Framing the State in Times of Transition - Essay Example

College: Framing the in Times of Transition Introduction From the book framing the in the time of Transitions, a number of important lessons can be learned on how a democratic constitution can be drafted. This essay shall, in detail, look into a few case studies of different countries on strive for democracy and analyze the various techniques employed in drafting their constitutions. The essay shall also explore the historical contexts of the chosen cases in an attempt to discuss how historical context of a nation can influence its constitution development. Having described and discussed the aforementioned issues, positive lessons and common mistakes in constitution drafting shall be brought forward. Historical context and constitution Drafting Eritrea Eritrea, just like most of the African states, was under the colony of a European nation. It was colonized by Italy from the year 1890 to 1941. When the Italian left Eritrea in 1941, Britain cam e and took over. British government ruled Eritrea for over a decade from the year 1942. However, in the year 1950, the neighboring Ethiopia joined hands with the United Nations to liberate Eritrea from the hostile hands of the British. The Ethiopian governor, Emperor Haile Selassie, was very instrumental in this plan. Fortunately, Eritrea was liberated though with a limited autonomy (Bekete, pg 65). Later, Emperor Haile Selassie ignored this autonomy of Eritrea and assimilated it as a legitimate part of Ethiopia in the year 1962. During this time in Eritrea, an armed organization called the Eritrean People’s Liberal Front (EPLF), had started the fight for the ultimate freedom of Eritrea. They eventually took over Eritrea in 1991 and acted as a transitional government for a while. The initiative of the EPLF had empowered the citizens of Eritrea on various areas such as social justice and democracy. This is what facilitated the making of the new constitution. The government of Eritrea was very committed to bring independence and peace to the nation. The government then thought of a referendum that could liberate Eritrea from Ethiopia. The EPLF however insisted that they needed a referendum with an external observer. Therefore, the United Nations sent the observers. In 1993, the referendum was carried out and the people chose full independence from Ethiopian government. The very aggressive EPLF was however not elected by the people during a general election that followed. The type of election carried out in Eritrea was based on the majority. Going by the results of the election, a proportional method would see EPLF and the Ethiopian at stalemate. In 1997, the approved constitution was ratified but has never been implemented fully to date. This has created a lot of political crises in Eritrea. The bitter experiences and the determination of Eritrea is what made it to finally attain it independence and own a constitution made by the people. The nation had been oppressed by the hostile foreign laws for a long time. This made them develop a desire to laws that will relieve them. Through the initiative of EPLF, the citizens were fully motivated to make a change. All they wanted was democratic laws they could enhance their rights to speech, movement, life and worship. It is this strong will of the people and the government that enabled the nation to move a non-democratic government to a democratic government. South Africa The Republic of South Africa was one of the African nations to be colonized for quite lengthy years. This nation was ruled by the Dutch (Ebrahim, pg 113). The very first set of laws for South Africa were inscribed the colonizers and later on approved by the British. This constitution was implemented in 1910. However, this constitution encouraged racialism and other forms of discrimination. It was this biasness that led to unrest in South Africa. The black leaders decided to unite and form political parties. The African National Congress party (ANC) was the first to be borne by this unity. Among the party leaders was Nelson Mandela who was later jailed in 1962. In 1941, Churchill Winston signed the Atlantic treaty that would give the South African citizens some freedom. However, this was not enough for the people. ANC later drafted its own African principles with fresh demands (Ebrahim, pg114). The National Party, which came to power in 1948, introduced Apartheid in South Africa and the situation of the nation was worsened. The people defied the laws and the idea of the new constitution drafted by the South Africans was initiated in 1955. However, it took long a long time before this could be realized in late 1990s. The driving factor for a democratic constitution in this context was the long suffering from the discriminative and oppressive laws. Cambodia The political tradition of this South-eastern nation has been heavily influenced by the Indian culture. Cambodia believes in the Buddhism and the god-kings. The people knew nothing about constitution until the French came to colonize them. “A Cambodian king could only rule by extending a network of patronage and mutual obligations outwards from the palace” (Stephen, pg209). This implies that the kings in that era had distant themselves from the people who only heard rumors of them. These people believed that these kings, who had themselves almost invisible, had very supernatural powers to that could influence nature and the human. The people, therefore, used to feel helpless without the kings whom they treated like gods. However, there were king representatives in the villages who executed the rules. The idea of constitution was introduced in the 20th century but did not fully eliminate the old beliefs and practices among the citizens of Cambodia. For instance, the Khmer cosmology was still adapted in the modern government of Cambodia. After, the cold war that left the nation in unstable state, the government and the people thought of coming up with rules and agreements that would bring the people together. These agreements were also to make peace between the Cambodian government and other nations, following the cold war. In the year 1991, the government adopted four major agreements and the annex that contained the constitutional principles (Stephen, pg211). When the government of Cambodia visited France to make an agreement in Paris, the French demanded that Cambodia must have a well stipulated constitution that guides its nation. Without this, no agreement could be made between the two nations. The aforesaid issues are some of the conditions that led to Cambodia quickening the drafting of a new constitution. The whole process of drafting the constitution was guided by the United Nations. Unlike the Eritrea, the drafting of the Cambodian constitution was not a free will of the people and the government. The entire initiative was imposed on this nation by the various circumstances that surrounded it such as the cold war. Originally, the citizens of Cambodia had a very indigenous form of governance. They had been used to this way of life. It was, therefore, a very task for the international community to empower this conservative nation. The nation was being pushed to be a democratic state while it was very reluctant and stalled at the non-democratic system of the traditional kings. However, in the days of the powerful kings, Cambodia displayed a degree of de-centralized system of government. The kings had their representatives at every level of the society so that they would not directly operate the government. Spain Spain, unlike other nations that made new constitutions out of oppression, illustrates a different dimension of democratic constitution drafting. Its constitution was drafted mainly for economical reforms. After the civil war in Spain, Franco and his ministers had made stringent policies in an attempt to recover the economy. Franco, being an authoritative leader, did not seek the suggestions of the economic experts neither did he seek the opinion of the public. His policies made the economy very costly for the common citizens and life was becoming unbearable. In 1950, the idea of new constitution that could restructure and reorder the government struck the nation (Andrea, pg418). Spain wanted to reorder the political rules and institutions so as to allow regular elections, separation of government powers and freedom of association. To achieve all these, a decision had to be made through drafting and implementation of a new constitution. The people now had the chance they were denied by Franco to make rules for their nation and improve the economy. Important Lessons From the above case studies, some important lessons can be learned from the way these nations drafted their constitutions. These lessons are as follow: Public participation In the case of Eritrea, it was the will of the people to formulate a constitution of their own. They were self driven and, thus, fully participated in the making of the new constitution. Their participation led to the realization of the new constitution. This tells us how important it is for the public to participate in such a process. Public participation is always important because it makes the citizens of a given nation feel a sense of ownership to the new constitution. For instance, the people of Eritrea, by voting in the referendum and approving the draft, felt like they owned that constitution. Their participation as the common citizens was also a way of expressing their democratic rights. They felt that the government had finally gave them a chance to execute their rights and that they were living in a free and fare nation. When such a constitution is implemented and the government runs by it, the citizens certainly feel like they are in control of the government. This is how democracy defines itself on the people; a government of the people, for the people and by the people. It, therefore, makes it very easy for the government to implement the laws in that constitution since the people can easily relate to such laws. Eritrea and many more nations that allow their citizens to take part in the major decision making, act as a good example of democratic government. The rest of the nations that still practice the old stringent ways of governance should ape Eritrea. The EPLF was also very exemplary when it insisted on the public participation. Having fought by themselves, they were not selfish. They wanted to give the people a voice (Bekete, pg64). The EPLF lead in giving good example to the selfish rebels who want to satisfy their own personal interests. Many of the armed rebels overthrow the bad government and take over without asking for the opinion of people. This was not the case with the armed EPLF; it put the interest of the people first. When an election was later conducted, the EPLF lost to the government (Bekete, pg 65). This armed organization accepted the result and moved on. They never disputed a thing. It was because they respected the decision of the public. The lesson learnt from this act is that the public should always be respected by all the political leaders. In the making of the Cambodian Constitution, the very conservative public heard to be educated on the importance of the new constitution so that they could participate the drafting and approving the draft. This shows how important they were to this process. However much the foreign government of the Dutch tried to form a constitution in South Africa, the people had always defied it. This was because the drafting of such constitutions did not seek the opinion of the natives. The only constitution that has lasted in South Africa is the one that was drafted by the South Africans and implemented towards the end of the 19th century. Franco also denied the people of Spain their constitutional rights when he structured his own post-civil war economic policies. His personal policies made life too hard for the nation and people had to eventual make their own decision through a referendum. Observers In the drafting of the constitution by these nations, the aid of the international community was fully utilized. The United Nations was very instrumental in the drafting and implementation of the constitution. The involvement of the UN by these nations shows how careful they were with the process of constitution. When Eritrea wanted to pass the constitution draft, EPLF demanded for an external observer. This means that they really valued this process and wanted the participation of a foreign to bear witness. Developing nations such as Eritrea and Cambodia, the existing low level of technology does not allow them to undertake an automated voting process. For that matter, External observers should remain as the only appropriate solution in such circumstances. These external observers facilitate the voting process by making it peaceful; both the people and the candidates maintain peace since they are assured of transparency. It always believed that an external electorate body is free from the influence of the local government and politicians. In the case of Eritrea, both the government and the EPLF had a strong confidence in the UN. The people of Eritrea also had a lot confidence in the UN. This was one of the reasons that made the EPLF and its supporters accepted the elections as a true reflection of the voice of the people. When Cambodia wanted to draft its constitution, it also involved the UN in the whole process. The move by Eritrea and Cambodia to invite UN during the drafting of the constitution is a lesson that should be emulated by other developing nations. The UN has knowledgeable and skilled personnel that can fairly handle the electorate processes. The UN is also very effective in releasing timely and accurate results. However, the involvement of the external electorate body may create an impression that such a nation does not have trust in the local electorate bodies. It creates a bad image of such a nation as having no trust in its people. It may also mean that the nation cannot afford the simple machines for the efficient voting process. It is, therefore, advisable for a nation to involve the external bodies to a certain extent. The external services should only supplement the activities of the local government. Commission Another positive lesson learnt from the constitution drafting by Eritrea was the formation a reliable commission to oversee the entire process. Eritrean constitutional commission was formed to manage the formation and implementation. The criteria that were followed in establishing the commission ensured that it met the standards of the world. The members of the commission were selected on the basis of gender, regional and ethnic balance. Above all, professional competence was the first priority. This criterion and scrutiny helped the nation come up a team of experts who could be trusted by the people. Civil Education The constitutional commission, other than advising the government, carried out the civil education about the importance of participating in the process and also explaining the complex elements of the draft to the public. In the year 1994, the constitutional commission of Eritrea organized a major conference (Bekete, pg64) and invited a team of foreign experts to assist them in civil education and interpretation of the constitution. Civil education is very essential preparing the citizens psychologically about the new constitution. If left on their own, the lay people may misinterpret the important articles of the drafted constitution. This may make the constitution lose its meaning on many people and thus decreasing the voter turn-out. It is therefore very important for the government to form a team of constitutional experts who will effectively teach citizens and answer their questions. Other developing nations should take after Eritrea in the drafting of the constitution. Adequate time The Eritrean government gave an exemplary timing in the drafting of the constitution. When the first draft of the constitution was made, it took the government more than two years to set the voting date. In these two years, the government involved the public in consultation and civil education. This was sufficient time that allowed thorough education. It also gave the people time to read the whole draft and interpret appropriately. The time also gave the national assembly space to make the necessary corrections to the draft. The Pitfalls to be avoided Too much public When enacting new laws by drafting constitution, it is important to involve the opinion of the public. However, it is always very hard to meet the desires of every individual. If the government pays attention to every single contradicting voice, it may lose a clear direction. Therefore, the participation of the public must be monitored by the government. For instance, the constitutional draft that was voted by the people of Eritrea had to be approved by the National Assembly (Bekete, pg 66). Overreliance on the external electorate bodies The developing nations must learn to device suitable means to conduct the voting processes on their own. When a nation overlies on the services of the UN, it may not develop and learn to trust its institutions. As said before, the involvement of the external electorate body may create an impression that such a nation does not have trust in the local electorate bodies. It creates a bad image of such a nation as having no trust in its people. It may also mean that the nation cannot afford the simple machines for the efficient voting process. It is, therefore, advisable for a nation to involve the external bodies to a certain extent. The external services should only supplement the activities of the local government and not seen as the sole instrument. Delayed Implementation When the people have exercised their constitutional rights by taking part in the drafting of the constitution, the government should reward them by fully implementing the constitution. Any delays may create tension in the nation. The people may feel betrayed by their government. In Eritrea, the approved constitution was ratified but has never been implemented fully to date. This has created a lot of political crises in Eritrea. Imposed Constitutional Drafting The drafting of the Cambodian constitution was not an initiative of the people and the government. The whole initiative was imposed on this nation by the various circumstances that surrounded it such as the cold war. In the beginning, the citizens of Cambodia had a very indigenous form of governance. They had been used to this way of life. It was, therefore, a very task for the international community to empower this conservative nation. The nation was being pushed to be a democratic state while it was very reluctant and stalled at the non-democratic system of the traditional kings. In South Africa, the Dutch had formulated their own foreign laws and imposed it on the people. Instead of seeking the approval of the South African citizens, it invited the British to approve the very constitution. Copying constitutions of other nations The nations should come up with their own ideas that reflect the needs and the capability of the nation. The fact that certain laws have in one nation does not mean that they will in another nation. An example was given of a nation called Kenya in Africa, which tried to draft the constitution of its former colonizer; Britain (Bekete, pg 65). A constitution drafted in this manner may be very hard to implement. The people may not respect it since it does not reflect their own opinion. Besides, the citizens will not feel the sense of ownership. Conclusion To draft an effective constitution, public participation is the key factor to be considered. Other important factors include adequate time, a team of constitutional experts, civil education and transparent observation during the referendum. If these are put in place, nations will come up with democratic laws that protect their sovereignty. Work Cited Miller, Laurel. Framing the State in Time of Transition: Case Studies in Constitution Making. Washington, DC: United States Institute of Peace. 2010. Print Read More