Handbook on Peace Agreement Draft Language
Constitution-Drafting
Introductory Notes
One critical aspect of a political transition may be the drafting of a new constitution, the provisions of which can clarify the structures of the new government as the peace process progresses. Even if a state's constitution is still functional after the state emerges from a period of conflict, and does not need to be fully re-written, constitutional reforms may still need to be implemented in order to prevent a recurrence of violence and to reset goals for society. In a peace agreement, clauses related to constitution-drafting typically indicate what the constitution shall address and how it shall address it.
Why Include a Constitution-Drafting Chapter
The inclusion of a Constitution-Drafting Chapter in a peace agreement may serve to:
- Commit parties to drafting or reforming a constitution as part of the political transition;
- Provide a process for the drafting/amendment, review, and ratification of a constitution, including timelines and participants;
- Define an entity for the drafting of a constitution;
- Address root causes of the conflict by establishing constitutional protections and greater opportunities for political representation for groups that have been historically marginalized and oppressed;
- Describe the mechanisms by which constitutional norms may be enforced.
Core Issues Addressed
- Armed Forces: This section describes the required changes with regards to the armed forces.
- Judicial System and Human Rights: This section describes the required changes with regards to the judicial system and the inclusion of human rights within judicial institutions.
- Electoral System: This section describes the changes within the electoral system.
- Inclusive Process: This section ensures that the process is inclusive and representative of all parties.
- Constitutional Guarantees: This section lists key guarantees that should be reflected in the constitution.
- Final Declaration: This section expresses a commitment to implement the full agreement including constitutional amendments related clauses.
- Constitution-Drafting Entity: This section discusses the structure and functioning of the constitution-drafting entity which is entrusted with the drafting of the constitution.
Draft Language on Constitution-Drafting in a Peace Agreement
The parties may determine how to merge the draft language options presented below to meet the particular requirements of a peace agreement.
Armed Forces
Note to Drafters: In post-conflict states, it is often necessary to place clear limitations and rules on the armed forces to prevent abuse of power, establish civilian control and demilitarize politics. Parties directly or indirectly involved in negotiations, including civil society and international actors, may advocate for the inclusion of specific language in the Constitution to redefine the system of military power according to the principle of the rule of law.
Armed Forces
The new Constitution will: - Provide a clearer definition of the role of armed forces in a democratic society and their subordination to civilian authority; - Establish a [new institution] for the maintenance of order and public safety under the control of civilian authorities. - Redefine the system of military justice to ensure that only cases that are strictly military are submitted to military courts. - Reconfigure the training of armed forces to include the subjects of human rights and international humanitarian law.
Judicial System and Human Rights
Note to Drafters: Constitutions typically establish citizens' human rights, and how the judicial system will uphold these rights. This is particularly important in post-conflict states to demonstrate the state's commitment to upholding and safeguarding human rights. The peace agreement may include provisions dedicated to strengthening these rights and processes in the constitution.
Judicial System and Human Rights
The new Constitution shall aim to improve significant aspects of the judicial system and establish or strengthen mechanisms to safeguard respect for the rule of law and human rights. The new Constitution shall establish transparent procedures for the election of judges. Human rights law shall be incorporated into the judicial training school.
Electoral System
Note to Drafters: Organizing elections in a post-conflict context can be fraught with challenges. Redesigning the electoral system can limit electoral fraud risks and increase transparency over the process.
Electoral System
The [electoral tribunal] shall replace the [past mechanism]. The [electoral tribunal] shall be the highest administrative authority and jurisdiction with respect to electoral matters. The members of the [electoral tribunal] shall have no party affiliation. The composition of the [electoral tribunal] shall be determined by secondary legislation, making sure that no party or coalition predominates it. Within [time] after the establishment of the [electoral tribunal], a [commission] shall be established to prepare a comprehensive proposal for reform of the electoral system. The [commission] is presided over by the [electoral tribunal]
Inclusive Process
Note to Drafters: An inclusive constitution-drafting process fosters greater peace, stability, and unity in a post-conflict society. Such processes aim to ensure that, when a new constitution is drafted, its contents are informed by the voices of all relevant actors.
Inclusive Process
The [state] government will hold discussions with all political forces in order to survey their opinions concerning the proposed changes in the Constitution.
Constitutional Guarantees
Note to Drafters: The guarantees underlying the constitution establish the foundational values and overarching framework for the governance of the state. They provide essential context and guidance for the interpretation and application of the constitution's provisions.
Supreme Court
The Parties agree to entrust the Supreme Court with the protection and interpretation of the Constitution and to regard the Supreme Court as the custodian of the Constitution.
Principles
The Constitution shall enshrine the following principles: - There shall be no punishment except as provided for by the law. - Every person is presumed innocent until the contrary is proved. - Litigation before courts is a right guaranteed for every person. - The Constitution shall guarantee the equality of all citizens before law without any discrimination; no immunity shall be without law. - The Constitution shall guarantee the application of the Rule of Law.
Bill of Rights
The bill of rights and freedoms shall be enshrined in the Constitution.
Rule of Law & Fundamental Rights
Under the concept of the Rule of Law, the following basic human rights and fundamental freedoms shall be guaranteed: - The right to life and inviolability of the human person. - The right to equal treatment irrespective of gender, race, colour, religion or origin. - The right to family life and privacy. - The right to freedom of thought and conscience. - The right to property. - Freedom of expression. - Freedom of movement. - Freedom of the press. - Freedom of association and assembly - Immunity from arbitrary arrest, detention and torture. - Freedom of religious worship. - Freedom of expression and development of cultures and languages. - All other basic rights and freedoms that are recognised by and guaranteed under the International Conventions and Protocols ratified by the [state].
Final Declaration
Note to Drafters: A declaration of commitment to conduct a constitutional reform reaffirms the parties intention to implement the agree changes and that the changes further the interests of all parties.
Final Declaration
The Parties acknowledge that the proposed constitutional changes are the result of political negotiations and settlements and reflect the interests and intentions of [both] / [all] Parties. The Parties reaffirm their commitment to take all necessary steps to execute the agreements fully and to ensure that the new constitution addresses the issues identified in this [peace agreement].
Constitution-Drafting Entities
Note to Drafters: Peace agreements may define the structure and mandate of the constitution-drafting entity to ensure it is inclusive, representative, and equipped with the necessary authority to effectively draft the constitution. Peace agreements may also specify the role of any other entities mandated to review the drafting process.
Establishment of Entity
The Parties agree to the establishment of an independent and representative [entity], mandated to prepare and submit a draft of a new Constitution that reflects the principles of peace, democracy, human rights, and national unity.
Mandate
The Constitution-Drafting Commission shall be mandated to: - Conduct a comprehensive review of the existing constitutional and legal framework; - Prepare a draft Constitution that guarantees the separation of powers, the rule of law, fundamental rights and freedoms, democratic governance, and mechanisms for inclusive and accountable institutions; - Ensure the recognition and protection of the rights of all communities, including historically marginalized or conflict-affected groups; - Facilitate inclusive and participatory consultations with the public, civil society, and stakeholders at all levels of society; - Submit the draft Constitution to the appropriate authority, as agreed by the Parties, for adoption through a referendum or other agreed constitutional mechanism.
Composition
The [entity] shall comprise representatives nominated by: - The Parties to this Agreement; - Civil society organizations; - Marginalized and minority groups, including women and youth; - Religious and traditional leaders (where applicable); - Experts in constitutional law, human rights, and governance. The Commission shall strive for gender balance and the equitable inclusion of regional, ethnic, and political constituencies.
Selection of Members
The members of the [entity] shall be selected through a transparent and consultative process, facilitated by a neutral national or international institution, and shall be formally appointed by the [transitional authority / head of state / joint implementation mechanism], as agreed by the Parties. The [entity] shall report regularly to the [transitional authority / peace agreement implementation mechanism], which shall provide oversight to ensure that the drafting process remains inclusive, participatory, and in line with the provisions of [this peace agreement].