"Constitution-making in a post-conflict country is fraught with many risks and traps: how can we avoid or find creative solutions to them? In this useful book, scholars and practitioners reflect on the experience of two decades. Most importantly, Framing the State in Times of Transition: Case Studies in Constitution Making demonstrates the critical importance of the process itself in producing a constitution that provides a solid foundation for peace--a lesson anyone interested in technical assistance and peacekeeping should remember."
—Jean-Marie Guéhenno, U.N. undersecretary-general for peacekeeping operations
Analyzing nineteen cases, Framing the State in Times of Transition offers the first in-depth, practical perspective on the implications of constitution-making procedure, and explores emerging international legal norms. Thirty researchers with a combination of direct constitution-making experience and academic expertise present examples of constitution making in the contexts of state building and governance reform across a broad range of cultures, political circumstances, and geographical regions.
The case studies focus equally on countries emerging from conflict and countries experiencing other types of transitions—a move from autocratic rule to democracy, for example—or periods of institutional crisis or major governance reform. Recognizing that there are no one-size-fits-all formulas or models, this volume illuminates the complexity of constitution making and the procedural options available to constitution makers as they build states and promote the rule of law.
Contributors: Andrew Arato • Louis Aucoin • Andrea Bonime-Blanc • Michele Brandt • Allan R. Brewer-Carías • Scott N. Carlson • Jill Cottrell • Hassen Ebrahim • Donald T. Fox • Thomas M. Franck • Gustavo Gallón-Giraldo • Zofia A. Garlicka • Lech Garlicki • Yash Ghai • Vivien Hart • Stephen P. Marks • Zoltán Miklósi • Laurel E. Miller • Jonathan Morrow • Muna Ndulo • James C. O’Brien • Keith S. Rosenn • Bereket Habte Selassie • Anne Stetson • J Alexander Thier • Arun K. Thiruvengadam • Aili Mari Tripp • Lee Demetrius Walker • Marinus Wiechers • Philip J. Williams
Laurel E. Miller recently joined the RAND Corporation as a senior policy analyst. She has been an adjunct professor of law at Georgetown University and a senior rule of law adviser at the United States Institute of Peace. She previously served in several positions at the U.S. Department of State and the National Security Council.
Louis Aucoin is an associate research professor at Tufts University’s Fletcher School of Law and Diplomacy and a former senior rule of law adviser at the United States Institute of Peace. He has served as an adviser in constitution-making processes in Rwanda, East Timor, and Cambodia.
Foreword - Richard H. Solomon
Introduction - Louis Aucoin
Part I: Theory and Concepts
Norms of International Law Relating to the Constitution-Making Process - Thomas M. Franck and Arun K. Thiruvengadam
Constitution Making and the Right to Take Part in a Public Affair - Vivien Hart
Part II: Africa
Constitution Making in Eritrea: A Process-Driven Approach - Bereket Habte Selassie
Namibia's Long Walk to Freedom: The Role of Constitution Making in the Creation of an Independent Namibia - Marinus Wiechers
Creating the Birth Certificate of a New South Africa: Constitution Making after Apartheid - Hassen Ebrahim and Laurel E. Miller
The Politics of Constitution Making in Uganda - Aili Mari Tripp
Zimbabwe's Unfulfilled Struggle for a Legitimate Constitutional Order - Muna Ndulo
Part III: Asia and The Pacific
The Process of Creating a New Constitution in Cambodia - Stephen P. Marks
East Timor's Constitutional Passage to Independence - Louis Aucoin and Michele Brandt
Between Coups: Constitution Making in Fiji - Jill Cottrell and Yash Ghai
Part IV: Europe
The Drafting Process for the 1998 Albanian Constitution - Scott N. Carlson
The Dayton Constitution of Bosnia and Herzegovina - James C. O'Brien
Constitution Making and Transitional Politics in Hungary - Andrew Arato and Zoltan Miklosi
Constitution Making, Peace Buidling, and National Reconciliation: The Experience of Poland - Lech Garlicki and Zofia A. Garlicka
Constitution Making and Democratization: The Spanish Paradigm - Andrea Bonime-Blanc
Part V: Latin America
Conflict Resolution and Constitutionalism: The Making of the Brazilian Constitution of 1988 - Keith S. Rosenn
Lessons of the Colombian Constitutional Reform of 1991: Toward the Securing of Peace and Reconciliation? - Donald T. Fox, Gustavo Gallón-Giraldo, and Anne Stetson
The Nicaraguan Constitutional Experience: Process, Conflict, Contradictions, and Change - Lee Demetrius Walker and Philip J. Williams
The 1999 Venezuelan Constitution-Making Process as an Instrument for Framing the Development of an Authoritarian Political Regime - Allan R. Brewer-Carías
Part VI: Middle East and Central Asia
Big Tent, Small Tent: The Making of a Constitution in Afghanistan - J Alexander Thier
Deconstituting Mesopotamia: Cutting a Deal on the Regionalization of Iraq - Jonathan Morrow
Part VII: Conclusion
Designing Constitution-Making Processes: Lessons from the Past, Questions for the Future - Laurel E. Miller