North Africa, West Asia

A Syrian constitution by August: by whom and for whom?

Lasting constitutional settlements require a divided political community to arrive at a shared vision of their common future, and for the general public to support this vision. This takes dialogue, deliberation and time.

Sumit Bisarya Kimana Zulueta-Fülscher
25 April 2016

Hassan Ammar/AP/Press Association. All rights reserved.In a joint press conference on 24 March, US Secretary of State John Kerry and his Russian counterpart, Sergey Lavrov, jointly agreed on an approach for ending the conflict in Syria, including “a target schedule for establishing a framework for a political transition and also a draft constitution” by August 2016.

This comes after the December 2015 UN Security Council Resolution endorsing the road map for the peace process in Syria, and setting a timetable for talks. Resolution 2254 already set optimistic targets including a six-month political process to arrive at an agreement on both governance arrangements and a process for drafting a new constitution – while also acknowledging “the close linkage between a ceasefire and a parallel political process”. Kerry and Lavrov’s call for a draft constitution by August seems to accelerate this already problematic and challenging timetable and raises alarm in light of recent constitutional transitions.

The American and Russian leaders are right to recognise that a new constitutional settlement will be critical to ensuring a sustainable end to conflict in Syria. At the same time, this agreement reflects a lack of attention to the context on the ground – where the ceasefire agreement is yet to stick – and it seems to neglect the importance of the process leading to the final constitution. This process is as important as the constitutional text itself.

While there is no secret recipe for successful constitution building, there are some clear lessons learned from recent transitions that point to a list of 'don'ts' in any such process. The Kerry/Lavrov statement falls foul of many of these warnings.

First, do not set unrealistic deadlines. An enduring constitution must reflect a political agreement between societal groups, which requires these groups to come together to form a joint vision regarding their common future. Such a process takes time, and thegreater the division between parties – as in times of war – the more time they will need. Indeed, moving from open conflict to a broadly supported constitution may take a multi-stage process that cannot be rushed. The United States, of all actors, should be aware of the dangers of a rushed process given their experience in Iraq, where most commentators agree that the deadlines set for the constitution making process contributed to the lack of ownership by key Iraqi stakeholders over the new constitutional settlement.

Writing a constitution at a time of war risks entrenching the current power map.

Second, do not impose conditions externally. Unlike ceasefire agreements that may be guaranteed by international partners, with very few exceptions, enduring democratic constitutions and the processes by which they are made must be nationally driven and locally owned. Somalia provides another recent warning in this regard. In 2012, an internationally driven process produced a constitutional text, but almost four years later few Somalis are aware of or feel any attachment to the document and the new institutional framework.

Third, constitutions cannot be made while groups are still at war. Writing a constitution at a time of war risks entrenching the current power map – mostly armed groups who likely do not represent the complete panoply of social groups – and are likely to exclude women and other marginalised groups. Furthermore, wars evolve but constitutions should endure. Constitutions can only endure if they are based on a common vision for society.

Premature constitution writing risks condemning the constitution to oblivion, as it will neither reflect any such vision nor be able to keep pace with changes on the ground. There are numerous ways of designing interim constitutional arrangements that might give time to relevant stakeholders to gradually build consensus, rather than seeking to arrive at a final constitutional settlement prematurely, and risking the sustainability of the entire transition.

Libya is a current example where the constitution building process proceeds in parallel to, and disconnected from, an evolving war. The Constitutional Drafting Assembly has continued its work independently from the group of actors engaged in the process of reaching a political agreement for a Government of National Accord; yet another group of actors is still in the midst of fighting.

This leads to the question: if the constitution process is not taking into account the war engulfing the nation, for whom is this constitution being written?

Last, do not think constitution building is simple or easy. Lasting constitutional settlements require a divided political community to arrive at a shared vision of society and their common future, and as much as possible for the general public to support – or at least acquiesce to – this vision. This takes dialogue, deliberation and above all time.

War has torn Syria apart for nearly five years. It is not realistic to expect that a constitution crafted in a few months can put Syria back together.

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