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Concept note

Background

Since the end of the Cold War, many countries in Africa, Latin America, the Asia Pacific region and Eastern Europe have revised, reformed and in some instances fundamentally changed their constitutions. There are complex and interrelated reasons for these alterations. However, democratization and striving for ethnic and religious coexistence within states appear as a frequently encountered explanation for the present wave of constitutional engineering. What lessons can be considered concerning the implementation of those constitutions? How can implementation of a new constitution, even when pragmatically defined as both the text and its underlying practice, be supported by national actors? And what advice might the constitutional implementers of today (who may also have been the constitutional engineers of the past) share with present constitutional drafters in other countries?

In 2006, International IDEA started the global Constitution Building Processes (CBP) Programme. The CBP Programme aims to increase understanding of the relevance of constitution building in the context of democratization and conflict resolution. The objective is to build knowledge and expertise in the field of constitution building based on comparative experiences and to derive lessons learned that can be disseminated to a wider audience of practitioners. The CBP Programme intends to build a global database of constitution building norms and practices that will be available as an online knowledge resource for practitioners. It also intends to build well- designed and well-targeted tools that will share reflections and lessons learned on specific issues that frequently occur in situations of constitutional reform. These tools include a handbook tailored for practitioners and a policy series for international partnership building to support the present and future waves of constitution building. The CBP Programme will also design a knowledge resource that can be used for capacity building for new practitioners, applying methodologies of interactive learning. How can these knowledge tools be improved to ensure that they are relevant to practitioners? What best practices can be recommended for global and interactive lesson learning and support for constitution building?

In partnership with Interpeace, the CBP Programme at International IDEA convenes this workshop for practitioners to discuss and reflect on the status of the implementation of constitutions, lessons learned and the support that the CBP Programme can offer by way of knowledge resources and tools.

Part One: Reflections on implementing constitutions

The pace and outputs of constitution building in Africa, Asia-Pacific, Latin America and Eastern Europe, when measured in terms of new or fundamentally changed constitutional charters, is usually accepted by most national and international actors as representing good progress in democratization and resolution of serious conflict. It is common to see interim constitutions in the framework of peace processes as transitional or even incremental progress toward final solutions. Once promulgated, the new constitutions enter a stage of implementation that is not readily measurable. What are the challenges of implementation and what opportunities exist to address them in constitution building? Key questions include:

  • How have constitution builders successfully addressed tension between short term objectives of implementation, e.g. competitive electoral processes or power sharing cabinets, and long term objectives, e.g. comprehensive change in societal relations and structures?
  • What devices or incentives have constitution builders adopted to successfully retain momentum after promulgation and broad popular support for the constitution, while protecting it from radicalization in implementation? What good examples are there, for instance, of workable constitutional guidance for the roles of civil society and political parties?
  • What lessons have been learned and good practice generated in addressing tensions between new norms and values in the constitution, e.g. liberal democracy values, and the underlying cultural norms and practices, which may be antithetical? For instance, what lessons are there for safeguarding pro constitutional national politics while creating room for culture, group autonomy, self-determination, minority rights, etc?

Implementation requires actors with a committed will. Actors and the degree of their political motivation thus constitute a unique challenge and opportunity for implementation. A key assumption is that implementation is a problem that confronts actors who are committed to the new constitution. Common advice suggests that constitution builders should offer a mix of incentives and constraints in the constitution so that actors are motivated, checked and held accountable. When considering the behavior of actors who will be tasked with implementing a constitution, key questions include:

  • What good practice is there to guide framers on the opportunities and pitfalls for implementation so that newly drafted constitutions are more implementable than would otherwise be the case?
  • What kind of implementation problems are posed by the constitution itself? How have these been practically overcome or lessened through good constitutional design options?
  • What are the common practical reasons for non-implementation that constitution builders can actually act upon at the design stage? What approaches and what design options for flexible troubleshooting have framers considered? How have these worked in practice?
  • What is the practical value of directive principles of policy? Do they undermine legal enforceability in favour of unenforceable political guidance?
  • Should the role of implementation oversight be reserved for a constitutional body which will also have the expertise to notice non-implementation and draw attention to it?

In divided societies that are transitioning to democracy, competitive politics can increase the risks of conflict. Arrangements to share power in the executive or vertically between the centre and decentralized regions have been touted as safeguards or solutions. Key questions for practical troubleshooting include:

  • What is the experience with the implementation of pragmatic compromises that include concessions on power sharing?
  • What is the experience with implementing constitutional arrangements that were designed as a strategy to construct “nation-states” out of ethnically diverse entities or groups?
  • Is it practical to build ethnic power brokering arrangements into the constitution? Can constitutional neutrality survive when identity is an operative element of political power?

The role of international actors in constitution building is to support national ownership of the process and outcomes. This is a role that is growing and diversifying. Universal norms such as human rights tend to feature in the reasons for international involvement. In some cases, international interest is also related to the constitutional implementation of bilateral and multilateral agreements. Key question:

  • What good practice is there for international roles in constitution building? How can this practice be strengthened?

Part Two: Designing knowledge tools for constitution builders

The aim of this part of the workshop is to share information and draw on the advice of participants on the design, development and dissemination of CBP Programme knowledge tools and resources for the benefit of practitioners. Participants will contribute to these tools through their:

  • Well informed perspectives on the knowledge needs of practitioners 
  • Comments on the overall selection of tools such as a Handbook, a website, a training resource and policy papers
  • Comments on key themes that should be addressed by these tools
  • Recommendations for further research areas and subjects  

Participants

Participants have been invited with the goal of learning from a rich variation of experience among practitioners (12) who were directly involved in constitution building and comparative constitutional practice experts (5).

In order to have rich and informed discussion, each participant will be asked to submit the following ahead of the workshop for copying and distribution purposes:

  • A 500 word summary of their main submission