Constitution Writing & Conflict Resolution

Ground Rules

Decisions about procedural formats, interim constitutions, and immutable principles preface other phases of the constitution writing process. Here we group these steps under the rubric of “Ground Rules.”

Talks about Talks

Constitution writing usually begins with a meeting between representatives of major political parties and stakeholders even where the existing constitution will govern the steps in the amendment or replacement process. These conversations are important to ensure that there is a common understanding of the procedural requirements and the way these are to be carried out.

In cases where the existing constitution specifies no procedures for change or where the document lacks popular acceptance, a conversation among major parties and stakeholders is usually the forum in which the decision process takes shape. These meetings are necessarily small, often about 50 people, and involve leaders and their deputies. They often result in pacts—agreements on basic principles by the major contenders for political power. Sometimes they are open to the press and to public view, as in Poland. In other cases, they operate behind closed doors in order to facilitate compromise. Informal bargaining outside the official proceedings is common.

Of the 194 cases studied in this project, about 33 percent began with talks to establish ground rules for the decision process. In over a quarter of these instances, the discussions took the form of official round table meetings between representatives of the incumbents and the major opposition groups. Peace negotiations among warring parties and legislatures hosted similar discussions elsewhere, and in five cases large national conferences continued these conversations.

In rare instances the broad decisions made at these talks are subject to popular approval in a national referendum. For example, in its transition to democracy in 1977-78, Spain asked voters to approve procedures after the parliament granted its approval. Venezuela also held a referendum to decide whether to create a constituent assembly. In South Africa, F. W. de Klerk announced a surprise referendum of white voters to test acceptance of his efforts to enter into negotiations with the African National Congress (ANC).

Prior to these conversations governments may have to grant legal status to opposition groups or amnesty to armed opponents. It is not possible to negotiate with people who are behind bars or at risk of arrest. Whether by parliamentary approval of a bill to legalize opposition or through executive decree, this “opening” or liberalization, however limited, must take place before a round table or a similar forum can convene.

Interim Constitutions & Transitional Documents

In addition to outlining the process for writing a new constitution, the “talks about talks” may aim to produce an interim constitution or other documents to establish rules for governing the country during a transitional period. Where there is a sitting legislature, the executive may introduce these terms in the form of a bill and representatives may vote. Where there is no sitting legislature or the existing political institutions lack legitimacy, decisions taken in this forum may be promulgated through executive decree or sent to a national conference for approval.

Immutable Principles/Essential Features

In a little over one-third of the 194 cases studied as part of this project, initial round tables or “talks about talks” developed either an interim constitution or immutable principles. Immutable principles, sometimes termed “essential features,” are terms with which any subsequent draft constitution must agree. They represent the results of deals cut between the main stakeholders. They refer to the substantive terms of the new constitution, not to the process.

South Africa offers the clearest example of this technique. Major stakeholders negotiated with each other and finally settled upon 34 principles with which the final draft, developed by an elected assembly, would have to concur. In this instance, the agreement also determined that members of a new constitutional court would bear responsibility for assessing conformity with the principles. When the final draft materialized many months later, this court sent it back for revision on nine counts. The assembly altered the language accordingly and won ratification.

More common is an initial agreement on guidelines that are malleable but that deliberative bodies dare not override without significant cause.

Risks at this Stage

These initial conversations can founder on several kinds of problems. Two are especially important. First, the negotiators may lack the authority to commit to terms. If the representatives of the key stakeholders cannot speak for their membership, compel members’ acceptance of terms, or point to a stable base of support, then these talks usually collapse. Publicity is a second common cause of trouble. Often opposition groups seek government transparency and jeopardize their relationships with their own base if the negotiations are closed to public view. Yet publicity may also increase the risk of losing face and lower the willingness to compromise.

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