What Do Outsiders Know Anyway?

An initial reaction to the idea of constitutional advice is skepticism. What could outsiders, who do not inhabit a particular legal culture, possibly tell a people engaged in choosing their own fundamental norms? Constitutions, after all, are supposed to be products of “We the People”, and to reflect our own deepest commitments.

But a minute’s historical reflection immediate rebuts this critique. The modern era of constitution-making goes back to Pasquale Paoli, who drafted a short-lived document for the island of Corsica during its brief period of independence beginning in 1755.^[25] He seems to have become interested in the project through his experience in Naples and reading the ancient Greeks.^[26] A few decades later, James Madison prepared for his own more consequential drafting experience by gathering books on federations, historical and contemporary, to assess their “virtues and vices”.^[27] His thought was that the new American republic could avoid pitfalls of prior govern­ments. Thus, from the very beginning, modern constitution-making drew on foreign experience and inspiration, looking for both positive and negative examples.

Once the US Constitution was created, it was enormously influential on the constitution-making exercises in Latin America and elsewhere in the first decades of the 19th century. From the beginning, the grammar of constitutions has been a transnational one, with ideas flowing freely across borders, and the very idea of a written constitution becoming part of the script of the modern nation-state. Today, virtually every state has a text or set of texts that can be reasonably identified as constitutional.^[28] The world’s youngest generally recognized state, South Sudan, promulgated a constitution on its first day of existence in 2011.

Beyond the important role that constitutions play in creating fundamental institu­tions and expressing values, they also operate on the international plane. A constitu­tion communicates to foreigners which person is the rightful leader with whom they can interact; how agreements are negotiated; what process will be used to go to war; and many other features of governance that affect international relations.

In 1787, James Madison and his few dozen colleagues could draft a constitution in a single summer in one relatively small room. This kind of isolation and insulation are no longer possible. In a contemporary constitution-making situation, dozens of international organizations, NGOs, academics, foreign governments, and activists will be present trying to advance their own agendas or competing for access. This means that the image of autochthony is even less true than ever.

Going back further, the ancient Greeks had a practice of inviting outsiders to write constitutions.^[29] City-states would occasionally invite non-citizens to draft the constitution. Such a practice has its own “virtues and vices”.^[30] While an outsider is more likely to be impartial as between competing interest groups, she may have less information on local preferences, attitudes and culture—all factors that might in turn affect the efficacy of the constitutional text. But these days, outsiders directly drafting a constitution seems per se illegitimate. Notwithstanding a few famous examples—the most successful of which was the 1946 Constitution of Japan, written by a small number of Americans during a military occupation—most constitution­making exercises do not put foreigners in the position of holding the pen.

Sometimes, the foreigner is the technocrat preparing the text or laying out the agenda. Fiji, a society riven by conflict between native Fijians and descendants of Indian laborers where constitutions have not been particularly stable, provides some examples.

Then in 2012 Fiji’s military government invited Ghai to head a newly created constitutional commission. Alas, the process was not completed, as Ghai became heavily involved in local politics, and copies of his draft were publicly burned. One of the provisions he pushed for would have undermined an amnesty given by coup leaders to themselves. With Ghai gone, the country did adopt a constitution in 2013 that has proved quite stable.

Some years later in Kenya, after a constitutional reform process failed in a refer­endum in 2005, a new process was launched in 2009. The proposal for constitu­tional reform was to be drafted initially by a seven-member committee of experts, which included three foreigners.^[33] These were Christina Murray from South Africa, Fredrick Ssempebwa of Uganda, and Chaloka Beyani of Zambia. These outsiders were seen as somewhat immune from Kenya’s fraught ethnic politics, just as the Maori New Zealander Reeves had been an outsider to Fiji. Disinterest can be seen as a great advantage, especially in situations of deeply divided societies.

Still, while these examples show that foreigners can play a role in holding the proverbial pen, the far more common role is to be a transmitter of information to those locals who do wield the pen. The Committee of Experts in Kenya was not particularly controversial in terms of legitimacy, but Ghai’s deep connections in Fiji did complicate his involvement somewhat. Together the examples suggest that the best role for outsiders is to provide information or advice to those national actors who will make the primary decisions. It is this role that I will focus on in the remainder of this chapter.

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