Constitutional reform, peacebuilding and the social contract
In his briefing to the Security Council in September 2013, Libyan SRSG Tariq Mitri stated: “The constitutional drafting process presents an opportunity for the Libyan people to forge a new social contract that will govern the new Libya, making imperative therefore that it be transparent, consultative and inclusive.” Political theorists have long recognised that the national constitution of a country is the framing legal document that captures the basis of the social contract between the state and the people it is supposed to serve.
Historically, national constitutions were designed to enshrine the basic agreement between the governed and their government, setting out the parameters of what the state can and cannot do. Originally arising as a pact between the monarch and the aristocracy to constrain the monarch’s absolute powers, the European Enlightenment ushered in a new era of constitutionalism that prioritised constitutions as vehicles for enshrining a new social contract between the state and broader society, as witnessed in the French and American constitutions of the 18th century.
While the historical roots of constitutionalism are firmly entrenched in social contract theory, within the international development community of the 20th century there has been a tendency to view constitutional review processes as “technical” exercises focused on the legal redrafting of constitutional articles. Arguably, this has stemmed in large part from the fact that development assistance became a tool of policy-makers in the 1970s and 1980s alongside decolonization processes that saw many countries decolonized through constitutions written by foreigners, given to them by their former colonial powers and/or endorsed at conferences in foreign capital cities rather than through popularly elected parliaments or public referenda. This reinforced the notion of constitutions as legal drafting exercises rather than a nation-building opportunity to develop a common vision for the country and led the development community to focus its efforts more on operational and technical institutional reform programs.
In fact, a constitutional reform exercise presents development practitioners with a unique opportunity to support national counterparts to engage in a fundamental exercise of national reflection and revisioning. Constitutional reform processes provide a rare entry-point to support deeper and more overarching political and institutional governance reforms. In post-conflict contexts, this becomes even more significant. The unique role that a constitution plays in setting out the design of the government, the division of powers between branches and levels of the government, the checks and balances over state institutions, fundamental rights, and protections for minority communities means that they tend to operate as quasi-peace agreements. In such contexts, constitutions perform the unique and critical role of enshrining in law the political settlement agreed by post-conflict powerbrokers and ideally, owned by the broader local populace.
In recent years, the push amongst development practitioners for an increased emphasis on good governance interventions, and the more recent G7+ advocacy for a focus on supporting “legitimate and inclusive politics”, have seen a renewed interest in constitutional reform as an opportunity to enshrine a new social contract for a post-conflict or transitioning state. Over the last decade, the UN has been more systematically engaged in providing constitutional assistance to Member States in post-conflict countries, but the results have been mixed. A review of recent experience highlights the following lessons learned for consideration by practitioners in the field:
Prioritise a transparent and inclusive process: While security, financial and timing constraints may require a constitutional settlement to be reached speedily, nonetheless, at a very minimum it is essential that any post-conflict constitutional process be open and participatory. In post-conflict contexts, trust in national leaders is often severely limited, which makes confidence-building measures even more important as rumours can be severely destablising of the peace. Even where proactive public consultations may be difficult, at the least, efforts should be made to ensure information is shared on the process, the timing, the decision-making points and proposed content issues. Ideally, the public should also be provided the opportunity to contribute their own views on constitutional content, to build their buy-in for the eventual outcome. While universal agreement is not a practical objective, nonetheless, the opportunity to participate can be a key trust-building mechanism and can mitigate feelings of exclusion which can undermine a fragile peace;
Beware quick wins through elite bargains: There has often been a tendency to support the negotiation of peace agreements between a small coterie of elites – usually men, often ex-combatants and often unelected leaders. These peace agreements have also often included constitutional agreements regarding horizontal power-sharing (ie. the balance of powers between the Executive and legislative branches) and vertical power-sharing (ie. the balance of powers between the national and sub-national levels of government). While practical exigencies often require an initial bargain to broker a ceasefire and an initial peace, experience suggests that consideration should be given to enshrining such peace agreements in “interim” constitutional agreements at best, to enable the broader population a subsequent opportunity in peace time to determine their own constitutional destiny. For example, in the Autonomous Region of Bougainville in Papua New Guinea, the Bougainville Constitution was agreed as part of the peace process between the PNG Government and the rebels in 2004/5, but in 2015, the people of Bougainville will go to a referendum to determine the final form of their legal relationship with PNG;
Allow sufficient time to develop a broad-based national vision across society: In many post-conflict or transitioning countries, the initial optimism following the cessation of the conflict or the toppling of a dictator has given way to a hasty scramble to rewrite the national constitution in order to pave the way for elections of a new government. It is a lesson learned that it is important to allow sufficient time to reflect on what has come before and engage in an inclusive national conversation over what should come next. South African provides one of the best examples of using a series of dialogues to set the groundwork for constitutional drafting, with over three years of painstaking negotiations between the ruling party, the ANC and other political stakeholders used to develop a joint vision for the democratic transition and related constitutional process. Two Conventions for a Democratic South Africa (CODESA) were held in December 1991 and May 1992 to bring multiple political stakeholders together to forge a consensus. After the breakdown of CODESA II, these were replaced by the April 1993 Multiparty Negotiating Forum, which agreed on a way forward and paved the way for building a broader coalition in support of the agreed roadmap. The gradual building up of trust and consensus over many years led to the final agreement to an Interim Constitution in November 1993 which set out the agreed national vision for the way forward. More recently, in Bolivia, a constitutional process that extended from 2006 to 2009 was characterised by repeated dialogue efforts in order to attempt to build consensus amongst highly polarized political constituencies. Following an abortive referendum attempt in early 2008, a formal dialogue process was attempted, with little success. In 2009, the parties came together again, complementing local level initiatives to build trust and a common sense of purpose across the nation. Surveys showed that 92% of the public supported dialogue as a means of working towards peace. In Tunisia, deliberate effort was put into dialogue and mediation efforts, both at national and sub-national levels. A new National Constituent Assembly was elected in October 2011, but the constitution drafting process took more than two years to produce a constitution owned by the often-divided NCA. Despite two assassinations and a number of stalled efforts, the NCA and key political powerbrokers placed a high premium on consensus-building and dialogue. This was complemented through local level activities spearheading by the NCA (and supported by the UN/UNDP), which focused on building more broad-based understanding and support for the constitutional process.
This post was first published in the UNConstitutional Newsletter in November 2014 when Charmaine was the UNDP Global Constitutional Assistance and Political Dialogue Specialist.
