Constitutions : Key Debates & Implementation Challenges

Like many features of peacebuilding, constitutions raise issues for contestation and highlight specific challenges that practitioners and policy makers are likely to confront. While a constitution provides a legal framework for a political community of citizens, in its very premise, a number of issues arise over how citizenship is delimited. Where a constitution is meant to uphold citizens’ rights, there are discussions about the classification of rights and when they may, if ever, be trumped by other pressing concerns.

A further role of the constitution is to design and distinguish the roles of the legislature and executive, and how these positions are filled. However, significant disagreements emerge over how to find an ideal solution on presidential versus parliamentary systems, and whether consociational electoral models are fit to allocate positions of power. Also, definitional issues conflate an already challenging debate on territorial devolution. This is not the only point where conflation makes a constitutional process more difficult, as constitution building and peace agreements are also a subject of frequent confusion. When attempting to implement a constitutional process, decisions must be made on how to time that engineering as compared to elections, which has consequences that may lead to less than ideal modalities in a drafting body.

Meanwhile, though many experts in the field support participation in constitution building, this can be a double-edged sword, as increased involvement may actually stymie the process. In that context, women’s voices within constitution building and, indeed, governance itself are often bypassed—a point to which constitutional actors must pay specific attention.

Finally, while the international community may play an instrumental role in securing peace, its involvement in constitutions has produced mixed results. Thus, attempts to formulate or modify constitutions in pre- or post-conflict scenarios necessitate attention to a range of questions and difficulties—decisions that must be grounded in local realities pertaining to these issues.

Issues in determining citizenship

In practice, in all cases where differences and identities have become more sharply defined, demands on constitution makers also have become harder to meet.1 It may be useful to remember, as political sociologist John Gaventa argues, that “even in the West, where citizenship is often held to be universally assured, history suggests numerous ways in which major populations have been excluded based on their difference; be that based on class, race, gender or other forms of difference. Realization of citizenship in these contexts came only after centuries of struggles by the excluded to claim and extend their rights, both to new populations, and to new arenas, from the political, to the economic and social. Just as Western conceptions of citizenship have often been used to disenfranchise populations in their own countries, so too under colonialism did powers use differences of caste, religion, race and within colonial societies to construct categories of personhood which in turn were used to re-enforce divisions within colonially created nation-states.2

These divisive notions of citizenship have been problematic, and at times have intensified cleavages and exacerbated conflict. For instance, in the Democratic Republic of the Congo, various citizenship laws based on ethnicity heightened divisions between those perceived to be Congolese and those viewed as outsiders, ultimately intensifying differences between the two groups.

Given such histories, most practitioners suggest that a plural notion of citizenship—one not predicated on ethnicity—be enacted in a constitution’s bill of rights. In practice, though, this involves setting specifications on belonging, whether it be birth or a process of naturalization. This also entails an understanding of goals: whether the society is attempting to assimilate populations (implying uniformity) or to integrate them (insinuating maintenance of plurality).3 While assimilation can be dangerous if perceived as threatening cultural identity, integration can pose the potential risk of maintaining ethnic, religious, or other differences, regulations around which are difficult to enact into legal frameworks, and which may be manipulated or used to inflame conflict.4

Some governments have promoted the notion of citizenship as a civic identity in an attempt to draw citizens together under a new form of commonality. Others have argued for the need to address the exclusions created by the linkage of citizenship to nation-states. They have argued for recognition of a more multi-layered concept, linking the local to the global.5

Anti-discrimination and multi-cultural recognition also may help address these issues. Here, it is useful to note that “most empirical and normative studies of minority rights . . . have slighted the different logics of anti-discrimination and multicultural recognition. Anti-discrimination aims at abolishing ethnicity or race as marker of individual and group differentiation, whereas recognition seeks to perpetuate such differentiation. In a nutshell, anti-discrimination is universalistic; recognition is particularistic.”6

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Enshrining rights in a national constitution

The notion of citizenship rests upon the premise of rights. These are often enshrined in a bill of rights. They define the relationship of the population to the state, and support the state’s fundamental legitimacy.7 Several types of rights are encapsulated in a given constitution, yet there is not necessarily consensus around which rights should be included. Typically, constitutions include in a bill of rights that lists fundamental and human rights in accordance with international standards.

Rights in general vary from one context to the next, and several key considerations emerge as a result. For instance, contestation arises over which rights are fundamental. A newer debate has emerged on to what extent economic, social, and cultural rights should be part of this package of rights. Finally, some question whether there are contexts in which rights may be trumped by other, particularly security-related, concerns.

What are fundamental rights?

A significant debate in the designation of rights is the determination of whether there exist some inalienable rights that should be considered common to all constitutions. Many would contend that certain fundamental rights, usually referring to the right to life and the inviolability of the person, should be incontrovertible. Other basic rights are also thought to be absolute, as they are requisite for human dignity. While this set of rights as a cross-cultural premise may seem obvious, when placed in context, debates and difficulties emerge between those who view such rights as universal and those who see some rights as subject to change depending on variations in culture.

Some scholars contend that culture and human rights are not at odds and that culture is not so absolute.8 In most modern discourses, negotiation exists between these perspectives, with the understanding that nuances exist and that either extreme is likely to be unhelpful in peacebuilding.9 In practice, most constitutions include many human rights considered universal, though restrictions of rights or lack of recognition to specific groups or communities do continue to exist in these frameworks.
Go to Human rights: universalism versus cultural relativism

Should economic, social, and cultural rights be included in a constitution?

A fairly recent debate to emerge around the discourse on human rights is whether economic, social, and cultural (ESC) rights should be included in constitutions. For example, some newer and more comprehensive constitutions include provisions on education, employment, and health (see, for example, South Africa’s Bill of Rights, which provides for property, housing, healthcare, education, etc.).10 Some contest the inclusion of these rights in such a framework, observing that constitutions determine the principles around which norms and policies are formed through law. In fact, according to scholar Vivien Hart, “Constitutional lawyers are prone to reject the constitutionalizing of positive social rights to education, health care, environmental standards and so on. They see them as policy decisions for legislators rather than rights decisions for lawyers, understanding them as nonjusticiable aspirations.”11 Thus, the addition of ESC rights is seen as blurring legality with policy making, making a framework that is overly detailed rather than relying on the legislature to elaborate upon this overarching structure and the judiciary to enforce its decisions.  Go to Differentiating human rights

Interference in positive and negative rights

Finally, a significant discourse has emerged over whether some rights, given specific circumstances, can be superseded by supreme needs. Rights can be interpreted as negative (that is, their main requirement as a right is based upon non-interference by the state or other actors, such as the right to life) and positive (that is, actionable, such as freedom of speech, voting, etc.). Go to Human Rights Promotion & Protection

Contestation exists over whether under certain circumstances such rights may be (temporarily) suspended. For instance, many states maintain the right to expropriate property for public use in exchange for compensation (for example, in the South African constitution).12 Some argue that this is a slippery slope, as in the case of Venezuela, where land has been appropriated from wealthy landowners to be given to peasantry without due compensation.13 In other cases, many constitutions, and indeed international legal instruments, have caveats to freedom of expression. These note that, where such freedoms undermine the security of the state (as has been the case with the dissemination of hate speech), these rights can be overruled.
Go to Democratic Republic of Congo: Ethnicity-based notions of citizenship
Go to Nigeria: Federalism in the first and second republics  
Go to Public Information and Media Development: Liberal agenda and media policy

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Composition and design of legislature and executive

A frequently debated point on structuring constitutions for peacebuilding lies in deciding what type of institutional arrangements should be put in place to best prevent (further) conflict. Here, those involved in constitutional engineering must determine whether a presidential or parliamentary system, or some combination thereof, is best placed to balance the power of the executive and the legislature. In pre- and post-conflict environments, while parliamentary systems are often perceived as representative, presidential systems may offer greater stability.

Another important decision is the type of electoral system to be used. For deeply divided societies, though consociation is a common point of argument, this system is more frequently used than plurality majority systems. Alternatives exist between these two poles, and elements from each may be used to best cater to actual needs.

Parliamentary versus presidential systems

In establishing the form of legislature to be used in peacebuilding contexts, most practitioners and scholars prefer parliamentary systems to presidentialism in mediating conflict because of the endurance quality of parliamentary structures. As Joe Foweraker and Todd Landman argue, “Most quantitative studies have addressed the first element of executive-legislative relations, with eight out of the nine main analyses suggesting that the most stable democracies are parliamentary, even in the inter-war period. The exception to the rule is the analysis by Shugart and Carey that focuses only on ‘third world’ countries and excludes very small states, so reducing the number of parliamentary democracies in the sample. These results seem to conflict the claims of superior parliamentary performance, with performance defined consistently and exclusively as regime endurance.”14 Yet, largely, parliamentary systems are seen as more representative.

A number of concrete rationales exist for these systems. For instance, parliamentary systems are more likely to contain a greater number of parties, which allows for representation of significant divergences existent in deeply divided societies. Further, parliamentary systems prove to be better checks to executive level power. Scholar Arend Lijphart notes, “In countries with deep ethnic and other cleavages, the choice should be based on the different systems’ relative potential for power sharing in the executive. As the cabinet in a parliamentary system is a collegial decision-making body—as opposed to the presidential one-person executive with a purely advisory cabinet—it offers the optimal setting for forming a broad power-sharing executive.”15

Further, proponents of consociational theory encourage parliamentary systems as they more easily facilitate power sharing.16 This also facilitates an executive that is perhaps more representative, as it is mutually dependent upon the legislature for legitimacy. Another “advantage of parliamentary systems is that there is no need for presidential elections, which are necessarily majoritarian in nature.”17

However, in unstable contexts and in absence of long democratic experience, there may be a greater chance of instability with parliamentary and semi-presidential systems. Electors often contrast their vote between the presidential and the legislative elections. In addition, where political actors are not accustomed to respecting the discipline of their party, political parties and coalitions split more easily and more often. These are elements that may result in frequent blockage of legislative work, votes of no confidence, and other deadlocks, which may create more political instability and, ultimately, political violence.

This explains why many international actors favor a relatively strong presidential regime, which gives a sense of greater strength and stability. It should be noted, however, that most analysts argue that this structure “systematically contributes to impasses and democratic breakdown. Because the president and the legislature have separate and fixed mandates, and because presidents more than half of the time find themselves frustrated in the exercise of their power due to their lack of a legislative majority, presidents may often be tempted to bypass the legislature and rule by decree-law.”18 Here again, the objectives of stability and democracy may contradict one another.

It should be observed that, as mentioned, when powers have been separated by the constitution, the legislature is meant to check the executive branch if it attempts to encroach on the powers of the others branches. It should prevent the establishment of an autocratic state. Regardless of the system selected (presidential, semi-presidential, or parliamentary), however, the legislature is bound to be inherently weak in such an environment. Therefore, a focus by international actors on this feature is not necessarily useful per se. Rather, such “assistance should be channeled towards ensuring that presidential term limits are enforced and strengthening the legislature to serve as a more effective check on executive power.”19

Semi-presidentialism may be an alternate solution, though some claim it represents only a slightAbout Semi-Presidentialism
“It is possible to identify three types of definitions of semi-presidentialism in the literature. Each type of definition leads to different sets of countries being classed as semi-presidential. The first type of definition is one that considers only the actual powers of political actors, or, to put it another way, the relational properties of democratic regime types. . . The second type of definition is one that combines formal constitutional arrangements with actual powers, or, more accurately, dispositional and relational properties. . . .

“The problem with both types of definition identified above lies in the fact that they include reference to relational properties. In so doing, they inevitably introduce an element of subjectivity into the classification process. They enable, indeed they encourage, different writers to identify different sets of countries as semi-presidential. . . .

“A semi-presidential regime should be defined as ‘the situation where a popularly elected, fixed-term president exists alongside a prime minister and cabinet who are responsible to parliament’. This type of definition requires no judgment about how powerful a president is, or can be.”

Source: Elgie, Robert. “Semi-Presidentialism: Concepts, Consequences and Contesting Explanations.” Political Studies Review 2 (2004): 316–17.
improvement over pure presidentialism. According to authors Kirsti Samuels and Vanessa Hawkins Wyeth, “Although there can be considerable power sharing among president, prime minister, and cabinet, the zero-sum nature of presidential elections remains. Semi-presidential systems actually make it possible for the president to be even more powerful than in most pure presidential systems.”20 It should be noted, however, that definitional issues confound analyses. Indeed, beyond what is written on constitutions, there is often a high element of subjectivity in the appreciation of power relations between a president, a prime minister, and the parliament.
Go to Presidentialism, semi-presidentialism, and parliamentary systems

The benefits and drawbacks of consociationalism

For deeply divided societies, many arguments have been put forth about the relative strengths and weaknesses of consociation versus majoritarian democratic electoral systems, which determine the rules for the composition of the legislature and the executive.

The most significant argument against consociation is that this system is better placed in moderately divided societies, but that since it may entrench ethnic differences and discourage cooperation around cross-cutting cleavages, it may be unsuccessful in deeply divided societies.21 Authors Bernard Grofman and Jon Fraenkal argue that such structures “have met the objections that they transform elections into little more than an ethnic census, institutionalize divisions, and enable counterproductive forms of ethnocentric elite control.”22 Critics also support preferential majoritarian structures, the most significant and common of which is the alternative vote (AV) system.

Backers of consociational theory have responded in kind to this assessment and alternative. They have noted that, in several cases, implementation has failed to garner successes and that a proportional representation system would have been better, as majoritarian systems often exclude minority and extreme parties, leaving little incentive for them to cooperate in the greater political system.23 For instance, the use of consociation has been hailed as instrumental in fostering peace in Northern Ireland and South Africa.

Criticisms of the AV alternative exist, as well. AV is less likely to work in two-party situations, where having multiple choices is less appealing for electors. Additionally, perhaps one of the strongest points for consociation is that it may function well as a medium-term solution, transitioning a state out of conflict. In the long term, states (for example, South Africa) can move away from consociational elements and into a more majoritarian structure, which has historically been utilized in European cases.24

Another option is the single-transferable vote (STV), which has its own critics. Firstly, as it requires a quota,25 and where a single party is highly likely to reach that percentage without appealing to other parties, the STV is seen as less appropriate because it does not require reaching across the aisle. This demonstrates that when enacting systems into constitutions, the most important feature is to cater design to the context and needs of local populations. The formulation of such choices also goes hand in hand with territorial arrangements, as these may modify population groups and minority–majority relations in newly (re)constructed states.  Go to Electoral Processes and Political Parties

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Federal versus unitary states

A great deal of literature and contestation has emerged around the relative strengths and weaknesses of federalism, as well as those of its consolidated alternative in unitary states. Even within federal arrangements, a number of points remain unclear. Some concerns exist around the potentially detrimental effect of federalism on conflict-prone states. However, unitary states are largely seen as ineffective for managing conflicts, particularly those states with regions or peoples making some claim to autonomy. As a result, alternative measures have been suggested, though they are not without critics.

First, federalism is laden with a number of questions that must be taken into account when devolving territory in this manner. Issues include the type of constitution used, whether federalism must be divided geographically,26 and how devolved states may be classified.27 Such issues have led to quantitative ambiguity over the relative success and failure of federalism as a peacebuilding tool.

These issues aside, there is significant debate over the usefulness of federal systems, and discussions on conditions that make federalism favorable for peacebuilding or that may catalyze state collapse. Federalism, where inappropriate to context or wrongly constructed, may intensify tensions between groups and encourage calls to secession, particularly where there is a core ethnic unit.28 A dominant region or group within a region can challenge the sovereignty of the state. It also may marginalize and threaten minority interests. In addition, where regions experience different levels of wealth and access to services and natural resources, federalism may heighten disparities and conflict.

As such, other methods of devolution may be a possible alternative, for instance asymmetrical federalism or territorial autonomy. However, methods of devolution are often criticized as steps leading to secession.

Yet, this introduces a paradox. While some see devolution as a move toward allowing for units or regions to break off, refusing a region’s right to devolve may intensify calls to secession (as has been the case in Northern Ireland and Sri Lanka). This results in an ambiguity over assessing the relative success and failure of federalism as a peacebuilding tool. Indeed, it is difficult to assess quantitatively the merits of federalism, given conflation over types of devolution, as well as the inherent causal endogeneity caused by the paradox articulated above. In fact, some analyses have shown no connection between federalism and “good governance” in deeply divided societies.29

Still, many scholars contend that where a federation is appropriately constructed, it can be useful. Success in federalism may depend on the number of composite units, the distribution of ethnicities within these regions, and the approximate equality of physical and social resources between those units.30 The circumstances and opportunities of women and other vulnerable groups may vary greatly according to the allocation of government functions to particular units of government.31

Some believe that a greater number of smaller states, dividing ethnic groups, and the break-down of a core ethnic unit can enhance the success capabilities of federalized countries.32 The transformation of federalism between the first and second Nigerian state is often cited as an example of reconstructing a federal state more appropriately to context.33 Groups of experts are involved in working processes to see how federalism can help find political solutions to deep divides in post-war societies.34

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Constitution building as part of a peace agreement

Particularly in contexts where the international community is highly involved in peacemaking, constitutions can become conflated with peace agreements. The cases of Bosnia and Herzegovina, Afghanistan, and Cambodia are different illustrations of that situation.

Some critics of this occurrence encourage the separation of peace talks and constitutional deliberations. Peace processes are intended to alleviate immediate causes of violence, terminate the conflict, and ensure that the ceasefire can be maintained. Constitutions are intended for long-term stability and must ensure a framework for the actual peacebuilding process, which by definition is ever evolving. The conflation of the two components presents the risk of freezing a status quo, and therefore may be counter-productive for sustainable peacebuilding. It can also “compromise long-term concerns regarding the nature of state institutions. Ideally, the end of armed strife and a peace accord will come before the process of crafting a constitution begins. In other words, constitutions should be less about war-ending and more about the broader, future-oriented work of peace-building.”35

One mechanism utilized to ease the “unavoidable tension between the need for a speedy outcome to satisfy popular expectations or international demands, and the time needed to build consensus for an outcome which will provide enduring” is to use interim mechanisms.36 Some authors, like  Kirsti Samuels and Vanessa Hawkins Wyeth, suggest, “An opportunistic approach that achieves results through an incremental or staged process over a longer period of time may be a good option, and can be especially useful in separating peace negotiations from constitutional processes. There have been several cases, South Africa chief among them, which made good use of interim constitutional structures in a phased process.”37

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Timing and modalities of a constitution drafting body

The timing and modalities of constitution making are important as either may set a precedent as to how peace, democracy, and 'good governance' should be progressively built. In post-conflict contexts, it is particularly difficult to determine the legitimacy of different political actors. Peace agreements tend to legitimize the main actors in the violent confrontation (if not those who have mostly been acting as spoilers) and groups that, in the eyes of the people, may not necessarily appear qualified to provide the framework for the state’s political future. There are different approaches and mechanisms used to manage this challenge.

Timing the establishment of a constitutional body

A United Nations Development Programme (UNDP) document asks, “How can a constitution be engineered to reflect and encourage democratic principles when a representative legal body (such as an elected legislature) does not exist to draft it?”38 The first option is to start by organizing elections to constitute a constitutional assembly.

Most peacemakers have to deal with the issue of whether to proceed in using this mechanism or to opt for the reverse by first putting in place a constitution before such a body can be elected. Both options present challenges. There is the risk that early elections may increase division and entrench the warring parties as the dominant political players, which could lead to a constitutional assembly that lacks legitimacy.39

“On the other hand, if the process goes on without elections, the interim executive can exercise influence on, or even control, the direction of the constitution-making process. Often this problem is solved by requiring elections to a legislative or constituent assembly and giving it the mandate to draft and adopt the constitution,” argue experts Yash Ghai and Guido Galli.40 New elections may then be organized to elect representatives for a longer term. This procedure is common when the international community becomes engaged in the process, giving possibly exaggerated significance to elections, in the view of some analysts, and also running the risk of creating voter fatigue.41 Go to Sequencing and timing of elections

Other constitutional modalities for drafting

Where a constitutional body is established in order to enact a constitution prior to the organization of elections, a constitutional committee or a roundtable meeting is frequently used to draft a constitution. Constitutional committees, made up of members of the legislature, are problematic in that, in some cases, they may be directly appointed by the ruling president or by the parties to the peace agreement and may draft the constitution in a relatively closed off fashion. Roundtable meetings are somewhat more inclusive, but, almost by nature, they are rarely a feasible option in post-war situations. They can be particularly useful, however, as a preventative strategy. Some alternatives do exist, such as “traditional” representative mechanisms like the Loya Jirga in Afghanistan. It is important to note that these bodies are never absent of flaws and do not necessarily ensure equitable or appropriate representation.

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Issues and challenges of participation

In modern constitutional processes, there has been significant promotion of participation in rendering and amending constitutions. This differs significantly from the historical experience wherein elite pacts formed constitutions behind closed doors. In more recent constitutions, arguments have been made in favor of participation in the constitution-building process. It is thought to be enshrined in international law. Such an open forum can also allow for checks on political power. Inclusion may make constitutional rules more applicable to realities for the general population.

Conversely, some contend that participation is not an ideal and that it may intensify cleavages and produce stalemates on decisions. As a result, an active civic engagement program becomes imperative for participation to be useful, where used.

Historical constitution making and pacted transitions

In recent discourses on constitution making, the role of participation has been identified as a centrally important feature. In the past, in democratic transitions, elite roundtables were used as a system of bargaining among those in power. This system, or the development of pacted transitions, typifies the Latin American and Spanish democratic transitions, as well as those of several post-Communist countries. Such constitutions have had varying success. Upon analysis, it has been noted that while the constitutional processes in various Latin American countries were highly exclusive, secretive, and elite-centered, the Spanish case included perspectives from an array of interests.42 Now, “the more representative processes have tended to result in constitutions with fewer provisions that undermine the quality of democracy.”43

Debating participation

Different arguments play in favor of greater participation in constitution building. First, it is a right universally recognized. According to Vivien Hart, “Recent developments have given participation in constitution making a textual authority in international law that greatly strengthens its status. These occur in a decision of the United Nations Committee on Human Rights (UNCHR) acting in its judicial capacity, and in a General Comment from the same source, both interpreting the right granted in the United Nations International Covenant on Civil and Political Rights (ICCPR) as extending to constitution making.”44

Second, civil society is often the only party able to agitate for meaningful change. Further, it holds government or dominant political actors’ excesses in check.45 This is also important when the drafting of a constitution ends up in the hands of a small group of experts and local academics or intellectuals, who may be extremely isolated from the preoccupations of the society and who may also be under direct pressure from the ruling government, dominant political actors, and the international community, which are all anxious to see quick results. At the same time, participatory constitution making provides a unique opportunity “to encourage a process that promotes national reconciliation, consensus building and the creation of a national vision for the future of the country.”46

Yet, participation is not necessarily a panacea. Many analysts have pointed to the general population’s limited capacity to challenge law and understand its role or the complexities of the political process. As Yash Ghai and Guido Galli argue, “A grave lack in many newly democratizing countries is a populace that is able and willing to engage in the political process and to insist on its rights. People may be accustomed to older forms of rule, based on tradition, often hierarchical, sometimes arbitrary, with little possibility of challenging authority. They may not understand the concept of constitutional government or may be unable to mobilize the protective provisions of the constitution.”47 Contextual factors such as levels of literacy and of poverty may disadvantage sections of the population.

This argument is countered by those who argue that, in participatory processes, participants only need to reach an understanding over the final point instituted into constitutional canon and to agree on constitutional rights. They suggest that this does not, per se, require understanding and sharing ideals or theories. This allows for people to participate in deliberative processes without fully understanding the legal framework.48 Legal scholar Cass Sunstein suggests, “Judgments about justice and morality may be right or true even if they are reached by people who lack a full account of those judgments.”49 Indeed, “many constitutions contain incompletely specified standards and avoid rules, at least when it comes to the description of basic rights.”50

Finally, it is important to consider what some have called “the central paradox of a participatory constitution-making process.” As expert Kirsti Samuels puts it, “While, on the one hand, increased participation is more legitimate and results in more democratic constitutions with greater public support, on the other hand, at the same time, it jeopardizes the likelihood of the constitution being accepted by the elite and enforced.”51

Civic education to improve effective participation

Where used, participation requires adequate programs of civic education, vital to empowering people to understand their roles, responsibilities, and rights in this capacity.52 Genuine public participation also requires “social inclusion, personal security, and freedom of speech and assembly,”53 all elements that may not exist in the immediate aftermath of war. As scholar Vivien Hart argues, “A strong civil society, civic education, and good channels of communication between all levels of society further facilitate the process. Only a considerable commitment of time and resources makes genuine public participation possible.”54 Both may very well be lacking in a post-war context, in particular when the international community is eager to have quick results.  Go to Reconciliation & National Dialogue

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Women’s role in constitution building and gender equality in future governance

Given “that a country’s constitution, even where it may appear neutral, impacts disparately or differently with respect to gender,” an important feature of constitutional engineering is the role of women.55 This subject can be divided into two issues of central importance:
(1)Women’s roles in the building of constitutions; and
(2)Women’s representation in institutions and legislature as stipulated by constitutions.

On the first point, practitioners highlight the importance of incorporating women’s voices into constitutional bodies and at every step of the constitution-building process (civic education, public consultations, and drafting).56 It is important to reflect equality in the language of the constitution, as well. Jolynn Shoemaker writes, “Inclusion of this principle through the constitution is sometimes referred to as engendering the constitution.”57

On the second point, international law and the international community support greater representation of women in government bodies. International legal instruments call not only for the equality of women in society but also for the right of women to participate in governing bodies.58 A number of governments have recently attempted to incorporate women in government institutions through constitutional regulations, particularly surrounding quotas.59 Both the definition and the achievement of equality for women are complex matters and are not necessarily inclusive of every interest of diverse women. But, “gender justice” in every aspect of the process and the outcome of constitution making should be the goal.

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The benefits and risks of internationalism

Often, in tense political circumstances surrounding a post-conflict (and at times pre-conflict) situation, regional and multilateral institutions, as well as bilateral actors, become highly involved in processes of constitutional engineering.60 This can be useful in maintaining security during state reconstruction; however, it can come up against many roadblocks, and it may ignore the role and desires of locally driven initiatives.

In peacebuilding, there at times exists an imperative for international action around constitutions. In particular, international bodies and policy makers may be needed to establish security and help provide financing and technical support for rebuilding various state institutions, as the state is likely to have insufficient capacities to take on these roles independently. The international community may also be able to provide expertise and thoughts on lessons learned from other contexts of constitution building.

Another way in which the international community has more recently become involved is through the notion of shared sovereignty, in which the domestic authority structures of an unstable state are temporarily shared with an external actor until they are able to function without support.61 In a post-conflict environment, shared sovereignty can be enacted to rebuild the capacity of governing institutions. In Bosnia and Herzegovina (BiH), for example, international judges assisted in establishing and increasing trust in and thus legitimizing the BiH Constitutional Court.62 Hence, internationalism plays an important role in providing guidance around constitution making.

However, strong criticism exists on the involvement of international actors in such undertakings. The international community often has aims that differ from those of the local population, including a quick process of stabilization and the imposition of methods according to an external agenda and series of prescriptions.63 Naazneen Barma argues, “The United Nations, in particular, has increasingly taken on the responsibility for collaborating with domestic elites in designing constitutional structures.”64 This is particularly the case when the United Nations (UN) is to act as a transitional authority.

Common criticisms also concern the fact that the process is generally compressed into an inappropriately short time span and dependent upon a quick exit strategy, which limits deliberation in the constitution-building process, entrenches polarized elites in power, and undermines national ownership.65 Situations as varied as  Bosnia and Herzegovina, Cambodia, and Afghanistan have illustrated the risks of internationalism.

Ultimately, peacebuilding situations are nuanced and vary from one instance to the next. While internationalism has a role to play, it is vital that the wishes of international bodies (such as rapid stabilization and a “one-size-fits-all” constitutional model) do not overrule those of local actors and interests. Again, Afghanistan highlights this risk. Here, work had been conducted to include deliberative responses from citizenry. However, pressure from the international community to meet deadlines created a situation where these efforts were ignored and excluded. Hence, the importance of legitimate local initiatives and solutions should be paramount and should trump an international agenda.

Even internally, the UN system of assistance has been criticized for its ad hoc style of interventions, which may lack “a reliable base of doctrine and guidance from which mission leaders can draw even as they adapt and improvise on the ground.”66 Recommendations have been made to develop doctrine and guidelines on constitutional assistance, as well as rosters of experts and resources, and document UN experiences in the area of constitutional assistance to draw lessons learned and reflect upon good practices.67 University centers, think tanks, and private consultancy cabinets have developed expertise on these subjects across the years, often with more capitalized expertise than the UN or regional organizations such as Organizations for Security and Co-operation in Europe and the European Union, or even governments that have developed cooperation in the domain.68

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1. Hart, “Constitution-Making and Transformation of Conflict,” 161.
2. Gaventa, Introduction: Exploring Citizenship, 7.
3. Christian Joppke, “Transformation of Citizenship: Status, Rights, Identity,” Citizenship Studies 11, no. 1 (2007): 43.
4. Hart, “Constitution-Making and Transformation of Conflict,” 161.
5. Gaventa, Introduction: Exploring Citizenship, 4.
6. Joppke, “Transformation of Citizenship,” 43.
7. Hart, “Constitution-Making and Transformation of Conflict,” 166.
8. Jerome J. Shestack, “The Philosophic Foundations of Human Rights,” Human Rights Quarterly 20, no. 2 (1998): 232.
9. Jack Donnelly, “The Relative Universality of Human Rights,” Human Rights Quarterly 29, no. 2 (2007): 298–99.
10. South African Government Information, “Chapter 2: Bill of Rights,” South African Constitution (1996).
11. Hart, “Constitution-Making and Transformation of Conflict,” 163.
12. Ibid., 168.
13. See, for instance, “Venezuela Steps Up Land Seizures,”BBC News, March 26, 2007; Adam B. Ellickand and Simon Romero, “Land Wars in Venezuela,” video presented by the New York Times, May 17, 2007.
14. Joe Foweraker and Todd Landman, “Constitutional Design and Democratic Performance,” Democratization 9, no. 2 (2002): 48.
15. Arend Lijphart, “Constitutional Design for Divided Societies,” Journal of Democracy 15, no. 2 (2004): 101
16. Ibid.
17. Ibid.
18. Skach and Stepan, “Constitutional Frameworks and Democratic Consolidation,” 19.
19. Samuels and Wyeth, State-Building and Constitutional Design after Conflict, 8.
20. Ibid., 102.
21. Horowitz, Ethnic Groups in Conflict, 545, 647.
22. Bernard Grofman and Jon Fraenkal, “Does the Alternative Vote Foster Moderation in Ethnically Divided Societies? The Case of Fiji,” Comparative Political Studies 39, no. 5 (2006): 624.
23. Horowitz, Ethnic Groups in Conflict, 648.
24. Lijphart, Democracy in Plural Societies, 50–52.
25. Reilly, “Electoral Systems for Divided Societies,” 158.
26. Lijphart, “Consociation and Federation.”
27. Norris, Stable Democracy and Good Governance, 12.
28. Henry E. Hale, “Divided We Stand: Institutional Sources of Ethnofederal State Survival and Collapse,” World Politics 56, no. 2 (2004): 165–93.
29. Norris, Stable Democracy and Good Governance, 19.
30. Horowitz, Ethnic Groups in Conflict, 545, 603.
31. See chapter 3 in Helen Irving, Gender and the Constitution: Equity and Agency in Comparative Constitutional Design (Cambridge: Cambridge University Press, 2008).
32. Hale, “Divided We Stand,” 167–69.
33. Ibid., 189; Horowitz, Ethnic Groups in Conflict, 612–13.
34. See, for example, Forum of Federations. The forum works on Ethiopia, Nigeria, South Africa, Sudan, Australia, India, Sri Lanka, the Philippines, Austria, Germany, Spain, Switzerland, Iraq, Canada, Mexico, the United States, Argentina, and Brazil.
35. Jamal Benomar, “Constitution-Making after Conflict: Lessons for Iraq,” Journal of Democracy 15, no. 2 (2004): 82–83. Emphasis added.
36. Samuels and Wyeth, State-Building and Constitutional Design after Conflict, 4.
37. Ibid.
38. UNDP, Constitution and Its Relationship to the Legislature.
39. Samuels, “Constitutional Choices and Statebuilding.” [add page number]
40. Ghai and Galli, Constitution Building Processes, 10.
41. Ibid.
42. Juan J. Linz and Alfred Stepan, Problems of Democratic Transition and Consolidation: Southern Europe, South America, and Post-Communist Europe (Baltimore, MD: Johns Hopkins University Press, 1996), 87.
43. Ibid., 8.
44. Hart, Democratic Constitution Making, 5.
45. Olivier, Constitutional Review and Reform, 28.
46. Brandt, Constitutional Assistance in Post-Conflict Countries, 1.
47. Ghai and Galli, Constitution Building Processes, 13–14.
48. Cass R. Sunstein, Designing Democracy? What Constitutions Do (New York: Oxford University Press, 2001), 50.
49. Ibid., 52.
50. Ibid., 56.
51. Samuels, “Constitutional Choices and Statebuilding.” [add page]
52. Ghai and Galli, Constitution Building Processes, 14.
53. Hart, Democratic Constitution Making, 11.
54. Ibid.
55. Irving, Gender and the Constitution, 1.
56. Jolynn Shoemaker, “By the People for the People: Constitution-Building, Gender and Democratization,” Gender and Constitution-Building: From Paper to Practice: Critical Half Bi-Annual Journal of Women for Women International 3, no. 1 (2005): 9.
57. Ibid., 10. Emphasis added.
58. Ibid., 11.
59. International Institute for Democracy and Electoral Assistance and Stockholm University, “Global Database of Quotas for Women.”
60. Brandt, Constitutional Assistance in Post-Conflict Countries, 1.
61. Stephen D. Krasner, “Sharing Sovereignty: New Institutions for Collapsed and Failing States,” International Security 29, no. 2 (2004): 85–120.
62. Roberto Belloni, State Building and International Intervention in Bosnia (London: Routledge, 2007).
63. Ibid., 7.
64. Naazneen Barma, “Brokered Democracy-Building: Developing Democracy through Transitional Governance in Cambodia, East Timor and Afghanistan,” International Journal on Multicultural Societies 8, no. 2 (2006): 127–28
65. Ibid., 129; Brandt, Constitutional Assistance in Post-Conflict Countries, 7.
66. Brandt, Constitutional Assistance in Post-Conflict Countries, 27.
67. Ibid., 28.
68. Louis Aucoin, “The Role of International Experts in Constitution-Making: Myth and Reality,” Georgetown Journal of International Affairs 5, no. 1 (2004): 89–95.

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