[ [ PEACEW RKS PARTICIPATORY AND INCLUSIVE CONSTITUTION MAKING giving voice to the demands of citizens in the wake of the arab spring Jason Gluck and Michele Brandt About the RepoRt In the wake of the Arab Spring, countries across the Middle East and North Africa are still struggling with societal divisions and citizens’ demands for transparency, accountability, and greater political, social, and economic rights. In many of these countries, constitutional reform has featured prominently in the nature and direction of the transition. Inclusive constitutional reform has been a key component of Tunisia’s path toward democratic consolida- tion. In Syria, consensus building and constitutional reform will have to wait until leaders can come to the negotiating table. Where conditions exist to lead a participatory process, this report underscores how inclusive constitution making can potentially assist Arab Spring countries to respond to the needs of their citizens and build consensus in divided societies. While there is no blueprint for how to make a constitution, Arab Spring leaders and citizens can be inspired by the last two decades of modern constitution making, in which citizens have gained a meaningful voice in developing their social compacts. The risks and benefits of participatory constitution-making processes, as well as themes, arguments, and case studies presented in this report, are drawn from a workshop entitled “Opportunities and Dilemmas of Public Participation in Constitution Building,” jointly organized by Interpeace, the U.S. Institute of Peace (USIP), and International IDEA, held in Cape Town, South Africa, April 25, 2009. It also builds upon previous scholarship from USIP, Interpeace, and other external institutes. About the AuthoRs Jason Gluck is a senior political affairs officer and constitutional focal point for the United Nations Department of Political Affairs. He is on leave from USIP where he serves as a senior rule of law adviser. Michele Brandt is the founder and director of Inter- peace’s Constitution-Making for Peace Programme. The authors would like to thank Celena Canode for helping with research, Nigel Quinney for editing, and Christina Murray, Tom Ginsburg, and Susan Stigant for their invaluable feedback and advice. Cover Photo: by Mosa’ab Elshamy, available under a Creative Commons Attribution-Noncommercial-Share Alike license. Copyright © 2012 Mosa’ab Elshamy. www. flickr.com/photos/mosaaberising/6950525912. The views expressed in this report are those of the authors alone. They do not necessarily reflect the views of the United States Institute of Peace. United States Institute of Peace 2301 Constitution Ave., NW Washington, DC 20037 Phone: 202.457.1700 Fax: 202.429.6063 E-mail: [email protected] Web: www.usip.org Peaceworks No. 105. First published 2015. ISBN: 978-1-60127-280-5 © 2015 by the United States Institute of Peace CONTENTS PEACEWORKS • JANUARY 2015 • NO. 105 5 Introduction ... 7 Constitution Making in Arab Spring Countries ... 11 Benefits and Risks of Meaningful Participation ... 18 General Principles and Guidelines to Give Citizens a Meaningful Voice ... 30 Conclusion ... [ Throughout Arab Spring countries, demands continue for participation, inclusion, and transparency to overcome widespread corruption and abuses. How governments respond to these calls may determine whether constitution- ] making processes unite or further divide their societies. PARTICIPATORY AND INCLUSIVE CONSTITUTION MAKING Summary ■ Many of the countries of the Arab Spring face daunting challenges. Syria is racked by war. Libya’s transition is challenged by armed militias vying for control. In Egypt, the early promise of popular transformation has reinforced divisions in society. Jordan and Morocco have taken steps toward reform, but it is still unclear whether these countries can meet the demands of their citizens. It is also unclear to what extent Yemen’s mediated transition and ongoing constitution-making process will lead to a more stable and democratic society. ■ Tunisia, though still early in its transition, stands alone as a country that has achieved constitutional reform through a more inclusive and participatory process and has held peaceful elections under this new order. ■ Yet throughout Arab Spring countries, demands continue for participation, inclusion, and transparency to overcome widespread corruption and abuses. How governments respond to these calls may determine whether constitution-making processes unite or further divide their societies, whether they help or hinder the creation of a national consensus on fundamental principles and values, and whether the processes and documents that result from them are deemed legitimate. ■ There is no blueprint for how to make a constitution, but the last two decades of constitu- tion-making experience underscores that inclusive and participatory constitution making should address root causes of conflict and sectarian divisions, and ensure that the political process benefits from the full contribution of all citizens, including women and youth. ■ To achieve such results, constitution makers must have the political will to carry out a genuine process of civic education and consultations, in which the views of citizens are carefully considered. The constitution makers must carefully apply guiding principles, such as transparency and inclusion, and ensure that sufficient time and resources are allocated to the process. A nationwide participatory process must be well managed to avoid risks and reap benefits. ■ Where circumstances are conducive to meaningful constitutional dialogue and reform—at a minimum, a cessation of violence and a willingness of actors and constituencies to come to the table—the countries of the Arab Spring will benefit from using their constitutional moments to draw upon their own historical experiences as well as the lessons learned from the past twenty-five years in constitution making and research about what factors sustain peace. USIP.ORG 3 PARTICIPATORY AND INCLUSIVE CONSTITUTION MAKING Introduction The countries of the Arab Spring face daunting challenges. Syria is racked by war. Libya’s transi- tion is challenged by armed militias vying for control. In Egypt, the early promise of popular trans- formation has reinforced divisions in society. Jordan and Morocco have taken limited steps toward reforms, but it is still unclear whether these countries can meet the demands of their citizens. Through an internationally mediated process, Yemen has thus far avoided civil war and against all odds is continuing its transition toward a new constitutional order. Tunisia, though still early in its transition, stands alone as a country that has achieved constitutional reform through a more inclusive and participatory process and has held peaceful elections under this new order. Citizens across the Middle East and North Africa have demanded transparency, account- ability, and rights from their governments. For societies where borders were arbitrarily defined and dictators ruled for decades, these demands have created an opportunity to redefine national identities, set precedents for inclusive political processes, and create constitutions that represent the aspirations of their people. What is the nature of citizenship, and what is religion’s role in society? What are the nations’ core values? How do politically marginalized citizens, such as women, youth, or minorities, gain social, economic, and political rights and access to justice? On what terms can historically—and often deliberately—fragmented peoples peaceably coexist? Elites cannot answer such questions summarily. To overcome the legacies of dictators and To overcome the legacies of hastily drawn borders, transitional leaders must build consensus across deep divisions and with dictators and hastily drawn previously excluded citizens through national dialogue, public consultations, and civic education. borders, transitional leaders A robust democracy requires the full participation and contributions of all its citizens. must build consensus across As has happened in Tunisia, new governing arrangements must be formed on carefully con- deep divisions and with structed compromises. Participatory processes must be broad and nationally owned and led to previously excluded citizens shape new social contracts that achieve a durable peace. As Nicholas Haysom suggests, “The right through national dialogue, answer through the wrong process will not usually yield an acceptable solution.”1 public consultations, and Where circumstances are conducive to meaningful constitutional dialogue and reform—at a civic education. minimum, a cessation of violence and a willingness of violent actors and constituencies to come to the table—the countries of the Arab Spring will benefit from using their constitutional moments to draw upon their own historical experiences as well as lessons learned over the past twenty-five years in constitution making. Tunisia can serve as an example of how opening up the process and seeking consensus can lead to more legitimate outcomes. Leaders should develop and sustain the political will to promote the broadest possible par- ticipation and consensus. To achieve this goal, they must take adequate time to plan carefully and secure sufficient material and human resources. Leaders should continually review their plans to ensure the process is transparent and accountable at every stage and work to create a secure envi- ronment for opportunities for citizens to freely participate.2 Constitution making historically was concerned with the content of the document itself rather than how that content was agreed upon, and until recently, the writing of a constitution was gener- ally an act of power consolidation rather than political negotiation. Imperial powers protected their own interests by determining which parties would take the reins of government and the terms under which they would rule. Especially during the Cold War, conquerors of vanquished nations or new rulers intent on consolidating their power3 drafted their constitutions behind closed doors. Times have changed, and in postconflict settings, constitutions tend to be negotiated instru- ments. In the past two decades, a trend has begun to emerge toward greater transparency, inclusion, participation, and national ownership; constitution-making processes now tend to have greater levels of citizen participation.4 Transitional leaders across the globe—from South Africa, Thailand, USIP.ORG 5 PEACEWORKS 105 and Uganda to Papua New Guinea, Brazil, and Kenya—have chosen to invest significant time and resources to implement inclusive and participatory constitution-making processes because they have the potential to: • make the constitution itself, transitional authorities, and subsequent governments more legitimate in citizens’ eyes; • garner wide support for a peace process; • provide a forum for inclusive national dialogue to promote reconciliation and trust building; • foster consensus on the fundamental principles of the nation and the framework of the state; • strengthen and promote a common sense of belonging, national unity, and identity; • acknowledge and incorporate the aspirations of citizens who have been previously marginalized, such as women, youth, or minorities; • broaden the constitution’s social and economic agenda; • transform the understanding of constitution makers themselves, as they learn about the hopes and concerns of their people and see and hear firsthand the problems they face; and • break from an autocratic past and lay a foundation for more democratic practices, a cul- ture of rule of law, and ongoing citizen participation in decision making in the future.5 Researchers on peace and statebuilding highlight6 that unstable political orders are more likely to be the products of political exclusion than of poverty, conflicts over natural resources, or weak leaders. Sustained peace is achieved through inclusive political settlements.7 One recent study found “a strong correlation… between active civil society participation in peace negotiations and the durability of the peace during the peace-building phase.” 8 Studying data from 132 new con- stitutions, professors at American University determined that countries with higher levels of direct citizen participation—such as citizen engagement in civic education, dialogues, and public consul- tation activities—had higher levels of subsequent democratic practices. Direct citizen participation during the drafting phase was more important than referenda or other end-phase activities in achieving more legitimate outcomes.9 Other researchers have concluded that a referendum at the tail end of a constitutional process can even undo carefully constructed compromises; sometimes autocratic regimes use referenda to legitimize elite-dominated processes.10 The above studies and the advice of experienced constitution makers underscore that the task of promoting a participatory and inclusive process can lead to increased democratic tendencies and potentially a more durable peace.11 There is no single blueprint for how to make a constitution. Even the most well-planned and participatory process will be fraught with challenges, including overcoming decades of oppression and mistrust, fragmentation of social and political actors, a weak history of transparency and consultation in governance, and illiberal tendencies within old regimes and many social movements. In many cases, regional interests will also have to be con- Inclusive and participatory tended with—something constitution making is less equipped to handle. constitution-making practices But inclusive and participatory constitution-making practices can assist countries seeking to se- can assist countries seeking cure peace in giving voice to citizens’ demands for accountable, transparent, and democratic reforms. to secure peace in giving In so doing, such processes can address many of the above challenges and increase the likelihood that voice to citizens’ demands for constitutional reform can provide the basis for sustainable and peaceful democratic change. accountable, transparent, We begin with a brief overview of some of the constitution-making processes in the Arab and democratic reforms. Spring. Although it is too early to fully assess these political transitions, the report discusses op- tions for how these processes may benefit from the global lessons learned in constitution making. 66 USIP.ORG PARTICIPATORY AND INCLUSIVE CONSTITUTION MAKING We then review both the benefits and the risks of participatory and inclusive processes and con- clude with the general principles and guidelines that should guide them. Constitution Making in Arab Spring Countries Constitutional processes have been central to the transitions in Egypt, Tunisia, Libya, and Yemen, as well as the attempts to preserve the regimes in Morocco and Jordan. Reformers faced the task of creating a new legitimate constitutional order that redefined the relationship between citizens and government and redesigned the government’s systems and structures. In the wake of the Arab Spring, some countries have returned to sectarian conflict or a legacy of exclusionary political pro- cesses. Yet citizens continue to demand greater accountability, equity, and political freedom. It is not surprising, therefore, that in countries where constitutions have been made or remade, people have called for transparent, participatory, and inclusive processes that allow them to participate. For countries in the middle of constitutional reform or hoping to return to the negotiating table, Tunisia—although unique—holds out hope that leaders can embrace more democratic forms of constitution making. Calls for Meaningful Participation In Egypt, secular and youth groups in early 2012 filed legal challenges claiming that the Constitu- ent Assembly—the first assembly formed to draft the constitution—did not adequately repre- sent women, youth, and minorities. The first assembly was dissolved by judicial ruling in April 2012. The second Constituent Assembly, formed in June 2012, faced similar problems, as the same groups held mass demonstrations in the fall of 2012 against the draft constitution and referendum, protesting that their voices had been excluded despite an abundance of commentary calling for a nationally inclusive and participatory process. One Egyptian editorialist noted in spring 2012 that “the success of a constitution derives not only from the wisdom and the fairness of the text/docu- ment, but most importantly from the widespread involvement, informed participation, and buy-in by all of the people of Egypt into the constitution making process.”12 Other writers noted that “in a country of 85 million people, the writing of Egypt’s constitution should allow for Egypt’s diverse civilian voices to speak for themselves.”13 In Tunisia, focus group research reflected calls for the Constituent Assembly, newly elected in October 2011, to “listen to the people,” warning that the assembly “should not forget what hap- pened to [ousted president] Ben Ali; the Tunisian people revolted once and can do so again.”14 A poll conducted in February 2013 showed that 80 percent of Tunisians wanted to be able to vote on the constitution at referendum, a contingency that was available only if the Constituent As- sembly failed to approve the draft by a two-thirds majority vote.15 Focus groups in Libya revealed similar sentiments: “Citizens want and expect to play a key role in the constitutional development process.” 16 An August 2012 press statement from the organization Lawyers for Justice in Libya declared that after decades of authoritarian rule where the will of the Libyan people was suppressed, the participation of Libyans in the constitution-making process will be vital to its success and legitimacy. It is absolutely essential that Libyans, all Libyans, have the opportunity to participate and engage in the constitution-making process and that the GNC [General National Congress] foster a sense of ownership of the process amongst Libyans.17 USIP.ORG 7 PEACEWORKS 105 The same calls heard in Egypt, Tunisia, and Libya have echoed in countries that quickly un- dertook constitutional reform, such as Jordan and Morocco, and in countries where constitutional reform has yet to begin, such as Bahrain. In Morocco, within five months of the start of demon- strations on February 20, 2011, the regime revised its constitution. It transferred the power to ap- point government officials and dissolve parliament from the king to the prime minister, enshrined freedom of expression and equality between men and women, and criminalized torture, arbitrary detention, and enforced disappearances. The king announced the formation of a constitutional commission on March 9 of that year. The reforms were made public in mid-June and a national referendum was held on July 1. The Constitutional Commission invited political and social orga- nizations to submit proposals for amendments and conducted approximately a hundred meet- ings with representatives of these organizations.18 The compressed time line, lack of transparency, and heavily orchestrated process, however, failed to assuage some in the revolutionary movements. Weekly protests across the country continued throughout the process, and the February 20 Move- ment ultimately rejected the 2011 constitutional revision process as “insufficient and overly con- trolled by the monarchy.”19 Jordan also employed a top-down approach to constitutional reform with uncertain results. The Royal Committee on Constitutional Review, formed in April 2011, proposed forty-one amendments to the parliament. The committee included no representatives from opposition par- ties or civil society.20 The amendments were made public in August, and the parliament debated them during nine days in September without public consultation, even though the king himself articulated “citizen activism and effective public participation” as a goal of constitutional reform.21 The bulk of the amendments were approved by royal decree on September 30. Since then, protests have continued and political opposition and civil society groups continue to call for greater consti- tutional reform in a “more transparent and participatory process.” 22 Libyans elected a Libya’s constitution-making process is currently underway, even as the country experiences Constitutional Drafting growing unrest. Libyans elected a Constitutional Drafting Assembly (CDA) in three stages be- Assembly in three stages tween December 2013 and January 2014. Unfortunately, a combination of insecurity, voter apathy, between December and boycotting by minority groups resulted in less than five hundred thousand votes cast—less 2013 and January 2014. than half of those registered and barely a sixth of the national electorate. Four of the sixty seats in Unfortunately, a combination the CDA were left unfilled due to lack of security in certain areas and a boycott by the Amazigh of insecurity, voter apathy, minority community.23 The CDA met for the first time on April 21, 2014, with a deadline of Au- and boycotting by minority gust 19, as Libya’s Constitutional Declaration provided for 120 days for the CDA to complete its groups resulted in less than work. The deadline was missed, but this was ignored amid increasing violence,24 competing legis- five hundred thousand votes latures and governments vying for legitimacy,25 threats of secession,26 and ongoing attempts by the cast—less than half of those international community to mediate a dialogue to put Libyans back on a path toward consensual, registered and barely a sixth constitutionally-based democratic governance.27 of the national electorate. In Yemen, the outcomes of the almost eighteen-month National Dialogue were handed over to a presidentially-appointed Constitutional Drafting Commission (CDC) on March 9, 2014. The CDC is a technical body of seventeen members, including judges, lawyers, and other profes- sionals that reflect Yemen’s geographic, ethnic, and political diversity. Approximately one-quarter of the membership is women. The constitutional roadmap calls for the CDC to produce a first draft, which will then be submitted for public comment and to a “national body”—composed of representatives of the same groups that participated in the National Dialogue—to confirm that the draft is consistent with the National Dialogue outcomes. Like Libya, however, Yemen faces daunting political and security challenges. Houthi rebels have taken near-total control of Sanaa and other cities,28 and calls from the south for independence have increased.29 8 USIP.ORG