Dr W. Elliot Bulmer

1. Dr W. Elliot Bulmer Constitution Building Programme Comparative lessons for effective constitution-making

2. Who we are and what we do • Resources you can use • Experience of good and bad constitution-building practice • Reflections for Scotland

3. OurAims • International Institute for Democracy and Electoral Assistance (Int. IDEA): ‘to support democracy worldwide’. • To support inclusive and participatory constitution building processes. • Raise awareness of relationship betweeen Constitution Building Processes, and democratization and conflict resolution. • To develop a constitution building field through systematizing and integrating knowledge that is based on comparative experience.

4. OurActivities • Provide comparative knowledge tools and policy recommendations. • Create a network of practitioners to facilitate the exchange of experience and expertise (in the global south). • Trainingand capacity-building. • Direct assistance to regional offices and in-country programmes (e.g. Nepal, Myanmar, Kenya, Egypt).

5. A Practical Guide toConstitutionBuilding • 7-volume handbook on constitutional design. • Focuses on content rather than process. • Being expanded into more focused and detailed guides to particular choices.

6. www.constitutionnet.org

7. ConstitutionBuildingPractice • More than two hundred years of practice / experience. • Someone, somewhere, is constitution-making right now. • Innovation is in the global south: India, South Africa, Latin America. • Not just tied to waves of democratisation. Internal state dynamics. • From ‘comparative study of constitutions’ to ‘comparative study of constitution-building’.

8. General Principles • Constitution building is ‘a process, not an event’. • It is a political process (before, during and after the legal process). • Needs both public and elite support.

9. Process of ConstitutionBuilding • (1) Initiating constitution building. • Are preconditions (peace, security, humanitarian conditions) in place? • Interim Governance Arrangements in place. • Initial agreement on process. • Determine timeline and benchmarks. • Ratification process and requirements. • Who is at the table? Who needs to be brought to the table?

10. Process of ConstitutionBuilding • (2) Establishing formal mechanisms. • Establish Constitutional Commission or Constituent Assembly. • Determine rules of procedure. • Election / appointment of members. • Create secretariat / Committee of Experts • Plan budget. • (Civic Education, space for political dialogue)

11. Process of ConstitutionBuilding • (3) Negotiating and Bargaining • Preference mapping. • Aims, values and principles: Why are we doing this and what do we want to achieve? • Institutional and substantive preferences: Where are areas of agreement and disagreement? • What is negotiable and what is non-negotiable? • Can non-negotiable disagreements be overcome? (Importance of a robust and legitimate process).

12. Process of ConstitutionBuilding • (4) Drafting • Now we get to actually write the Constitution. • From negotiated bargains to robust, workable text. • Expert technical task, but not only so: back and forth.

13. Process of ConstitutionBuilding • (5) Promulgation • Agreement on final text. • Ratification process (again, importance of agreeing this from the outset: no stallers). • Holding of referendum. • Commencement: establishment of new constitutional regime.

14. Process of Constitution Building • (6) Implementation • First elections under the new Constitution. • Establish and staff new institutions. • Bring legislation and administrative practices into line with Constitution. • Subsequent review (one year, three years, ten years).

15. Bad Practice: Egypt 2011-2013 • Political bargaining and negotiation did not precede drafting: no political settlement, no shared vision, no mapping of overlapping preferences. • No agreement on process. Process & outcomes mixed. • One sided constitution; winner-takes-all; narrowly endorsed by referendum on a low turn-out.

16. Bad Practice: Egypt 2011-2013 • Illegitimate, fragile government; ousted by coup. • Closed, exclusive, reactionary post-coup process. • No civic education or opportunities for engagement. • Reluctance to learn from the mistakes of others.

17. Good Practice: Kenya 2008 - 2010 • Political settlement: National Accord. • Clear process: Review Act, 2008. • Partial insulation of process from ‘ordinary politics’. • Effective ‘preference mapping’.

18. Good Practice: Kenya 2008 - 2010 • Systematic public consultation. • Extensive civic education. • Willingness to learn from comparative experience and international best practice. • Approved by large majority in referendum: legitimate.

19. Does Process Matter? • Process shapes outcomes: reflects distribution of power and inclusion / exclusion of interests. • Process will influence the legitimacy of outcomes. • Process heals and reconciles, or hurts and divides.

20. Fundamental Questions • Who is the Constitution for? What is its purpose? • Bad processes are particularistic and exclusive: • ‘People like us’. • ‘To make sure we retain power and privilege’.

21. Fundamental Questions • Who is the Constitution for? What is its purpose? • Good processes are universalist and inclusive: • ‘Everyone’. • Democratic means for the peaceful, orderly transfer, exercise and limitation of public power, • Protect human rights. • Ensure effective and accountable government. • Prevent authoritarianism and incumbent manipulation.

22. Everyone, Elites and Experts • Public decision-making at beginning and near end of process. Vital to legitimacy and success of outcome. • On-going public engagement: openness, information, consultation. • Civic education and ‘capacity building’ – equipping people to critically sustain constitution building.

23. Elites, Everyone and Experts • Elite support critical at all stages of process – right through to the implementation phase and beyond. • Good will: drivers of process must believe in democracy, otherwise it is very likely to fail. • Different elites: Who are key opinion-formers, negotiators, drivers and veto-players? • How do they fit into the preference map?

24. Experts, Elites and Everyone • There is a legitimate role for ‘expert’ involvement. • Not everyone can write a Constitution: • That includes most members of a Constituent Assembly. • They have not done it before. • They are used to working in one system, lack comparative knowledge. • Avoid wheel reinvention and obvious mistakes. • Experts ‘on tap’ but not ‘on top’.

25. Applicability to Scotland • Independence might happen. • If it does, we will need a Constitution: not an optional extra or a ‘nice-to-have’ anymore. • The world is watching– there are international standards. • Scotland cannot be an ‘SNP state: a Constitution that works has to be a Constitution for Everyone. • Importance of Interim Constitutional Platform.

26. Specific Considerations • Interim Constitutional Platform must be robust: • Transitional governance provisions that protect against authoritarian backsliding and incumbent manipulation. • Give opponents of independence comfort and reassurance. • Be entrenched. • Set out process and timeline: leave no doubt about it. • Involvement of opposition parties is essential: • Make or Break: constructive or destructive engagement.

27. Summary • Constitution building is ‘a process, not an event’. • Public and elite engagement, with expert support. • Agree process and timetable before you start. • Importance of Preference Mapping.

28. Final Considerations • Constitution building is difficult. Often it falls short. • It needs strongly committed democratic leadership. • The Constitution should heal and unite: • Not a wish-list, not your fantasy manifesto, not a utopian blueprint for an ideal society. Not winner-takes-all. • Quod ubique, quod semper, quod ab omnibus.

29. Questions / Comments / Discussion Follow-up contact: e.bulmer@idea.int