Constitution-Making and Reform

Constitution-making and Reform Options for the Process Michele Brandt, Jill Cottrell, Yash Ghai, and Anthony Regan Title Constitution-making and Reform: Options for the Process Authors Michele Brandt, Jill Cottrell, Yash Ghai, Anthony Regan Date September 2011 Publisher Interpeace ISBN 978-2-8399-0871-9 Printed in the USA Copyright © Interpeace 2011. All rights reserved. Reproduction of figures or short excerpts from this report is authorized free of charge and without formal written permission, provided that the original source is properly acknowledged, with mention of the complete name of the report, the publisher, and the numbering of the pages or figures. Permission can be granted only to use the material exactly as it is in the report. Figures may not be altered in any way, including the full legends. For media use it is sufficient to cite the source while using the original graphic or figure. This is an Interpeace publication. Interpeace’s publications do not reflect any specific national or political interest. Views expressed in this publication do not necessarily represent the views of Interpeace. For additional permissions or information please e-mail [email protected]. About Interpeace Interpeace has been enabling societies to build lasting peace since 1994. Interpeace is an independent, international peacebuilding organization and a strategic partner of the United Nations. It supports national teams in countries across Africa, Asia, Central America, Europe, and the Middle East. Interpeace also has a thematic program on constitution-making. Over 300 peacebuilding experts work to help their societies manage their internal divisions and conflicts without resorting to violence or coercion. The Interpeace approach contributes to building lasting peace through inclusive and nationally led processes of change. Interpeace also works to assist the international community, and in particular the United Nations, to play a more effective role in supporting peacebuilding efforts around the world. It is headquartered in Geneva (Switzerland), and has offices in Brussels (Belgium), Guatemala City (Guatemala), Nairobi (Kenya), and New York (USA). Interpeace is a nonprofit organization and its peacebuilding work is funded by generous contributions from governments, multilateral organizations, foundations, and private individuals. www.interpeace.org Foreword By Lakhdar Brahimi To consolidate peace after war is a long-term process; to consolidate democracy is an even longer one. There are no quick fixes. Ultimately, consolidating peace in any country depends on the people of that country. They alone must determine the path to peace—the international community can only assist. Early gains have often proved short-lived. If peace is to be sustained, it must rely on effective and accountable national institutions; international assistance must be converted, as quickly as possible, into nationally owned and sustainable systems. Such international assistance is often needed. Efforts are under way at the United Nations, in multilateral organizations, and in many countries to develop and improve on the assistance that can be made available to communities emerging from conflict, including in the areas of security and stabilization, elections and political reconciliation, human rights and judicial reform, institution-building, governance, and the reenergizing of social and economic development. Yet, as is evident from numerous postconflict experiences, the collective efforts of the international community have often been insufficient to support sustainable peace. One key reason is the low importance that has historically been placed on rebuilding state institutions and functioning political systems. This is slowly being remedied. As countries attempt to address the factors that have fed conflict in the past, it is often necessary to rebuild the rule of law and trust in good governance, and a fundamental underpinning of this effort, in many cases, has been constitutional reform. This handbook offers one such important remedy. It provides both international and national actors with comprehensive, practical guidance on designing, implementing, and supporting constitution-making processes. Although it focuses specifically on the needs of divided societies, this handbook will be a tool useful to any country undertaking to reform its constitution. Until a few years ago, the focus of international constitutional assistance was on providing guidance about the content of a constitution rather than on the process by which it is made. But the way a constitution is made in a war-torn country can play a key role in rebuilding or strengthening state and political systems as well as in securing a durable peace—particularly if it entails an inclusive process that leads to the creation of a consensus-based road map for a more just economic, political, and social order. Despite the important role such a process can play, little attention has been paid to how to design and implement a participatory and inclusive constitution-making process that supports a lasting peace. This book, Constitution-making and Reform: Options for the Process, is a welcome addition to i the toolbox at the disposal of national and international organizations, as well as governments involved in postconflict constitution-making. It is especially commendable because it does not provide one-size-fits-all solutions to what are highly political and sensitive processes, each with its own unique challenges and opportunities. I wish Constitution-making and Reform: Options for the Process had been available to the international community when I was the special representative of the United Nations secretary- general for Afghanistan. This book asks the right questions, beginning with the most basic one, which often gets overlooked: “Do you need a new constitution?”—a question we failed to ask when we started our constitutional process in Kabul. In hindsight, I am strongly inclined to say that we might well have spared the people of Afghanistan and ourselves the effort; the 1964 constitution, cleaned of its articles concerning the monarchy, could have served Afghanistan well for many years, allowing peace to take root and trust between former enemies to be reestablished. This handbook would have helped us avoid counting mainly on “gifted amateurs”—not to mention what I call “supply-driven help,” which we were not always able to push back. Equally important, the handbook would have been a great resource when we were addressing various gaps and weaknesses, including minimal civic education efforts to prepare marginalized citizens to have a voice in the process. The authors’ effort is laudable because they draw not only upon their own extensive experience, but also upon that of dozens of practitioners from across the globe. Such collective experience, gained through practical struggles with the issues covered, is evidenced throughout. The handbook reminds the reader that historic, cultural, institutional, ethnic, and linguistic differences among countries will lead to different outcomes; no two processes are alike and no single model will necessarily lead to the hoped-for result—the variables are too great. This is perhaps more true of the task of constitution-making than of any other democratization or peacebuilding task. The stakes may be highest here because the outcome will determine how power and resources are shared. Despite the variety of processes and contexts, the authors deftly raise the practical issues and concerns that constitution-makers should consider at each stage, and identify the core institutions and tasks of constitution-making and the risks and opportunities associated with each. I appreciate that the handbook speaks primarily to national constitution-makers and is a tool for their empowerment. In some contexts, nationals may have all of the human and material resources necessary to conduct their own processes effectively. However, in many contexts, nationals must rely on the international community for assistance as they overcome the devastating impact of war. The handbook stresses options for strategies that nationals can employ to maintain ownership of the process in the face of pressure to follow an external agenda. It also provides guidance for members of the international community to help them avoid the pitfalls of constitutional assistance efforts, including the common mistake of imposing short timetables and rushing the process. As this work emphasizes, the existence of a constitution ii does not mean the international community’s effort has achieved its end. The goal is to consolidate peace—and this takes time. Ending a conflict and rebuilding state institutions and societies torn apart by war are highly delicate tasks. Nowhere is this more evident than in the constitution-making process, where the past must be examined and agreements reached between often mistrustful citizens and communities. This handbook is an important tool for international actors and national actors alike; it will enrich the learning process as we seek to improve our efforts to secure peace and transform societies. Lakhdar Brahimi, a former Foreign Minister of Algeria, served as Special Representative of the UN Secretary-General to South Africa, Haiti, Afghanistan and Iraq. iii Preface By Scott M. Weber Improving the process of constitution-making and constitutional assistance is critical to peacebuilding efforts in the twenty-first century. We live in an era of constitution-making; more than

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