The Nuts And Bolts Of Writing A New Constitution

Southern Sudan voted overwhelmingly to split with the North after decades of conflict. One of new country's first tasks is to write a constitution. Bereket Selassie, framer of the Eritrean Constitution, and Jason Gluck of the United States Institute of Peace explain the challenges of drafting a founding document in the 21st century.

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ARI SHAPIRO, Host:

This is TALK OF THE NATION. I'm Ari Shapiro in Washington. Neal Conan is away.

Southern Sudan voted overwhelmingly to split with the North last month. After decades of civil war, a new nation will form on July 9th of this year. A lot has to happen between now and then. Parliament must approve a new transitional constitution.

Many Americans know about how the U.S. Constitution took shape, but this hour, we'll talk about how to write a constitution in the 21st century. We'll also speak with our reporters in Cairo this hour: Protesters are in the street waiting to hear from Egyptian President Hosni Mubarak. He is expected to speak later today, and there are conflicting reports that he may step down.

First, modern-day founding fathers. Many countries have written a new constitution in the last few decades, and our guests this hour are people who have helped lead the process. Whatever country you grew up in or wherever you live today, we want to hear what the most important part of your constitution is to you.

We are having some phone problems here in Washington today, but we want to get these fixed as soon as possible and hear from you ASAP. So you can email us at talk@npr.org. You can also call us at 1-800 - one moment please - 989-8255. That's 1-800-989-TALK. You can also join the conversation at our website. Go to npr.org, and click on TALK OF THE NATION.

In a few moments, the latest from Egypt. First, Bereket Selassie joins us from a studio at the University of North Carolina in Chapel Hill. He is a professor of law and African studies there, and he is one of the framers of Eretria's constitution. Welcome to the program.

BEREKET SELASSIE: Thank you, Ari.

SHAPIRO: So, Professor Selassie, take us back to the year 1994. You are the chair of Eretria's new Constitutional Commission. Where do you begin in drafting this document?

SELASSIE: That's indeed one of the most important questions facing a person chairing a commission. Well, first of all, we have to take into account the historical conditions of the country. Eretria at the time had just become independent a couple of years earlier. So it's a new nation, a nation that came into being as the result of a long, drawn-out war of liberation, an armed struggle.

SHAPIRO: And does the fact that the country emerged from war inform the way the constitution is written and what's in it?

SELASSIE: In a way, yes, partly because we have to consider national unity and stability as important value. There are many core values that undergird the constitution, and stability is one of them.

And any country that comes out of a liberation struggle or armed struggle has to be concerned, obviously, with stability.

SHAPIRO: And so how do you put those values into a written document?

SELASSIE: Well, how did the framers of the American Constitution put them? You discuss. You debate. For that to happen, it was my task, my privilege to work out a scheme of things, a list of questions that I imagined would be involved, would be included in the constitution.

To that end, I read many constitutions, many documents, including the Federalist Papers of the United States and the Anti-Federalist Papers.

SHAPIRO: And Federalist Papers and the Anti-Federalist Papers.

SELASSIE: And the Anti-Federalist Papers, yes. I immersed myself in American history, tried to put myself into the minds of the framers. I also studied African constitutions, newly framed African constitutions: Ghana, South Africa, Ethiopia and so on.

SHAPIRO: Professor Selassie, before you continue, I want to let listeners know we have solved our phone problems. So we encourage you to join the conversation. Our number here is 1-800-989-8255. And Professor Selassie, I also want to bring another guest into our conversation.

Jason Gluck is a senior rule-of-law advisor to the United States Institute of Peace. He is on his way to Southern Sudan as a constitutional consultant there. He has also worked on rule of law in Iraq. And he joins us now by phone from Beirut. Welcome to the program.

JASON GLUCK: Thank you very much, pleasure to be here.

SHAPIRO: Now, I don't know if you heard what Professor Selassie was just saying about the documents that he turned to in working on drafting Eretria's constitution. I wonder how different it is when you're talking about Southern Sudan or Iraq.

GLUCK: Well, in terms of the inspiration, I don't think it's different at all. However, in terms of the process, of course every constitutional moment is unique, and so the peculiarities and particularly the processes of each will be different.

SHAPIRO: And so how do you compare, for example the work that you did in Iraq to the work that you're about to start doing in Southern Sudan? Are you plugging the names of different countries into a very similar-looking document, or does the constitution of one country look entirely different from the constitution in another country?

GLUCK: Well, first of all, not at all. There's no easy transportation or plugging-in when you're talking about a nation's identity and the values that a constitution is meant to capture.

What we can do is offer comparative models and provide as much insight and advice as we can as to what has worked in different places at different times and with varying degrees of success. But it's up to the national actors who own the process to take that information and contextualize it so that it's applicable and relevant to their situation. And in that way, no two constitutions will ever be the same.

SHAPIRO: Professor Selassie, I wonder how your experience, being an insider with the Eritrean government, differed from the experience that Jason Gluck had as an American coming from the outside to consult. Professor Selassie?

SELASSIE: Hi, Jason. I happen to know Jason. How are you?

GLUCK: I'm very fine, Professor. I hope you're well.

SELASSIE: I am, thank you. To be an insider, I was actually an insider- outsider.

SHAPIRO: And insider-outsider.

SELASSIE: Yes. By that, I mean I was a member of the liberation movement of Eritrea, but I helped them from outside, as an advisor. I wasn't a guerrilla fighter. To that extent, therefore, I knew the history and the makeup of the revolution.

But when I took up the mantle of chair of the commission, I acted as though I was an outsider in order to be able to put - make my input as little as possible. By that, I mean that the commission that I chaired had to be independent, it had to be autonomous. Once appointed, nobody should interfere with it in how to go about its business.

Its business was, above all, to organize a process in which the people would participate because the process is as important as the content, in fact in some respects more important because when the people participate in the making of their constitution, they become thereby owners of the product of that process.

SHAPIRO: And how difficult was it to accomplish those goals? I mean, you say you wanted it to be an independent commission. What were the biggest challenges to making that happen?

SELASSIE: I think the most important challenge you face, actually, is the expectations of the people who thought the constitution was going to be to represent all their fundamental laws by which they govern themselves.

The traditional laws, they are as many as the ethnic groups, and there are nine of them, and each one of them had their own traditional laws. People thought that the constitution was going to be an incorporation of all those laws. And to be able to explain to the people that the constitution is a framework, that it's a basic law by which their governments will exercise power and in which they will repose their own trust in terms of the rights and obligations, it's very difficult to explain to people.

You can incorporate in the constitution some of the fundamental values that the people themselves believed in, like human rights, the right of liberty, the right of peaceable assembly and so on. But you cannot incorporate everything that they believe in as their traditional law.

SHAPIRO: And so Jason Gluck, I guess this goes to the core of the difference between a successful and an unsuccessful constitution. How do you write something that will be relevant and useful but that will also be flexible enough to last hundreds of years?

GLUCK: Well, that is certainly one of the chief challenges, and just looking around the landscape, one can easily see that there are very few constitutions that last that long, and that's one of the reasons.

But what Professor Selassie is saying about the constitutional moment being one of national dialogue is what I believe the heart of the process and what we hope from the outcome.

And no one ever gets everything that he or she wants, but through this, not only does the outcome, the document itself, evolve, but so do the views of the people. And this is how one goes about building a nation, particularly in a post-conflict state.

And what we hope is that through this process, not only do you have a favorable outcome but one that enjoys the legitimacy and support of the people, and that also can be critical to its sustainability.

SHAPIRO: I want to get in an email here from Brian(ph) in West Bloomfield, Michigan, who says: The most important part of the United States Constitution is the preamble's declaration of purpose, quote: "In order to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare and secure the blessings of liberty to ourselves and our posterity."

This is the declaration of why we are a nation united, he writes, and not just a bunch of people in the same place. Everything else in the Constitution is how, but the preamble is why we exist.

Now, did the constitutions that either of you worked on include a preamble that fit this model?

SELASSIE: Ours did. The Eritrean preamble, in fact, I studied the American Constitution very closely, and actually, the preamble of our constitution is much more elaborate, much more lengthy. It incorporates the purpose for which the people of Eritrea fought for their independence. Therefore, their independence had to be preserved.

The sacrifice made by the people who brought the independence must be taken into account, and some of the values of traditional Eritrean laws, such as the solidarity among people, the respect of elders, the sense of sharing and caring of people. That must all be a part of the constitution ethos.

SHAPIRO: And very briefly, Jason, did this find its way into the work that you did in Iraq or that you expect to do in Sudan, in Southern Sudan?

GLUCK: Well, yes. The Iraq constitution contains a relatively lengthy preamble that goes through key points of its history and its people, its identity and values. And of course, the constitution of South Sudan, at least the one of the new nation, is yet to be written.

SHAPIRO: We're talking this hour about drafting a new constitution, and we're taking your calls. Whatever country you grew up in, or wherever you live now, what is the most important part of your constitution to you? Give us a call at 1-800-989-8255. And you can always reach us by email. The address is talk@npr.org.

We're also following the events in Cairo this hour, and later we'll hear from NPR reporters on the ground in Egypt, where protesters are waiting to hear from President Hosni Mubarak. Stay with us. I'm Ari Shapiro. It's TALK OF THE NATION from NPR News.

(SOUNDBITE OF MUSIC)

SHAPIRO: This is TALK OF THE NATION from NPR News. I'm Ari Shapiro.

We are following the situation in Egypt this hour. There are conflicting reports that President Hosni Mubarak may step down. We'll speak with reporters in Cairo later in this hour.

SHAPIRO: writing a constitution. Southern Sudan, after years of civil war with the North, has become its own country, and it's writing a transitional constitution. We're talking about how these documents take shape with Bereket Selassie of the University of North Carolina at Chapel Hill. He was the chair of the Eritrean Constitutional Commission. We're also joined by Jason Gluck, who is on his way to Southern Sudan as a constitutional consultant there.

We also want to hear from you. Whatever country you grew up in, or wherever you live now, we want to hear what the most important part of your constitution is. Give us a call at 1-800-989-8255. Or try us at email, talk@npr.org. You can also weigh in on the conversation at our website, npr.org. Just click on TALK OF THE NATION.

We're going to go to a caller now. This is Gary(ph) in Syracuse, New York. Hi, Gary.

GARY: Hey, how are you doing?

SHAPIRO: Fine, thanks. Go ahead.

GARY: Well, I think my comment is that being American, I think when we look at constitutions, what make constitutions strong, what make them last throughout history is being able to realize that you're not going to get it entirely right the first time, that you may need to have amendments, like we have with the United States Constitution.

And you know, so what's important to me is 13th and 14th and 15th Amendments, which we call the Civil War Amendments, you know, that basically free African- Americans, being that I am African-American.

But I think when we look at these other states going forward, trying to write new constitutions in order to have their country survive, they need to understand that there's got to be some piece in there where they can go back and make any adjustments or change in order to make that constitution last.

SHAPIRO: That's a great point, that even the American Constitution was not made perfect. Well, what do you think, gentlemen, Jason Gluck, Professor Selassie? How much flexibility is there in the constitutions that you have worked on to go back and make fixes?

SELASSIE: That is connected...

GLUCK: Well, I'll tell you in the case of Iraq, there is a great deal of flexibility, not necessarily by design, but maybe due to some of the unique circumstances surrounding the drafting in 2005.

The amendment procedures in the Iraq constitution are fairly rigid and difficult to meet. However, there are many, many provisions, in fact some of the most important issues in the constitution that are left to ordinary legislation, so that many - so that they're allowed to evolve and develop over time.

And this actually ended up being a net positive for the Iraqis because over the last five, six years they have allowed themselves to continue their discussion and try and reach consensus and then fill in the gaps as they go along.

SHAPIRO: You know, Professor Selassie, slavery was the big unresolved issue during the American Constitutional Convention. Was there an analogous issue that the Eritrean constitution just could not resolve?

SELASSIE: No. I think the issue of slavery is unique to American history and therefore not applicable to our case.

I must say, though, when I spoke about the problem of incorporating traditional laws, which was the expectation of many people, in the constitution, is that from - by definition, the constitution has to be flexible.

A great historian, British historian, once said about the American Constitution, the genius of the American Constitution was in its definiteness of its principle and its flexibility in detail.

Because the constitution has to last for a long time, it has to be a framework, incorporating the larger principles, the core values, and leaving details to legislation. That's precisely what we did in Eritrea.

The difference between a concise constitution like that of the United States and Eritrea and that of South Africa, which is one of the longest constitutions in the world, as that of Brazil also, is that people of South Africa, the constitution makers of South Africa thought that leaving important issues to future legislation would not be workable in South Africa because there were many issues, divisive issues, because of the nature of the society.

SHAPIRO: And so how do you decide in a culture such as Southern Sudan, Jason Gluck, whether you follow the one model or the other?

GLUCK: Well, I guess it's not for me to say. And the Southern Sudanese have yet to really tackle that issue. They are at the beginning stages of their process, and in fact they're actually bifurcating the constitutional process so that between now and July 9th, when Southern Sudan is expected to declare independence, it will only have a transitional constitution signed on that day and in fact will not address some of the more divisive and contentious issues that will eventually have to be discussed.

In this particular case, there simply is not enough time, particularly with the myriad of other issues that need to be addressed in terms of the negotiations between the North and South. And I think the Southern Sudanese have wisely determined that it is better to get their house in order, to have a transitional constitution ready for independence that does the minimum necessary in order to transform what is currently the constitution of an autonomous region into one of a sovereign nation.

Afterwards they will then begin a second process to develop a permanent constitution, one that will enjoy considerably more time and will, you know, entertain these principles that Professor Selassie and I have been discussing, such as, you know, broad participation. And at that point they will begin to decide, in terms of length and ambiguity or flexibility, what it is that their constitution will look like.

SHAPIRO: So start small with baby steps and then work your way up. Let's take another caller. This is Michael from Norfolk, Virginia. Hi, Michael.

MICHAEL: Hi. I'm wondering, Dr. Selassie: Do you feel that the wealthy merchants of the North and the wealthy farmers in the South, like Jefferson and Washington that wrote our Constitution, how do you feel the writing of the Eritrean constitution was accomplished? What kinds of people did it, and what were their reasons for doing it?

SHAPIRO: Who were the major players, Professor Selassie?

SELASSIE: The major players, as it happens - it's a nation formed by a revolution which lasted 30 years. And during that long process of revolution, a unity of purpose was achieved, a unity of a nation.

It's a small nation, as it is, four million. And therefore, there weren't that many divisive issues, except that the question of power and people's rights and how we elect the members of the executive and legislature and how you ensure that the judiciary will be independent, all of these important issues, of course, subject to debate.

And one feature of the Eritrean constitution-making experience is that it took place in almost three years, the extended period which gave the people the opportunity to give their own input. And to that end we had a distilled essence of what you thought are constitutional principles and put them in the form of proposals for people to discuss.

In the end, we collected all of these and drafted a draft constitution, which we then also submitted for debate by the people.

SHAPIRO: Thanks for the call, Michael. You know, Jason, as we talk about writing a constitution, I think of the way that we in the United States today glorify the Constitutional Convention and the Founding Fathers. In your experience, do these 21st century constitutional moments have the kind of electricity and magnitude that we associate with that moment in American history so many years ago?

GLUCK: I certainly think the constitutions that have been more participatory and inclusive have enjoyed that kind of fervor and that people of these countries have gotten wrapped up in their constitutional moment.

If you look at Iraq, you could see, you know, the constitution was voted at referendum overwhelmingly yes by the two groups of Iraqis whose representatives were integral to its writing; that would be the Shiite and the Kurds. On the other hand, the Sunnis were largely left out of the constitution-making process, and they overwhelmingly rejected it.

But in response to your question, I would also note that, you know, when we look back at the Founding Fathers in the United States, I think it's worth remembering that the constitution that they drafted in Philadelphia, although enviable in so many ways, was almost rejected at the state conventions, or some of them. And it was the people who demanded a Bill of Rights that ultimately assured its passage.

And so even there, as brilliant as our Founding Fathers were, it was the populous at large and their contribution that assured the passage of our Constitution and indeed contributed what we consider to be, you know, some of its most important elements.

SHAPIRO: As we discuss changing governments and changing countries, I want to remind listeners that we are also tracking events on the ground in the rapidly changing situation in Cairo, where thousands of protesters are waiting to hear from their president, Hosni Mubarak. Conflicting reports suggest that he may announce that he is stepping down. We're expecting to hear from him in about half an hour.

And now to return to this conversation about drafting a constitution, Professor Selassie, the Eritrean constitution was ratified in 1997, but it still, as I understand, has not been implemented yet. What's the sticking point?

SELASSIE: That's quite a story - another story.

(SOUNDBITE OF LAUGHTER)

SELASSIE: In a paper I presented - I submitted to the American - the U.S. Institute of Peace, I said the operation was brilliant, but the patient is dead, meaning that we had quite a process, I think, universally acclaimed, one of the best processes, but in the end, unfortunately, the man who now rule Eritrea decided to shelve it.

Having given his yes to the making of the constitution, he decided that if it is implemented, then he would be - he would submit himself for election, and he feared he might be defeated. Therefore, he shelved it, and he's ruling by decree. That is indeed the tragedy of Eritrea today.

SHAPIRO: Jason, is there any lesson that can be learned from the constitution- drafting process in this story or is it just sort of the vagaries of fate that sometimes it goes one way and sometimes it goes the other?

GLUCK: Well - I mean, implementation is often the ballgame, and we've had a lot of processes that looks great at the time and for one reason or another didn't - there's just simply was no follow-through, and there's no easy answer. And there's no quick fix, but you need commitment, not just from the people but from the powers that be. And unfortunately, Eritrea has struggled with that.

SHAPIRO: Now, Jason, you're on your way from Beirut to Southern Sudan to begin the constitutional drafting process there. What do you expect to be the biggest sticking point in the Sudanese - the Southern Sudanese process?

GLUCK: Well, I think it depends on what you mean - or if you're looking at the short term or the long term, the process that's unfolding now between - until July 9th or afterwards. The biggest challenge right now, I think, is something Professor Selassie alluded to earlier, which is managing expectations. There is this fervor. There is this excitement about a new country and a new constitution, and there are many difficult divisive issues that Southern Sudan is going to have to grapple with.

Because there isn't the time to do it now, the government of South Sudan needs to be careful in how it manages the expectations of the people and needs to assure them that this discussion, that this dialogue is going to occur after independence.

In terms of what comes next, I don't think the challenges will be that different from many other post-conflict states. They will struggle with issues of power-sharing and how to divide national wealth. They will talk about things as fundamental as whether they want a presidential or a parliamentary system and how much decentralization the states of Southern Sudan will enjoy, but this is much, much further down the road.

SHAPIRO: We're talking about how to draft a constitution, and we're also following events in Cairo, where we may hear from the Egyptian president in less than half an hour. You're listening to TALK OF THE NATION from NPR News.

And let's take another call. This is Carrie(ph) in Deerfield, Florida. Hi, Carrie.

CARRIE: Hi. I think really, really important part of the constitution is habeas corpus, and I think especially for a lot of the African countries, I feel really good knowing that our military here is meant to protect us, not meant to intimidate us.

SHAPIRO: Let's remind listeners that habeas corpus is the right to challenge your imprisonment.

CARRIE: Oh, I'm sorry. Posse comitatus.

SHAPIRO: Posse comitatus, a different principle.

CARRIE: Yes.

SHAPIRO: OK.

CARRIE: Posse comitatus.

(SOUNDBITE OF LAUGHTER)

CARRIE: Sorry about that. Yeah. Posse comitatus, that was the other one. Habeas corpus, of course - posse comitatus, I think is the most important and especially for African countries. Because if you look over there, you'll see that the people can only say so much, and then when the military, whoever controls the military can intimidate the people.

In the United States, when he had Katrina, I remember the military was brought to protect the people. And it was kind of a big deal when, you know, a young soldier kind of had his weapon raised slightly too high. I remember seeing on the news, you know, whoever was commanding him really got angry and was like put your weapon down, put your weapon down, and it made me think and I thought about it a lot. And I'm like, you know, I live in a great country where I know that my military is for me. It's not...

SHAPIRO: Hmm.

CARRIE: ...against me. And in all these other countries - and you look at Sudan, I mean, these people are being intimidated, and they're being controlled by dictators, and they're using their own military against them. So I think that that's a very important part of our Constitution.

SHAPIRO: Bereket Selassie, especially in a country that is coming out of a war and drafting a constitution, such as Eritrea, are there restrictions on the military in the constitution?

SELASSIE: That's a good question. The problem really is the fact that people who are given power, all those who themselves arrogate power to themselves as the result of a liberation struggle or whatever, tend to lose perspective. They lose perspective, and they arrogate themselves more power than they deserve, and they expect the people to honor them and obey them whatever come what may.

SHAPIRO: You think people...

SELASSIE: And that's...

SHAPIRO: ...like restrictions on authority until they are the ones in authority?

SELASSIE: Absolutely. And that - let me just say that because Sudan is a neighbor of mine, and I've known many of the Sudanese who struggled against the domination of the northern Arab Islamic forces that they should be very careful in not putting too much trust on the revolutionaries who brought about the Sudanese - Southern Sudan to independence.

It's going to be a new nation, and it's going to need a great deal of advice. The advice should be for the leaders to exercise humility and remember that they're human, that the fact that they are heroes should not make them above the people. That is more easy to preach than to practice I know.

SHAPIRO: Hmm. All right. Well, thanks for the call, Carrie.

You know, as we come to the end of this segment, Jason, I wonder if you have any thoughts about the future or Southern Sudan and the likelihood that this process will work, and that a year from now or five years from now, we'll be talking about the fantastic constitution that they have.

GLUCK: Well, I certainly hope so. I mean, Southern Sudan has a significant challenge ahead of it, not the least of which working out a relationship with its neighbor to the north.

The next six months will be critical in terms of negotiations over existential matters such as oil and sharing the revenue thereof, citizenship issues, drawing the boundaries between the two states.

SHAPIRO: All right. We're going to have to leave it at that, and we will continue watching the situation there.

Bereket Selassie joined us from the studio at the University of North Carolina at Chapel Hill, and Jason Gluck, on his way to Southern Sudan, joined us by phone from Beirut.

Coming up, crowds are gathered in Tahrir Square in Cairo expecting a statement from Egyptian President Hosni Mubarak. We'll go to our reporters in Cairo for the latest next.

I'm Ari Shapiro. It's TALK OF THE NATION from NPR News.

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