Constitution-making

Crosscutting Themes / Constitution-making /

Constitution-making

National referendum on the draft of post-transition constitution in Burundi.

United Nations support to constitution-making processes is a critical component of its rule of law work. A constitution is the highest law of the land, which defines and limits the powers of government and its various branches, vis-à-vis each other, and the people, and provides a strong foundation for a state based on the rule of law. For the UN, the term constitution-making covers both the process of drafting and substance of a new constitution, or reforms of an existing constitution.

Both process and substance are critical for the success of constitution-making. The design of a constitution and its process of development can play an important role in peaceful political transitions and post-conflict peacebuilding. It can also play a critical prevention role. Constitution-making presents moments of great opportunity to create a common vision of the future of a state, the results of which can have profound and lasting impacts on peace and stability.

The UN has been involved in a number of constitution-making processes, including in recent years in Afghanistan, Cambodia, Iraq, Nepal and Timor-Leste. The Organization has learned lessons from this experience that have informed the development of a UN approach to constitution-making processes.

This approach is centered on national ownership and support for inclusive, participatory and transparent processes. Support is to be tailored to the specific national context and is drawn from a wide range of expertise both within and outside the UN system to ensure access to international and comparative best practice. Advance planning is required for the creation and implementation of a public information and civic education campaign, public consultation process and the securing of funds, human and material resources. A structured (and time intensive) national dialogue or consultation process that feeds back the views of the people to the decision makers involved in the drafting and debating of the constitution is an essential element of an inclusive, participatory and transparent process.

The UN encourages constitutional approaches that directly incorporate and make supreme international human rights standards, including an independent and impartial judiciary, as a strong foundation for the rule of law. It promotes adequate follow-up to ensure implementation of the constitution or constitutional reforms once adopted.

The UN provides various forms of assistance to constitution-making processes, including political and strategic, legal and human rights, capacity-building and institutional development, and financial, logistical and administrative support. The Rule of Law Coordination and Resource Group, supported by the Rule of Law Unit, is the designated convening mechanism for UN constitutional assistance in order to ensure timely and effective mobilization of a combination of the necessary expertise that resides across various UN departments and agencies. The UN works with various partners on developing knowledge and good practice on constitution-making, including its inclusion in peace mediation processes. UN entities and senior leadership in the field should inform the Deputy Secretary-General of requests for constitutional assistance emanating from national and transitional authorities.