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Key Text Postwar Constitution Building: Opportunities and Challenges

Author: Kirsti Samuels
Date: 2009
Size: 19 pages

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Summary

What role does constitution-building play in postwar state-building? This chapter from 'The Dilemmas of State-building' looks at the political dynamics, choices and implementation challenges that confront constitution-building. It suggests that the process can provide a key opportunity to shape the institutional and governance framework, and opens the door to societal dialogue. However, ensuring that such a process supports the establishment of a peaceful and legitimate state requires careful balancing of the compromises needed to maintain the peace and the people's involvement in deciding the future of their country.

Participatory and inclusive constitution-building can provide a forum and a 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. At the same time, 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 development of sustainable peace and a legitimate state. It can exacerbate conflict if divisive provisions are adopted that privilege certain groups over others. 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.

Nevertheless, in the best scenario, a participatory or representative constitution-building process can:

Provide a forum for the negotiation of solutions to the divisive or contested issues that led to violence
Play a reconciliation and healing role through societal dialogue
Support sustainable peace by forging a consensus vision of the future of the state
Provide basic democratic education to the population
Ensure that the governance structure has legitimacy and reflects the hopes and aspirations of the people.

Strategies that can be implemented to minimise the inherent tensions in a postwar constitution-building exercise include:

Supporting longer time-frames between the negotiation of peace agreements and constitutions, and ensuring that a range of actors can draw on knowledge of comparative experiences with respect to process and governance options.
The international community should commit sufficient aid to supporting proper dialogue and consensus-building. Such processes are not simple drafting exercises but must contribute to a legitimate and sustained peace.
If the necessary long time-frame for developing a constitution is not possible, the international community should recommend drafting an interim arrangement instead.
It is essential not to squander the potential of participatory constitution-making - once disappointed, the population is likely to become disillusioned.
There needs to be greater understanding of designing constitutions that recognise the realities of postwar environments.
The international community’s support should not end when the constitution is adopted. There should be greater emphasis on implementing constitutional agreements.

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Source: Samuels, K., 2009, 'Postwar Constitution Building: Opportunities and Challenges', in The Dilemmas of State-building: Confronting the Contradictions of Postwar Peace Operations, (eds) R. Paris and T.Sisk, Routledge, ch. 8.
Author: Dr Kirsti Samuels , kirsti.samuels[at]gmail.com
Organisation: Routledge, http://www.routledge.com