23 January 2012
Interpeace's Annual Advisory Council Meeting Partners Forum
Statement by Mr. Kassym-Jomart Tokayev
United Nations Under-Secretary-General
Director-General of the United Nations Office at Geneva
Interpeace’s Annual Advisory Council Meeting
Permanent Mission of the United States of America
Monday, 23 January 2012 at 10:00 a.m.
Dear Ambassador Betty King
Ladies and Gentlemen:
Thank you for inviting me to address this distinguished Partners Forum. The publication of the Handbook is indeed timely: Over the past year alone, constitutional reform has been on the agenda of a number of countries, including in Egypt, Libya, Morocco, Nepal, South Sudan, Tunisia and Zimbabwe. And as we look ahead, it is clear that the constitution-making process in many of these countries will define their future paths at a time of profound transformations, with not only national, but also regional and global consequences. Coupled with the stresses of the continuing economic crisis, these constitution-making processes potentially become even more complex and delicate.
Indeed, constitution-building is a pivotal matter but its importance and long-term impact has sometimes been overlooked and frequently not fully understood.
Constitution-making presents moments of great opportunity to create a common vision of a state. A constitution defines and limits the powers of government and its various branches, vis-à-vis each other, and the people. It provides the foundation for a state based on the rule of law. The design of a constitution and its process of development can play an important role in peaceful political transitions and post-conflict peace consolidation. It can also play a critical prevention role.
A modern constitution needs to be legitimate in the eyes of the people. Achieving this is a challenge and the stakes are very high. If the process goes wrong, the seeds of future conflict and violence will be sown. But, often national and international constitution-makers have limited guidance as there has been no comprehensive resource on the options for constitution-making and reform.
Engagement in and assistance to constitution-making is an increasingly important component of the United Nations’ peacebuilding and state-building strategies. From Afghanistan to Timor-Leste, the United Nations has been involved in a number of constitution-making processes. They have all been different, shaped by national histories, cultural background, political circumstances and governance traditions. But, taken together, this experience has clearly demonstrated the strategic importance of constitution-making in governance transitions.
For the United Nations, constitution-making is a broad concept that covers both the process – from initial consultations through the process of drafting – to the substantive choices made in a constitution. The United Nations encourages constitutional approaches that directly incorporate and make international human rights standards, including an independent and impartial judiciary, the basis for the rule of law.
However, the involvement in this field has usually been conceived anew in individual contexts. Often, the United Nations system has employed ad hoc approaches. Sometimes, this has led to mixed results. A pressing need exists for the Organization to develop strategic guidance on how to support national actors during the different phases of a constitution-making exercise.
Looking at current international developments, the United Nations is very likely to be called upon to assist other countries in their constitution-making processes. Based on our experience so far, I believe that we can already distil some guiding principles for this future action:
- First, we need to recognize constitution-making as an opportunity for peacebuilding rather than a technical exercise. Consequently, constitutional issues must also be integrated into wider conflict resolution efforts. This is why the United Nations’ roster of experts in mediation now includes experts on constitutions.
- Second, the ultimate success of a constitution rests with the people. We need to ensure genuine and inclusive national ownership. This is easier said than done, but our ability to achieve this will determine the long-term viability of the process. It is a process that must involve real participation of civil society. How that participation is structured is a matter of intelligent process design.
- Third, we must not only encourage but ensure compliance with international norms and standards. The developments of the past year have, more than ever, shown the destabilizing impact of abuse of human rights norms and fundamental freedoms.
- Fourth, we need to put in place mechanisms that ensure ample advance planning in support of inclusivity, participation and transparency. A genuinely inclusive and participatory constitutional process can be transformational. But, appropriate outreach to all groups in society takes time. Frequently the drafting of constitutions takes place with a certain time pressure as part of a broader political transition. Adequate planning mechanisms can help ensure a thorough and timely process.
- Fifth, we need to mobilize and coordinate a wide range of expertise to incorporate all relevant dimensions into the constitution.
- Sixth, we must more thoroughly focus on the often neglected implementation phase.
- And seventh, world practice shows that there are only few truly poorly drafted constitutions. Almost all constitutions call for basic human rights to be protected. However, the challenge is how to ensure that these constitutional commitments are practically abided by and respected. Unfortunately, there is a gap between what is written in some constitutions and what happens in reality. This represents a challenge for the protection of the fundamental freedoms of all citizens.
Overall, the crucial lesson learned from our experience is perhaps obvious but still worth restating here: while there are commonalities to constitution-making processes, there is no single format or template. United Nations assistance will need to include options and advice tailored to the specific country context and should recognize constitution-making as a sovereign national process, which, to be legitimate and successful, must be nationally owned and led.
Ladies and Gentlemen:
This Handbook is a very interesting and timely document; it addresses many of these issues and fills in existing gaps. Importantly, the handbook is an honest document. It demonstrates full awareness of the complexities of this process and emphasizes quite rightly that there is no single correct way of designing a constitution-making process. In this way, it guides us and makes sense of the endless variations in the tasks to be carried out, the sequence in which they can best be executed, and the institutions and processes that need to be involved in getting that work done.
On behalf of the United Nations, particularly from our colleagues in the field, I am grateful to Interpeace for providing us with this much-needed instrument to address this key aspect of our work.
Thank you for your attention.