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Constitutional Assistance in Post-Conflict CountriesThe UN Experience: Cambodia, East Timor & Afghanistan – Michele BrandtUnlike the Cambodian and East Timorprocess, where the SRSG had stayed away from theformal proceedings in the Constituent Assembly, thepresence of the SRSG in Afghanistan was welcomedand he had an office at the CLJ. He was frequentlypresent at the CLJ and used his good offices toreconcile opposing views or advise on the position ofthe international community on suggested provisions.A team of UNAMA staff also maintained acontinuous presence at the CLJ to monitordiscussions in the committees, assist with complaintsof intimidation or violations of human rights, observeand support the voting process and advise on rules ofprocedure. The Asia Foundation staff were alsopresent around-the-clock to assist with logisticalarrangements and security.The “Light Footprint” approach did notnecessarily translate into less influence or fewerinternational technical advisors than in other cases,per se, since Afghans placed a great degree of trust inthe SRSG and the UN’s advice. The UN supportedthe creation of transparent, inclusive and participatorymechanisms. Though tight timeframes meant thattheir impact may have been somewhat limited,considering the serious security constraints andcharged international and domestic politicalenvironment, the degree of public participation andrepresentation was noteworthy.4. CONCLUSION ANDRECOMMENDATIONSSome form of constitutional review orreform is often a key component of comprehensivesettlements to a conflict and the transition from warto peace. Constitution-making provides a uniqueopportunity for the UN to encourage a process thatpromotes national reconciliation, consensus buildingand the creation of a national vision for the future ofthe country. In order for such a process to underpin adurable peace, the UN’s constitutional assistanceshould seek to support a nationally owned and ledprocess that is inclusive, transparent and participatory.The mandates of complex peace operations,such as those covered in this report, involve an oftenstaggering array of tasks which must be carried outsimultaneously. Security must be maintained, theeconomy kick started, human rights protected,humanitarian crises averted, and political dialoguepromoted. Everything is a priority; everythingdemands attention. Constitution-making is just oneelement in the midst of these Herculean endeavors,and in hindsight an analysis of this element alonecannot lose sight of the fact that decisions taken byUN and political leaders in the field are conditionedby a range of competing demands.Nevertheless, one of the central lessons ofUN peace operations over the past decade and a halfis that they have been mounted without a reliable baseof doctrine and guidance from which mission leaderscan draw even as they adapt and improvise on theground. The review of the UN’s role in theCambodia, East Timor and Afghanistan casesillustrates that this, as each approach has been ad hocand, to a significant degree, dependent on the choicesof the UN leaders in the field. In each case, the UNmissions could have planned support to the processmore effectively if they had access to resources andinformation about options for design andimplementation of constitution-making processes.A good example would be the doctrine,guidance, resources and expertise that have beencarefully developed and consolidated for elections.The Electoral Asssitance Division (EAD) of theDepartment of Political Affairs (DPA) in the UNSecretariat provides UN leaders in the field withassistance in the areas of needs-assessments; thedesign and implementation of electoral assistanceproject activities; operational strategies for electoralcomponents of peace-keeping operations; maintaininga roster of electoral experts able to provide technicalassistance on short notice and serving as the UN'sinstitutional memory in the electoral field.The EAD has also established networks withnon-UN institutes, electoral commissions, etc., thatcreates a much wider pool of expertise, resources andknowledge upon which to draw. In the constitutionalfield, many of the resources that currently exist areand will likely remain, external to the UN in academia,governments, non-governmental organizations, etc.What the UN can do, however, is ensure that it isprepared to and capable of drawing on that expertisewhile maintaining the necessary doctrine and guidanceand a core expertise in-house.27
Constitutional Assistance in Post-Conflict CountriesThe UN Experience: Cambodia, East Timor & Afghanistan – Michele BrandtTherefore, to provide more effective UNconstitutional assistance this report recommends thatthe UN appoint a focal point for UN constitutionalassistance that would: (1) develop doctrine andguidelines on constitutional assistance; (2) providetechnical expertise and resources; (3) document UNexperiences in the area of constitutional assistance todraw lessons learnt and reflect upon good practices.To minimize costs, the UN should also draw uponexisting external resources to support the aboveefforts.The conclusion is in line with the Secretary-General’s recent report “In Larger Freedom: TowardsDevelopment, Security, and Human rights for all” inwhich he underscores the vital role that the UN playsin mediating peace agreements and assisting in theirimplementation but notes that “there is a gaping holein the UN Institutional Machinery: no part of the UNsystem effectively addresses the challenge of helpingcountries with the transition from war to peace.” Akey aspect of addressing current peacebuilding gaps inthe system should be supporting national actors todesign and implement constitution-making processesthat promote longer-term peace and produce durableblueprints for political stability and broaderdevelopmentThe three case studies do not constitute abroad enough set of experiences from which to drawdefinitive lessons learnt, or from which to builddoctrine and guidance. For that, analysis of a largernumber of both UN and non-UN constitutionalexercises is necessary. Nevertheless, the cases dopoint towards some gaps in the UN’s capacity ofresources and some preliminary lessons that mightinform future planning of constitution-makingprocesses, including pitfalls to avoid. These aredetailed below.Legal FrameworkA prior legal instrument such as a peaceagreement or Security Council resolution, whichprovides the legal framework, defining principles andparameters for the exercise, mandates most postconflictconstitutional exercises. The legal framework,however, has differed in scope and detail from case tocase depending on the context and the objective ofthe constitutional review.There is no “once size fits all” framework fora process. Sometimes, such as in Cambodia, it will beuseful to have a more detailed framework thatincludes the principles to be enshrined in theconstitution. At other times, the framework should bemore skeletal, such as in Afghanistan, to allow forflexibility to respond to the inevitable changes in thepolitical context. Nonetheless, while stressing that theunique circumstances of the context will determinethe degree of specificity and the content of the legalframework, the following are some potential elementsto be considered for inclusion in the legal framework:• key constitutional principles or substantiveprovisions to guide the process and to beenshrined in the final constitution;• the mandate and work plan for theconstitutional organ/s;• the timeframe for the process, with aschedule of when key tasks should beaccomplished;• a declaration that the constitutional organ/sdrafting the constitution will be free ofgovernmental control;• transparent rules and mechanisms toestablish constitutional organs andappoint/elect delegates -- perhaps to appointan inclusive and technically competentconstitutional organ to draft the constitutionand a democratically elected body to adoptthe constitution, with at times specificprocedures for appointment or nominationof marginalized groups, members of civilsociety or those with specific professionalskills.• the mandate of a supportive administrativebody, such as a Secretariat;• provisions that describe the incorporation ofa participatory process that prescribessufficient time and resources to conductseparate phases of civic education andconsultation;• review and/or enforcement mechanisms toensure that the final draft of the constitutionincorporates any agreed upon principles;28
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