The Drafting Situation

A key conditioning factor for the deployment of advice is what I will call the drafting situation. By this I mean the general circumstances in which the constitution is being produced, by who, and through what mechanisms.

Institutional reform is sometimes a motive for constitution-making. A number of countries have initiated constitutional reform to switch from presidential to parliamentary systems. Armenia, for example, switched from semi-presidentialism to parliamentarism in 2015. And Sweden wrote a new constitution in 1974 to consolidate many decades of incremental changes, some of which had been informal.

Whatever the motive, a process of constitution-making must be chosen.^[34] These too come in many different forms, but a fundamental decision is whether to create a separate constitution-making body, a special commission, or to leave the task to the ordinary parliament.

The combination of the locus of actual decision and the formal drafting process create points of entry for advice. One way to think about the points of entry is to view a constitution-making process as a series of concentric circles with the document at the center.^[35] Immediately around that are the actual decision-makers; for highly salient issues these will be political actors representing major forces in the country. In the case of South Africa, final negotiations occurred between Rolf Meyer, a member of the National Party, and Cyril Ramaphosa of the African National Congress.^[36] The next circle are the technical experts who are associated with the key leaders, as well as experts working for a secretariat or commission. Absent political salience, their decisions will likely determine the text that is adopted.

The next circle is the formal body charged with drafting the constitution. A constituent assembly, if that model is chosen, can be quite large, as in the case of Nepal, where it had more than 500 members. A large body means that many of the nominal decision-makers will be quite removed from the actual negotiations; the average member of a large constituent assembly will have little direct impact in the text, but will need to understand and vote upon it. Beyond the formal decision-making body, the next circle would be political parties and other elites who have some stake in the process. These actors can channel their views through the formal decision­making body or the actual leaders who will make the final call on contentious issues.

Each of these circles provides potential entry points for constitutional advisors to transmit information. Moving from the outside in, one can see that the ease of access for advisors gets progressively harder. At the outer-most circle, the process of educating the general public on constitutional matters or assisting with the prepara­tion of materials for civic education is perhaps the easiest. Foreign governments are eager to fund civic education. Manuals, informational materials and introductions to particular topics are in great demand. The current trend toward ensuring participation in constitutional design means that national actors have to come up with some way of doing so. There is now a small number of experts who can advise in designing participation mechanisms, and aggregating the information that comes in, itself a point of international input.

For political parties and other elites, the modal form of outside participation is the educational seminar providing discussion of constitution-making in general or specific topics of interest, such as federalism, design of political systems, transitional justice mechanisms, human rights, or the judiciary. This activity is often undertaken for large constituent assemblies as well. In the case of Nepal, a large number of organizations held seminars for the Constituent Assembly members on specific topics over the course of the eight-year process.

Once one moves inward closer to the core, one is speaking to those who will make final decisions on matters large (politicians) and small (technocrats). Here the initial stage of advice usually involves laying out major design choices: for example, what is at stake in choosing a constitutional court versus letting constitutional review be carried out by the ordinary judiciary, or how fiscal federalism operates.

Only rarely are foreign advisors able to directly access the political leaders who will at the end make the most controversial decisions in the event of deadlock. For the most part, advisors engage best with technocrats. Other outsiders—mediators, foreign government officials, UN special representatives—may have a good deal of influence with the political level.

The advisor’s ability to have a voice will, of course, depend on contextual factors associated with the drafting situation. Some countries are simply more open to foreign input than others. In Nepal, for example, many organizations claimed involvement, and the process was heavily supported by foreign donors. Hanna Lerner has counted sixteen external organizations involved in Libya’s process, fourteen in Tunisia, thir­teen in Kenya and Nepal, eleven in the South Sudan, and ten each in Afghanistan and Yemen.^[38]1 was a contractor to some external organization in all of these processes but Yemen. My roles included textual comment and research in Kenya and South Sudan, constituent assembly education and meeting key decision-makers in Nepal, and advising judges and activists in Tunisia and Libya.

But there are many other countries where, because of colonial experience or local culture, there is a real aversion to foreigners. During Egypt’s two constitution-making exercises during the Arab Spring, no foreign organization had any role. The depth of relevant local experience obviously matters here as well. Chile is currently engaged in a constitutional convention process in which several professors of constitutional law are members; others outside the assembly have a good deal of knowledge, including one of Latin America’s leading students of constitution-making, Gabriel Negretto. There is not a huge need for direct advice from other external actors at this stage. But in countries with lower levels of human capital, it might be needed.

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