constitution making (research handbook)

Tags: Williams - Research Handbook on Post-Conflict Statebuilding

Consitution Making

• iraqi constitutionalism
• tunisia consitution writing was transparent
• egyptian constituion writing was not
• constitution making now largely emphasizes citizen involvement
  • ex tunisia, kenya, south africa, thailand, papua new guinea, uganda, brazil
• debates about the inclusiveness of the process vs inclusiveness of the adoption

Constitution Writing in Egypt

• 2 constitutions: 2012 and 2014
• both lead by the intermim military government (SCAZ)
  • low legitimacy
• 2012 -> egyptian parliment selected members to assembly
• 2014 -> rewrite due to problems of 2012, 2014 did not include islamists in parliment

Consitution Writing in Tunisia

• Written by the National Constituiant Assembly
  • Body had the power to adopt
  • public could vote on the members
  • first draft was adoped by a 2/3rds vote
• More inclusive over multiple drafts that were relased to the public

Constitution Writing in Conflict Zones

• How to permit public engagement with security issues?
• How to prevent actors from co-opting the process?

libya

• Fissures between the National Transitional Council (NTC), the General National Congress (GNC), and Constitutional Drafting Assembly (CDA)
• Eternal problem: who gets a seat?
• UN largely helped to push it along, despite many issues such as the appelate court ruling against the CDA and various boycotts

yemen

• National Dialogue Conference in 2013 with the post GCC mediated transition
  • Produced over 1800 recommendations
  • Document was lauded, spoiled by the houthis and south Hiraak movement
    • Both wanted a 2 region state

Multiethnic Governence

• Two main patterns
  • Consociationalism -> accomdation via guarenteed representation
  • Centripedalism -> moderation of ethnic group views

Consociationalism

• Protects specific ethnic groups from harm
• usually grants some combo of autonomy, veto or partial veto, political representation
• “A peace treaty extended to government”
• Issue: sometimes accomodates ethnic extremists

Centripedalism

• Rewards moderate behavior
• Mechanisms such as:
  • alternative vote
  • candidates requiring plurality of vote across ethnically diverse territories

Models

• Ethnic federalism

  • Form of consoctionalism
  • questioned whether this actually exasterbates or ameloriates confict
  • usually has some of:
    • protection for cultural and linguistic identity - south africa
    • ethnic based “self rule” - ethopia
    • subnational constiutions - iraq
    • political and legal autonomy - KRG/iraqi kurdistan, ethopia
    • political decentralization
      • federal/unitary/localist
        • iraq - localist due to kurds
        • kosovo - local gov prevents the partition of the state along ethnic lines

• libya

  • no centripedal or consociationalism
  • one big unitary state envisioned

• yemen

  • some consociational features
  • de facto ethic federation

Human Rights

• Egypt and Tunisia both explictly refer to human rights law
• Tunisia has actual mechanisms to enforce

Enforcement

• Constitutions lack legitimacy if not enforced
• Concept of “Abusive Constituionalism” - Use of mechanisms of constitutionalism to undermine democracy

• Egypt

  • no consitutional court

• tunisia

  • constituional court
  • multiiple new comissions

Conclusion

• constituion making in conflict make be the norm
• there must be a state as a prereq