A protester holds a sign rejecting Syria’s 2012 constitutional referendum. The constitution was drafted by an unelected committee and put to a yes or no vote without additional participation. Source: Syrian Free Press YouTube
In December 2015, the UN Security Council passed Resolution 2254 with the goal of creating a roadmap to facilitate a political transition in Syria. In the recent round of peace talks, the UN Special Envoy for Syria Staffan de Mistura prioritized elections and a new Syrian constitution as key steps to implement the Resolution. The United States and Russia echoed these sentiments and declared August 2016 as the deadline for drafting the constitution. Reports claim that the Russian government submitted an initial draft which the United States is currently reviewing. By engineering the constitutional process without input from Syrians, the United States, Russia, and the United Nations are setting the stage for a rushed, non-transparent, and poorly conceived constitutional process, which, most importantly, does not provide adequate time or space to respond to the demands of Syrians.
According to international best practices and lessons learned from other post-conflict countries, the constitutional process has the potential to be an important part of peacebuilding. Although constitutions historically were created by the political elite without public input, modern practice has shown that an inclusive process with public participation leads to final products with greater legitimacy and local buy-in — two elements critical to promoting future stability. In 2003, the United States Institute of Peace (USIP) released a report on constitution-making that emphasizes the importance of “genuine political participation” defined as a process which allows for social inclusion, personal security, and freedom of speech and assembly. According to this model, the drafting process is often long and requires significant resources to achieve success. The report further emphasizes that democratic constitutions cannot be written by external actors on a nation’s behalf because it will not address the grievances of the population and is unlikely to secure local buy-in.
Tunisia and Rwanda are both countries that followed a participatory model for constitution drafting. Although Tunisia’s process did not emerge from a bloody civil war as is the case with Syria, Tunisia offers an example of the importance of participation that is markedly different from the transitional processes in other Arab countries. Tunisia’s new constitution was initially framed with the goal of reaching consensus and safeguarding against authoritarian rule. It was a slow process that involved negotiations and voting from a wide spectrum of political parties. A diverse group of popularly elected Parliamentary members voted on each article separately. While it took almost three years to complete, the Tunisian constitution’s long, iterative process ensured greater buy-in from Tunisian society, giving the document real legitimacy.
Like Syria, Rwanda experienced a brutal civil war but was still able to form a new constitution with genuine political participation. Following the war, Rwandan officials were committed to the principles of participation throughout the transition, and both the government and the international community dedicated significant resources — almost $7 million — to make participation possible. Well before the drafting of the document even started there was local outreach and education on the constitutional process. Participation culminated in over 90% of the Rwandan electorate voting in the final referendum, with 93% of those who voted approving the draft. Thanks to this inclusive process, the new document was seen by Rwandans as a legitimate break from the violence of the past and helped establish a new framework for governance in their post-conflict society.
While peace processes and constitution drafting often go hand-in-hand, according to Habib Nassar, a constitutional expert and member of SJAC’s Advisory Board, the result of peace negotiations typically feeds into the constitution drafting process, not the other way around. Instead in Syria, constitution drafting seems to be guiding and proceeding alongside the talks. This is not only unusual, but threatens Syria’s peacebuilding process. Rather, the negotiators as well as the international backers of the talks could work on a temporary constitution or transitional document and leave the drafting of a permanent constitution for a time when an inclusive process is possible. Rwandans, for example, used multiple documents to guide their transition until the country adopted a new constitution in 2003. These documents included the 1991 Rwandan constitution, protocols from the 1999 Arusha Peace Accord, and additional protocols introduced by the transitional government.
The proposed US-Russian approach does not adhere to best practices, and neither the UN Special Envoy nor his advisors are pushing back. The frustration among Syrians is that there has yet to be an explanation of the reasoning behind the current process. Lessons-learned from countries like Tunisia and Rwanda demonstrate that there is no need to rush constitution drafting. Temporary documents can serve as placeholders while a genuine, inclusive process takes place. While having a well-written constitution is important for good governance, the process itself can be even more important for peacebuilding and establishing the rule of law than the final product. And since the roots of the current conflict in Syria stem from serious governance problems, adequately addressing the conflict requires addressing those grievances, not repeating the same closed-door, uninclusive modes of decision-making that define Syria’s past.
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