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The Un Constitutional 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) SIGN UP FOR THE NEWSLETTER Email: [email protected] 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).
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