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...Justice, Princeton University-Interpeace-International IDEA

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...Justice, Princeton University-Interpeace-International IDEA

    Princeton Workshop on Constitution Building

    May 2007

    Proceedings

    Workshop on Constitution Building Processes

    May 2007

    A Joint Project of

    The Bobst Center for Peace & Justice, Princeton University-Interpeace-

    International IDEA

    Citation form: Please use the following citation form in referring to this document or quotiorkshop on Constitution Building ng from this document: Proceedings, “W

    Processes,” Princeton University, May 17-20, 2007, Bobst Center for Peace & Justice,

    Princeton University, in conjunction with Interpeace and International IDEA.

    These proceedings are jointly authored by workshop participants and quotes should be referenced as above.

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    Princeton Workshop on Constitution Building

    May 2007

    Table of Contents

Sponsors Page 3

    Participants Page 4

Background Page 5

What do we mean by “success” and “failure”? Page 6

Context and procedural choice Page 10

Designing forums Page 15

     Creating ground rules & frameworks

     Developing an initial text

     Choosing forums for deliberation

Constitution writing in the context of peace negotiations Page 25

     (interim arrangements, sequencing, sunset provisions,

     amnesty, venue, and other matters)

    Building concern for the general welfare Page 34

     (timing, publicity, deadlines, one draft rule, space for

     persuasion, tone, difficult subjects, etc.)

Evaluating decision rules Page 40

Management maxims Page 43

Next steps Page 47

Contact information

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    Princeton Workshop on Constitution Building

    May 2007

    Workshop Sponsors

Princeton University’s Mamdouha S. Bobst Center for Peace & Justice was

    established within the Princeton University Department of Politics by a $10 million gift from the Bobst Foundation in 2000. The center's mission is "to advance the cause of peace, mutual understanding and respect for all ethnic traditions and religious faiths, and justice, both within countries and across national borders." The center sponsors a program and activities to this end. It also serves as "a place where high-

    level and mid-level officials are able to visit … in order to reflect upon their own work

    and to think about new directions that may be promising." It works collaboratively with Princeton’s Woodrow Wilson School of Public Policy.

    The International Alliance for Peacebuilding, Interpeace, assists societies torn by

    war to overcome conflict and to build lasting peace. In country, it does this by

    promoting processes of consultation, research and analysis with all sectors of society, including international assistance agencies and donors. Interpeace also seeks to assist

    with strengthening international peacebuilding efforts. Its Constitution Building

    Project aims to address current peacebuilding gaps through the production of a

    handbook and resource website. Interpeace is an independent and private association

    enjoying a mandate from the international community and working in partnership with

    the United Nations. Interpeace has a global network of regional and representative offices as well as country teams and partners who have a shared commitment to

    building lasting peace.

The International Institute for Democracy and Electoral Assistance (International

    ) is an intergovernmental organization that supports sustainable democracy IDEA

    worldwide. Its objective is to strengthen democratic institutions and processes. International IDEA acts as a catalyst for democracy building by providing knowledge

    resources, expertise and a platform for debate on democracy issues. It works together with policy makers, donor governments, UN organizations and agencies, regional organizations and others engaged in democracy building. IDEA is not a sponsor of

    the Princeton meeting but is part of the larger project and will assist with subsequent sessions.

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    Princeton Workshop on Constitution Building

    May 2007

    Workshop Participants

Robert Barros

Ana Maria Bejarano

Michele Brandt

Jill Cottrell

Justice Lech Garlicki

Yash Ghai

Tom Ginsburg

Andrea Iff

Sakuntala Kadirgamar-Rajasingham

Tinatin Khidasheli

Heinz Klug

Chibli Mallat

Christina Murray

Muna Ndulo

Anthony Regan

Kirsti Samuels

Richard Simeon

Alexander Their

Tomás Vial

Jennifer Widner

Support:

    Diane Price, Nancy Danch, Daniel Scher

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    Princeton Workshop on Constitution Building

    May 2007

    Proceedings

    Workshop on Constitution Building Processes

     During the past two decades, new constitutions have appeared in many parts of the world, often in the aftermath of civil wars, but also in response to demands for more democratic political systems or for resolution of institutional crises. These new documents have varied in their capacity to help channel conflict into non-violent settlement of differences, preserve the ability of individuals and groups to participate in a continuing dialogue about policy and politics, generate accountable governments, and focus attention on the common weal or on shared aspirations. Some remain pieces of paper that command little attention from political elites or ordinary citizens, while others have become focal points for political debate and the source of norms that shape everyday behavior. Some are suspended within a few months or years of their creation, while others endure.

     In May 2007, Princeton University’s Bobst Center for Peace & Justice joined with Interpeace and International IDEA to consider what we have learned about how to build constitutions that perform well with respect to these important outcomes. Under Bobst auspices, twenty practitioners and scholars convened to exchange ideas and to pave the way for further investigation. This document summarizes the conversations that took place. It offers tentative generalizations and points for debate, investigation, and further discussion.

    Background

     In recent times, constitution making has taken place in five distinctive political contexts and periods. Yash Ghai opened the meeting with a general overview of these waves of constitution building.

    1. One important wave of constitution building took place as part of the

    process of decolonization, after WWII. The emphasis was on the creation

    of new sovereign states. A dominant concern was to aggregate power in a

    centralized authority. The choice of procedure was partly influenced by

    domestic factors, such as the complexity and diversity of the society, and

    partly shaped by what one might call the metropolitan model. The

    French and British had different ways of going about constitution building

    in terms of both procedure and substance.

    2. Another wave of constitution making was associated with democratization:

    first in Latin America and parts of Asia, later in Africa. The new

    constitutions in Latin America are really part of a process of re-

    democratization. These new constitutions are vehicles for deepening

    democracy.

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    3. The collapse of communism has presented a third political context. The

    end of the Soviet empire brought regime change to relatively strong states

    in Eastern Europe and the Baltics. In some instances, countries

    temporarily reverted to constitutions put in place in the early 1900s, while

    in others; new constitutions had to be created de novo.

    4. Elsewhere, states failed, sometimes in the context of the collapse of

    communism and sometimes, as in parts of Africa, as part of the wave of

    democratization that followed the fall of the Berlin Wall. Constitution

    making had to address fundamental institutional crises in addition to

    regime change.

    5. Post-conflict constitution making has attracted the most attention lately.

    In this context, constitution making is partly about re-building political

    community as well as about state structures. Because constitution making

    follows the conclusion of a peace agreement, or may even be among the

    settlement terms, it is intimately linked to the dynamics of negotiations

    designed to convince parties to lay down their arms. Often the very

    process of resolving conflict is tied to basic understandings of how the

    state will be restructured, and prior agreement on features of the new

    constitution is very much part of the peace process.

     One might also speak of a sixth political context, in which a constitution is reviewed to ensure that it up to date, as in Finland.

    What do we mean by success or failure in constitution building?

     High hopes often attend efforts to write new constitutions. Conference

    participants stressed the complexity of measuring success and failure. “Success” has

    many dimensions, and some of these may be more important than others in any given context. Some of the anticipated results may materialize only after a considerable delay, while others may appear quickly. A process may be successful in inducing political

    elites to work together even though the document produced fails to win ratification. Here are some of the measures of success meeting participants proposed, with some of their attendant ambiguities.

     Durability. Whether a constitution remains in force and wins the respect of political elites and the populace is one measure of success. “Does the constitution last, and does it really work, or is it just a piece of paper?” Constitutions that are suspended within a few years and constitutions whose terms fail to attract allegiance might reasonably be considered failures. The first transition in power is seen as a key moment in the consolidation of democracy and these moments often test new constitutions.

     Yet durability is not as straight-forward a metric as it may first appear. First, the severity of the challenge may make a difference in whether we say a constitution is

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    strong or weak. In the life of every constitution there comes a point in time where the majority in parliament is not supportive of the constitution… are they still willing to live under the constitution? Can the constitution survive this unfriendly majority? A constitution that lasts in the face of a tough challenge might be regarded as stronger than one of which few care about. But would this constitution be stronger than one that had so shaped the values of political elites and citizens that few contested its terms?

     Second, if we think of the relationship between ending a conflict and building a constitution for the future, there may be another fundamental problem in taking “durability” as a measure of success. To end a conflict, negotiators may accept terms they might not have included under other circumstances. They may anticipate that they will be able to replace the new document in a few years. Thus, a constitution that is amended or replaced is not necessarily a failed effort. It may have achieved an important aim and it may be an essential precursor to an arrangement that is more enduring.

     The emerging consensus implored us all to take care in using “durability” as a measure of success. One participant posed the issue this way: “The significance of

    ‘durability’ is different in a society where what we need to get beyond this conflict is the central issue, compared to ‘durability’ in a society where the arrangement is intended to

    provide a stable basis for the long term.” Another commented:

    The factors that ensure longevity are very diverse. There are many

    constitutions that were highly publicized at their inception and

    were in the dustbin in two weeks. It is no great virtue to have the

    same constitution for 200 years. We live in times of rapid change

    and we should be able to adjust and change. Constitutions should

    be able to respond. The notion that a good constitution is the one

    that has lasted for 100 years is not among my criteria for a

    successful constitution.

     Some considered incorporation of specific terms a better way to assess success than longevity. “In discussing the metrics of success, it is worth remembering that durability is not really an objective at the moment when one makes the new constitution. For example, in transition from authoritarian rule, the new constitutions were successful to the degree they created new regimes. In cases of democratization, success was a function of whether the new constitutions provided for alternation of power. In the conflict case, we may think an important criterion is the degree to which the constitution displaces conflict into regular and appropriate channels. It is more appropriate to think of success in terms of those immediate problems.”

     Reduction in violence/increase in civility. To the extent that new constitutions are

    compacts between communities or factions, an ambition is to reduce violence and channel conflict through established institutions in peaceful form. The degree to which a constitution or a constitution writing process displaces conflict from the streets and into institutions is an important measure of success. Said one conference member, “if you

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    are in a situation of intense conflict, then success is in large part a matter of whether that decisions can be made political instead of by the barrel of the gun. As Gandhi said,

    civility is a good idea!”

     For negotiators, reduction in violence and an increase in civility are both central ambitions. As measures, they are not without their share of difficulties. Because many factors shape willingness to lay down arms, from war weariness to international pressure or a change of generation, it can be very difficult to impute a reduction of violence to procedures or to constitutional terms. Further, it is possible for a constitution building process to bring many communities together but for conflict between the government and one group to persist, making an otherwise successful constitutional dialogue appear unsuccessful. In Mali, for example, the constitution building process won kudos for resolving an institutional crisis and creating new pathways for securing governmental accountability, but a low-intensity war continued to rage between the government and the Tuareg community. Few would say that constitution-building had failed in this instance, but there was little noticeable reduction in violence levels.

     These reservations, aside, the measure has some practical utility. We can all cite examples of countries where constitution writing has inflamed passions and sparked violence, as it has in the Solomon Islands, Chad, Iraq, and the Republic of the Congo. In

    Chile, the enactment of the 1980 constitution without participation, under dictatorship, and after a fraudulent plebiscite, initially polarized politics because the way in which the document was crafted seemed to promise continued authoritarian rule. This process coincided with and gave credence to the emergence of armed activity among groups linked with the Left. The constitution’s provisions fueled conflict, because the text excluded traditional Left parties and gave the armed forces a continued role in politics.

     Awareness, public information levels. Especially where a constitution marks the

    creation of a new state, awareness of the institutions and principles embedded in a document may be an especially important outcome. Awareness may take the form of knowledge or acceptance--or both. It may vary in scope as well. In some places it may be restricted to political elites, while in others increase knowledge or acceptance may be shared by large numbers of citizens. Further, it may pertain to the specific principles or terms negotiated or to a way of interacting.

     In its strongest form, awareness may consist of acceptance of or general agreement upon a shared set of values, including willingness to process disputes through the mechanisms set up as part of a constitutional agreement. Said one participant, “a

    successful process is transformational; it converts the spoilers.” The people most able to cause violence accept the basic terms and are willing to process disagreements in constitutionally acceptable ways. Their orientation toward political institutions and toward law changes in the course of negotiations. Transformation is hard to measure, of

    course, but it sometimes manifests itself when people tell their personal stories about their roles or place issues into constitutional context. Under what conditions does such a change of view take place? Where do alliances that did not seem possible, now seem possible?

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     At the other end of the spectrum, there may be several states. People may know the terms that won agreement, and even accept them, but show little inclination to resolve disputes through established channels (“constitutions without constitutionalism”). Or deep agreement on shared values may prove elusive, but key actors may nonetheless accept constitutionally-enshrined procedures for resolving differences and establishing laws. A quick way to gauge this kind of awareness is to ask the question, “In a political

    conflict, do all sides do their best to argue that their positions are constitutional and the

    others’ positions are not?”

     Not all measures of success necessarily march together. Public awareness can increase without conclusion of a durable agreement. How? Think of the case of Kenya, where, after long deliberations, a draft failed at referendum. How does one judge the

    three years of very intense activity even though the constitution failed? Initially, most people in urban and rural areas did not understand what was going on because the

    national level structures of power were so different from the community structures in which they lived their lives. Most tests of awareness were very negative when the process started. To build understanding of principles and institutions, and ultimately of how the state works, is a very important objective and it takes time. If the constitution is to be rooted properly and implemented, it is very important that people understand (1) what is in the document, (2) how they can hold governments accountable. On these criteria, the Kenya process was very successful. The organizers went from town to town, listening and explaining. People felt they had some authority.

     Inclusiveness. Inclusiveness might be a measure of success for a constitution building process, although it is often a feature of the design we consider useful in promoting outcomes people often consider important (and thus something that shapes performance, not a measure of performance). If we expect with great certainty that durable, rights-respecting documents are more likely to emerge when all potential spoilers are involved and when members of the broader public are engaged, inclusiveness may be a way to assess a constitution building process. Inclusiveness also may have a place among our “measures of success” because we generally imagine constitutions to have a more fundamental status than ordinary legislation and to represent the outcomes of conversations within the larger political community. Often the reason a constitutional dialogue is taking place is that groups within a country have lost means of talking to each

    other, and constitution is a way of opening up space to discuss underlying issues.

     Terms that respect political & civil rights. Order is not all that matters in today’s

    world. For instance, many people would hesitate to call a highly restrictive or exclusionary constitution, such as South Africa’s earlier apartheid constitutions,

    “successful.” The future ability of citizens to participate in the affairs of their own countries, to act as members of a political community, usually matters too. By this logic, the terms in the document itself are indicators of success or failure. If they protect

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    individual and civil liberties, a constitution might be deemed “successful” and if they don’t, it might be seen as a failure.

     There is a second, prudential rationale for including “rights” as a measure of

    performance: Where people feel excluded or where they can be thrown in jail for no good reason, grievance may fester and breed violence.

     Accountability. Historically, constitutions often developed as deals to ensure that the sovereign could not abuse those who had to pay for his adventures. Concern about executive abuse of power and misuse of security forces is a common theme in most constitutional conversations today, developed better in some than in others. A process that produces a document that aggregates all power in the executive would be hard to countenance. Because elections and independent courts are among the institutional vehicles for ensuring accountability, most “successful” constitutions contain both, along with a variety of other devices.

     Outside the conflict areas, constitutions are about accountability,” observed one participant….We shouldn’t lose track of the objectives in non-conflict areas. Half the

    constitution making processes in Africa are about that kind of thing.”

     Whether the terms are implemented. A constitution that is successful is one that

    is not just a piece of parchment. Steps are taken to implement its provisions. Institutions set up under the terms of the agreement are created according to a reasonable timetable.

     Adaptability. A successful constitution is one that is able to accommodate political, social, and economic change. It continues to provide a framework for resolving disputes and framing policy in ways that minimize violence even when the country’s

    demographic profile changes, or prosperity or depression visit.

     One conference participant also suggested that “success” and “failure” depend partly on the point of view. From the perspective of the politicians who bargain over terms, the goal may be to preserve personal or party power. Advisers seek medium- or long-term stability, which rights provisions and accountable government will promote, at least in theory, but politicians generally focus on short-term personal advantage. The perspective that underlies most of the comments at the conference is closer to the second view.

    Context & procedural choice

     Which procedures and institutions are most likely to result in successful constitutions? Under what circumstances do the local parties on all sides decide that a constitution is a way to invest in a future?

     “It depends” is a good answer. Features of the setting or context may powerfully shape the ability of people from different backgrounds to talk with one another, the

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