This paper examines the challenges and nuances of external support to constitution building, which can, it argues, be both constructive and problematic. It calls for a restrained approach to such support, based on ‘invitation points’ rather than ‘entry points’. The quality of the process used is crucial to successful constitutional design, and the choice of process needs to be left to national actors.
Constitution building refers to processes for negotiating, drafting and implementing constitutions. It has no widely shared definition, but implies: a) founding new structures as well as re-developing existing ones as part of an ongoing process; b) developing and adding long-term value to governance and the political system; and c) including many actors. It also means taking a long-term perspective and following an overall aim or design for the ‘social contract’.
Many constitutions are framed following conflict. However, constitutional processes can also be driven by the problems arising from poverty and inequality and the demand for self-determination. The protests in North Africa and the Middle East are examples of the type of ‘unknown’ political shift that might engender new constitution building.
Constitution building is a complex political process that forms part of wider transitions to democracy and peace. It involves steps and sequences, and is not necessarily linear. The particular actors involved at a given time will depend on the sequencing and the stage reached. Additional findings include the following:
- Constitutions designed for conflict-affected and deeply divided states need to help to reconcile groups, to address grievances and to prevent further polarisation.
- The lack of an extended definition of constitution building arguably contributes to a flawed view of the place of constitutions in democratic and post-conflict transitions: for example, the promulgation of a constitutional text does not equate to the successful end of a process.
- It is generally accepted as best practice that external support should leave domestic parties ‘in ownership’ of both the content and process (initiation, negotiation, drafting, enactment and implementation) of constitution building.
- Principles of common action among external actors could enhance coordination. At the same time, diversity is important in order to ensure that independent external voices are maintained.
- Where there is hostility to independent advice from either national or external actors, the latter may have to restrict their roles to promoting an environment in which constitution building can take place.
- Where national actors resist ‘foreign ideas’, such as on human rights, building the capacity of domestic institutions can prove useful.
- Where a misalignment of interests prevents external actors from influencing constitutional options, they can still contribute to shaping the agenda and the overall direction of the discussion.
Both constitution building and support to constitution building from external actors need to be locally driven. External actors need to moderate their ambitions and develop guidance for the implementation of ‘national ownership’. Additional implications include the following:
- External support is never ‘impact-neutral’, and practitioners across multiple fields need to recognise how their work affects the environment, process and implementation of constitution building.
- Policymakers need to pay more attention to the quality of constitution building processes.
- External actors need to focus more on understanding what works and what does not in support to constitution building processes.
- A more dynamic flow of ideas between national and external actors might contribute to institutionalising constitution building as a better-defined field with identified connections to and multiplier effects for peace building, institution building, the protection of human rights and human security, increased democratic accountability, and human development.
