Constitution drafting in Nepal: Learning from other peace processes
JOHN PAUL LEDERACH, JOHN DARBY & MADHAV JOSHI
As the May 28 Constituent Assembly deadline approaches for achieving a new constitution people will notice an increasing intensity of blaming and bargaining among political parties. At the time of this writing, key issues including federalism and form of government remain unresolved. Drafting a new constitution after a negotiated settlement to an armed conflict has never been a smooth process. Political actors have to agree on institutions they believe will safeguard their interests. They have to agree on rules that will govern the management of political power and economic resources. Most of all, they have to learn to compromise in order to reach the necessary consensus that permits a new form of politics and public life to emerge.
Constitutional changes are often, but not universally, mandated by a peace agreement. In some cases, the peace agreement itself is treated as an integral part of the constitution. Nine of the 16 peace processes currently in the Peace Accords Matrix (PAM) had provision for constitutional change. In this article we highlight three: South Africa for its relative importance to Nepal, Cambodia for its regional relevance, and Sierra Leone for the insights it provides into amending an existing constitution.
South Africa’s final constitution developed through two stages: An interim and a final constitution through a Constituent Assembly. The interim constitution drafting process was substantially delayed due to sharp differences between the apartheid regime and the ANC and other parties, which were resolved through difficult negotiations in the multi-party Convention for a Democratic South Africa (CODESA I and II). The 21-party Negotiation Forum ratified the country’s first interim constitution in 1993. The white-dominated parliament overwhelmingly approved the interim constitution on December 22, 1993. The interim constitution had a clear provision for elections to a constituent assembly, and a coalition government to run for five years. Elections for the constituent assembly took place in April 1994 and the ANC received 62 percent of the votes. Parties were entitled to at least one cabinet position in the national unity government if they secured 5 percent of the votes in the elections. Parties receiving more than 80 seats were entitled to a vice-presidential position.
All parties agreed on the need for a firm deadline to complete the new constitution. The Constitution Assembly Management Committee established in September 1995 a May 1996 deadline with a possible extension to the end of June. A draft constitution was released on November 22, 1995, but members of the negotiation team were unable to reach consensus on a range of issues, including provincial government, a minority commission, and rights of self-determination for Afrikaners and Zulus. Minority parties wanted the new constitution to include checks and balances on the power of a likely ANC majority government. The majority of constitutional issues were resolved when negotiators met behind closed doors in April 1996, but the Human Rights Committee asked the Constitutional Court to allow members of the public to appear before it to give their views on the final constitution. The first draft of the constitution was read in the national assembly in April 1996 and the revisions proposed were referred to the Constitutional Committee. The National Assembly adopted the constitution in May 1996, the Constitutional Court approved it in December, and the constitution came into effect on February 4, 1997.
South Africa’s success in promulgating a new constitution within the stipulated timeline became possible because a unity government was established from the beginning, which helped to avoid mutual mistrust and animosity. Furthermore, the issue of former combatants was kept separate to negotiations on the constitution-making process.
The transition to peace and democracy was very challenging in Cambodia. The Paris Agreement in 1991 aimed at establishing a “liberal democracy on the basis of pluralism.” The Paris Agreement brought the Khmer Rouge, the Cambodian People´s Party (CPP), and the royalist FUNCINPEC party together in a Supreme National Council (SNC), which was chaired by a deposed Prince Sihanouk. In the transition phase the United Nations Transitional Authority in Cambodia (UNTAC) was established in February 1992 with a mandate to provide security, look after the administration, and hold elections for a constituent assembly in coordination with the SNC. All parties committed themselves to respect the results of the constituent assembly elections, after they were certified by the UN as free and fair. The agreement explicitly said that the constitution would be finalized and adopted within three months of constituent assembly elections.
The major parties to the peace process were already sharing power in the transitional government, indicating eagerness to establish a normal electoral and political process. Issues related to the management of former combatants were kept separate from the constitution-making process. Although constitutional reform and security sector reform were important in all three processes, the two issues were negotiated independently.
Since all parties initially were agreed on constitutional principles, the constitution drafting process began before the election for the constituent assembly. In September 1992, the chairman of the SNC set up a committee to facilitate the work of the constituent assembly composed of three members from the Phnom Penh administration, one member from each of the other three parties and the representative of the UNTAC. The elections for the constituent assembly took place in May 1993.The Khmer Rouge did not renounce violence and did not participate in the election, so it remained outside the constitution making process. The Cambodian People´s Party (CPP) made numerous allegations of irregularities in the election and refused to recognize its result – a victory for the royalist FUNCINPEC party. The issue was resolved when Sihanouk proposed the formation of an Interim Joint Administration with Prince Ranariddh and Hun Sen as the first and second prime minister, respectively.
The duly elected Constituent Assembly began work on June 14, 1993. At the inaugural session the assembly adopted a resolution to make Sihanouk head of state retroactive to 1970, thus making the coup d´état of March 18, 1970, null and void. The Assembly gave Sihanouk full powers as head of state. The Constitution Drafting Committee concluded its work on August 18, 1993. The debate over the draft constitution started in September 1993, and focused on whether Cambodia should adopt a presidential system or a constitutional monarchy. Prince Sihanouk wanted to run for president but the assembly finally settled on a constitutional monarchy, given the polarized nature of Cambodian politics. On September 21, 1993, the Constituent Assembly of Cambodia adopted the new constitution.
Setting a time frame for finalizing the constitution was cardinal for the success of timely constitution in Cambodia, which was further supported when Prince Ranariddh and Hun Sen shared power in the post-election period. As the presence of the UNTAC would undermine the authority of the Cambodian state, all parties who wanted to return to the normalized political process had incentives to finalize the draft constitution. Therefore, despite the continued violent activities by the Khmer Rouge, the constitution drafting process continued.
The 1996 Abidjan Peace Agreement in Sierra Leone made no provision for constitutional reform. It soon collapsed when the Revolutionary United Front (RUF) formed an alliance with the military, and a coup followed. Nigerian military intervention restored the deposed president in January 1998 and, under heavy international pressure, the parties signed a peace agreement in Lomé in 1999. The agreement called for changes to ensure that the constitution of Sierra Leone represented the needs and aspirations of the people and to make sure that the constitution and other legal provisions would not prevent the implementation of the peace agreement. To achieve this objective, the parties agreed to establish a Constitutional Review Committee to review the existing Constitution and, where deemed appropriate, to recommend revisions and amendments.
Several constitutional changes were made to ensure the constitutionality of the Lomé agreement and to facilitate its implementation. Ratification of the agreement through parliament facilitated the transformation of the RUF into a political movement and made it possible for RUF members to hold public offices, as agreed in the power-sharing provision of the accord. The constitutional changes in Sierra Leone moved smoothly as all the RUF combatants were decamped and undergoing the integration and reintegration process, and the government was making serious efforts to reform and establish a new and professional armed force.
The uninterrupted constitutional amendment in Sierra Leone was greatly facilitated by the establishment of a Constitutional Review Committee, which created a mechanism to monitor and amend the constitutions. The constitutional amendment and reform of the armed force worked as confidence building measures and encouraged the RUF to become a part of the political process.
LESSONS FOR NEPAL FROM THE EXPERIENCE OF OTHER PEACE PROCESSES
In all cases the existence of a deadline hastened completion of the constitution; the creation of a Constitutional Review Committee, to review progress at a future date, was particularly important in Sierra Leone. When constitutional changes took place in the three cases highlighted, the major parties to the peace process were already sharing power in the transitional government, indicating eagerness to establish a normal electoral and political process. Issues related to the management of former combatants were kept separate from the constitution-making process. Although constitutional reform and security sector reform were important in all three processes, the two issues were negotiated independently. Nepal started with a two-stage model similar to South Africa but failed to catch the momentum of the constitution-drafting process by not creating a national unity government, as mandated in the interim constitution.
Writers are based in the Joan B. Kroc Institute for International Peace Studies, University of Notre Dame, USA. The Peace Accords Matrix is a comprehensive database of peace agreement implementations and can be accessed at www.peaceaccords.nd.edu An article on power-sharing by the same authors will appear in this newspaper on Wednesday