(S)electing Constitution-Making Bodies in Fragile and Conflict-Affected Settings

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Key recommendations:

  • Peace mediators and constitutional advisors should bear in mind that the constitution-building process after conflict often starts before the actual making of the new constitutional framework.
  • When thinking about the type of constitution-making bodies (CMB) that will be in charge of both the drafting and adoption of the new constitutional framework, stakeholders should consider a number of key issues.
  • Elections are not always necessary or possible.
  • Where external commissions are used in conjunction with existing legislatures, they are usually paramount in determining the overall legitimacy of the process and the content of the constitution. Their composition must therefore be carefully considered to make it inclusive of all major interests.
  • Decision makers need to be aware that holding elections in conflict-affected settings might be destabilizing; especially in those cases where the existing institutional framework endures after the conflict, and the existing constitutional framework commands sufficient legitimacy to be changed according to its own rules, it might make sense for the existing legislature to be tasked with constitution-making. This decision will often be made as part of peace negotiations.
  • When deciding on the specific type of CMB, decision makers need to bear in mind particular issues deriving from the fact that the CMB might or might not have to conduct day-do-day legislative tasks. Furthermore, defining the relationship between the CMB and the regular legislature will be the key to avoiding power disputes between both institutions.
  • It is common in fragile and conflict-affected settings committing to a constitution-building process that elections might not be feasible at the outset of the process. Interim constitutions might give more time to local stakeholders for elections to be held and/or for the new constitutional dispensation to be drafted and adopted.
  • Decision makers should also bear in mind that, in those cases where the CMB has been specifically elected for the drafting and adoption of the new constitutional framework, ratifying referendums are rare and the urgency to hold general elections immediately after adoption is diluted.

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