Academic journal article William and Mary Law Review

Constitution Writing in Post-Conflict Settings: An Overview

Academic journal article William and Mary Law Review

Constitution Writing in Post-Conflict Settings: An Overview

Article excerpt

During the past forty years, over 200 new constitutions have emerged in countries at risk of internal violence. Internationally brokered peace accords have entailed the development of constitutions not only in the Balkans but also in Cambodia, Lebanon, East Timor, Rwanda, Chad, Mozambique, Bougainville-Papua New Guinea, Nepal, the Comoros, and other places. (1) New constitutions have heralded the adoption of multiparty systems from Albania to Zambia. (2)

Policymakers have started to ask what we have learned and specifically whether some constitutional reform processes are more likely than others to deliver a reduction in violence or more rights-respecting fundamental documents. For example, over the past decade, the Commonwealth, the U.S. Institute of Peace, and the non-governmental organization International Institute for Democracy and Electoral Assistance (IDEA) have worked to develop good practice guidelines for the conduct of constitution writing. (3) Does the type of deliberative forum make a difference? Do better results emanate from elected constituent assemblies than from unelected bodies? Does the choice of decision rules shape the regard for a broader range of interests?

This challenge is difficult. Our instincts tell us that process makes a difference. Constitution writing has sometimes inflamed passions and sparked violence, as it did in the Solomon Islands, Iraq, Chad, and the Republic of the Congo, for example. (4) It has produced better than expected results in some other countries, including South Africa. (5) It is devilishly difficult to show, empirically, that procedures made the difference in these cases, however. A number of very serious analytical problems hamper the ability to give a social science answer to the question policymakers have asked. Mark Tushnet is right to wave warning flags. (6) Nonetheless, there may be some paths forward.

My primary intention here is to offer a description of the range of procedures currently in use and the "results," very narrowly defined, associated with these procedures. This overview draws on an original dataset, (7) as well as on conversations that took place among constitution drafters and scholars under the auspices of Princeton University, Interpeace, and International IDEA in May 2007. (8) It serves as a preface to some of the other contributions in this issue. Part I probes some of the expectations one might have about the effects of process on outcomes. Part II defines what drafters mean by "process" and offers a quick, general description of recent trends in the choice of procedure. Part III explores some of the patterns in the data. Part IV offers an agenda for research and discussion of constitution writing and conflict resolution.

I. EXPECTATIONS

High hopes often attend efforts to write new constitutions. "Success" has many dimensions. A common aspiration includes the achievement of a durable agreement, an arrangement that will not be disregarded or suspended lightly and within a short period. More immediately and perhaps more importantly, people often hope for a reduction in violence and an increase in civility. 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 participant in a conference at Princeton University in May 2007, "a successful process is transformational; it converts the spoilers." (9) 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.

Success may have other dimensions as well. It may pertain to the choice of terms in the document itself. Order is not all that matters in today's world. Historically, constitutions often developed as agreements about how to design government so that the sovereign could not abuse citizens, especially those who had to foot the bill, in money or lives, of foreign misadventures and lavishness at home. …

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