Vivien Hart argues that modern constitutionalism has redefined traditional notions of constitutions devised on high by panels of foreign experts to embody the concept of democratic participation. This ‘new constitutionalism’ hangs the success of constitution-making processes on the popular support of a nation’s people, thus enhancing the importance of genuine public participation throughout the entire constitution-making process. Inclusive and participatory practices that ensure equality of opinion are encouraged to enhance local ownership of the process, supporting the legitimacy of the final constitutional product.
Hart notes that democratic process is extended by new constitutionalism to: “include free, open, and responsive discussion of the constitutional settlement itself…to overcome the problems of entry of new participants and of an equal voice for all concerned regardless of their expertise."
The involvement of international actors in the constitution-making process in the ways envisaged in the Guidance Note of the Secretary-General of the United Nations, United Nations Assistance to Constitution-Making Processes (the Guidance Note), reflects these suggested changes to the concept of the constitution itself. The emphasis of the Guidance note is on providing support and assistance to contribute towards inclusive, participatory and transparent processes. Moreover, the Guidance Note recognises constitution-making as a powerful sovereign national process, accentuating the notion of local ownership for legitimate and successful outcomes.
The notion of the will of the people as central to constitution-making is by no means novel. As Dann and Al-Ali describe, the pouvoir constituant has long existed to depict the people as a political body. However, in a progression from traditional revolutionary concepts, Dann and Al-Ali suggest that the modern-day pouvoir constituant is an internationalised concept, a singular global notion of democratic and participatory process. It is through this concept that international actors such as the UN come to play a role in representing the pouvoir constituant in constitution-making processes in post-conflict states around the world.
The involvement of international actors as envisaged in the Guidance Note falls within the category of external influence defined by Dann and Al-Ali as partial influence; whereby international influence directs the constitutional process to a large degree, while the substantive functions of drafting and ratifying remain domestically driven. Thus while the UN plays an important support and guidance role in assisting nations to design a constitution-making and implementation process, the substantive content and form of the constitution itself remains with the people. The pouvoir constituant is “…neither entirely surrendered nor is it kept entirely intact”; rather international actors procedurally guide it to its own conclusion."
The Guidance note explicitly outlines the role of national (local) ownership in constitution-making processes. Ensuring national ownership is one of six guiding principles outlined in the document:
"The UN should recognise that constitution-making is a sovereign national process, and that to be successful the process must be nationally owned and led. The UN should be particularly sensitive to the need to provide advice and options without causing national actors to fear that UN or other international assistance could lead to a foreign-imposed constitution. Any assistance will need to stem from national and transitional authorities’ requests. The options and advice provided must be carefully tailored to the local context, recognizing there is no “one size fits all” constitutional model or process, and that national ownership should include official actors, political parties, civil society and the general public."
Thus the UN recognises that the nature of their external influence on the process of constitution-making has a role to play in the relationship between the constitution and its people. A successful constitution is thereby one that is legitimised by the ownership and empowerment of its people, one that is sensitive to the social, political and cultural nuances of a particular context. Employing the notion of state sovereignty also limits the role of international actors as advisors only, preventing the imposition of foreign expectations and norms. Noting that assistance will only be provided in response to a national authority’s request also reinforces this concept, however the role of the greater international community in influencing a nation to seek assistance should not be discounted.
To ensure national ownership, the Guidance Note also cites support of inclusivity, participation and transparency as guiding principles. It notes that:
“…a genuinely inclusive and participatory constitution-making process can be a transformational exercise. It can provide a means for the population to experience the basics of democratic governance and learn about relevant international principles and standards, thus raising expectations for future popular engagement and transparency in governance. Inclusive and participatory processes are more likely to engender consensus around a constitutional framework agreeable to all.”
These participatory principles are key characteristics of the new constitutionalism, suggesting that the very concept of the constitution is changing from the standpoint of local ownership. Local ownership through participatory constitution-making is now at the forefront as the source of legitimacy for the modern constitution, with international actors now playing a supportive, advisory role that affords legitimacy in the international sphere.
It is, however, important to acknowledge that the new way in constitution-making is not a guaranteed path to success. Indeed, Dann and Al-Ali note that several attempts by international actors at ensuring that constitution-making processes are inclusive enough to enhance local ownership have been unsuccessful. They note that domestic political environments that discourage public involvement, such as in Sudan and East Timor, have prevented successful participatory processes.
Ginsburg, Elkins and Blount conclude that there is yet to be consensus on the true effectiveness of local ownership and participatory approaches to constitution-making, however one can suggest that with the formal acknowledgement of principles such as those envisaged in the Guidance Note that more processes that adopt such an approach may provide further outcomes for exploration.
Sources and further reading
Philipp Dann/ Zaid Al-Ali,The Internationalized Pouvoir Constituant, Max Planck UNYB 10 (2006)
Ginsburg, Elkins and Blount, Does the Process of Constitution Making Matter?, Annual Review of Law and Social Sciences, Vol. 5, No. 5, 2009
Hart, Vivien, Democratic Constitution Making, United States Institute of Peace 2003
Jessica Currie - Jessica is an experienced criminologist, regulatory consultant and anti-money laundering professional.
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