ABSTRACT
In a postwar environment, the transition from a society governed by violence to one governed by rules and institutions, and most importantly, by a supreme law that is intended to bind all members of the society including the most powerful, is a fundamental challenge. The always present risk is that statebuilding will result in cosmetic change, and create weak, unstable or even criminal state structures (e.g., Haiti, Liberia or East Timor). As Amos Sawyer (Former President of Liberia) says, “The state we produced turned out to be a criminal state, legitimized by elections.”1 However, initiating changes in political and institutional culture, and building and rebuilding institutions, are some of the most difficult aspects of any societal transformation-requiring changes in behavior, expectations and norms. These sorts of societal changes require long-term strategies involving large segments of society and extensive education and sensitivity campaigns as well as dialogue and consensus building within society. Constitution building2 can provide a key opportunity to shape the insti-
tutional and governance framework, and opens the door to important societal dialogue. Until recently, constitutional theory had tended to focus on constitutions in stable political contexts or after victory rather than the role and relevance of constitutions during periods of political change and uncertainty. Some constitutions evolved incrementally through generations of practice and negotiations (such as the UK) and largely represent the status quo. Others were drafted after times of upheaval, revolution or renewal. These, such as the French or American constitutions, were aspirational documents aiming to put in place a new order, once one side had won. Constitutions made during or after civil conflict nowadays, however, generally emerge from a stalemate, or a compromise aiming to end the violence, when neither side is able to secure victory and the parties are pressured to consider negotiation and compromise. A realist approach to constitutions in political theory views constitutions
as a reflection of the balance of power at the time of drafting, and thus does not consider them to have any particular role as agents of change or in transitions (Lijphart 1984).3 The idealist perspective recognizes their foundational role, considering them to provide a break with the old regime and
to act as the foundation of the new political order (Ackerman 1992; Ackerman 1989). However, “transitional constitutionalism” best recognizes the multifaced role such constitutions can play in postwar settings. As Ruti Tietel points out, constitutionalism is “inextricably enmeshed in transformative politics”: it both codifies the prevailing consensus, and also transforms it (Tietel 1997: 2075). Constitutions in times of political change have frequently included deliberate transformative agendas. In Germany and Japan, for instance, the constitutions were conceived and designed to transform a particular tendency, particularly illiberal tendencies (such as the rejection of political tendency towards military nationalism in Japan, and the attempt to restrict the popular support for and expression of fascism in Germany). Thus, constitution building can be seen as a process and a forum for negotiation in environments of conflict, and can play a role in constructing the political transition, as well as shaping the institutions of state. Until the last few years the literature on postwar constitutions was sur-
prisingly sparse. The issue has mainly caught the attention of academics in the last few years following the constitution making processes in Afghanistan and Iraq (Bastian and Luckham 2003:1; Rubin 2004). However, some lessons can be drawn from the earlier literature focusing on transitions from authoritarian rule, post-colonial transitions, and post-Soviet transitions, as such transitions have many features in common with postwar states.4 Moreover, recent case studies commissioned by the International Peace Academy5
and International IDEA6 provide a useful basis to begin drawing lessons from evolving experience in this field. This chapter draws some tentative conclusions about the impact of pro-
cess, substance choices, political dynamics, and the implementation challenges facing constitution building in the postwar context. It finds that participatory and inclusive constitution building, in particular, can provide a forum and process for the negotiation of divisive issues in postwar societies, and it can bring fragmented elements of a state together to think about a future vision of the state and to build a road map on how to get there. Constitution building can also provide basic democratic education to the population, and ensure that the governance structure has legitimacy and local ownership. At the same time, it recognizes that such constitutional processes face difficult
challenges. If a constitution building process is undertaken poorly, through an exclusionary, provocative or inflammatory process, by entrenching divisive governance choices in the constitution, or without commitment to implementing the document once adopted, constitution building can undermine the creation of sustainable peace and a legitimate state. It can result in disillusionment and bitterness in the population if the consultations are not genuine, if the resulting constitution is not representative, or if the constitution is never implemented. It can exacerbate conflict if unfair or divisive provisions are adopted that privilege certain groups over others. Moreover, the challenges are stark in the postwar context, as the process seeks often irreconcilable goals: to end or prevent a return to violence in the immediate
situation, as well as to create a normative framework for the long-term peaceful governance of the state. In the postwar context, the competing interests and compromises faced are heightened, and can easily undermine a fragile democracy, or result in a return to conflict. Some strategies can be implemented to minimize the inherent tensions in a
postwar constitution building, including supporting longer time-frames between the negotiation of peace agreements and constitutions, and ensuring that a broad range of local actors can draw on knowledge of comparative experiences with respect to both process and governance options. The international community should also commit sufficient aid to supporting inclusive and participatory processes with long enough time-frames to allow proper dialogue and consensus building, as well as to support follow-through strategies to implement the constitution. In addition, the international community, and particularly the regional actors, should take a more proactive approach to requiring that any new government act in accordance with its constitutional obligations. One of the benchmarks in the international community’s relationship with a postwar transitional government could be the expectation that the government will abide by the constitution negotiated as part of the transition.
