THE UN

CONSTITUTIONAL I

A Newsletter on United Nations Issue 7 Constitutional Support Winter 2017

FOREWORD

“The UN Constitutional” team is pleased to publish the seventh issue of its The UN Constitutional Team: newsletter featuring articles by constitutional experts, reports from the field,

and a digest of recent constitutions-related publications. In this issue, we have  UN Dep. of Political Affairs (DPA) interviewed Yash Ghai on his experience as constitutional advisor and drafter,  UN Dep. of Peacekeeping Operations particularly in Kenya and Fiji. The issue also features a brief introduction to (DPKO) federalism and a short case study on women’s national machineries; in addition  Office of the High Commissioner for to updates on UN support to constitutional processes in six countries. Human Rights (OHCHR)  UN Development Programme (UNDP) “The UN Constitutional” is a manifestation of the collective desire of 6 UN  UN Children's Fund (UNICEF) entities to raise awareness around the UN of constitutional issues and themes,  UN Women share information, and strengthen the provision of constitutional assistance.

IN THIS ISSUE

Interview with Yash Ghai Federalism Is Constitutional Recognition Professor and Advisor on A Brief Introduction Sufficient for Effectiveness of State Constitution-making (pp.6) Institutions? (pp.2) A Case Study of National Women’s Machineries (pp. 8)

UPDATES FROM THE FIELD & HQ (p.12) ▪ Guyana pp. 12 ▪ Libya pp. 15 ▪ Malawi pp. 13 ▪ Philippines pp. 16 ▪ Liberia pp. 14 ▪ Tuvalu pp.17 ▪ Yemen pp. 18

READER’s DIGEST (pp.20)

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The UN Constitutional – Issue 7 Issue 2013 1

INTERVIEW: YASH GHAI

Interview with M. Yash Ghai, Professor and Advisor on Constitution-making

Questions by The UN Constitutional

Most of my professional life I was a law Q. Over the past three decades teacher and scholar—that was my first you have been involved in well love. I never sought consultancies, but over twenty constitutional received several offers as my practical processes throughout Africa, work got known.

Asia, and the South Pacific – both as a constitutional advisor and Q. Most famously you chaired constitution drafter. How did you constitutional review first enter the field of constitution commissions in Kenya (2000- making? And at what point did 2004) and Fiji (2013-2014). In you realize this was something both cases your work was that would come to define your somewhat defined by a clash life’s work? between what you deemed the will of the people versus the My first involvement in constitution interests of the political elite. making was accidental. It happened Can you talk about this tension? when I was a young law teacher in Tanzania. Tanzania was moving to a The position of the chair of the one party state (1965) and my constitution commission is a good colleague Patrick McAuslan and I were vantage point to see the dynamics of asked by the Constitution Commission the process of constitution making. how the essence of democracy could The chair has to deal with all groups, be preserved under a one party sometimes even individuals, involved system. in the process. The latest trend of

My real “break” came when I was popular participation in the process Yash Ghai is a Kenyan law professor who invited to be a consultant to the has broadened the range of interests has specialized in constitutionalism and constitution commission of Papua New that the commission has to take into human rights, ethnic conflicts, sociology Guinea as it prepared for its account. However, the distinction of law, and autonomy. He chaired independence constitution—a country between the public and the political constitutional review commissions in I knew nothing about. This led me to elite always held. Kenya (2000-2004) and Fiji (2013-2014), and advised various other governments advise, indeed write constitutions for, Kenya and Fiji both had a long period and political parties on constitutional several other Pacific island states of demand for constitutional reform. (including Solomon Islands and In Kenya more than in Fiji, the number matters, including several South Pacific Vanuatu), rapidly gathering of participants (individually and as states, Cambodia, Afghanistan, the experience. groups) increased over the period of Maldives, Iraq and Nepal. Ghai is a co- founder and co-director of an NGO, A great deal of my work was not the work of the constitutional Katiba Institute, which is dedicated to the constitution making in the narrow commission. An essential task of the protection and promotion of Kenya’s 2010 sense of writing drafts; instead it was constitution commissions in both Constitution. highly political, negotiating peace, cases was to open up public debate. mediating, and trying to narrow This brought forth a large number individuals as well as institutions. The differences between different may vary from one stage of the complexity of views was enormous, “warring” groups. These negotiations constitutional process to another. And helped me in my own country, Kenya, within and as between groups. even if the same interests persist, the in the preparation of what became the These interests and views, which may outcomes may differ depending on the 2010 constitution. be based on ethnicity, religion, or dominance of the interest at different

economic disparity, among others, stages of the process. It is therefore

The UN Constitutional – Issue 7 Issue 2013 2

INTERVIEW: YASH GHAI

not easy to divide the interests of the organisations, and other international In post-conflict peacebuilding public and the politicians. organizations. International involve- situations the role of a third party

With such variety of interests, it is ement is increasing through the use of mediator may be very important. experts in one or more aspects of the necessary to pay attention to the In recent years, many states have constitution (elections, the legislature, stages of the process and the motives been re-organised to accommodate reconciliation, human rights, woman’s of politicians. different ethnic groups within one or minorities rights, land policies, state. The most common forms are Similarly, it is important to federalism, etc.), funded by federalism and other autonomy disaggregate the general public. Their international organizations, govern- arrangements. Kenya and Fiji are preferences regarding the values and ments, or foundations. International interesting examples of diverse ethnic system of government vary with their impact is also the result of a number communities. My own approach is needs, from one area to another, or of international instruments binding different from the usual approach variation of occupation, and from one on states, the foremost being the (especially when the UN or class to another. convention on human rights, but also international groups are involved), In these circumstances, the role of the increasingly about the environment, which tends to find a specific role or constitution making body is crucial. etc. land for “minorities”. I believe that The first task is that of the A third element is the borrowing of ethnicity is not as pervasive or deep as constitutional commission, which may approaches, concepts and text from we think (though politicians do find it be operating based not only on what constitutions of other countries. In this easy to stir up ethnic demands). My the people told them, but also may be regard the Indian constitution has approach has been to make a bound by a broad framework of values been much studied, and in recent distinction between the public/political in legislation which define its role. This years the South African, and Kenya and private domains—or as the Kenya was more of an issue in Kenya, than in (which drew considerable inspiration preamble notes, “national unity and Fiji, where considerable attention was from South Africa). To some extent proud of its diversity”. The paid to what people said because of a this migration takes place because the constitution has been designed to lack of prior agreement on key issues. same experts move from one country promote national unity, through The recommendations/draft of the to another, often under the auspices of political parties and other devices; but commission are then subjected to the UN or institutions operating also to promote diverse cultures, scrutiny by a constituent assembly/ internationally. There is also a growing languages, religions, etc. (I must parliament, which may not follow group of scholars who have begun to concede that politicians have those recommendations. In those specialise in the subject of constitution effectively fought off the unifying countries which have a referendum, making. elements of nationhood, and the final decision falls upon the public. To a considerable extent these forms emphasised instead the priority of of intervention dilute the impact of different ethnic communities). Q. Over the past several local participation, and sometimes the decades, what have you noticed sense of ownership of the constitution. We took a similar approach in Fiji—the are some of the more significant In some countries where I have public domain belonged to the people trends and changes in how worked I was lobbied intensively by of Fiji. Until then parliamentary seats constitution making is local interests, on rights of women, had been distributed on an ethnic/ conducted? minorities, equitable distribution of racial basis. Our draft abolished this; land, the electoral system, when I seats were based on residence. This The most obvious change is the considered that they ought to lobby coincided with the approach of the participation of the people in their parliamentarians and members government and found its way into the constitution making, increasingly of the constitutional assembly. new constitution. accompanied by a referendum (though in South Africa no referendum Constitutional reform is Women often struggle to was held; the deal between two Q. Q. leading political parties was deemed frequently a focal point of post- get fair representation at the sufficient). conflict peacebuilding and constitutional negotiating table. democratic transition. In your In your experience what have The second feature is the greater experience, what are the major been some effective strategies to international engagement in domestic challenges for constitution increase women’s participation constitution making: through the making in post-conflict and the attainment of enhanced involvement of the UN or regional environments?

The UN Constitutional – Issue 7 Issue 1–December 2013 3

INTERVIEW: YASH GHAI gender equality and related implementation. What have you people, to some extent through the rights? found are some of the challenges state, and some extent through the to constitutional implementation? economy. Poverty in all African states Ours is not a bad time for making a In two lengthy lectures/papers I have has increased in recent years; the constitution from the point of view of slums have exploded in number and women—and their supporters. The tried to identity the many reasons why a constitution may be sidelined or size, causing misery beyond the care role that women play in the process of of the elite—who create these making the constitution and the have more reform-minded provisions marginalized. I trace the fortunes of conditions. provisions that emerge governing their status in society depend to the constitution to three critical The constitution tries to shape each of considerable extent on the religion or factors, which in different ways are these factors (state, economy and mores of the people concerned—but integral to the constitution: state, society), rather than take them for there is also a trend towards the economy, and society. The state and granted; but each of them in turn greater participation of women in the its structures are in themselves the reacts on it, supporting or subverting process as well as gains in the principal object of a constitution. We its values and objectives. I argue that constitution. need to study the nature and structure this interaction may be the key to of the state and how public control understanding the potential of the In both Kenya and Fiji the over it can make a greater impact on constitution and to explaining its constitutional commission included a society rather than the other way success or failure. fair number of women members: in round. Fiji three out of five members. In Conscious of this phenomenon, in the The economy is an underlying, and both cases the women were every bit Kenya constitution (and lesser extent sometimes an overt, concern and as bright and informed as male in Afghanistan) we tried to build theme (and often the ideology) of the members, as were the staff of both implementation in the constitution constitution. In Africa the economy is commissions. In Kenya women of itself: a time table for the enactment less evident on the face of the various communities/tribes were of new laws critical to implementation; constitution, but there is little doubt better able to organise and present the scheme for the establishment of that in most of them, Kenya included, joint demands in so far as their new independent institutions (with the business community, foreign and interest as women were concerned— major responsibilities for implement- local, have a firm control over the even though for more general issues, ation, and the promotion of state—but less overtly as in the West. they tended to take tribal sides. constitutional values), emphasis on The Kenya constitution tries to deal the Rule of Law, with a strong, In both cases women’s organisations with this phenomenon by establishing independent judiciary, and empower- made good use of international and social and economic obligations to the ment of the people, etc. The regional norms and conventions. And people on the state, especially the exploitation of state resources by in both cases substantial progress on most deprived people and politicians and their sponsors was to women’s political participation and communities. There is little evidence be stopped by a strong regime to fight gender rights were constitutionalized. that the business community is corruption—and the general emphasis Unfortunately, a number of constitu- deterred—indeed it has dominated on integrity in public life. tional provisions in favour of women or and co-opted the political and other marginalised communities have bureaucratic elite. It would be unfair to say that these measures failed completely, quite not been followed through in The third element, society, is the apart the fact that the constitution is legislation or practice, suggesting that underlying basis of the state and relatively new. There are several areas popular opposition is likely at the constitution; the maker or recipient of of success, but many areas where legislative level, and that therefore the the constitution, with complex constitution should go beyond progress is greatly needed. relationship between it and the requiring enactment of the law to constitution, sometimes reinforcing, actually providing for enactment other times trying to transform, social Q. You have worked alongside within a specified time with clear norms and practices. While newer the United Nations providing indication of its substance--as indeed African constitutions pay lip service to constitutional support in the Kenya Constitution does in relation the people, declaring that “all state numerous countries. What advice to some matters. sovereignty is vested in the people”, would you give the UN, and the reality is that the rich and powerful international community more It is often said a Q. classes, new though they might be, broadly, in the way it provides constitution is only as good as its have secured a firm control over the constitutional support?

The UN Constitutional – Issue 7 Issue 1–December 2013 4

INTERVIEW: YASH GHAI

Kenya. Procession for the 2010 celebration of the International Day of Democracy. Credit: UNDP Kenya

It is well recognised that the process Third, international assistance should study tour, for which no report and no of constitution making and the support national actor’s efforts and to discernible benefit was derived. document that results is a sovereign the greatest extent possible avoid Fourth, the UN should pay a great deal prerogative of the country, and UN imposing their own views and of attention to civil society actors, and other actors should not interfere. preferences. Unfortunately, I have which are playing an increasing role in But the UN or regional associations seen this happen often, even when conflict resolution and peace building. should be free to inform them of international organizations come in Fifth, the UN should take care to international norms that are binding with the best of intentions. For coordinate its assistance as between on all states and provide other example, when chairing the Kenya different agencies and departments. assistance when requested. From this process (2000—2004) a head of an Poor coordination has, in my principle I would offer the following inter-state organization approached experience, undermined the advice to the UN and other me with an offer that his organization effectiveness of UN constitutional international actors. First, particularly would draw up a constitution for support and undermined the if there is conflict but even in more Kenya, at no cost to Kenya. Such an credibility of the UN more broadly. stable contexts the UN should promote act would have greatly undermined Sixth, international actors should not good relations between competing the national ownership of the Kenyan impose arbitrary timelines – groups/leaders, so a proper basis for process and any document that came constitution making is often linked to constitution making can be made. In out of it. A different international conflict resolution and cannot be certain cases this might include organization, also working in Kenya, rushed. And finally, foreign experts, promoting interim joint governance tried to force me to accept money I did whether from UN or other sources, arrangements between antagonistic not need (presumably either to satisfy should be given training in local political parties or actors. Second, the its donors, maximize the “credit” it history, economy, communities, etc. UN should promote understanding of could claim for supporting the process, so that their advice can be grounded human rights and other relevant or both), and eventually – without my in the local context. international conventions. approval - used the money to take commissioners out of the country on a

The UN Constitutional – Issue 7 Issue 1–December 2013 5

FEATURED: FEDERALISM IN BRIEF

Federalism A brief Introduction By Rohan Edrisinha, Senior Political Affairs Officer Constitutions, UN DPA

which cannot be changed Whether one likes it or not, identity based politics is a reality in many parts of the world. When identity based claims are not recognized or unilaterally. accommodated in the constitutional architecture of a country it can ▪ Provincial/state representation at lead to intra-state conflicts. In recent years, therefore, there has the centre; been a renewed interest in federalism as a constitutional mechanism ▪ An umpire to resolve disputes that responds to the reality of diversity in society. Many scholars and between the different tiers of commentators have argued in recent years that a federal constitution government; may be more appropriate than a unitary constitution in managing multi-ethnic and plural societies. ▪ Mechanisms to facilitate inter- governmental cooperation.

Many scholars have cited India’s exercise of political power by one, federal constitution as a reason for its central authority. (C.F. Strong, Contrasting these five features of a success in managing its diversity and Modern Political Constitutions) (Unus= federal constitution with the definition preserving national unity. Nepal, one in Latin). of a unitary constitution highlights following a decade long conflict that some key differences. In a federal Power may be decentralized or ended with a peace agreement in constitution there is more than one devolved within a unitary consti- 2006, adopted a new constitution in tier of government with powers that tution, but this is granted or given by 2015 that introduced a federal, cannot be taken away from one tier by the central authority and therefore can secular, democratic, republic; South another tier through unilateral action. be taken back by that authority Africa adopted a quasi-federal The term “federal” comes from the unilaterally. The power granted to constitution in 1996 to facilitate a Latin, foedus, which means a covenant the decentralized authority is there- transition from apartheid to demo- or agreement. A federal constitution is fore relatively insecure. cracy while ensuring respect for its deemed to be an agreement and as plural character. The federal idea has As Strong has observed such any changes can only be made if both parties to the “agreement” featured in recent years in the “It does not mean the absence of consent to such change. The division constitutional reform debates in subsidiary law making bodies, but it of powers and competencies is countries such as Iraq, Yemen, Syria, does mean that they exist and can be therefore more secure as it is set out Somalia, Nepal, Sri Lanka, the abolished at the discretion of the in a written constitution that is Solomon Islands and the Philippines. central authority.” supreme. A Federal Constitution, on the other The Difference Between Unitary A federal constitution is more complex hand, is different, as the powers that and Federal Constitutions than a unitary one as it involves at are granted to the provinces or states least two rather than one tier of The term ‘federal’ is difficult to define are more secure as they are government with constitutionally and has no fixed meaning. Both the guaranteed by the constitution, the guaranteed powers. Since there are terms ‘unitary’ and ‘federal’ can be supreme law of the land. considered to cover a range or a bound to be disputes between the tiers spectrum of meaning. However, not- Ronald Watts, a Canadian scholar, of government, an independent, withstanding this, it is possible to provides a useful working definition of impartial umpire, who commands the develop a working definition by a federal constitution which highlights confidence of both tiers of comparing and contrasting the terms, 5 features: government, is necessary. In many federal countries the final unitary and federal, in order to ▪ Two tiers of government each arbiter/umpire is a Constitutional understand the essence of the federal acting directly through the Court. Watts’ final feature is note- idea. authority of the people; worthy as he suggests that modern ▪ A written, supreme Constitution A unitary constitution is generally federations need to be cooperative with a clear division of powers defined as one with the habitual rather than competitive and that the

The UN Constitutional – Issue 7 Issue 2013 6

FEATURED: FEDERALISM IN BRIEF two tiers of government have to largely concentrated in the south of constitutional arrangement may be collaborate and cooperate to make it the country are given autonomy to established. The more common successful. look after some of their own affairs in method known as Integrative a federal arrangement, it will be in the Federalism is where previously The essence of a federal constitution is long term interests of national unity if independent nation states integrate to therefore, a combination of shared they are also given a voice in the form a new political entity. This is the rule and self-rule. affairs of the central government case, for example, in the United States Watts’ third feature, provincial/state through participation in national and Switzerland. The second method, representation at the centre is institutions in Kathmandu. known as Devolutionary important in facilitating the shared Federalism, is where a country that *** rule dimension of federalism. In most is unitary opts to change to a federal federal countries, the provinces/states Max Frenkel in Federal Theory has system by introducing constitutionally are represented at the centre through described federalism as follows: entrenched devolution of power that a second chamber which forms part of “A system for decision making is corresponds to the five features of a bi-cameral legislature. There are two federalist if it is an entity composed of federalism discussed above, such as in rationales for a second chamber that territorially defined groups, each of Belgium, Spain and possibly South provides for the provinces/states to be which enjoys relatively high autonomy Africa. represented at the centre: and which together, participate in an A federal constitution may or may not ▪ A Protection of Devolution ordered and permanent way in the include a right to secession. Most rationale; formation of the central entity’s will.” federal constitutions do not. In many ▪ A Protection of National Unity In the 5 features of federalism, countries federalism is often proposed rationale. therefore, there is a combination of as an alternative to secession or as a

strategy to undermine secessionist The Protection of Devolution the shared and self-rule dimensions of Rationale federalism. A federal constitution is tendencies. For example in Canada, it not merely focused on promoting could be argued that a federalist In a federal system, the second tier of autonomy; it is also equally focused on response countered the separatists in government (the state/province) is promoting power sharing and Quebec. Federal type reforms have responsible for certain powers and inclusivity at the centre. The Federal been proposed in several countries in responsibilities provided in the Idea is about more than autonomy; it order to counter the threats of constitution. However, very often, provides for autonomy AND secession by addressing reasonable central legislatures tend to encroach mechanisms to promote shared rule aspirations for self-rule within a united upon the powers granted to the and national unity. Nelson Mandela country. provinces/states. If the referred to the new South Africa as a provinces/states have a voice at the It is also important to recognise that “Rainbow Nation,” where the centre in a second chamber, whether the federal characteristics of a distinctiveness of each colour of the it be a Senate (like in the U.S.) or a constitution cannot be viewed in rainbow was recognized and Council of Provinces (like in South isolation. Since federalism seeks to celebrated, but within the context of Africa), the provinces have a promote the shared and self-rule of one entity. The Federal Idea, which mechanism whereby they can raise the people and recognise their seeks to promote unity in diversity, the alarm or object to any attempt at diversity within a common whole, it is and the Rainbow Nation concept, have undermining provincial powers in the interwoven with principles of a great deal in common. central legislature itself. Furthermore democracy. Furthermore since a such a chamber also provides a forum The Federal Idea: Myths and federal constitution is necessarily for provincial concerns and interests to Misconceptions more complicated than a unitary be raised at the central level. constitution, respect for the There are many “myths” about supremacy of the constitution and The Protection of National Unity federalism. These include: constitutional principles and Rationale ▪ That a federal state is established institutions is of paramount Ensuring that the provinces have a only by previously independent importance. stake at the centre or in the country states coming together. as a whole helps to promote national ▪ That a federal constitution must unity and the territorial integrity of the include a right to secession. country. If, for example, a minority Constitutional scholars recognise that such as the Madhesis in Nepal who are there are two ways in which a federal

The UN Constitutional – Issue 7 Issue 1–December 2013 7

FEATURED: NATIONAL WOMEN’S MACHINERIES

Is Constitutional Recognition Sufficient for

Effectiveness of State Institutions?

A Case Study of National Women’s Machineries

By Beatrice Duncan, Advisor Justice and Constitutions, UN Women Elisabeth Doyle, Policy Analyst Constitutions & Access to Justice, UN Women

Kick -off Conference of the EU/UN WOMEN Regional Programme ‘Ending Violence against Women in the Western Balkan countries and Turkey: Implementing Norms, Changing Minds’. Credit: UIN Women

Questions by The UN Constitutional National Women’s Machineries formulate and review legislation; among on the Elimination of Discrimination (NWMs) have emerged as critical other things, it should perform policy against Women (the Committee) to institutions with mandates for analysis, undertake advocacy, State Parties in relation to the advancing the status of women communication, coordination and effectiveness of NWMs as well as since the early 1960s. monitoring of implementation.”1 Shadow Reports of civil society organizations on the same issue. It The Beijing Platform for Action (BPfA) Typically NWMs have taken the form determines whether constitutional of the Fourth World Conference on of national commissions and similar recognition is a sufficient condition for Women (1995) identified “Institutional institutions. To date, constitutional guaranteeing the effectiveness of Mechanisms for the Advancement of provisions on the creation and NWMs and concludes that it does not. Women” as one of its 12 critical areas mandates of NWMs appear in only While constitutional supremacy may of concern. In this effort States were seven (Egypt, Guyana, Morocco, enhance legitimacy and clout, it can by expected to, Nepal, Rwanda, South Africa and no means replace the indispensable Zimbabwe) out of 195 Constitutions, “[b]ased on a strong political life line of human and financial although several other countries have commitment, create a national resources as well as the political will to NWMs that are not constitutionally machinery, where it does not exist, and ensure the survival and effectiveness recognized.2 strengthen, as appropriate, existing of such institutions. national machineries, for the This article is a precursor to more Constitutional gravitas or advancement of women at the highest detailed qualitative and quantitative possible level of government; it should research on the impact of window dressing? have clearly defined mandates and constitutional recognition on NWMs, Studies demonstrate that the authority; critical elements would be and is based on a desk review of the effectiveness of NWMs is often adequate resources and the ability and Concluding Observations and constrained by weak mandates, competence to influence policy and Recommendations of the Committee limited human and financial resources,

The UN Constitutional – Issue 7 Issue 2013 8

FEATURED: NATIONAL WOMEN’S MACHINERIES locational instability and lack of South Africa for adopting a number of and in 2012 the CEDAW Committee autonomy.3 Unfortunately, this has policies, programmes and plans of encouraged Guyana to “to clearly proven true of NWMs in countries with action to promote gender equality and define the mandate and the and without constitutional recognition. eliminate discrimination against responsibilities of the national women including the establishment of machinery for the advancement of For example, the National Women’s a NWM, the Committee stressed that women and to expeditiously Commission of Nepal was established additional work was needed to ensure strengthen that machinery by in 2002 through Executive Order and the institutional capacity of these providing it with adequate human, later by the National Women’s Act of national women’s machineries. In financial and technical resources for it 2007 as a statutory body.4 Nepalese particular, the Committee expressed to coordinate and work effectively for women’s organizations were its concern regarding the “weak the promotion of gender equality and successful in lobbying for institutional capacity” of the Ministry gender mainstreaming.”13 constitutional recognition of Nepal’s for Women, Children and People with NWM in the 2015 Constitution of Disabilities in particular, and Beyond constitutional Nepal.5 A 2016 Shadow Report of “recommends that the State party recognition Nepalese civil society organizations, expeditiously strengthen its National however, reveals that the NWM “has This article has demonstrated on a Gender Machinery.”9 The Committee not been able to function effectively as preliminary scale that constitutional called upon the State to “provide the the necessary law of the commission recognition of NWMs without the national machinery with adequate has yet to be enacted and the necessary human and financial human, financial and technical appointments to the commission has resources required to guarantee their resources to coordinate the yet to take place.”6 The report stressed effectiveness will not result in implementation of the Convention, the need for the State to “equip “constitutional gravitas”. Such and work effectively towards Institutions created for advancement continued lack of support to NWMs promoting gender equality.” 10 This of women, including the National could be a symptom of the capacity sentiment was echoed in a 2011 South Women Commission, with adequate gaps of other constitutional bodies and African Shadow Report which outlined budget and human resources as well therefore calls for further research. that the national women’s machinery as [to] train Staff thereof to be gender This does not mean, however, that the was not effective at “parliamentary, responsive in their work.”7 Given that practice of constitutionally recognizing national, provincial or local level” due NWMs should be discouraged. This is the shadow report was released within to a lack of robust “political because assuming countries respond one year of the conclusion of the commitment as well as insufficient to the strategic call by the BPfA and constitutional review process, it can be 11 capacity, resources and funding.” Committee to strengthen the argued that more time will be needed The South African experience effectiveness of their respective to assess the impact that demonstrates that constitutional NWMs, constitutional recognition constitutional elevation will have had recognition does not guarantee could be boosted by legal clout and on the effectiveness of Nepal’s NWM. political commitment and that political possible added protection through A much earlier constitutional commitment is a necessary condition constitutional public interest litigation. development may however serve as a for unleashing the transformative Being embedded in a constitution is benchmark for assessing more recent potential of NWMs. therefore an asset, but like the stock experiences. The 1996 Constitution of Similarly, although the Constitution of market, investments must be made in the Republic of South Africa gave Guyana recognizes the State’s Women catalytic resources to ensure effective constitutional recognition to the and Gender Equality Commission and implementation of mandates. Commission on Gender Equality and mandates its duty to “promote set forth its mandate to “promote national recognition and acceptance respect for gender equality and the that women’s rights are human rights, protection, development and respect for gender equality and the attainment of gender equality,” protection, development and accompanied by the power, “as attainment of gender equality,” the regulated by national legislation, Commission is hindered by lack of necessary to perform its functions, human and financial resources to including the power to monitor, actualize its mandate, and, therefore, investigate, research, educate, lobby, lacks the clout needed to be fully advise and report on issues concerning effective.12 The Commission is under gender equality.”8 While commending resourced and lacks a clear mandate

The UN Constitutional – Issue 7 Issue 1–December 2013 9

FEATURED: NATIONAL WOMEN’S MACHINERIES

1 The UN Fourth World Conference on Women, Platform for Action, para. 203, Beijing, China 1995. 2 UN Women, Global Gender Equality Constitutional Database, available from http://constitutions.unwomen.org/en 3 United Nations, Economic and Social Council, Twenty Year Review of the Beijing Declaration and Platform for Action, 15 December 2015, E/CN.6/2015/3. 4 Shadow Report on the 4th & 5th Periodic Report by The Government of Nepal on CEDAW, p. 7 (2011). 5 See the Constitution of Nepal 2015, Art. 252. 6 CEDAW Shadow Report Preparation Committee (SRPC), Civil Society’s Alternative report on CEDAW Convention, p. 7. 7 Ibid., p. 8 8 Constitution of the Republic of South Africa, 1996, with Amendments through 2012, Art. 187. 9 CEDAW Committee, Concluding Observations of the Committee on the Elimination of Discrimination against Women, South Africa, 5 April 2011, CEDAW/C/ZAF/CO/4. 10 Ibid. 11 Centre for the Study of Violence and Reconciliation, People Opposing Women Abuse, and Western Cape Network on Violence Against Women, South African Shadow Report on the Implementation of the Convention on the Elimination of All forms of Discrimination Against Women, p. 22, (2011). 12 The Constitution of Guyana 1980, amended 2009, Art. 212Q. 13 CEDAW Committee, Concluding Observations of the Committee on the Elimination of Discrimination against Women, Guyana, para. 17, 27 July 2012, CEDAW/C/GUY/CO/7-8.

UPDATE: INVOLVING YOUTH

Involving Young People in Constitutional Research & Analysis

UN Women

Questions by The UN Constitutional UN Women partners with various universities from around the world to promote gender-responsive teaching and research related to constitution- making and constitution-building. The catalyst in this effort is the first global gender equality constitutional database. UN Women launched this database in December 2013 as a repository of gender equality related provisions from 195 constitutions from around the world. It is organized around five geographical regions (Africa, Americas, Asia, Europe and Oceania), 24 categories, and 19 subcategories, which include affirmative action, national/local level quotas, participation in public life, sexual and reproductive health, and sexual orientation and gender identity. The United States Institute of Peace (USIP) was founded by Congress in

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UPDATE: INVOLVING YOUTH

1984 as an independent, national institute, dedicated to the proposition that peace is possible, practical, and essential for U.S. and global security. The Institute pursues this vision of a world without violent conflict by working on the ground with local partners. USIP provides people, organizations and governments at every level with the tools, knowledge, and training to manage conflict effectively. USIP has long been committed to advancing the broad inclusion of women in peace and security processes. The Institute recognizes that women must be critical actors in all our efforts to achieve sustainable peace and stability. UN Women and USIP strongly believe that the implement- ation of the 2030 Agenda for Dr. Phumzile Mlambo-Ngcula speaking the Second International Symposium on Gender, Law and Constitutions held in April 2017. Credit: U.S. Institute of Peace Sustainable Development signals an important need to Hebrew University of Jerusalem while Professor Susan Deller Ross, invest in the next generation of (Israel), and the University of Malawi Professor of Law, Georgetown leaders to serve as effective (Malawi). Professor Beth English, University moderated the panel custodians of sustainable Woodrow Wilson School of Public and discussion. The panelists consisted of development. In this context, the two International Affairs at Princeton Dr. Phumzile Mlambo-Ngcuka, organizations co-hosted an University was also invited to the Executive Director, UN Women; international symposium entitled event. During the opening ceremony, Habiba Osman, Program Specialist, Ensuring Gender Equality in Ms. Ulemu-Hannah Kanyongolo of the Elimination of Violence Against Constitutions: Engaging the Next University of Malawi, elaborated on Women and Girls Program UN Women; Generation of Stakeholders, in the constitutional reform process that Jason Gluck, UNDP Policy Specialist, Washington D.C. at the United States had recently taken place in her Political Dialogues and Constitutional Institute of Peace from April 12-13, country and what these reforms mean Processes; Robin Lerner, Senior 2017. for girls in Malawi (see p.13 for more Adviser and Counselor in the The participants comprised 56 details). Secretary of State’s Office of Global Women’s Issues, US Department of students and their law professors from Students congregated in four groups State; and Justice Yassmin Barrios 11 universities to share the findings of to facilitate their research present- Aguilar, President Judge, High Court, research undertaken on various topics ations, which spanned a wide range of Guatemala. related to women’s constitutional topics such as harmful practices, rights. The universities represented discrimination in family law, property The two-day symposium concluded were the University of Chicago, rights, women in leadership, and with a commitment from students, Columbia University, University of legislative advances in women’s scholars, and law professors to foster Pennsylvania (USA), Adam Mickiewz rights. The symposium also included a cooperation, networking and University (Poland), University of public event on the sub theme: enhanced gender mainstreaming in Birmingham, University of “Conflict and Constitutions: Ensuring teaching, learning and research in Westminster (UK), Università Bocconi, Women's Rights.” Kathleen Kuehnast, constitutional developments world- Università degli Studi di Milano (Italy), Director, Gender Policy and Strategy wide. Universidad de Alcalá, (Spain), the of USIP provided welcoming remarks,

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Among the issues that are likely to be What is the United Nations doing in the area of central to the review include power- sharing, separation of powers, constitutional assistance? This section offers an accountability, and strengthening overview of the latest developments, challenges fundamental rights. Constitutional reform is not just an opportunity for and lessons in this key area of support sourced Guyana to address the existing hyper- directly from our field missions, country offices presidentialism, “winner take all” system, and other substantive and other UN entities. matters; it is also a potential mechanism to defuse tensions GUYANA Representation (PR) electoral system between the different Guyanese with MPs serving under the close communities and promote nation scrutiny of the party leader, it also building, stronger social cohesion, Constitutional Reform in Guyana made MPs completely accountable to civic education and citizen Guyana has a history of racial division the party as opposed to the electorate. engagement. In this regard, it is and ethnic-political tensions that These features mean that the crucial that the process be inclusive precedes its 1966 independence and President wields unusually significant and participatory, such that the continues to shape the socio-economic power for a democratic society. political opposition and other key and cultural aspects of life. While daily Between 1999 and 2001 under the PPP stakeholders – including civil society – interactions among the different social (Civic)-led government, Guyana are involved at each stage of the groups are typically peaceful, latent undertook an important constitutional reform process through consultation, ethnic tensions tend to surface during reform process in response to the compromise, and credit sharing. heated political occurrences, governance challenges of previous Public education on the Constitution is particularly elections, between the two years, ethnic tensions, and repeated also necessary to enable meaningful largest political parties and their cycles of election-related violence. citizen engagement in the reform historical majority ethnic constituents While introducing a number of power- process. – the PNC and Afro-Guyanese and PPP sharing mechanisms and institutions, Since the UN assessment mission, the and Indo-Guyanese. the reform was only partially Government submitted a draft bill to In May 2015 a coalition of two political implemented and several issues Parliament in July 2017 for review by entities, A Partnership for National relating to the powers of the the Parliamentary Standing Unity (APNU) (led by the PNC/R) and presidency, the electoral system and Committee on Constitutional Reform the Alliance for Change (AFC), secured human rights protection remained on the creation of a Constitutional a thin majority in the polls and elected unaddressed. Reform Consultative Commission. retired Brigadier David Granger as the In September 2015 Prime Minister Bipartisan support would be important 9th President of Guyana. During the Moses Nagamootoo (AFC) appointed a for a bill on constitutional reform – not electoral campaign, the APNU+AFC 5-member Steering Committee on only because many of the most coalition had actively advocated for Constitutional Reform (SCCR) tasked important amendments will require a Constitutional reform. to provide “recommendations for the two-thirds majority vote (which the ruling party does not enjoy alone), but Guyana’s current constitution is appointment of a Constitutional also because the process will have largely the product of reforms Reform Commission together with the missed an opportunity to strengthen undertaken unilaterally by the PNC-led Terms of Reference and modalities for social cohesion and national unity. government in the late 1970s, ratified reform”. The SCCR submitted a report in the 1980 referendum. These to the Prime Minister on 30 April 2016. UNDP is drafting a project document reforms created a hyper-presidential With this backdrop, the Prime Minister with UN-DPA for consultation with the system, with few legislative or judicial formally requested “UNDP’s support Government, Opposition and civil checks against the executive – for the process of constitutional society to support the Constitutional amounting to what many Guyanese reform.” In response, UNDP and UN Reform process. Department of Political Affairs describe as a “winner take all” system Briefing prepared by: where the opposition (and its conducted a joint constitutional reform UNDP Guyana Office constituents) may become politically needs assessment mission from and economically marginalized. By February 6-10, 2017. utilizing a closed list Proportional

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MALAWI Rights of Women in Africa, the African regulating the age of a child in order Charter on the Rights and Welfare of to firmly set the limit to 18 years,” the Child and the Southern African “operationalize the Marriage, Divorce Development Community Protocol on and Family Relations Act without Gender and Development. The further delay,” and lastly, “raise constitutional amendments also align awareness in communities on the with Sustainable Development Goal 5 dangers of early marriages” to ensure on gender equality aimed at ending all speedy and progressive forms of discrimination against women operationalization. 2 and girls everywhere by 2030. Noting The amendment process involved a Reforming Gender Discrimination Malawi’s international obligations mobilization of the UN system, in Law through Constitutional under CEDAW, the Committee, in its collaboration with the Ministry of Review: 2015 Concluding Observations, urged Justice and constitutional Affairs, the Malawi to “take all the necessary In February 2017 the Malawi Women and Law in Southern Africa, a measures, including by amending its Parliament passed two constitutional civil society organization, and male constitution, for the harmonization of amendments to protect children and female traditional leaders. against early marriage. the minimum legal age of marriage of 18 years for girls and boys, as The constitutional amendments are a The amendments align the provided for in the Marriage, Divorce critical step towards empowering constitutional age of marriage and and Family Relations Act and in women and girls with equal rights and definition of a child with Malawi’s accordance with the Convention.”1 The ending child marriages in Malawi. The international and regional obligations 2015 Shadow Report from Civil reforms will also have a catalytic under the Convention on the Rights of Society, echoed theCEDAW impact on the elimination of the Child, the Convention on the Committee’s recommendations and discriminatory laws more broadly and Elimination of All Forms of called upon the State to review the accelerate the achievement of Discrimination against Women, the constitution to “repeal Section 22(7) substantive equality in Protocol to the African Charter on and set the minimum age of marriage Malawi. However, gender- Human and Peoples’ Rights on the to 18”, “harmonise all relevant laws discriminatory laws are often rooted in

Malawi. Scenes from the CSW61 side event 'Opportunities for women to move up value chains in Malawi through economic empowerment for the vulnerable and most excluded,' organized by the Mission of Malawi and UN Women at the United Nations on March 13, 2017. Credit: UN Women

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UPDATES FROM THE FIELD & HQ discriminatory social norms, which are legislature, UNPD and partners issues including reducing the terms of pervasive and difficult to change. It is continue to engage the legislators and the President, Vice-President, and therefore important to publicize these general public on ways reforms could Members of the House of amendments widely. The Committee provide direct benefits to some of Representatives to 4 years and of the on the Rights of the Child, in its 2017 Liberia’s most vulnerable citizens. As Senators to 6 years; enhancing Concluding Observations, noted that it previously reported in the UN women’s participation in governance is important that changes in the law Constitutional (see, for example, UN and national Affairs; land ownership; relating to the age of marriage are Constitutional Issue #6), the Liberian and making local officials directly publicized and given “wide public Constitutional Review Committee elected. Some of the more awareness”.3 UN Women Malawi is (CRC), after dozens of public controversial items from the 25 therefore partnering with networks of consultations and a National proposals, such as restricting civil society organizations to shift Conference, submitted 25 proposed citizenship to only persons of negro- perspectives among both lawmakers constitutional amendments to the descent and restricting dual and the public. In partnership with the President in August 2015. The citizenship, were referred back to UN system, UN Women Malawi, will President then forwarded the committees for further discussion, continue to support the Ministry of proposals to the legislature in while the most controversial proposal Gender and Justice to harmonize the September 2015, along with her – constitutionally declaring Liberia a new constitutional amendments and personal recommendations in a cover “Christian Nation” - was rejected the various pieces of discriminatory letter, for review and action. To date, outright. legislation against women and girls. the legislature is still considering the The Senate has moved more slowly, proposed amendments. 1 CEDAW Committee, Concluding questioning the procedural manner Observations of the Committee on the As is often the case with under which the constitutional review Elimination of Discrimination against constitutional reform, consensus has taken place (some Senators object Women, Malawi, para. 51, 24 November within the House of Representatives to the use of the executive-appointed 2015, CEDAW/C/MWI/CO/7, available from and Senate (both of which need to CRC) and discussing whether to here. approve the amendments by a two- consider the 25 proposals that came 2 UN Convention on the Elimination of thirds majority in order for the out of the National Conference or to Discrimination Against Women (CEDAW) amendments to continue on to widen the scope of review. With the CSOs Shadow Report for Malawi 2015, national referendum for final Fall of 2017 dominated by legislature Compiled by Women and Law in Southern Africa Research and Education Trust Malawi adoption) has been difficult. In late and presidential elections, the (WLSA-Malawi) and Faculty of Law, 2016, the House took up the proposals prospect of legislative approval Chancellor College, University of Malawi for and consolidated and reduced them to becomes more remote. Undeterred, Malawi CSOs, (2015), p. 54-56, available from seven proposals, covering a range of Liberians, with support from UNDP, here 3 Committee on the Rights of the Child, Concluding Observations on the Combined Third to Fifth Periodic reports of Malawi, para. 13, 6 March 2017, CRC/C/MWI/CO/3-5, available from here

Briefing prepared by:

Clara M.W. ANYANGWE, Country Representative, UN Women Malawi Habiba Rezwana Osman, Program Specialist, UN Women Malawi

LIBERIA

Deepening Citizen’s Engagement in the Constitutional Review Process in Liberia As the constitutional reform bill works its way through the Liberian Liberia. Snapshot from election day 2017. Credit: UNDP Liberia

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UPDATES FROM THE FIELD & HQ continue to engage on multiple fronts joint legislative committees from the governance, service delivery, and to promote the reforms and educate Liberian Senate and the House of fundamental rights. At one meeting, legislators and citizens about them. Representatives discussed the conducted in Yawuli, district 5, Margibi This includes marshalling the political amendment process and whether to County and convened by Liberian ‘good offices’ of the UN Mission in keep the current process limited to the CSOs with UNDP support, a local Liberia (UNMIL), which has been proposals submitted by the President resident weighed in on matters of intensely engaged in advocacy around or expanding the process to address traditional norms, gender rights, and the constitutional review and other any constitutional matter. The early marriage, noting: “Since I was pending critical legislation; including roundtables ended with both born, this is the first time I see they the Local Government and the Lands chambers resolved to individually come ask us about the thing they Rights Acts, which also underpin the consider and vote on a framework to doing in Monrovia.” The public constitutional reform. move the process forward. outreach not only provides the opportunity for many indigenous The Liberian Law Reform Commission As the amendments work their way Liberians who would not ordinarily (LRC), with UNDP’s support, is through the legislature, UNDP participate in these discussions, it also working with Liberians CSOs to continues to engage civil society and contributes to a greater sense of a engage both the House of local stakeholders to deepen citizens’ shared future for Liberia. Representatives and Senate in round engagement in the constitutional table discussions to help legislators review process and their Briefing prepared by: reach consensus and move the reform understanding of the core issues that UNDP Liberia process forward. Roundtable underlie the reforms. For many discussions were held in Buchanan Liberians, this is the first time they are City, Grand Bassa County, from June being exposed to, let alone debating, LIBYA 1-2 and July 14-15, during which the crucial matters of constitutional Constitution Making in Conflict On 29 July 2017, the Constitutional Drafting Assembly (CDA) reached a key milestone in Libya’s constitution- making process by passing a proposal for a constitution. After weeks of discussions on the text, 43 out of the 44 CDA members present voted in favor of the draft, providing the necessary quorum for a valid vote. Overall, the constitutional proposal had broad support from CDA members across all three of Libya’s historical regions. Nonetheless, the vote was not immune from the tense political reality on the ground. Immediately after the vote had taken place, the CDA headquarters in the Eastern town of Al-Bayda was surrounded by a crowd who demanded that the CDA vote again. After some negotiation, the crowd withdrew and no further vote took place. Despite this minor disruption, the passage of the constitutional proposal indicated significant progress on the part of the CDA, which was elected in 2014 to produce a draft constitution within Libya. Participant in the Youth for Reconciliation Conference held in May 2017. Credit: four months of its election. Shortly UNSMIL after starting its work in April 2014,

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UPDATES FROM THE FIELD & HQ serious conflict broke out between court also upheld the expulsion of the observers are not convinced by the opposing groups from different towns chairman of the CDA for being a dual merits of this case, believing rather and regions with fundamental national – which should have that the process has been frozen for ideological differences, interrupting precluded his membership from the political reasons. the CDA’s work. outset according to Libyan law. The constitutional framework is an The conflict reflected deep, Whilst the court cases were ongoing, important element of the UN’s Action unaddressed differences over the the constitution-drafting process was Plan for Libya, announced on 20 character of the country and different uncoupled from sensitization and September 2017 at a High Level Event visions of the path forward, which, outreach, so that activities by a on Libya by the Secretary General’s naturally, came to be reflected in the number of Libyan and international Special Representative and Head of CDA. One fundamental issue is how NGO’s were not related to a specific the United Nations Support Mission in the three historic regions of Libya will text but rather on the constitutional Libya, Dr. Ghassan Salamé. The Plan form a united country, whether process and issues more generally. calls for a clear constitutional through a decentralized or federal framework as the base for In January 2017, the CDA elected a model and what that would mean in parliamentary and presidential new chairman, who has driven the practical terms. After the 2014 elections, marking the end of Libya’s process forward as pressure on (and conflict, the CDA produced two draft political transition. criticism of) the CDA mounted. A constitutions but neither achieved the consensus committee was formed in Briefing prepared by: majority of votes required under the March 2017, composed of both those 2011 Constitutional Declaration. Anwar Darkazally, Political Affairs who had signed the April 2016 draft Officer, UNSMIL The signing of the Libyan Political and those who rejected the draft or

Agreement in December of 2015 boycotted the process. The amended provided new impetus for the draft the consensus committee PHILIPPINES constitution-making process and a produced reflected a number of new deadline of 24 March 2016 for the compromises and many of the Constitution Making, CDA had to finalize a draft boycotters subsequently rejoined the Federalization, and the constitution. A new draft was put to a CDA to work together to debate and Bangsamoro Peace Agreement vote in April 2016, but a number of finalise the new text. On August 9, President Duterte CDA members boycotted the The constitutional proposal passed on announced a plan to appoint 24 proceedings over a number of 29 July 2017 was a significantly commissioners to draft amendments substantive issues in the draft text, revised version of the text produced in to the Philippines’ 1987 constitution. including: the role of Islam in April 2016, and reflected some While the Government of the legislation, the allocation of legislative substantive alterations which were Philippines had intended to launch the seats by geography and not based on demanded by the boycotting members full process of the transition to a population, the powers of a second who had not signed on the previous decentralized—potentially federal— chamber, the distribution of sovereign draft. These included: identifying system of governance by early 2017 wealth and the rights of women and Sharia law as the source of legislation; (Duterte originally announced the minorities. designing senate formation to allow formation of a constitutional There was no one issue uniting those for significant geographical commission in December 2016), two opposed to the text, making it harder representation of Libya’s three factors led to the delay. The first was to arrive at compromises that would regions; measures to safeguard the commitment to the Moro Islamic enable more CDA members to vote for women’s rights; and recognizing Liberation Front (MILF) that legislation the text and allow its adoption. After Libya’s minority linguistic and cultural establishing the Bangsamoro the text was adopted by 37 votes, the rights and freedoms. autonomous entity would be passed CDA was taken to court by some of the before the process of constitutional Despite the increased unity over the boycotting members in protest at the reform, and as a prelude and a draft, there still remains some internal change of rules that had possible model for federalism. opposition. Shortly after the 29 July preceded the vote and allowed the However, and due to political delays in vote, a case was filed against the adoption with four votes less than establishing the joint Government- validity of the vote on the basis that it required by the Constitutional MILF body that drafted the legislation, was held on a Saturday. The court has Declaration. The court ruled against the legislation was not transmitted to frozen the validity of the vote until it the change of rules, effectively the Congress till July 2017. Second, has considered the case, but many negating the adoption of the text. The since May 2017 the Government and

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Moro leadership have been invested in immediately on the announcement by the constitution does not reflect addressing the crisis created by the the President of the membership of modern trends in constitutional siege of the Moro city of Marawi by an the Constitutional Review Committee, drafting. Issues identified by ISIS-linked radical group, with much and is one way UNDP will contribute to Tuvaluans include virtual silence on national and international attention the forthcoming constitutional reform. gender and marginalized populations focused on ensuring speedy recovery such as the disabled; silence on socio- Briefing prepared by: from a conflict that destroyed a economic rights and environmental significant portion of the city and Chetan Kumar, UN Senior Advisor on issues; and a rather inaccessible style displaced its entire population. Peacebulding, Philippines of writing. For these reasons and others in 2016 the Parliament of The Marawi crisis has heightened Tuvalu, sitting as a Constitutional Congress’ awareness of the critical TUVALU Review Committee (CRC), began the importance of passing legislation on process of examining the constitution Bangsamoro autonomy in the near Constitutional Reform in the with an eye towards substantial term before more disgruntled Moros Pacific: the Tuvalu Constitutional reform. take to violent extremism. However, Revie Process some measure of convergence will be Since the establishment of the CRC, Tuvalu’s Constitution dates from needed in short term among Moro the constitutional review process, 1986, and although the Constitution leaders, and also between them and which is being supported through a has generally served the country well the Congressional leadership, as to UNDP-led support project, has made there are a number of internal political how special autonomy for Bangsamoro considerable progress. Two major concerns that have prompted the will be aligned with a new constitution workshops strengthening the technical Government to consider a revision of for the Philippines. Through the UNDP- and administrative capacity of the CRC the constitution. One set of concerns supported Insider Mediators’ Group have been conducted during which key involves the system of government. and in partnership with independent legal and policy frameworks for the The current constitution sets up a institutes, UNDP has supported these working of the committee and also a parliamentary system on the British conversations in the first part of 2017, support secretariat were tabled and model, but textual ambiguity on which have yielded some important approved. UNDP has also continuously executive-legislative relations has led political shifts. The MILF, which has been providing technical and policy to occasional constitutional crises, insisted on the 2014 peace agreement advisory support to the CRC through most recently in 2013 when the then- that it signed with the government as the Secretariat, which includes the key Prime Minister refused to call being the only basis for autonomy, has research topics for consideration, key parliament into session for nearly made an effort to better understand process decisions as the review eight months due to fear he would face the potential opportunities provided progresses from one-stage to the a vote of no-confidence. There is also by federalism. The Moro National other, and most importantly a public a concern that governments have Liberation Front (MNLF, which signed civic education campaign. The civic been too unstable: between December a peace agreement with the education campaign, which 2000 and December 2010, the country government in 1996), had been more commenced in summer of 2017, saw had seven prime ministers – with one receptive to the federal path but is the distribution of numerous exception governments lasted an now willing to follow a MILF-led pamphlets and issues based study average of roughly a year each. process for special autonomy, thus papers, all available in both English Several times in their recent history, bringing the two groups closer and Tuvaluan, to ensure that they are Tuvaluans have considered changing together. The Bangsamoro Transition fully comprehensible to the key their political system in various ways, Commission is expected to convene a stakeholders --- the Tuvalu citizens. but there has been no consensus on formal Moro dialogue around this and how to do so. Furthermore, the CRC is also quite related issues in the near future, and actively engaging with Tuvaluan’s UNDP has engaged the chair on how Other issues prompting a both living in Tuvalu and in the best it could support the process. constitutional review include the role diaspora, such as Fiji and New of religion and religious freedom, UNDP has also been requested by the Zealand. Two major outreach which has led to social conflict on staff of the Senate President to workshops were conducted in Fiji, some of the outer islands. The issue support a number of studies regarding which saw around 387 participants is a delicate one, as it relates to the the operational dimensions, including (around 60% women) and in New role of the Falekaupule, the traditional costs, for a transition to a federal Zealand around 100 participants mechanism of island governance. system. These will be commissioned (around 60%. When considering the There are also various ways in which

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UNDP will continue to support the process, which extends into 2019, with the aim of having a revised constitution ready by September 2018. The project is a result of the strong partnership between the Government of Tuvalu, Government of Australia and UNDP.

Briefing prepared by:

Mohammed Mozeem, Governance Analyst, UNDP-Pacific Office

YEMEN

Preparations to Complete the Constitution Making Process in Yemen Yemen’s civil war is in its third year and its humanitarian crisis has escalated to alarming proportions. And while peace, security, and alleviating the suffering of Yemeni citizens are the United Nations’ top priorities, it is not forgotten that a trigger for the current violence was disagreement over the constitutional draft produced in the aftermath of the National Dialogue Conference (NDC), and that any durable peace will have to be grounded, in part, on broad- based consensus over fundamental and constitutional matters. Yemen’s constitution-making process followed a National Dialogue Conference (NDC) that took place in number of attendees, one must bear the review process’ key steps, the 2013-14. In January 2015, a in mind that the total population of mandate of the CRC and to some Constitution Drafting Committee Tuvalu is only around 11,0971. Both extent the contents of the completed a draft constitution, but outreach events were instrumental in constitution. This review process, that document was not adopted as a advocating the need for citizen unlike the previous minor review result of strong disagreements involvement but most importantly to processes, includes extensive between political forces, most ensure citizens are aware that their engagement with citizens and particularly on the number of regions voice is important in the review thorough examination of the and the delineation of their borders. process and building their constitutional provisions, which over The violent conflict that ensued understanding on the provisions of the the years have not managed to solve complicated matters further, delaying current constitution. key conflicts resulting from either notably the prospects for effectively constitutional ambiguity or The outer island outreach has just addressing the terms of the imprecision. commenced and is being preceded by constitutional debate. The Office of the a series of radio campaigns outlining Special Envoy of the Secretary General to Yemen (OSESGY) is

1 World Bank 2016 figures.

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UPDATES FROM THE FIELD & HQ working with Yemeni stakeholders to The constitutional dialogue forum all Yemeni constituencies while lay the groundwork for the resumption operates under the assumption that preparing the long-term tasks of the of the constitution making process the design of the upcoming upcoming transition. OSESGY shall after the signing of a peace constitutional process will have to be continue to assist Yemeni agreement. It is thus part of a more enshrined in the peace agreement and stakeholders in developing and comprehensive conflict transformation rest on an accepted legal framework. enshrining interim constitutional process and shall both fit within and This includes the governing principles arrangements and establishing a clear shape the peace-making process. and objectives. and operationalizing mechanism for measuring the draft institutions that are to govern the constitution against the NDC This work is being conducted in close process. The same framework shall Outcomes. It shall also provide consultation with Yemeni political also adopt reasonable timelines, mediation and technical support to the constituencies, legal community and develop plans for public participation, different bodies tasked with civil society activists. It also involves and ensure the effective coordination completing the constitution, with a the contribution of leading and delivery of international support. particular focus on the regions issue. international experts who had worked OSESGY shall also assist Yemenis to on Yemen and/or on comparable Given the fragmented political scene, develop a test mechanism to assess experiences. They include experts the actual constitution-making the viability of the proposed future from the UN DPA Standby team, the process is most likely to be institutional arrangements. Alongside UNDP constitutional specialist, as well incremental and will likely move these tasks and objectives is the as scholars from institutions such as forward gradually as some security national constitutional dialogue forum, the Max Planck Institute for stabilization, economic recovery, where Yemenis will continue to be able Comparative Public Law and humanitarian relief and reconstruction to come together, share views, and International law, the European are achieved. The adoption of test visions for peace and University Institute, Edinburgh confidence-building measures are constitutional development in Yemen. University, Humanitarian Dialogue and likely to facilitate the conduct and International IDEA. completion of the constitution-making Briefing prepared by: process and encourage more groups Constitutional dialogue Omar Hammady, Political Affairs to join the peace process. Officer/ Constitutional Adviser at the A key element of the OSESGY’s The scope of review: OSESGY approach towards the Yemeni constitutional process consists in Yemeni stakeholders appear to launching a national constitutional generally agree on the Outcomes of dialogue forum. This forum consists of the National Dialogue Conference a series of meetings that bring (NDC) and the Constitutional Drafting together, under different formats, Committee’s draft of January 2015 as Yemeni experts, civil society activists, the starting points for their and politicians, as well as youth, discussions. There are, however, women, and international experts. The strong disagreements on the details, forum provides a venue for direct and including on the nature and number of in-depth exchange amongst regions and the division of power in participants who participate in their the new federal state. In addition, the personal capacity and are not asked to 1800 Outcomes of the NDC, listed in reach agreements nor to negotiate in 400 pages and which are supposed to any official capacity. It aims at helping guide the constitutional drafters work, Yemenis develop a common remain, in some places, vague, understanding and shared views on incomplete, and inconsistent. As they the main challenges in terms of undertake to complete the process-design and substantive constitutional process, Yemenis will constitutional issues. It also aims at need to work through these challenges ensuring that any international as they decide on the scope of the support will be based on the inputs, planned process. needs and expectations of national While focusing on facilitating a peace stakeholders agreement that will end the current war, the OSESGY keeps engaging with

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READER’S DIGEST

focuses on contexts where there is a Highlights of papers on constitution-making territorially defined social conflict as a offering insights into current debates, including principal driver behind constitutional reform. articles from academia, policy- or practitioner- Territorial designs and oriented organizations, and material produced by international politics: the UN entities. diverging constitution of space and boundaries Sub-State Constitutions in By Boaz Atzili and Burak . From paper to lived Fragile and Conflict- Kadercan reality: Gender- Affected Settings responsive constitutional This paper introduces the concept of By IDEA “territorial designs,” pertaining to the implementation in Nepal This workshop report follows the delineation of the external boundaries, By IDEA Third Edinburgh Dialogue on Post- to the constitution of the society within This practice-oriented Discussion Conflict Constitution Building, a series these boundaries, and to the interaction Paper explores the dynamics and of events co-organized by IDEA and between delineation and constitution. processes of constitutional Edinburgh University. The report Published in 5 Territory, Politics, implementation and the particular explores the process and design of Governance (2017). challenges of gender- sub-state constitutions in fragile and responsive constitutional conflict-affected settings, and their Primer implementation. It draws on a role in the broader political Government Formation workshop convened by settlement and/or peacebuilding and Removal Mechanisms International IDEA in Kathmandu, process. Nepal, in February 2016. By IDEA The IDEA Primer series provides Discretionary Referenda explanations and comparative Constitutional Advice and in Constitutional approaches to various elements of Transnational Legal Amendment constitutional design. This Primer By Richard Albert Order discusses the formation and dismissal This working paper draws from Canada, By Tom Ginsburg of governments in parliamentary Colombia, France and the UK to develop The paper surveys the history and systems, including key concepts, a typology of discretionary referenda in practice of providing outside constitutional amendment, to examine various forms of negative and constitutional advice in constitution- why constitutional actors use positive government formation rules, making and the transnational nature discretionary referenda to amend the and the appointment and dismissal of of the process. Published in the 2 UC constitution, and to situate their use ministers other than the prime Irvine Journal of International, within the larger phenomenon of the minister. Transnational and Comparative Law circumvention of formal amendment (2017). rules. Published in Working Paper, Women’s Struggle for Boston College Law School Legal Citizenship: Studies Research Paper No. 460. Tiered Constitutional Civil Society and

Design Constitution Making after Constitution-building in By Rosalind Dixon & David the Arab Uprisings states with territorially Landau based societal conflict By IPI The paper explores a “tiered By IDEA This paper focuses on equal constitutional design” model, and the citizenship as a way to safeguard his workshop report ways in which it could help combat T women’s rights by promoting equality anti-democratic tendencies in follows the inaugural Melbourne and confronting discrimination. It contemporary constitutionalism. Forum, which brings together examines in detail the constitution- Published in the George Washington academics and practitioners from drafting processes in Egypt and Tunisia, Law Review (forthcoming); FSU College across Asia and the Pacific to discuss which became the key instruments for of Law, Public Law Research Paper No. constitution-building issues, co- enshrining citizenship rights and the 839 (2017). organized by Melbourne University transition to democracy. Law School and IDEA. This report

The UN Constitutional – Issue 7 Issue 2013 20

UPDATES FROM THE FIELD & HQ

Constitutional newsletters Announcement International IDEA’s ConstitutionNet Newsletter The Oslo Forum The ConstitutionNet newsletter provides a monthly digest of news of Peacewriter Prize constitution building processes from around the world, analysis and the latest The Centre for Humanitarian Dialogue resources, events and vacancies at International IDEA. To read the latest (HD) is launching the second edition of newsletter, and subscribe to future issues, click here. the Oslo Forum Peacewriter Prize, an Constitution Transformation Network Newsletter essay competition seeking bold and The Constitution Transformation Network (ConTransNet) is a network of expert innovative responses to today’s scholars and practitioners of constitutional transformation, set up in 2016 at peacemaking challenges. Submissions the University of Melbourne Law School. The ConTransNet bi-monthly should take the form of an analytical ConTransNet Newsletter, which shares information on global constitutional essay relevant to the practice of developments and the work of the Network’s members, can be found by conflict mediation.

clicking this link. Entries submitted by 14 January 2018

More info here.

THE UN

This publication is a joint effort between the United Nations Department of CONSTITUTIONAL 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 Copyright © 2017 United Nations. All Rights Reserved.

The UN Constitutional – Issue 7 Issue 1–December 2013 21