Concept Note, Dialogue on Partnerships for Constitution Building

I. Objective

Dialogue on Partnerships for Constitution Building is a series of events over the course of 2010 and 2011 that will bring together organizations and individuals engaged in supporting constitutional processes, broader democracy assistance activities and those with direct experience as constitution builders. The dialogues will serve as the platform for exchange of approaches, lessons and challenges amongst a community of practice in order to examine how constitution building processes can best be supported by the international community. International IDEA’s Constitution Building Programme (CBP) will produce a series of discussion papers that will be presented in draft form at the dialogues. The discussion paper series will aim to synthesize the experiences and lessons of constitution building assistance. The overarching aim of the dialogues and discussion papers, collectively known as the policy series, is to provide evidence based options for the support of constitutional reform processes, drawing on comparative experiences.

The first dialogue will set the agenda of the series by examining the scope and context of international assistance to constitution building. The discussion paper will explore who are the ‘international actors’ in assistance to constitution building and will touch on the scope of their support.

II. The Internationalization of Constitution Building Processes

Constitution building has traditionally been a foundational act. However processes of constitution building can also be the stage for the negotiation of political disputes, conflict resolution and transitions in the form of government. Between 1975 and 2003, almost 200 new constitutions were written in countries struggling with conflict and during the transition to multiparty systems. Constitution building as a part of peacebuilding has the possibility to be a transformative process, creating sustainable solutions built on a foundation that enjoys broad legitimacy. However in fragile states emerging from conflict, constitution building can be constrained as compromises made for the sake of stability can sacrifice democratic principles and limit constitutional choices. Constitutional processes and democratization do not always overlap.

In the last several years efforts have been made to derive good practices in development aid and democracy support from the Paris Declaration on Aid Effectiveness (2005). Principles of national ownership, alignment, harmonization, results-orientation and mutual accountability inform not only planning and implementation of development aid, but also other forms of assistance. In this context the United Nations Secretary-General issued a guidance note on the UN approach to rule of law assistance in 2008, and further specification was provided in April 2009 in the guidance note on UN assistance to constitution-making. The engagement of international actors in support to constitution building has appeared to increase, seemingly signaling their belief that constitution building is important to conflict resolution and reform.

III. Challenges

The policy series will attempt to locate assistance to constitution building within democracy and development assistance. Touching upon all aspects of governance and relating to conflict management, human rights, rule of law, development, etc., constitution building is approached by international actors through various lenses, depending on their thematic, regional and political priorities. Thus there are a multitude of openings for support to constitutional processes. However the variety of approaches to assistance to constitution building reflects not only the diverse policy priorities of donors and the complexity of the role of the post-conflict constitution, but also a lack of an articulated conceptualization of what assistance to constitution building can and should accomplish and how.

An effort to address this penumbra must also examine the broader context. Who are the actors in international assistance to constitution building? How do their roles differ, and to what extent are these roles leveraged in the service of countries undergoing constitution building? Likewise, if support to constitution building intersects with so many traditional areas of assistance, what, then, can be defined as international assistance to constitution building? Does an expansive or narrow definition best serve the examination of the central question: how can international actors support countries undergoing constitutional reform to achieve peace, human security, equality amongst their people and sustainable development?

In answering this central question, it may be useful during the course of the policy series to revisit lessons from the fields of democracy and development assistance in the context of constitution building, including:

• Recognition of constitution building as a political process rather than a technical-legal exercise.
• Context is paramount; constitutions can share many features but can neither be imported nor copied.
• National ownership: the constitution building process is sensitive to appearances of external interference, which is strongly linked to its perceived legitimacy.
• Constitution building is subject to the same domestic demands for development as other streams of democratic reform.
• Inconsistent monitoring and evaluation of democracy assistance contributes difficulty of determining the effectiveness of assistance.

While these lessons are not controversial, operationalizing them still poses challenges for the international community. A useful line of inquiry may be to examine why this is and practical measures to address these challenges in the context of assistance to constitution building. Additionally, assistance to constitution building faces distinctive challenges and constraints, such as:

• Transitional and post-conflict constitution building is characterized by volatile dynamics. An increased understanding of how constitutional processes are related to and are influenced by other processes, such as post-conflict reconciliation, is critical.
• Timing of assistance can be problematic. The common challenge is funding and planning cycles, which can dictate the form of assistance programmes and in some cases, impose unrealistic timelines on entire processes. Related to this is the identification of appropriate entry and exit points.
• Constitutional drafting is often regarded as the outcome of bargaining between political elites. In such a context, the role of political leadership takes on even greater importance, particularly in fragile states.
• A constitution is a product of negotiation. The liberal democratic model promoted by international actors is often subjected to extensive compromise. Unsettled arguments regarding the appropriate extent of the aspirational quality of a constitution have lent insight, but no bright lines. Thus international actors continue to grapple with the balance between firm positions on questions of rights and equality and issues of national autonomy, and the affect balance has on broader questions of implementation.
• In constitution building assistance, normative principles of democracy assistance confront positive experience. Public participation is widely held to be a critical feature of democratic constitutional processes to educate the public and to forge a sense of ownership and legitimacy. However in divided societies public participation also risks polarization, thus rendering it a highly sensitive process.

IV. Dialogue

International IDEA introduced the Constitution Building Programme to study practices of constitution building and share insights with national and international actors in order to strengthen the role constitutions can play in democratic and post conflict transitions. CBP also researches and develops tools that support practitioners in transitional settings. CBP is currently completing the development of a global knowledge resource on constitution building, constitutionnet.org

The participants of the dialogues will be composed of policymakers from countries and regional organizations active in support to constitution building processes, scholars, and specialists from the United Nations and other organizations active in constitutional, mediation, and democratic reform support. Participants will provide critical feedback on the discussion papers and the direction of the dialogue series. Constitutionnet.org will provide a virtual platform for communication and exchange among participants between forums and a location where relevant events and resource materials will be posted.

The questions posed above will inform the policy series. A draft paper on the scope of the actors involved in contemporary assistance to constitution building will provide a foundation for discussion for the first dialogue, with the final discussion paper produced following input from participants. During the course of the dialogue, issues for further research and discussion will be identified, which will inform the development of future discussion papers and dialogue themes. The interrogation of assumptions and practices of assistance to constitution building processes can lead to more coherent, effective support. Through this exchange, a global community of practice can move toward identifying solutions to shared challenges.