in the Burundi of constitutionalism for peace building. tional support in post-conflict/ Peace Negotiations. They had no faith There has been, notably, a growing transitional states and stable in, and no experience of, independent appreciation of both constitutional states. Are there significantly and robust protection of their design as well as constitution-making different dynamics to constitution- fundamental rights – including the processes in laying a foundation for making in these different contexts? right to life – by the courts. As a inclusive, stable democracies. If so, what are some of them? result they preferred to rely on establishing ethnic balances in the armed forces – an expedient and Q. What issues tend to reoccur A. The most significant difference is short term solution. in constitution making in post- that stable states tend to have conflict and transitional states stronger institutions, both political and Q. In what ways has the UN’s that the UN should be prepared to judicial. This allows for a wider range address/support? of constitutional options, as well as approach to constitutional assis- more meaningful guarantees in tance evolved during your years respect of promises that the working as a constitutionalist? A. As regards constitutional design constitution makes. For example, the in the post-conflict setting, the one kind of constitutional assurances that A. UN constitutional support still set of related issues that is an almost the South African Constitution is remains underdeveloped compared for ubiquitous challenge are those that premised upon – equality and human example to UN assistance in the relate to creating a political framework rights enforced by robust judicial Electoral field. In part this is because that is inclusive – that broadens common ownership of the polity and lays the foundation for a common citizenship. Ironically, this may require recognizing, not denying, diversity. In most post-conflict situations, especially where the conflict follows identity based fault lines – ethnicity, religion, culture – the challenge is to recognize those fault lines whilst also creating structures for, and an interest in, collaborative management of the society as a whole. In other words, how can citizens manage a common destiny while finding real possibilities to express their distinct sub-national identities? Where sub-national identities have a geographical basis, the tension lies between autonomy/ federalism/secession and national integration. This will play out in regard to natural resource sharing, official Fink Haysom, UNAMA Deputy Special Representative for the Secretary-General for Political Affairs on an official visit to Faizabad (Afghanistan) in July 2013. state religions and languages, human Credit: Fardin Waezi/UNAMA rights protections, and the division of

The UN Constitutional – Issue 1 Issue 2013 2

FEATURED: INTERVIEW WITH FINK HAYSOM power between the regions and the center. Nicholas "Fink" Haysom

Mr Haysom is the current Deputy Special Representative Q. What are 2-3 lessons you of the Secretary-General for Afghanistan (Political have learned from your years of Affairs). Prior to this, from April 2005 to mid-2007 he was providing constitutional support? the Head of the Office of Constitutional Support in the UN Assistance Mission for Iraq (UNAMI). A. Firstly, process is important. mous amount that can be learnt from The wrong constitution-making other societies” success and failures. Q. It is said that in each process can stifle the possibility of the It is, in my view, a duty for best result. If the object of a constitutional negotiation there constitution-makers to do exhaustive constitution is an inclusive, democratic are typically one or two "magical research into the comparative treat- society, then the process must also moments" when deadlocks are ment of the issues which they are encourage broad ownership and broken and a tipping point to- dealing. Constitution-makers are participation. The notion of a few wise wards consensus is achieved. Can frequently held hostage by their own “men” drafting a good constitution has you share with us one such national histories, their own limited been broadly rejected – no matter moment from your experiences? knowledge of institutional possibilities. how technically sound the result. The particular contribution that the A. In resolving difficult issues, I United Nations can make is to broaden Secondly, in regard to both design am struck that the difference between the constitutional imagination of those and substance, constitution-making glorious success and disastrous failure who have the heavy responsibility of can be a profoundly disaggregating, is very thin indeed. I recall a moment designing their country’s constitutions. fragmenting experience. This is in the Sudan Peace Talks when the especially so in post-conflict countries, It follows from my belief in the value parties had actually determined to the ones most likely to relapse into of comparative knowledge that I do abandon the talks over a disagree- conflict. Divisions will manifest and not think one should be coy in ment on a question of defence indeed be brought out sharply - as “expanding the imagination” of governance – the size of the joint they must be. For this reason, one constitution-makers by sharing one’s armed forces in the future unified should approach constitution-making knowledge. Of course, making a con- Sudan pending the referendum on with the twin obligations of: (1) stitution is still a supremely sovereign secession. A last minute mediation transparent and candid engagement act and cannot be imposed. However, proposal (rather simply splitting the of the country’s divisive problems; (2) that sovereignty is exercised by difference) magically changed the but also of maximizing the nation- making choices – not by repeating mood, secured a respite, caused bags building moment of constitution- mistakes. to be unpacked, and lead to the making, the celebration of shared and comparatively swift conclusion of the common values. In addition, the better approach to talks. Another example of the pheno- constitution-making is to treat it as menon was in Iraq. The divisive issue Thirdly, one is never an expert, but a forging a long term social contract – was whether laws were required to be perpetual student. One should never, designed to provide for lasting peace in conformity with Islamic values, or like military commanders are wont to and justice. In other words, it is not to comply with a charter of human do, apply mechanically the successful be crafted to fit current political rights. The clash between the two – models from one’s last engagement. leaders and their immediate and viewed intuitively as oppositional – personal needs. was resolved by requiring compliance Q. What tools or approaches do with both. This implied interpreting Finally, one must respect the national each in favour of consistency with the you most utilize when you engage desire to treat issues which have little other. It was received as a real in a constitutional process? constitutional bearing, which punch jurisprudential and constitutional What’s in your metaphorical suit- above their “constitutional” weight, breakthrough of States. Of course it case? and yet have great symbolic value. remains to be seen as to how this will A. Although each country will need Constitutions need to speak to the play out in reality. people’s concerns and issues – and in to craft a constitution appropriate to a language they understand. its own circumstances, history, and current challenges, there is an enor-

The UN Constitutional – Issue 1 Issue 1–December 2013 3

FEATURED: KENYA CIVIC EDUCATION

& drafted the 2010 Constitution, Experience from UNDP’s work on supported a comprehensive civic education process and also supported the new Electoral Commission to Civic Education in Kenya successfully run a credible constitu- By the UNDP Country Office Team in Kenya tional referendum. The promulgation of the Constitution The promulgation of a new national two decades of effort to replace the was the pinnacle of a constitutional Constitution in 2010 remains a 1969 post-independence Constitu- reform process in which Kenyans milestone in Kenya’s democratic tion, modeled on a colonial system of overwhelmingly voted for the new journey. It was a momentous governance. UNDP supported the order. celebration, a culmination of close to Committee of Experts (CoE) that The preamble of their Constitution states:

“We, the people of Kenya, exercising our sovereign and inalienable right to determine the form of governance of our country and having participated fully in the making of this Constitution; Adopt, Enact and give this Const- itution to ourselves and to our future generations.”

Why is civic education a crucial part of the entire constitution-making process?

Historically, many have argued that constitution-making should be left to “experts”, either lawyers or economists or policymakers. However, to do so would be to deny a fundamental right of citizens to determine their form of governance, to shape the public administration framework, to defend their rights and freedoms, to have a say in determining their destiny and in shaping policy making and peoples” participation. With these objectives in mind, UNDP supported a comprehend- sive nation-wide civic education programme to empower the people to exercise their democratic right and contribute to strengthening good governance in Kenya.

To this end, UNDP implemented a Civil Society Project known as Amkeni Wakenya (a term from the Kenyan Kenya. Members of Civil society gathered for an Amkeni i Wakenya Forum. National Anthem that calls upon all Credit: UNDP Kenyans to actively participate in

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FEATURED: KENYA CIVIC EDUCATION nation building), which mobilised areas alike were informed citizens to engage in all the processes on how the Constitution of the constitutional review - would change how the including mobilising citizens to country is governed, to engage in peaceful dialogue on the know that they have a draft Constitution, building the role to play, and to make capacity of the media to provide a connection between balanced coverage and support to the their vote in the national constitutional review process and referendum and setting a engaging in voter registration and foundation for a better voting in the referendum. future.

Partnering with civil society UNDP in collaboration with A Civic Education Forum in Machakos Area, on civic education the Government, the Eastern Region of Kenya. Credit: UNDP Committee of Experts, Amkeni Wakenya provided grants to civil society, faith based A key milestone already achieved in about 60 civil society organizations organizations and media reached all the implementation of the Constitution which undertook civic and voter parts of the country using different was the general elections of March education on the Constitution and mediums (town hall meetings, radio, 2013 which ushered in a new process produced and disseminated a variety TV, newspapers, village gatherings, of devolution of government. This of voter education and civic education music, skits etc). Almost 6.9 million process was new to Kenya such that materials including posters and copies of the draft Constitution civic education is needed to inform stickers. Under the theme, “Katiba circulated all over the country and and educate Kenyans on the new Mpya, Maisha Mapwa” (New almost 2.9 million people visited the system of devolved government and Constitution, New Dawn), Amkeni CoE website and downloaded the draft promote buy-in and national undertook a media campaign through constitution. ownership over this process. Both a Swahili radio station which reached state and non-state actors participat- about 10 million people nationally Supporting constitutional ed in the civic and voter education with specific messages on the need for implementation that saw a peaceful election and the a peaceful referendum. The civic edu- beginning of the roll out of the new cation conducted was also important UNDP supported Kenyans to exercise devolved government. to clarify some of the contentious their right to participate in this historic issues that were distorted by politi- process and the people voted Is the Constitution perfect? No. But, cians and other interested parties to overwhelmingly in favor of a new has it brought improvements to lives ensure citizens made informed Constitution. After the promulgation of Kenyans and the governance of choices. of the new Constitution, Kenyans Kenya, and does it defend rights and embarked on the constitutional promote inclusion and accountability? Amkeni also conducted learning implementation process. The Gov- A resounding “Yes”. forums in select areas all aimed at ernment of Kenya in partnership with ensuring that citizens made in- non-state actors and supported by formed choices at the ballot. In development partners including UNDP, The Author collaboration with the Committee of developed a national programme for Experts and the Media Council of . Sheila Ngatia, Governance Team civic education known as Kenya Leader, UNDP, Kenya Kenya, Amkeni trained about 67 National Integrated Civic Education journalists mainly radio presenters in Programme (K-NICE). This was critical community-based radio stations in a to facilitate a fundamental national course “Understanding The transformation through policy, legal Constitution.” This enabled them to and institutional reforms which are moderate debates and report fact- still underway. The current UNDP K- ually on the proposed Constitution and NICE Programme aims at promoting worked effectively to counter mis- the collective national aspirations in information from politicians with the constitution, enhancing citizens” vested interests. Information is participation and promoting respon- power, and it was important that sive governance. ordinary people in urban and rural

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FEATURED: EQUAL CITIZENSHIP

& Equal and active citizenship entails far Comments on the Nature and more than the holding of periodic elections. Indeed, for elections to be Importance of “Equal Citizenship” meaningful, inclusive participation throughout the polity and in all areas of life, guaranteed by rights and for Political Transitions freedoms, must be secured in the By John Packer constitution and enjoyed in fact. This holds implications for constitutional The concept and contents of design in terms not only of rights and Every citizen shall have the right and citizenship are of central importance freedoms, but of institutions. the opportunity, without any of the for political transitions, both with distinctions mentioned in Article 2 and The concept of “equal citizenship” regard to its acquisition (i.e. without unreasonable restrictions: implies the use of agency whereby membership of the polity) and the (a) To take part in the conduct of differently situated citizens may none- rights and responsibilities the status public affairs, directly or through theless enjoy in fact the same (or entails. The former – acquisition – is freely chosen representatives; largely similar) access to institutions in principle a prerogative of the (b) To vote and to be elected at and processes of socio-political ex- sovereign State (governed in genuine periodic elections which shall change, deliberation, decision-making international law by the notion of be by universal and equal suffrage and control (e.g. oversight) as well as “nationality”), with some constraints. and shall be held by secret ballot, the same (or largely similar) The latter – attributes of the status – guaranteeing the free expression of opportunities for participation within is often at the core of constitutional the will of the electors; these (e.g. legislative bodies, the civil design, responding to past discrim- (c) To have access, on general terms service, etc.) and the enjoyment of ination and exclusion by guaranteeing of equality, to public service in his their services and benefits. full rights based on equality of country. citizenship. The concept of “equal citizenship” also

applies to responsibilities (e.g. for Conceptually, citizenship is about the Thus, for purposes of the polity, “the tax-paying, military service, and the socio-political relationship between people” is universally understood to public good). It also implies some the governed and the governors, i.e. comprise the (adult) citizenry crucially degree of equality in life chances. about order and power, its basis, “without distinction…” (which is a Institutions – key ones embedded in legitimacy, structure, uses and much more exacting standard than the constitution – are needed to control. Crucially, it concerns the legi- the prohibition of “discrimination”). timacy of authority and the need for responsible, transparent and account- able governance. It is the essence of “popular sovereignty” and the demo- cratic constitution which relies upon a knowledgeable and active citizenry to deliver “government of the people, by the people and for the people”.

International Human Rights Law stipulates not only the general requirement that “the will of the people shall be the basis of the authority of government” (see Article 21(3) of the Universal Declaration of Human Rights), but Article 25 of the International Covenant on Civil and Political Rights stipulates more precisely as follows:

In July 2013, the UN Special Adviser on Yemen, Jamal Benomar, led a discussion

entitled “Towards Equal Citizenship in Yemen” in Sana”a, Yemen. Participants included academics, civil society organizations and members of Yemen’s National Dialogue Conference (NDC). Credit: NDC

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FEATURED: EQUAL CITIZENSHIP facilitate, protect and ensure all of The nature of “public What is the role of education in these. services”: Which? How do you general, and civic education in prioritise (especially in terms of particular, in achieving equal This sense of “equal citizenship” raises equal access to them and citizenship? major issues for a country in the midst opportunities for equal develop- Are civil servants being trained in of a “political transition” from author- ment and life chances)? What the rights of the citizenry and itarian to good and democratic about equities? And what is the developing practices that fully governance. Among such key issues role of the Executive and public respect and serve the citizenry? are the following: administration (notably the civil service) in regulating and Focusing on the answers and their The nature of the State: What delivering these? implications will contribute to ad- does “popular sovereignty” mean? vancing a political transition from If we remain true to the notion As a matter of constitutional design, authoritarian to good and democratic that the State is “of” and “for” the these must be considered and governance as a prerequisite for people, how is this to be addressed in appropriate constitu- sustainable peace and development. manifested in State institutions tional provisions such as with regard Indeed, equal citizenship in conceptual and official conduct? to rights and freedoms, duties of the and programmatic terms – rooted in a The nature of authority/ State, institutional mandates, limits new or reformed constitution – can be government, “of, by and for on abuses and (other) guarantees. both instrumental in achieving the the people”: How is such transition and an end in itself. authority constituted and used? For countries aspiring to create new, As opposed to there being just societies based on “equal The concept and contents of ‘subjects of rule and rulers”, citizenship”, and for those assisting citizenship is of central importance for government implies a trust such countries, the following basic political transitions, both with regard between the citizenry and their questions offer a good starting point to its acquisition (i.e. membership of elected representatives who to understand the scope of an actual the polity) and the rights and “govern” for them according to situation and to adopt appropriate responsibilities the status entails. The express terms and for the benefit policies, laws and programmes, former – acquisition – is in principle a of the citizenry alone. beginning with constitutional pro- prerogative of the sovereign State The nature of citizenship, visions: (governed in international law by the encompassing rights and notion of “nationality”), with some duties, including facilitated What are some of the problems constraints. The latter – attributes of opportunities especially for with citizenship in the country? the status – is often at the core of the disadvantaged (notably Who are the “disadvantaged”, constitutional design, responding to the poor or indigent, the what are their needs, and what past discrimination and exclusion by disabled, minorities etc.): What can be done to empower them? guaranteeing full rights based on needs to be done to give concrete How can equal citizenship be equality of citizenship. expression to this idea, e.g. in achieved, in law and in fact, for all terms of general and public citizens? About the Author education, promotion of social Should special measures (such as attitudes, the teaching of skills for affirmative action) be adopted in . John Packer is a member of the UN Standby Team of Mediation Experts. “civic education and an effort to achieve equal He is also Professor of Law at the engagement”, the creation of citizenship? University of Ottawa. public spaces, places and experiences to exercise and develop meaningful citizenship? The nature of “public property”: What does this en- A CALL FOR DOCUMENTS Collecting Documents from Constitutional Processes compass (including natural wealth

and endowments) and how should The UN is developing an online resource centre (“CONSTITUTIONMAKER”) they be used, managed, their dedicated to providing UN staff with constitution-making approaches, resources, benefits distributed (especially and tools, and preserve the UN institutional memory. For this purpose, we are gathering documents on substantive and procedural constitutional matters. productive potentials) etc.? TYPE OF DOCUMENTS: any document related to UN’s assistance to a constitutional process (i.e. project documents, work plans, issue papers), reports from constitution-making bodies, public consultation materials, etc. The online platform will only be accessible to UN staff, and all confidential documents will be protected. Contact: [email protected]

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UPDATES FROM THE FIELD & HQ

What is the United Nations doing in constitutional facilitated a second dialogue, during which participants examined assistance? This section offers an overview of the comments from various civil society latest developments, challenges and lessons in this organizations and revised the draft law article by article. Since then key area of support sourced directly from our field UNAMI has continued to support the Article 125 drafting committee as it missions, country offices and other UN entities. refines the draft law to ensure the draft meets international standards. UNAMI will facilitate additional dialogues as needed and is engaging IRAQ ination in education and employment, rampant incitement and hate speech, the support of an international expert UN Assistance Mission in Iraq deliberately poor service delivery, to assist the CoR in finalizing the law. (UNAMI) and terrorism and other acts of violence. UNAMI has supported a range of other activities to protect the In September 2011, UNAMI facilitated diversity of Iraqi society, especially a roundtable discussion where with respect to minority communities, participants agreed to a set of policy including working with the Gov- recommendations aimed at reforming ernment of Iraq (GoI), the Kurdistan certain administrative practices Regional Government (KRG), and related to minorities and key elem- Iraqi governorates to enforce ents of framework legislation for constitutional minority rights and administrative rights. The Iraqi protections and to consult with

Council of Representatives (CoR) sub- minority communities on matters that The 2005 Constitution of Iraq has sequently formed a special committee affect them directly. UNAMI is also over 50 articles that explicitly require charged with drafting legislation working with representatives of the implementing legislation. UNAMI is associated with minority administra- minority communities themselves, assisting the Iraqi parliament in tion under Article 125. senior ministerial officials and policy addressing many of these critical advisors of the GoI and KRG to laws, including legislation to realize Under the auspices of the CoR Article promote the inclusion of quotas for the administrative rights of Iraqi 125 Committee, UNAMI’s Office of minorities in the Federation Council minorities as set out in Article 125. Political Affairs and UNAMI’s Human (second chamber of parliament, still Rights Office convened a dialogue on to be established under the Constitu- Iraqi minorities – religious and ethnic the draft Law for the Protection of the tion) and the Provincial Elections Law. – are among the most vulnerable Rights of Ethnic and Religious Mi- communities in the country today. nority Communities on 10 September Finally, UNAMI has provided technical Minorities are victims of discrim- 2013. On 2 October 2013, UNAMI assistance for legislation to guarantee the “right of equality” as stipulated in the Iraqi Constitution. This includes advocating for the enactment of a law prohibiting Hate Speech; a new labour law to ensure that minorities have fair access to job opportunities in state and security institutions; and the recruitment of minorities in the police forces, military and throughout the security sector.

Briefing prepared by:

. Mmabatlharo Nono Dihemo, UNAMI Political Affairs Officer Iraq. UNAMI facilitated a dialogue on the draft Law for the protection of the rights of ethnic and religious minority communities. September 2013.

Credit: UNAMI

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UPDATES FROM THE FIELD & HQ

and operational support to the process process, in particular, working with LIBERIA and strategic engagement at the the Legislature to approve a final UNDP and UN Mission in Liberia political level with all stakeholders to constitutional review bill and running a (UNMIL) ensure an inclusive and participatory referendum. process. The bulk of technical expertise will be provided through a Attention is currently focused on two dedicated UNDP-supported program- key areas working through the UNDP- me, which includes the recruitment of supported programme in consultation key personnel to assist the CRC. with the CRWG. Firstly, the provision UNMIL has contributed significantly to of technical, financial and logistical the process, deploying its range of support to the CRC and its secretariat technical expertise and assets. For seeks to ensure that the CRC has example, the UNMIL Office of the proper capacities to undertake its Gender Advisor helped set up a mandate and address its financial and

consultative meeting with women capacity constraints, seriously impact- In post-conflict Liberia, the need for a from around the country to inform a ing the pace of its work and its ability review of the 1986 Constitution, which strategy for women’s involvement in to meet its timeline. Secondly, was adopted during the time of the the review process. The Public support will be provided to a civic military regime, has consistently been Information Office has worked with education programme at national, stressed by many national and inter- the CRC to develop a short-term county and community levels, working national stakeholders as critical to media outreach strategy, helping to among others through and with civil laying the foundations for long-term design the CRC’s introductory bro- society organisations. The programme peace and stability. Various initiatives chure, flyers and posters. The CRC will engage with political parties, civil have been launched, but none have also regularly appears on UNMIL society, women, youth and the media raised such interest as the Radio, the radio with the widest to adequately familiarize the public appointment of a six member coverage in the country. A Quick with the constitutional review process. Constitution Review Committee (CRC) Impact Project for printing over 21 In addition to civic education, support by President Ellen Johnson-Sirleaf in thousand copies of the Constitution is also being provided to a public August 2012. The CRC was tasked to has also been completed. In support consultation exercise with the general lead civic education and public of the UN in Liberia, the Department public and key stakeholders, including consultation process and to submit a for Political Affairs has also provided political parties, the Legislature, list of proposed amendments, initially expertise through regular short-term religious and traditional leaders, and by mid-2013, but the deadline was deployments, including from its youth and women groups. later extended to mid-2014. The CRC Standby Team of mediation experts. recommendations are expected to be Complementing this support, UNMIL submitted to the Legislature through UNDP’s Constitutional Support Project Field Offices have already undertaken the President, where any amendments will provide technical and operational a mapping exercise of civil society will need to be approved by a two- support to the process over the organizations, which is now being thirds majority in both Houses before coming three years. The Project has a used to help the CRC select partners they can be subject to a public budget of $10.5 million over three for their civic education in the referendum, currently envisaged for years, including contributions from counties. UNDP is contributing to this 2015. UNDP’s core resources, $2m expected effort through the deployment of an

from the Peace Building Fund and expert to help design an operational The timeliness of this development $1.5m expected from the US and deployment plan covering all the was recognized by the Security Government. UNDP’s support seeks counties while the UNMIL Integrated Council which, in September 2012 in to bring about an inclusive and parti- Mission Training Center will help with Resolution 2066 (2012) and again in cipatory constitutional reform process, the training of the civic educators. 2013, called on UNMIL to support the recognizing that the constitutional

people and the Government of Liberia reform process provides a unique in taking forward constitutional The road ahead remains challenging, opportunity to advance reconciliation, reform. In line with this mandate, with much of the civic education, political dialogue, and peace UNMIL, along with UNDP and working public consultation and drafting of consolidation efforts in Liberia. It is under the auspices of a Constitutional proposed amendments still to do with envisaged that a second phase of the Review Working Group (CRWG) has a timeline that calls for the submission project will focus on providing support since provided a range of technical of the proposal of amendments by to the finalization of the review

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UPDATES FROM THE FIELD & HQ

March 2014. The United Nations will continue to extend strong support to the process, delivering as one, and ensuring a close working relationship among all relevant UN actors, especially UNMIL and UNDP. However, the Government’s political and finan- cial commitment, together with support from the international com- munity, will be critical in ensuring a successful process.

UNDP Team

. Cleophas Torori, Deputy Country Director/ Programmes . Nessie Golakai, Team Leader, Democratic Governance Pillar

UNMIL Team Libya. Trainings of Dialogue Facilitators on Women’s Political Participation . Tamrat Samuel, Deputy Special organized jointly by SCELT and ABC - June and August 2013. Credit: UNSMIL Representative of the Secretary- General for Rule of Law . Miriam Lang, Special Assistant to Libya’s political transition and is an the drafting exercise. The UN’s precise the Deputy SRSG for Rule of Law opportunity for the UN to support the role in this part of the constitutional development of a culture of dialogue process, however, is contingent upon and much needed national consensus the Libyans” interest in and openness

LIBYA on the set of rules by which the to international participation. UNDP and UN Mission in Libya country will operate in the future. The The UNDP has also provided support (UNSMIL) United Nations is engaging in a range of efforts in support of the Libyan to civil society, with a focus on public constitutional process. UNSMIL is outreach, civic education and other currently in the preparatory stage of efforts to enable the public to working through options for participate meaningfully and product- supporting government officials and ively in the process. The UNDP institutions, particularly the Constitu- “Assistance to Building a Constitution” tion Drafting Assembly (CDA) which is (ABC) Project is working to support to be elected in early 2014. Although UNSMIL’s mandate to assist with the the Assembly has yet to be constitutional and national dialogue established, the UN has already process by addressing the urgent provided advisory assistance on the need for developing public engage- “The constitutional drafting process for creating the Assembly and ment and dialogue capacities in Libya. process presents an the necessary supporting legal frame- In the framework of the ABC project, UNDP supported a National Survey on opportunity for the Libyan works. The UN Electoral Support Team is currently assisting the Libyan High the Constitution, which was under- people to forge a new social National Electoral Commission with taken by the University of Benghazi. contract that will govern the the organization and implementation More than 3,300 interviews were new Libya, making it of elections for the Assembly over the conducted all over the country and the therefore imperative that it coming months. Once these elections survey results will be used to help the CDA identify and respond to the be transparent, consultative are complete, its efforts will shift to preparations for a national referendum expectations of the Libyan citizens in and inclusive.” on the draft constitutional text. Once the constitutional process. Special Representative of the Secretary- the Assembly is seated, UNSMIL will General Tariq Mitri, Briefing to Security also offer technical and substantive To encourage grassroots involvement Council, 16 September 2013 advice through international experts, in the constitution-making process, UNDP also launched the initiative “I The constitution-making process in beginning with an initial induction WANT… in my Constitution” with the Libya will play an important role in program and continuing throughout

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UPDATES FROM THE FIELD & HQ national CSO Forum for a Democratic including women, youth and minority the economic structure dramatically. Libya. The process has already groups. Current activities in this area engaged more than 1000 persons include also work on drafting a media Recognizing the changing political, across Libya representing various communication strategy for the CDA economic and social context in ethnic groups and political opinions as well as developing a website, which Mongolia, there are discussions in the and was one of the first structured will facilitate broader public partic- political arena about the possibility of dialogue processes ever conducted in ipation in the constitutional review a constitutional amendment. UNDP the country. In partnership with the process once the CDA is elected. has been requested to support a Libya Research Center for Strategic comprehensive assessment of the and Future Studies, the ABC project UNDP ABC Project Team 1992 Constitution. The objective is to provide Mongolia’s decision-makers has also launched a series of public . Adam Styp-Rekowski, Project panel debates targeting Libyan aca- Manager and citizens with a document that will demia, civil society and political . Katrin Schweppe Stewart, Project help them understand how the groups to foster debate on the Management Specialist Constitution has performed in light of constitutional process. UNSMIL Constitutional Team its overarching goals and how constitutional implementation has . Mohamed Elghannam, Constitutional The other activities of UNDP’s ABC and evolved over time. Drawing on both Adviser ‘support to Civic Engagement in . David Raikow, Political Officer comparative materials as well as an Libya’s Transition” (SCELT) Project examination of Mongolia’s experience, complement this work by strength- it will highlight the achievements of ening the capacity of CSOs to run the Constitution, as well as its their own civic education and dialogue MONGOLIA shortcomings. Options will be iden- sessions on the constitutional process. UNDP tified that might be considered in any The UNDP Civic Education Grant Fund future constitutional revisions or

Facility (CEGF) is to distribute small amendments to address any Two decades after the fall of the grants to Libyan CSOs to support their shortcomings. communist system in 1990 triggered implementation of civic education and Mongolia’s democratic and economic constitutional activities. To further its The study is being conducted by a transition, many stakeholders in commitment to ensuring women’s team of leading Mongolian scholars Mongolia have identified the need to voices are heard during the constitu- working in collaboration with Professor take stock of where the country tional review process, UNDP has also Tom Ginsburg of the University of stands and to analyze and assess the organized Training of Facilitators Chicago Law School. The research successes and remaining challenges in workshops aimed at building the team will complete its work in establishing a robust and accountable capacities of 26 local facilitators to run February 2014. democratic system. One key element local dialogue sessions for women in in such an analysis is to review the 20 locations throughout the country. *http://www.law.uchicago.edu/alumni/magazi performance of the 1992 Constitution. ne/lifespan UNDP also supported three workshops for 60 women (representing CSOs and Mongolia’s Constitution is over twenty Briefing prepared by: political parties) to build their under- years now. The resilience of the standing of the different roles of the Constitution is considered a big . Davaadulam Tsegmed, Governance legislative, executive and judicial achievement; research shows that the Team Leader branches, based on comparative average constitution lasts only 17 country case studies from Lebanon, years.* The overall objective of the France, Spain and South Africa. Constitution was to provide a legal NEPAL basis for the transition to democracy, UNDP As the project looks forward to the the protection of human rights, and imminent elections of the CDA, a economic development through a growing priority is the importance of Nepal went to the polls on 19 market economy. The country has creating and maintaining high quality November to elect a new Constituent changed greatly under the constitu- media engagement throughout the Assembly/Legislature Parliament (CA/ tional regime in the last two decades. constitution-making process. To this LP) to resume the important task of The party system has evolved; end, the ABC Project is working with constitution-making. The previous CA, institutions have developed; the the Libyan Rashad Foundation to that also functioned as a Parliament economy has grown, and the disco- develop a national media campaign, and was elected in 2008, failed to very of mineral wealth has changed which will target key focus groups, adopt a new constitution within the

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UPDATES FROM THE FIELD & HQ time frame specified by Nepal’s public debate on complex constitu- Interim Constitution of 2007. A new tional issues and the various thematic SOMALIA Constitution for Nepal which would be committees of the former CA UNDP and UN Mission in drafted and adopted by an elected and produced impressive reports on the Somalia (UNSOM) inclusive Constituent Assembly is a main constitutional issues. The issues key element of the Comprehensive where consensus has proved difficult Peace Agreement (CPA) of November include the basis for the demarcation 2006 that ended a decade long Maoist of provinces (the balance between insurgency. The Interim Constitution identity and viability) in a federal preceded CA/LP elections which elect- Nepal and whether Nepal should ed a 601 member body representing adopt a presidential system, continue Nepal’s diverse population, including with the Parliamentary executive 197 women. The CPA and the Interim model, or explore a semi-presidential Constitution mandated the CA to draft compromise. and adopt a constitution that elimi- On 20 August 2012, Somalia’s nated the centralized, unitary state Since 2008, UNDP’s Support to Transitional Federal Government and introduced instead progressive Participatory Constitution Building in ended its official mandate and was state restructuring and the Nepal (SPCBN) project has supported replaced in November by the Federal empowerment of Nepal’s excluded the constitution making process in Government of Somalia (FGS), communities. partnership with the Constituent comprising the (selected not elected) Assembly, political parties and civil National Federal Parliament (NFP) The collapse of the Constituent society, by facilitating an informed and a new President and Prime Assembly in May 2012 created a public debate on constitution-making, Minister endorsed by the Federal crisis that was not anticipated by the developing options on contentious Parliament. The new institutions of framers of the Interim Constitution. constitutional issues and providing Somalia are guided by the Provisional The CA/LP elected in 2008 was technical assistance on comparative Constitution, which was endorsed in expected to continue in office until best practice and international norms August 2012 by a National the adoption of a new constitution and standards. Constituent Assembly comprised of and there were therefore no selected political and community provisions for a second CA election. From 2008 to 2011, SPCBN representatives from across the established and supported the Centre country. After months of uncertainty a political for Constitutional Dialogue (CCD) that consensus was reached in 2013, by was located close to the CA and Somalia is in the rare position of the main political parties in the served as a resource centre for CA trying to implement the Provisional country according to which an members and a forum for open and Constitution at the same time as election for a new CA, under an informed discussion on constitutional reviewing its terms and agreeing a election council of ministers chaired issues. More recently, SPCBN has revised national federal Constitution. by the Chief Justice was the way to supported initiatives to clarify myths The Speaker of Parliament officially resolve the constitutional crisis. Since and misconceptions about federalism launched the constitutional review there was no Legislature Parliament and inclusion, and also a lessons process in March 2013, taking the to amend the Interim Constitution to learned programme to review the lead in line with the mandate given allow for such elections, a provision achievements and shortcomings of by the Provisional Constitution to the that gave the President the power to the past CA process with a view to NFP. Within that framework, the NFP “issue orders to remove difficulties” ensuring that the new CA will be has been working closely with the was used to give legal effect to the better equipped to complete the task Executive branch and sub-national political consensus to conduct new of constitution-making, thereby stakeholders to take forward a elections. consolidating the peace agreement of process of dialogue and recon- 2006. ciliation. This dialogue process is It is important to note however, that aimed at the peaceful creation of the constitution making process of Federal Member States, a necessary Briefing prepared by: precursor to finalizing the federal 2008-12 did produce significant achievements. There is today broad . Rohan Edrisinha, UNDP Chief Constitution. agreement that Nepal should be a Technical Advisor, SPCBN Project The UN is supporting these processes. federal, secular and inclusive re- UNSOM is coordinating of the UN’s public. There has been a widespread

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UPDATES FROM THE FIELD & HQ support through the UN Integrated Constitutional Support Team (ICST). The ICST has been developed to ensure that relevant UN/UNCT staff working across all branches and levels of Government regularly share infor- mation and coordinate their efforts across government.

UNSOM is also facilitating the development of a Constitutional Donor Coordination Framework to promote complementary efforts in supporting constitutional reform in Somalia. Donors will be encouraged to commit to coordination to reduce duplication of efforts and the coordination burden Somalia. Inauguration of the constitutional review process by the Parliament on national partners. UNSOM is also and the Oversight Committee on 16 June 2013. Credit: UNSOM encouraging international NGOs, consultants and other entities involved message to Somali people that the The UN is currently working through in constitutional work in Somalia to review process will be as inclusive and its own internal strategic planning to share information and coordinate participatory as possible. identify how it can best support this efforts. effort. Once finalized, this strategic UNDP is now working with UNSOM to plan will be used to guide the entire UNSOM, together with the UNCT, is support the Speaker, the Oversight UN’s engagement in support of the advising the FGS on the formation of Committee and MPs generally to constitutional review and implemen- Federal Member States and supporting undertake outreach, information and tation process, and serve as base for political dialogue in the regions on education and to promote buy-in for the UN in agreeing with the FGS the state formation. UNSOM, in coordina- the constitutional process. A draft actions and support to achieving tion with the UNCT, is also providing Dialogue and Outreach Strategy was political milestones outlined in the strategic advice to the FGS on developed with UNDP support and a New Deal Compact. implementation issues, including the validation workshop and training for establishment of key constitutionally- Parliament on the strategy was UNDP Project Team mandated institutions such as the conducted in September 2013 in . Franco Sánchez, Moe Hussein, and electoral, human rights, judicial Mogadishu with approximately 50 Marcin Buzanski service and anti-corruption com- MPs. UNDP is also working to support UNSOM Political Affairs and missions as well as the Constitutional the Oversight Committee’s secretariat Mediation Team

Court. to develop its capacities, and to . Tariq Chaudhry, Ndibusi Obiarah undertake a nation-wide information UNDP is also supporting the NFP to and civic education campaign. engage in both constitutional review UNDP’s work with the Parliament is and implementation. To date, this has TUNISIA intended to support the broader effort primarily been done through UNDP’s UNDP of UNSOM and the UNCT to assist overarching Parliamentary Support Somalia to progress its peacebuilding Project, which is supporting the new and statebuilding goals (PSGs). These Federal Parliament to establish its were captured in the New Deal institutional capacities to undertake its Compact agreed by the Government roles of law-making, oversight and in September 2013. PSG-1 of representation. On 16 June 2013, Somalia’s Compact focuses on legiti- UNDP supported the Parliament mate politics, identifying three key Constitutional Oversight Committee to priorities over the next two years, hold its own constitutional launch with namely: (i) state formation and social members of the civil society, aca- reconciliation; (ii) constitutional re- demia, youth and women groups and Since the revolution of 2011, UNDP view; (iii) elections. the media present, sending a strong has been Tunisia’s main international

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UPDATES FROM THE FIELD & HQ partner in constitutional support and in legislative and constitutional Tunisia’s international commitments parliamentary strengthening. UNDP’s drafting, and in public consultation in the area of human rights. Constitutional Support Project* was techniques. Over 6000 citizens, 300 Successive constitutional drafts have designed in in response to the civil society organizations, and 320 strengthened human rights protect- changing national political context, university representatives provided ions. and will run from 2012 to 2015. It is input during the dialogue. Over 300 supported with funding of $18 million participants including 40 Assembly Since the new Constitution will grant from Japan, Belgium, the European members took part in activities parliament considerable powers, the Union, Sweden, Denmark, Norway, fostering constitutionalization of Project was designed to support the and Switzerland, as well as UNDP’s gender equality and the political development of an effective and Bureau for Crisis Prevention and participation of women. UNDP also efficient parliament to ensure Recovery in recognition of the im- provided extensive support to build successful implementation of the portance of the constitutional process the capacity of Tunisia’s fledgling civil constitution. It focuses in particular to the transition in Tunisia. The society sector to participate in the on building supportive partnerships project’s scope, resources, and political process, from Constitution- with sister parliaments in established duration have allowed UNDP to offer drafting to local and national policy democracies to increase awareness of substantial and multi-dimensional advocacy. 140 civil society devel- international best practices in organiz- support to Tunisia’s democratic opment projects have focused on ing democratic institutions, including transition. marginalized regions of the country, collaboration with Belgium, Lebanon, The project prioritized support to the and include special emphasis on Switzerland, Denmark, Portugal, National Constituent Assembly (NCA) consensus-building skills and South Africa, Canada, France and the in three key areas: (1) support to the strategies for preventing violence. European Union. The “information NCA to organize an open and 30,651 citizens were consulted on the infrastructure” is also receiving participatory constitutional process; Constitution through civil society significant investment so parliament’s (2) strengthening of institutional initiatives supported by the UNDP activities can be carried out capacities of the NCA to undertake project. A national survey of 1100 transparently to promote interaction law-making, oversight and represen- youths provided detailed information with the population through real-time tation; and (3) development of on the desires and expectations of web broadcasting, a modern media constitutional dialogue mechanisms, Tunisian youth: the segment of the centre, and tools such as electronic including at local and national level, in population whose exclusion sparked voting. order to ensure citizen and civil the 2011 Revolution. society input into constitutional and * Project of Support to Constitution-building, parliamentary development, and national political processes. Throughout the process, UNDP has dialogue in Tunisia responded quickly with high-level Over 2012-2013, UNDP supported a international constitutional expertise UNDP Project Team: nationwide dialogue between NCA when requested by the Assembly. members and citizens and civil society The UNDP project has also col- . Jonathan Murphy, Chief Technical organizations in all 24 Tunisian gov- laborated with other UN agencies to Advisor . Olivier Pierre Louveaux, ernorates, involving 80 Assembly develop recommendations on how to Parliamentary Specialist deputies, with training provided both ensure the constitution conforms with

LAUNCH OF “CONSTITUTE“ The World’s Constitutions to Read, Search and Compare Online

New constitutions are written every year. The people who write these documents need to read and analyze texts from other places. In this context, Google Ideas was interested in exploring how technology can continue to support and improve constitution design. The result was Constitute: a project developed by the Comparative Constitutions Project, a collaboration between the University of Texas, the University of Chicago and University College London, and seeded by Google Ideas. Constitute allows drafters, academics and global citizens to find and compare the world’s constitutions. Drafters and citizens can browse constitutions by country and year, or cross-compare whole or parts of documents. Users can also search for specific words and phrases, or use the topics menu to drill down into specific themes such as “Citizenship” and “Foreign Policy,” to the very specific, such as ‘suffrage and turnouts” and “Judicial Autonomy and Power.” Text reproduced from Google Ideas” website. www.constituteproject.org

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READER’s DIGEST

This section highlights a selection of papers on policy-makers new tools to talk about decentralization, and to move the constitution-making offering insights into current discussion from conflict-prone binaries debates and issues in this area. It includes articles to a reasoned debate over policy options. from a wide variety of sources, such as academia, policy- or practitioner-oriented organizations, and Women Members of the Constituent Assembly: material produced by United Nations entities. A Study on Contribution of Women . Constitutional Review Security Forces Reform in Constitution Making in Nepal, By IDEA in New Democracies, By for Tunisia, Democracy Reporting By IDEA & the Center for Women Members of the International & the Center for Constitutional Transitions at Constituent Assembly presents the Constitutional Transitions at NYU School of Law stories of the women of Nepal’s

NYU School of Law Constituent Assembly who struggled Security Forces Reform for Tunisia Constitutional Review in New suggests that a new Tunisian to bring equality to Nepali society. Democracies explores judicial constitution should provide for Their stories include journeys from mechanisms for constitutional review constitutional principles to govern the battlefields to politics and from and interpretation. It asks key security sector. One of these student politics to national politics, questions about designing a constitu- principles discussed among others is transformations from oppressed vil- tional court and emphasizes the role the need to respect the rule of law. It lage girl to prominent politician, and of the constitutional review in further suggests that even qualified life-long engagements in the political legitimizing new democracies, immunities for security sector actors arena. especially on the constitutionality of and the president are in tension with Islamic Law: legislation and government action. the rule of law principle. Practitioner’s Guide

By the International Semi-Presidentialism as Constitutional Reform Network to Promote the Rule a Form of Government: Processes and Political of Law (INPROL) Lessons for Tunisia, By Parties. Principles for Islamic Law: Practitioner’s Guide IDEA & the Center for Practice, By the Constitutional Transitions at provides a primer on Islamic law, Netherlands Institute for NYU School of Law explaining its sources, principal Multiparty Democracy, IDEA & the doctrines, institutions, and termi- African Studies Centre Semi-Presidentialism as a Form of nology. A section on “Islamic Law Government: Lessons for Tunisia Constitutional Reform Processes within Nation States” explores considers the range of institutional and Political Parties. Principles for contemporary Islamic constitutional design options adopted in some of the Practice provides a set of guiding law and personal status law. world’s semi-presidential regimes, principles for constitutional reform illustrating that the democratic based on practical experiences of performance of a semi-presidential Constitution-making constitutional reform processes in a regime largely depends on the choices number of countries. While its and Reform Options that are made among these design primary focus is on the role of political for the Process By options. parties in constitution-building, it also Interpeace provides an overview of common Decentralisation in Constitution-making and Reform phases, characteristics, challenges Libya, By Democracy Options for the Process provides and guiding principles that may be Reporting International practical guidance on how to design customised to country specific transparent, nationally led and owned contexts. processes that are also participatory Decentralisation in Libya describes and inclusive. In addition to English, theories of decentralization and places the handbook is also available in them in the Libyan context. The French, Arabic and Vietnamese, with purpose of the report is to give civil society, lawyers, academics, and support from UNDP.

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ANNOUCEMENTS

UN WOMEN RECENT EVENT: INTRODUCES ITS ARAB CONSULTATION ON CONSTITUTIONAL THE PROTECTION OF DATABASE ECONOMIC AND SOCIAL

RIGHTS IN POST-REVOLUTION

UN WOMEN LAUNCHED its Constitutional Database on CONSTITUTIONS December 13th: http://constitutions.unwomen.org - The consultation held in Cairo, Egypt from 25-26 the first searchable online portal that looks at constitutions November 2013 was organized by UNDP in through a gender lens. collaboration with the Arab Institute for Human THE DATABASE SEEKS to provide a comprehensive Rights, the Arab Organization for Human Rights, The picture of constitutional provisions relevant to gender Egyptian Center for Economic and Social Rights, the equality, and allows users to search by keyword, provision, Egyptian Initiative for Personal Rights, New Woman Foundation, Association for Freedom of Thought and region or country. Provisions are organized into 16 Expression, and Tadamun: The Cairo Urban Solidarity categories, such as equality; non-discrimination; rights of Initiative. It welcomed about a hundred participants women; public authorities, institutions and services; who are key actors in the Constitution making political participation and freedom of association; processes in Egypt, Iraq, Libya, Morocco, Tunisia and citizenship and nationality; education; employment; equal Yemen, together with international experts from before the law; marriage and family life; status of Brazil, Ecuador, Kenya and South Africa, countries religious/customary law; status of international law well known for their Constitutions, both in the participatory drafting process and inclusion of social (including human rights law); limitations and derogations; and economic rights. This regional consultation was general human rights duties; right to property/inheritance; the opportunity to share experiences of participatory and reproductive rights. These were selected by looking at processes for the preparation of the constitution as content through a human rights perspective, the CEDAW well as the content of the constitutional text. It also Committee’s many analyses of contents of national looked at some of the tools available to civil society constitutions, as well as UN Women’s report “Progress of after the adoption of the constitution, such as social pressure or strategic litigation, to support the the World’s Women”. The portal covers 195 countries, enforcement of the protections enshrined in this including all Member States and Observers of the UN, and important document. The consultation was covered provisions are available in the language of origin as well as through social media with a specific hash tag Estimated reach for Day 1 of the .(عدالة_اجتماعية#) .(in English (currently the database contains 62 languages UN women hopes this resource will be of use for UN consultation was around 1.7 million with an exposure headquarters, country and regional offices; gender equality of 4.9 million. As for Day 2, the outreach was about advocates and activists; human rights experts; academics; 1.8 million and the exposure 4.1 million. The entire Consultation was covered by the press, with a live and especially to constitutional drafters and other national streaming broadcasting, as well as journalists actors engaged in constitutional reform. dedicated to Tweets and reporting. Several other

For further details please contact the team directly at newspapers were reporting on the conference, as well [email protected] as TV channels. THE UN CONSTITUTIONAL This publication is a joint effort between the United Nations Department of Political Affairs (DPA), the Department of Peacekeeping Operations (DPKO), OHCHR, UNDP, UNICEF, and UN Women to strengthen system-wide information

sharing, coordination, and partnership in the area of constitutional assistance.

United Nations Headquarters We welcome your comments and suggestions. Please contact us at: New York City, 10017 [email protected] New York, USA

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