Constitution Making and Post-conflict States

Professor Muna Ndulo is a professor of Law at Cornell and Director of the Cornell University’s Institute for African Development.  From 1986 to 1995, Professor Ndulo served as a Legal Officer in the International Trade Law Branch of the United Nations Commission on International Trade Law (UNCITRAL).  He is also the founder of the Southern African Institute for Public Policy and Research (SAIPAR) and a member of its Board of Directors.  Additionally, among other appointments in his distinguished career, he served as a legal expert for the United Nations to Kosovo.  In this post, Professor Ndulo discusses the processes needed to create a successful and lasting constitution in post-conflict states.  He asserts that international actors should only play a supporting role and that the substance of the constitution should be left to local politicians and lawmakers who have the best understanding of the situations under which the particular constitution will operate.  He further asserts that even though international actors should only serve as advisors, these international actors should always apprise locals of the nation’s obligations to international law, and how a new constitution can meet those obligations.

One of the greatest challenges in post-conflict states is establishing a constitutional order and democratic governance. An important legal instrument in the establishment of order and governance is the national constitution. Constitution-making in any country, let alone a post-conflict one, is a major exercise. It presents a myriad of challenges in terms of expertise, resources, and logistical support. Invariably, external actors play an important role in drafting such constitutions; this post looks at their role in the process. External actors can illuminate constitution-making with lessons from elsewhere and empower local actors by providing independent and non-partisan support for constitutional principles. However, they can also have a negative impact and be guilty of imposing their preferred constitutional models.

Constitution-Making and External Actors in the International Community

There is widespread international support for democratization processes in the world.^[1] On several occasions, the UN General Assembly has, at the request of member states, asked the Secretary-General to submit reports on how the UN system could support democratization.^[2] The UN likewise has played a key role in constitution-making processes in several post-conflict societies, such as in East Timor,^[3] Afghanistan,^[4] and Namibia.^[5] The critical importance of democratic governance in developing countries was highlighted at the Millennium Summit, where many of the world’s leaders resolved to “spare no effort to promote democracy and strengthen the rule of law, as well as [show] respect for all internationally recognized human rights and fundamental freedoms including the right to development.”^[6] This includes developing a policy framework for democracy assistance at the inter-governmental level and, specifically, to support free and fair elections and the constitution-making processes.^[7]

The desire of governments to promote democratization and discourage authoritarian rule is explicitly expressed at the regional level too. A clear linkage between peace, development and democracy appears to be gaining general acceptance.^[8] Among regional organizations, the Organization of American States (OAS) officially proclaimed that representative democracy is a purpose, a principle, and a condition of its membership.^[9] Further, the ‘African Union Constitutive Act’ firmly enshrines in articles 3 and 4, support for democratic governance.^[10] In article 3, the Act lists the following among its objectives: (a) promotion of democratic principles and institutions, popular participation and good governance; (b) promotion and protection of human and people’s rights in accordance with the African Charter on Human and People’s Rights and other relevant human rights instruments; (c) promotion of good governance through the institutionalization of transparency, accountability, and participatory democracy; (d) promotion of gender equality; and (e) respect for democratic principles, human rights, the rule of law and good governance.^[11]

Although it is important that constitution-making be essentially a local process driven by local stakeholders, international actors and the international community can play an important role.^[12] The international community can encourage compliance of constitutions with international human rights.^[13] They can ensure that international standards are better articulated, and they can provide the requisite expertise and resources for a successful constitution-making process, and help in building capacity, knowledge-networking, and sharing of best practices.

Constitution-making requires a wide range of expertise to deal with the diverse issues that a constitution addresses. The United Nations Guidelines identify six principles for participation in constitution-making. These include: (a) seizing the opportunity for peace-building; (b) encouraging compliance with international norms and standards; c) ensuring national ownership; (d) supporting inclusivity, participation and transparency; (e) mobilizing and coordinating a wide range of expertise; and (f) promoting adequate follow-up.^[14] This UN policy also emphasizes that any United Nations assistance must stem from national and transitional authorities’ requests.^[15] Accordingly, international actors should engage national actors in a dialogue over substantive issues, explain the country’s obligations under international law, and explain how these obligations could be met in the constitution. These include the rights that have been established under international law for groups that may be subjected to marginalization and discrimination, including women, children, minorities, indigenous peoples, refugees, and stateless and displaced persons. An example worth emphasizing is the principle of equality between men and women, which should be embedded in constitutions.

The international community should, however, remain mindful that its role is to support the process, and as such, it should refrain from being prescriptive. This avoids the danger of imposing a foreign model and foreign institutions that are adverse to local conditions. If there is to be genuine ownership over the new constitution and legal order, constitution-making must be geared to the social, political and economic conditions of the people being served. Several difficulties can arise in connection with external actors’ involvement. Advisers too often lack knowledge of local issues and conditions and frequently appear as strong lobbyists for the models most familiar to them. Usually they come in and out of the country quickly and have no sustained engagement with the process. Sometimes they waste local officials’ time by requesting endless and time-consuming briefings.

It is important to guard against the uncritical adoption of foreign models. Constitutions must always be context-driven. The warning by Nwabueze, a distinguished professor of law based in Nigeria, is appropriate: “[T]he spirit of the laws and institutions of the state, unlike the laws and institutions themselves, is not an exportable commodity; it cannot be packaged and transported.”^[16] Human laws and institutions never function as well in the importing country as they do in their country of origin unless the spirit conditioning or governing them is also imbibed and assimilated. The process of constitution-making should therefore be in the hands of those who know local conditions, history and dynamics and who will in the end live with the result. The influence of external actors is less likely to be resented when it focuses on the process rather than on results. For example, external advisors should focus on ensuring that the process is inclusive and involves the participation of all stakeholders rather than advocating for a particular result.

Foreign experts should thus participate in the constitution-making process as partners with local experts. The value of the expert’s comparative experience is widely acknowledged,^[17] and access to that experience is particularly useful as it provides a wide range of information on possible options and lessons learned. The international community has to be mindful, however, that in some situations, foreign experts are brought in as part of an effort to provide legitimacy to a flawed process. Where this is clearly the intention, international experts should refrain from participating. But external actors and the international community often play an additional role, that of mobilizing resources for the constitution-making process, for example, by funding expert consultants and providing a significant budget to support the process.

Constitution-making Processes

Developing an effective procedure to prevent manipulation of the constitution-making process by those in power is a considerable challenge. It is helpful first to articulate the principles and mechanisms that are to govern the process. Articulation of these principles enhances the quality of the process as well as the chances for its success. The conditions under which the process is initiated are important. A central lesson is that the society initiating the process should debate and come to an understanding of the kind of society it wants to create. A constitution must be an exercise in building national consensus on the values and provisions to be included in the constitution. Clarity in this matter enables the process to look at conditions in the country and to plan the types of institutions and legislation required to transform the society as envisioned. A constitution-making body must be fully representative of all stakeholders and must take into account the concerns of the widest possible segment of the population, be transparent in its work, and ensure meaningful, effective, and properly structured participation of all stakeholders in the country. These factors are important to maintain integrity in the process.

In addition, participation by the people in the process is a good lesson in civic education for the populous. Citizens begin to understand not just the process but also its importance to their lives and communities as well as the values that the constitution seeks to protect and promote. Furthermore, the draft constitution must not be subject to unilateral executive interference. It must be guided by reasonable timeframes. While time does not always guarantee quality, there is no doubt that a truly participatory and consultative approach requires sufficient time to give meaning to the process and to bring alienated interests and communities into it. A rushed process often leaves many issues unresolved and leads to quick compromises that do not stand the test of time. Moreover, rushed processes often tend to compromise opportunities to engage in mass education as a way of building ownership around the final constitution.

After the elaboration of a draft constitution, the next important issue is to adopt the constitution and ensure maximum legitimacy. The supreme law of the land should not be adopted using procedures that apply to ordinary legislation. Two methods of adopting constitutions are common: adoption through a two-thirds majority in parliament or a national referendum. With respect to a parliamentary adoption, the important issue is not so much whether parliament has the power to adopt and enact a constitution; rather, it is to ensure that the sovereign will of the people on which the edifice of democracy rests is expressed in producing a legitimate, credible and enduring constitution. This implies an unequivocal acceptance of the fact that parliament’s powers are delegated to it by the people. The relationship between parliament and the people can endure only if this is recognized.

The adoption of a constitution through referendum is one of the most transparent ways of furthering the culture of consultation. Popular democracy demands the institutionalization of a culture of consultation and reciprocal control in law-making and the use of power and privilege. It should be entrenched in a constitution as a mechanism for obtaining the mandate of the people on constitutional matters and as a deterrent to amendments. The two-thirds majority requirement is often within reach of the largest party in parliament, making it little different in practice from the simple majority required for ordinary law-making. To safeguard democracy, much more should be required to effect a constitutional amendment. Approving a constitution through a national referendum encourages the full participation of the people who can give it their formal “seal of approval.” The process can also generate wide publicity and engender full public debate and education on the substantive issues covered by the constitution. It increases the chances of the document receiving the sort of critical and objective consideration that it deserves. Further, a referendum can counterbalance a presidential or government-inspired document being approved by a complaint parliament. On the other hand, referenda inevitably have their own drawbacks. In particular, the actual wording of the question(s) may greatly influence the result: they are expensive and time-consuming and some consider them too formal and static. In addition, if a constitution is rejected at a referendum there is often no option but to start the process all over again.

Conclusions

A stable political order can only be achieved by establishing a constitution that is legitimate, credible and enduring, and which is structurally accessible to the people without compromising the integrity and effectiveness of the process of governance. The stark lessons learned from the various constitutional processes that have taken place in post-conflict societies is that the process is as important as the constitution’s substance, and the process must be legitimate for it to be acceptable to all stakeholders. In order for the process to be legitimate, it must be inclusive. No party, including the government, should control it. A constitution should be the product of the integration of ideas from all stakeholders in a country, including political parties both within and outside parliament, organized civil society, and individuals in society.

^[1] See e.g., U.N. Secretary-General, Support by the United Nations System of the Efforts of Governments to Promote and Consolidate New or Restored Democracies, U.N Doc. A/51/512 (0ct. 18, 1996).

^[2] See Id.

^[3] See Muna Ndulo, The East Timor Crisis and International Intervention, 26 Cornell Law Forum, 3–9 (2000.)

^[4] See Muna Ndulo, Afghanistan: Prospects for Peace and Democratic Governance and the War on Terrorism, 30 Cornell Law Forum 10–18 (2003)

^[5] See National Democratic Institute for International Affairs, National Building: The UN and Namibia (1990).

^[6] United Nations Millennium Declaration, G.A. Res 55/2 (Sep. 8, 2000).

^[7]See U.N. Center for Human Rights, Human Rights and Elections: A Handbook on the Legal, Technical and Human Rights Aspects of Elections, New York & Geneva (1994); See also U.N. Secretary-General, Enhancing the Effectiveness of the Periodic and Genuine Elections, U.N. Doc. A/46/609/Add.2.

^[8] See Rita Abrahamsen, Disciplining Democracy: Development Discourse and Good Governance in Africa (2000).

^[9] Charter of the Organization of American States (A-41), Apr. 30, 1948, O.A.S.T.S. NO. 1-C and 61. Article 3(d) states “The solidarity of the American States and the high aims which are sought through it require the political organization of those states on the basis of the effective exercise of representative democracy.” Article 9 states, “A member of the organization whose democratically constituted government has been overthrown by force may be suspended from the exercise of the right to participate in sessions of the General Assembly, the meeting of Consultation, the councils of the organization and the specialized conferences as well as in the commissions, working groups and any other bodies established.”

^[10] See Constitutive Act of the African Union, July 11, 2000.

^[11] Id at art. 3.

^[12]John Hatchard, Muna Ndulo & Peter Slinn, Comparative Constitutionalism and Good Governance in the Commonwealth: An Eastern and Southern African Perspective 33 (2004).

^[13] See United Nations, Guide Note of the Secretary General: United Nations Assistance to Constitution-Making Process, April 2009 (stating that the UN Guidelines on Constitution-Making encourage the UN to speak out when a draft constitution does not comply with international standards, especially as they relate to the administration of justice, transitional justice, electoral systems and a range of other constitutional issues.)

^[14] Id. at 2.

^[15] Id.

^[16] Ben Nwabueze, Strengthening the Foundations & Institutions of Democracy in Africa, Lecture Delivered under the auspices of the Goddy Jidenma Foundation, Lagos, 10 December, 2009, available at http://nigerianlawguru.com/articles/constitutional%20law/STRENGTHENING%20THE%20FOUNDATIONS%20AND%20INSTITUTIONS%20OF%20DEMOCRACY%20IN%20AFRICA.pdf

^[17] See G. Chidyauskiu, Welcome Remarks, International Democratic Constitution, Nov. 17, 1999. ( “A home-grown constitution can and needs to be enriched by drawing on the experiences of other countries. Indeed there is no country in the modern world including Zimbabwe that can escape the imperative of a global society.)

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