The Impact of Guiding Principles on Constitution Making

This paper explores the role and significance of guiding principles in constitution-making processes. Guiding principles (or ex ante substantive principles) are sometimes negotiated and sometimes imposed. Either way, they constrain the content of the new constitutional framework. These principles are particularly relevant in the context of large-scale constitutional transitions when there is widespread political contestation and distrust among stakeholders.

The paper begins by defining guiding principles and distinguishing them from procedural principles. Procedural principles govern the constitution-making process, while guiding principles influence the new constitution’s content. Guiding principles can provide assurances to minority groups and encourage their commitment to the constitution-making process. But it can also be challenging to enforce guiding principles and ensure they are implemented.

Historical examples illustrate the varied application of guiding principles. During South Africa’s transition from apartheid, guiding principles were negotiated mainly to protect the interests of the outgoing ruling minority. These principles were reinforced by the role of a newly established Constitutional Court, mandated to certify the new constitutional text for compliance with the principles. In contrast, in contexts where autocratic or military regimes control the process, guiding principles may be imposed while ignoring the opposition’s demands, perhaps prompting their boycott of the process.

The paper further examines the scope and level of detail of guiding principles. Detailed principles can provide strong assurances to minority groups but can be challenging to negotiate, especially in post-conflict settings. Conversely, less detailed principles may still foster trust and dialogue but offer fewer assurances. The paper emphasizes the need to find a balance between detail and flexibility to accommodate evolving political dynamics. It also explores instances when the nature and level of detail changed in response to evolving demands from different stakeholders. Where principles are negotiated as part of conflict-to-peace transitions, and those principles are detailed enough to significantly constrain the constitution-making body, it is important to make sure that a wide range of political and social groups are involved and agree with the principles.

Guiding principles can be included in different types of transition and can occur through various mechanisms, including national dialogues, political or peace agreements, ordinary legislation and executive decrees. Political will is the ultimate determinant of how binding such principles will be, but incentives and constraints for compliance depend on the level of inclusion in the original agreement, the principles’ level of detail, and the presence and robustness of a verification or compliance mechanism.

Constitutional negotiations often involve tense political contestation, particularly during a large-scale constitutional transition. Stakeholders may have differing views on how the process should be designed and what the content of the new constitution should be. This is particularly the case in fragile environments with long histories of distrust among the negotiating parties.

Sometimes, before negotiating the actual constitutional text, key stakeholders agree on a series of substantive principles aimed at guiding (or constraining) the upcoming constitution-making process. These have been described as upstream constraints ‘imposed on the assembly before it starts to deliberate’ (Elster 1995: 373).

Famously, during South Africa’s transition from apartheid the parties agreed to a series of guiding principles to constrain the elected Constituent Assembly. These principles were the result of a deal and provided security to the outgoing government (and minority group) that their interests would not be challenged, further drawing them into the process (Ebrahim and Miller 2010: 112). As well as agreeing to the principles, the parties mandated the newly established Constitutional Court to certify that those principles were appropriately reflected in the new constitutional text, thereby reinforcing them (see Ebrahim 1999: 627–30; Ebrahim and Miller 2010: 139–43).¹

Substantive principles, particularly when negotiated and agreed between opposing parties, ideally provide assurances to minority groups that their interests will be protected. This encourages their commitment to the ensuing constitution-making process and disincentivizes them from thwarting it. However, it is important to recognize that negotiated principles are often difficult to enforce or may lack sufficient detail to play a significant role in the constitution-making process.

In other contexts, such as where an autocratic or military regime controls the constitution-making process, the process may allow certain stakeholders to define substantive principles (or recommendations) to guide the constitution-making body, by convening a national dialogue, for example. In some instances, these national dialogues have resulted in substantive principles designed to ensure minimum guarantees for political alternation and checks and balances that diverge from the regime’s vision (such as in Chad 2022). More importantly perhaps, these types of substantive principle can also provide an entry point for the international community to exert pressure on the regime.

On the other hand, when guiding principles are imposed on the constitution-making body by a single group or individual, this may prompt others to boycott the process and contest its outcome. Imposed principles may then either pave the way for a unilateral constitution-making process, which may lack legitimacy, or significantly hinder negotiations on a future constitution.

This paper addresses guiding principles that may contribute to the content of new (and final) constitutional frameworks, and that were expressly and formally agreed or imposed in advance of such a process. Substantive (guiding) principles are to be distinguished from procedural principles in that the latter determine parameters for the process of constitution making, while the former guide the content of the new constitutional framework.² Principles that are found in the existing constitution’s amendment procedure are not included.

The paper:

• identifies guiding principles (Chapter 1);
• surveys some historical examples of guiding principles and clarifies its own universe of cases (Chapter 2);
• examines variations in the content, scope and level of detail of these principles (Chapter 3);
• provides an overview of how guiding principles are established and the types of document in which they may be outlined (Chapter 4);
• analyses the mechanisms or institutions mandated to verify the principles’ implementation (Chapter 5);
• provides conclusions (Chapter 6); and
• highlights some key considerations for those involved in negotiating guiding principles (Chapter 7).

Guiding principles, also called ex ante substantive principles (or ‘pre-constituent’ principles in francophone jurisdictions), are principles that constitution makers are mandated to include or operationalize in the new constitutional framework.³ They may be very general in scope—for example, ‘goal declarations’ related to: (a) the independence, territorial integrity and national unity of the country in question; (b) the defence of fundamental rights and freedoms, and the protection of the rule of law and political pluralism; (c) separation of powers; (d) democracy and good governance, and free and fair elections; or (e) gender equality. Or they may be more detailed and therefore context-specific, such as a principle in the South African Interim Constitution (article XXX, 1) calling for an ‘efficient, non-partisan, career-orientated public service broadly representative of the South African community’. Guiding principles in general often reflect key aspects of the historical context in which the particular process is taking place, as well as international norms and standards and other precedents (Brandt et al. 2011: 60).

There are also instances when negotiators identify a single issue that they perceive has thwarted past processes or constitutional implementation. They then highlight this issue as a principle for the future process without providing much detail on how it should be translated into the future constitutional text. Some examples include: (a) the Iraqi ‘Law of 2004 of Administration for the State of Iraq for the Transitional Period’ with its reference to the prohibition for the Iraqi Armed Forces to ‘terrorize or oppress the people of Iraq’ (article 59a); (b) Rwanda’s Arusha Accords, which followed the Rwandan genocide and refer to the rejection of exclusion and discrimination; and (c) Thailand’s 2014 Interim Constitution, in which the fight against corruption constituted a prominent guiding principle for the future constitution (Ministry of Foreign Affairs 2014).

Whether they are the result of negotiations among opposing parties, are defined by certain political forces that do not represent the entire political spectrum or are imposed by a single group, guiding principles can significantly constrain the constitution-making body in its decisions on the content of the new constitution (Elster 1995: 373; Saunders 2012: 5).

So sometimes principles may be seen as undemocratically constraining future decision makers—that is, the drafters of the new constitutional framework (Brandt et al. 2011: 66). However, the key question on the democratic quality of the constitutional transition seems to be less about whether or not there are guiding principles, and more about the extent to which the negotiations around these guiding principles (if any), and the ensuing constitution-making process, are inclusive or take into account demands from majority and minority groups alike.

Guiding principles can also drive or shape constitutional paradigm shifts, as they may articulate necessary and significant changes to past constitutional frameworks, orienting the drafters in particular directions. This occurred in South Africa’s transition from apartheid to democracy and in Nepal’s post-conflict transition from a centralized monarchy to a federal republic.

South Africa is often heralded as the paradigmatic case of negotiated guiding principles, but such principles also preceded the South African process.

In India, in the aftermath of World War II—in December 1946—interim prime minister Jawaharlal Nehru submitted the ‘Objectives Resolution’ to the Constituent Assembly. This was adopted by consensus and included content to guide the drafting of the Indian Constitution.⁴ The principles in the resolution formed the basis for the constitution’s preamble. In Germany, on 1 July 1948, the occupying forces submitted a set of three documents—the Frankfurter Dokumente—to the 11 German regional prime ministers to guide the future German constitution-making process both procedurally and substantively (‘Frankfurter Dokumente’ 1948).

Since the 1940s and 1950s, guiding principles in decolonization processes have sometimes been agreed—though often imposed on the constitution-making body by the colonial government—in an attempt to constrain future design choices.

In France, amid the war of independence in Algeria, the legislature of the Fourth Republic tasked Charles de Gaulle’s newly formed government with preparing a draft constitution. The constitutional statute enacted by the legislature on 3 June 1958 imposed procedural requirements and five substantive principles: (a) universal suffrage as the sole source of power; (b) separation of powers; (c) political accountability of the government to the legislature; (d) the independence of the judiciary to ensure the protection of rights and freedoms enshrined in the preamble of the 1946 Constitution; and (e) the establishment of new relations with ‘the peoples associated with the Republic’.

In 1981, Namibian political parties, the South West Africa People’s Organisation (SWAPO), the United Nations, so-called Frontline States⁵ and the Western Contact Group (WCG)⁶ agreed to a series of substantive principles to guide the Namibian constitution-making process. The WCG introduced those principles as part of the more general settlement negotiations for Namibia’s independence, and following UN Security Council Resolution 435 (1978), which did not include any details as to either the process or the content of the future constitution. Once agreed by all negotiating parties, the WCG proceeded to submit them to the UN Secretary-General (UN Security Council Document S/20967). In the end, the ‘1982 Constitutional Principles’ were agreed years before the constituent assembly was elected and started drafting the post-independence Namibian Constitution in 1989, but still very much guided the constitution-making process (Brandt et al. 2011: 62; Wiechers 1989, 2010). Namibia is not the only case where the international community was involved in the negotiation of guiding principles (see Box 2.1).

After the end of the Cold War, in the 1990s, guiding principles were often imposed on national conferences or dialogues, or negotiated within the framework of a national conference or dialogue in order to constrain or guide future constitution-making bodies (Murray 2017: 18). In Benin, for instance, in 1989, outgoing president Kérékou and other representatives of the state agreed to abandon the one-party system and Marxism–Leninism as the doctrine of the state and to convene a national conference to make recommendations on the future of the country. President Kérékou then appointed a preparatory committee mandated to determine the membership and agenda of the National Conference. This preparatory committee also drafted a series of additional guiding principles for the National Conference, which in turn developed detailed suggestions to guide the future constitution-making body (Harlander 2016: 26). The National Conference was initially conceived as a consultative body. However, because of the mistrust of the delegates participating in the conference towards the government, the delegates decided at the first conference meeting to declare the conference to be sovereign, thus making its recommendations legally binding. Benin became a precursor in that regard and inspired other francophone countries. Most of the national conferences held in francophone Africa during democratic transitions in the early 1990s declared themselves sovereign, including Chad, Congo, Niger, Togo and Zaire (currently the Democratic Republic of the Congo). All these national conferences defined binding guiding principles for the future constitution-making body.

In the period between 2000 and 2023, 49 processes resulted in new ‘final’ constitutions being adopted worldwide,⁸ and 19 of these constitution-making processes were to some extent guided by principles.⁹ These processes occurred in countries undergoing very different types of transition, namely from conflict to peace and after foreign invasions, popular protests, military coups, post-electoral violence and secession, and other regime-led transitions. And while in some of these countries principles were clearly imposed by the executive, in others some form of negotiation or consultation took place among key stakeholders to agree to principles (see Table 2.1).

Whether imposed or negotiated, the length and level of detail of guiding principles can vary significantly. When they are the result of negotiations between formerly warring parties—with some exceptions such as Namibia and South Africa—guiding principles are often sparsely defined. One reason for this may be that it is difficult for groups that have recently been engaged in armed conflict to sit at a negotiating table and agree on details, particularly if these relate to precisely the issues that caused the conflict. Other reasons could be a general lack of commitment to the rule of law or lack of understanding about the role that guiding principles can play in a constitution-making process. Examples include Angola and its 1992 Interim Constitution, Rwanda and its 1992 and 1993 Arusha Accords, Nepal and its 2006 Comprehensive Peace Agreement, or more recently the 2018 Revitalised Agreement on the Resolution of the Conflict in the Republic of South Sudan (R-ARCSS). All these stated broad guiding principles such as respect for the rule of law, political pluralism, free and fair elections, the protection of fundamental rights, judicial independence and separation of powers. These guiding principles ostensibly served as a baseline for constitutional design and a signal of joint intent. At the same time, they left the space wide open for constitution makers to freely interpret how those principles would be reflected and operationalized in the new constitutional text and also neglected critical issues at the root of the conflict, such as access to land or how to manage ethnic divisions.

At the other end of the spectrum are cases such as South Africa, where schedule 4 of the 1993 Interim Constitution included 34 detailed ‘constitutional principles’. These encompassed issues such as: the prohibition of any form of discrimination and the promotion of racial and gender equality; affirmative action for disadvantaged people to ensure equality before the law; multiparty democracy, regular elections, universal adult suffrage, a common voters’ roll and proportional representation; three main levels of government; a non-partisan public service; provincial boundaries, powers and functions, and the right of provinces to adopt provincial constitutions; the recognition of traditional monarchs; and even the establishment of a financial and fiscal commission and other independent institutions. As mentioned in the introduction to this paper, the scope and level of detail of South Africa’s constitutional principles—as well as the fact that a newly established Constitutional Court was to certify the draft against those principles—was primarily meant to accommodate the white minority group, which previously had dominated the state and was concerned that its interests could be adversely affected by a constitution drafted in a process dominated by the previously excluded majority. The level of detail and the binding nature of these constitutional principles—resulting from their entrenchment in the Interim Constitution and the certification requirement—gave the minority group strong assurances that its interests would be protected, which ensured the group’s participation in the process (Brandt et al. 2011: 64; Ebrahim and Miller 2010).

Guiding principles can also have an intermediate level of detail. In some of these cases, the principles represent a clear constitutional choice that still needs further articulation. In others, there is a mix of principles that are enunciated but need articulation and principles that can be incorporated into the constitutional text without (much) further negotiation. Arguably, principles in constitutional processes in both Bhutan and Fiji (see Box 3.1) had such an intermediate level of detail.

Sometimes the nature of guiding principles can change during the transition in response to particular demands. The Nepali constitution-making process (see Box 3.2) is an example where guiding principles were minimally detailed at the start of the process but evolved as specific stakeholders demanded further specifications, notably transforming the rather abstract provision mandating the ‘restructuring of the state’ into the need to establish a ‘progressive Democratic Federal System’ (2007 Interim Constitution of Nepal, article 138).

In brief, one of the challenges in negotiating guiding principles is the principles’ scope and level of detail. When negotiated and agreed by key stakeholders, detailed principles can serve to protect the interests of minority groups and conflict parties that may have had a certain leverage at the start of the negotiations (often through the threat of resuming the violent conflict) but would be outvoted in the main constitution-making process. Detailed principles can significantly constrain the constitution-making body, offering less margin for interpretation and ideally greater assurances to negotiating parties that what they agreed on will be reflected in the new constitutional text.¹¹ But agreeing on details is always difficult, especially after violent conflict.

Less detailed or more general principles may be easier to agree on and ideally may serve to foster trust between warring parties and maintain their commitment to engage in dialogue, as well as offer a general framework for the constitution-making body to work under. If strategically decided, they can be important in driving radical constitutional shifts, as they may articulate necessary and significant changes to past constitutional frameworks, orienting the drafters in particular directions, such as a change from a one-party system to a multiparty democracy or from a centralized monarchy to a federal republic. But on the other hand, very general principles can be ignored by the parties and provide fewer assurances to parties that lack (significant) representation in the constitution-making body.

3.1. Determining the scope and level of detail, and the principles’ reflection in the constitutional text

The scope and level of detail of guiding principles can depend on a number of factors. When imposed, authorities have few constraints in terms of including particular content or details.¹² When they are negotiated, the higher the level of division and polarization between the different parties, the harder it will be to agree to details, particularly on issues that have previously been divisive. Notably, most of the processes that resulted in either vague or less detailed (even though perhaps significant) principles were negotiated, including Angola 1992, Iraq 2004, Kenya 2009, Nepal 2005 and 2007, Rwanda 1992 and Zimbabwe 2008.

Arguably, lower levels of polarization and a relative balance of power between key stakeholders may lead to more detailed agreements. In some instances, when stakeholders have had time to discuss principles in advance of the negotiation process, their preparedness also impacts the level of detail. Principally, however, it is the uncertainty regarding actors’ representation in the future constitution-making body, as well as the perceived need to agree on particular principles early in the process (perhaps for fear of changing circumstances on the ground), that may be the most crucial motivation for actors to agree to specific details. In this case it would appear that actors should also be interested in establishing mechanisms or institutions meant to verify the implementation of guiding principles. In some instances, however, the absence of these mechanisms may actually facilitate agreement on detailed guiding principles (see Box 5.2).

Processes that incorporate highly detailed principles occur in very different contexts and types of transition, although imposed principles often have higher levels of detail, such as in Bahrain 2002 and Morocco 2011. Sometimes a dialogue or a negotiation process boycotted by part of the opposition manages to agree to detailed principles, such as Burundi 2000, Chad 2018 and 2022, and Mali 2021; and sometimes detailed principles may also be genuinely negotiated by all parties, besides Namibia and South Africa (and also Montenegro 2006). In those cases where highly detailed principles have been negotiated, they are usually reflected in the draft constitution. In other words, when conflict parties manage to agree to detailed principles, those are likely to imprint the new constitutional text.

The case of Chad 2022 is interesting from another point of view. While part of the political opposition boycotted the national dialogue process, representatives still managed to agree on issues that would prove to be controversial, such as an unamendable five-year presidential term limit, renewable only once (Republic of Chad 2022). The unamendability clause was included in the preliminary draft constitution, but it was subsequently removed by the executive before the ratification of the constitution in referendum. This points to a disagreement between the demands of representatives in the national dialogue (who had been appointed by the executive) and the executive itself. It also offers the international community (and in this case, regional organizations) leverage for engagement either to mediate between stakeholders or to incentivize decision makers to comply with principles that may appear to curb their powers and meet international and regional democratic standards.

Bahrain (see Box 3.3) and Morocco are notable as well, in that while the principles were imposed by the executive, they were partly informed by public demands (and meant to quell demonstrations). However, given the control that the executive wielded over the respective process, and in the absence of a formal verification process, the extent to which, in these contexts, principles find reflection in the new constitutional text depends on the leverage that national or international groups and organizations have over the executive. In the case of Morocco, in the wake of the Arab Uprisings the principles were translated into the constitution, leading to a substantive decrease in the level of societal instability. What happened in Morocco stands in stark contrast to the situation in Bahrain.

Another factor to bear in mind when looking at the scope and level of detail of guiding principles is the momentum for consensus among different stakeholders on specific constitutional design issues, as the case of The Gambia illustrates (see Box 3.4).

While it is understandable that, particularly in post-conflict settlements, it may be difficult (and perhaps imprudent) to agree to detailed principles, in some instances stakeholders should not hold back in terms of detailing principles they can agree to. Trusting that the momentum for change will persist over time, despite changing circumstances, may sometimes also be imprudent. However, agreeing to detailed principles too early in the process may not only alienate segments of society but also be a roadblock for future negotiations. Furthermore, sometimes even detailed principles can be the subject of discussion regarding their actual interpretation. It is also important that all stakeholders have a common understanding of the principles’ interpretation.

In summary, the scope and level of detail of principles will depend on the readiness of the parties to agree to fundamental issues that will both guide and constrain the future constitution-making body. Agreeing on details is difficult and can be controversial, but different stakeholders may have a different understanding of what more general principles stand for. Ambiguity may help the parties to construct tailored narratives for their constituents. However, sometimes the negotiation process can be more important than the substance of the final agreement, in the sense that it may be critical for parties to engage each other outside of the battlefield and agree to the basics, which may allow further engagement later in the process (as in Nepal 2015). Less detailed principles may be easier to agree on and serve to initiate dialogue and foster trust between warring parties, as well as offer a general framework for the constitution-making body to work under. On the other hand, ambiguity offers fewer assurances to affected parties who may lack significant representation in the constitution-making body.

As mentioned before, either guiding principles may be imposed by powerful actors in or outside the country in question¹⁵ or they may be negotiated in various forums.¹⁶ Where principles are negotiated, actors that request them may have built influence and leverage during the conflict and early negotiations that they may fear might diminish during the constitution-making process (as in South Africa). These stakeholders may use guiding principles to constrain any future constitution-making body from drafting a text that could adversely affect their interests (Ginsburg 2010). This is the reason why, particularly in transitions from conflict to peace, it is paramount that a wide range of political and social groups agree on the principles before the actual constitution-making process starts, especially when these principles are detailed and give the constitution-making body little room for negotiation (see Brandt et al. 2011: 63).

Indeed, in most cases all significant parties to the conflict were involved at the stage of negotiating and developing guiding principles (for example, Angola 1992, Kenya 2009, Kosovo 2007,¹⁷ Madagascar 2009,¹⁸ Nepal 2005/07, Rwanda 1992 and Zimbabwe 2008). In certain instances, some warring parties were excluded (Iraq 2004)¹⁹ or boycotted the negotiations (Burundi 2000,²⁰ Chad 2018 and 2022, and Mali 2021). Notably, in Chad 2018 (arguably also in 2022) and Mali 2021 the boycott and rejection of guiding principles by key stakeholders paved the way for a unilateral constitution-making process, resulting in contentious new constitutional texts that significantly strengthened the powers of the president.²¹

Carefully considering which groups may be included—or at least invited to engage—in negotiations around principles can be key when developing a more or less detailed agreement and one that has sufficient backing to allow for its own implementation.

4.1. Documents outlining principles

The effect of guiding principles on the constitution-making body—whether they are implemented or not, and the extent to which they constrain the constitution-making body—may also depend on the form (or the format) in which they have been adopted or the extent to which the agreement is considered to be legally binding. At the same time, the legally binding nature of these agreements will be compounded by the parties’ commitment to their application.²²

For the most part, guiding principles are included in documents or agreements setting out the process of constitutional change (see Table 4.1). These documents include, for instance, peace agreements or interim constitutions and reports of national conferences or dialogues that provide recommendations for the country’s future. Principles could also be included in the existing constitution via an amendment, as was the case in Chile’s ultimately unsuccessful 2023 constitution-making process. They could be provided as part of specific legislation or an executive decree establishing the constitution-making body or the broader process. They may be part of the terms of reference of a parliamentary committee or commission (as in Kenya and The Gambia) that is mandated with developing suggestions for, or actually drafting, a new constitution. Principles could even form part of international agreements or UN decisions or resolutions, such as was the case in Namibia and Timor-Leste (Brandt et al. 2011: 61), as well as in Kosovo.

The implementation of recommendations that emerge from a national dialogue process will often depend on the willingness of decision makers and will usually not be considered legally binding. Equally, the implementation of a political or peace agreement will depend on stakeholders’ commitment to be bound by it. Sometimes the parties signing a political or peace agreement, or third parties, will want this agreement to become legally binding and incorporated (wholly or in part) into a given legal or constitutional framework (Wittke 2018).

The binding nature of guiding principles, however, will only significantly impact the process of constitution writing when: (a) those principles are detailed enough to be more or less easily transferable to the constitutional text; and (b) a body has been established that is mandated to monitor and evaluate implementation, and perhaps also to verify that the final constitutional draft materializes those principles (see Chapter 5: Mechanisms and institutions mandated to verify or certify their implementation).

In brief, the decision to develop guiding principles, whether the process will be part of a negotiation, the inclusivity of the negotiations, the level of detail of the resulting agreement and whether the agreement will be binding on all stakeholders will all crucially depend on the balance of power between different actors at the negotiating table—whether one or more stakeholders control the process and its outcomes—as well as on the level of uncertainty regarding who will control the levers of power in future (Ginsburg 2010). On the other hand, when an inclusive constitutional reform process is planned, or when such a process aims to help a country’s transition to peace and democracy, negotiating guiding principles may be a good place to start. Such a process would help gauge the level of agreement among different societal groups regarding the structural changes needed to achieve their vision for the country’s future. If advertised, those principles may also put pressure on decision makers not to retract.

Only a few cases include formal mechanisms or institutions mandated to certify the implementation of guiding principles, which then become enforceable. In Namibia, the UN was not formally mandated to certify the constitutional draft, but in July 1990 it did verify that the new constitution complied with the 1982 Constitutional Principles (Brandt et al. 2011: 64). Namibia was an inspiration for South Africa and key to South Africa breaking what had seemed an insurmountable problem concerning when to draft a constitution. In South Africa, the Interim Constitution included negotiated principles and provided that the new text would not come into force unless the newly established Constitutional Court of South Africa certified that it complied with the constitutional principles. This was a safeguard for the outgoing (white minority) government in relation to a constitution-making body—and future parliament—that would be controlled by the Black-majority African National Congress. The Interim Constitution also provided that at any time one fifth of assembly members could refer a draft text, or part of it, for certification by the Constitutional Court. This gave the Constitutional Court a very prominent role in the constitution-drafting process, reinforced by South Africa’s strong legal profession and general trust in courts. It was perhaps the first time in history that a court was given the power to review the compliance of a draft constitution with guiding principles (Issacharoff 2004: 1874–75; Ebrahim 1999).

Since the turn of the century, only 4 out of the 19 processes covered in this paper also included a formal certification mechanism, namely Burundi 2005, Fiji 2013, Kosovo 2008 and Montenegro 2006. In Burundi it was also the Constitutional Court that was mandated with verifying the constitutional text against the principles set out in the Arusha Peace and Reconciliation Agreement for Burundi (Protocol II on Democracy and Good Governance, Chapter I: Constitutional Principles of the Post-Transition Constitution, 28 August 2000), but it never came to that. The draft constitution was submitted to the Constitutional Court but withdrawn after the court did not give a ruling in the short time allotted, and instead it was sent directly to referendum. Because the principles were highly detailed, and indeed close to constituting a fully written constitution, decision makers deemed a referendum enough to verify them (Brandt et al. 2011: 64).

In the case of Fiji, the military junta decreed (Decree No. 58 of 2012, part 3, section 21(2)) the establishment of a five-member special tribunal (including at least two international experts) mandated to verify that the guiding principles included in another decree (Decree No. 57 of 2012, part 1, section 3) would be followed by the constitution-making body. However, the special tribunal was never established and the constitution drafted by the constitution commission was discarded before the military junta drafted and enacted a new proposal. Fiji would have been the only process where the constitutional draft had to be certified against imposed, rather than negotiated, guiding principles.

Both the cases of Kosovo and Montenegro may be in a class of their own as constitution making followed their respective declarations of independence from Serbia. In the case of Kosovo, the Comprehensive Proposal for the Kosovo Status Settlement (or Ahtisaari Plan) specified (in Annex I on constitutional provisions) that the constitution had to be consistent ‘in all its provisions with this Settlement’ (article 1.1), and provided in Annex IX that there would be an International Civil Representative who shall ‘[b]e the final authority in Kosovo regarding interpretation of the civilian aspects of this Settlement’ (article 2.1.a). And indeed, the International Civil Representative certified the constitution before the National Assembly adopted it on 9 April 2008 (Council of Europe 2009). When Montenegro declared its independence from the Union of Serbia and Montenegro in 2006, the constitution-making process was linked to its pursuance of membership in the Council of Europe. The Political Affairs Committee of the Assembly of the Council of Europe, which was mandated to certify whether or not Montenegro’s constitution complied with the principles, then proposed to the Assembly of the Council of Europe to recommend that the Committee of Ministers invite the Republic of Montenegro to join the Council of Europe (Gardetto 2007).

A few other processes included mechanisms or institutions without a specific mandate to formally certify the constitution but with a wider mandate sometimes interpreted as giving particular institutions that power. In Angola, the Constitutional Court was vaguely mandated to ‘verify and consider non-compliance with the Constitutional Law owing to failure to take the requisite measures to make constitutional rules executable’ (article 134). This was interpreted as requiring the Constitutional Court to make sure the guiding principles provided for in article 159 of the 1992 Interim Constitution were upheld. However, the principles’ vague nature and the executive’s control over the Constitutional Court tainted the certification process (Brandt et al. 2011: 64). In the case of Thailand, it was the military-led National Reform Council that verified that the principles stated in the 2014 Interim Constitution (both in the preamble and in section 35) were appropriately included in the final constitutional text. The Interim Constitution, however, did not specifically give such a mandate to the council.

Stronger verification mechanisms will probably reduce the likelihood of conflict, particularly when guiding principles are difficult to implement, as they can represent an additional constraint on decision makers (see Box 5.1 and Box 5.2).

In Kenya, the Constitution of Kenya Review Act (2008) provided for the establishment of the Interim Independent Constitutional Dispute Resolution Court (ICDRC) to receive petitions from ‘[a]ny person who is aggrieved by a matter related to the constitutional review process as specified under the Act …’ (ICDRC Rules 2010, part III, article 12). This specialized and temporary court was established because the previous process was significantly hampered by litigation and lack of trust in the judiciary (Murray 2022). But this court only heard a few cases and none of them asked the Tribunal to certify the constitutional draft—perhaps because there was no real contestation about the principles (Republic of Kenya 2010).

In Madagascar, the High Court of the Transition was mandated to ‘ensure compliance with the provisions of the Transitional Charter’ on receiving petitions from ‘the Transitional President, the Prime Minister or one third of the members of the Transitional Congress or the Transitional Superior Council’ (article 23). This could have included the two key principles in Title VI of the Transitional Charter (Interim Constitution) guiding the constitution-making process: (1) the president of the republic shall be elected by direct universal suffrage for one five-year term, renewable once; and (2) any reform of the constitution regarding the organization or functioning of public powers, such as the form of the state, would have to be ratified by referendum. Beyond this, Title VI also referred to the fact that the constitutional draft would include the recommendations emerging from the national conference organized by the National Reconciliation Council. The High Court of the Transition, however, did not verify either Title VI or the more detailed recommendations from the national conference.²⁵

In brief, mechanisms or institutions used in the past to either formally certify or informally verify new constitutional texts against guiding principles include: (a) apex courts; (b) special courts or commissions; (c) intergovernmental organizations or representatives; or (d) executive bodies. Notably, in those cases where there is an institution with a formal mandate to certify the draft constitution, the review of the draft takes place automatically. A more ambiguous mandate to uphold previously agreed rules, such as the 2008 Constitution of Kenya Review Act or the 2010 Madagascar Transitional Charter, is often linked to those institutions receiving petitions for a ruling or advice on the constitutionality of either the process or the substance of the draft. In turn, petitions can often be submitted by the executive or by a certain percentage of members of parliament—one fifth in the case of Angola (Interim Constitution, section III, article 154) and one third in the case of Madagascar (Transitional Charter 2010, section G, article 23)—or by any person ‘aggrieved’, as would have been the case according to the Constitution of Kenya Review Act 2008.

Chile’s 2023 failed constitution-making process is an exception in that negotiations between political parties resulted in the establishment of a 14-member special commission (7 women and 7 men), known as the Technical Admissibility Committee, mandated to decide on whether a provision would either contradict or omit one of the 12 guiding principles agreed at the start of the process. This committee, however, could only act on referral by at least 10 members of each of the two bodies responsible for the development of the constitutional text—the Constitutional Council and the Expert Commission (article 155, 1980 Constitution amended in 2023)—and it was not mandated to certify the constitutional draft after it had been adopted by the elected Constitutional Council. In the end, the committee was never utilized because it had equal representation of individuals linked to both right-wing and left-wing parties, so an agreement across party lines would have been needed for the committee to decide on any given issue. Right-wing political parties had enough representation on the council to adopt the draft constitution without having to bargain with left-wing party representatives. Even if left-wing representatives in the council could refer a case to the committee, it is unlikely that the right-wing and left-wing members of the committee would agree when the members of the council did not. The conclusion that may be derived is that guiding principles and certifying mechanisms or institutions only work as constraints if they are not dependent on the consent of the majority.

Guiding principles are more likely to be reflected in the final text: (a) when they have a certain level of detail that would make further negotiations unnecessary—the more detailed the principles, the easier it is to evaluate compliance of the constitutional text; and (b) when the agreement is binding and there is an accessible domestic compliance institution with a clear mandate. The mandate of South Africa’s Constitutional Court to certify the constitutional draft would stand in stark contrast with, for instance, Mali’s very soft, and internationally led, Independent Observer, Chile’s rather politicized Technical Admissibility Committee or the vague mandate of Nepal’s Supreme Court.

Given that trust between parties is often low, and the trust of parties in existing institutions is also often low, if compliance or certification mechanisms are to be used, it is important that they are designed with these considerations in mind: (a) sometimes it may be necessary to create a new institution specifically for the purpose of verifying compliance, rather than granting this mandate to an existing institution that may lack legitimacy; (b) to mitigate the risks of controversy and politicization, the mandate of this institution and the legal consequences of its decisions must be clearly defined from the outset; (c) if the certification is not mandatory but is conducted on request, there should be clear standing rules to define who can initiate the verification process; and (d) opposition groups and those stakeholders who participated in the negotiations over the substantive principles should have the right to file a case.

In contrast to this, incorporating guiding principles into a political agreement—rather than a legally binding document—and not establishing a monitoring or certification procedure, may lower the stakes for the negotiating parties, making it potentially easier to agree on detailed principles but reducing the likelihood of effective implementation in the constitutional text.

Negotiating guiding principles presents not only significant advantages but also some challenges. One of the primary advantages of negotiating guiding principles is the potential to build trust among stakeholders, particularly in post-conflict or conflict-affected settings. By agreeing on fundamental principles, sometimes parties can be assured that their core interests will be protected, which can foster a sense of security and commitment to the constitution-making process. In this way, guiding principles can also provide protection to minority groups that their rights and interests will be safeguarded, reducing the likelihood of their opposition to the process. Ideally, establishing guiding principles can offer a clear framework for the constitution-making body. This can streamline the drafting process by setting out elements that must be included, thereby reducing the scope for contentious debates and potential deadlocks later in the process. Beyond this, when the process of negotiating guiding principles is inclusive, principles can enhance the legitimacy of the constitution-making process. Broad-based agreement on these principles can signal to the public (and the international community) that the process is fair and balanced, increasing the likelihood of acceptance and support for the final constitution. In some contexts, guiding principles can serve as a tool for the international community to exert positive pressure on the regime or negotiating parties. This can help ensure that the process aligns with international norms and standards, potentially attracting international support and resources.

On the other hand, guiding principles may be imposed by a dominant group or external actors, rather than being genuinely negotiated. This can lead to perceptions of illegitimacy and may prompt boycotts or resistance from excluded groups. Furthermore, while guiding principles may provide a clear framework, they can also constrain the flexibility of the constitution-making body. This rigidity can be problematic if the principles are too detailed or if they fail to account for evolving political dynamics and new insights that emerge during the drafting process. Conversely, if the guiding principles are too vague, they may offer little practical guidance to the constitution-making body. This can lead to varied interpretations and potential conflicts over their implementation, undermining the intended purpose of providing a clear direction. At the same time, ensuring that guiding principles are adhered to can be challenging. Without robust mechanisms for enforcement, there is a risk that the principles will be ignored or inadequately reflected in the final constitution. This can diminish trust in the process and lead to further disputes.

Often stakeholders involved in developing principles rush to get to an agreement. However, experience shows that giving more consideration to the way in which principles will be applied goes a long way in ensuring their implementation. A number of key questions can therefore be raised, including the following.

What advantages can guiding principles provide?
Constitutional negotiations must start somewhere, and often the way the process unfolds and is structured is determined by context, including the positions and interests of the parties. However, in transitions from conflict to peace, guiding principles can serve to build a minimum level of trust among warring parties and also provide some guarantees for minority groups in terms of parameters for the ensuing constitutional negotiations and resulting text. Such principles can also be helpful to communicate to domestic and international constituencies the broad intentions of the responsible authorities, signposting key priorities, red lines and the overall direction of travel for the constitutional project.

On the other hand, principles developed in non-inclusive processes, particularly when those principles are very detailed, may perhaps unduly constrain constitution-making bodies and, subsequently, delegitimize the process and any resulting text.

How does the level of inclusion affect the formulation of guiding principles?
Ideally, negotiations over guiding principles should, at a minimum, involve the main stakeholders, including key conflict parties for whom the constitution-making process is a significant element of the peace process, but also political forces and civil society organizations representing various segments of society. This would ensure that a wide range of opinions are considered or at least heard. At the same time, these negotiations are complex, and often including all relevant stakeholders will mean that guiding principles might be less detailed.

In cases where processes are controlled by one group, principles will often be devised and imposed by the same group. These principles may be a signal of intent in terms of where the constitution-making process will go. However, they may also be used to shroud intent and seek to gain short-term legitimacy for the constitution-making project. On the other hand, sometimes authorities—especially those that have not come to power through elections—may seek to broaden inclusion at an early stage, while still maintaining control over the process. In this regard, they may seek to establish national conferences or national dialogues where other groups can voice their opinions on the formation of guiding principles. While the dominant group will still control the final text of the constitution, such occasions may present opportunities for those other groups that are included to raise their interests and priorities at the level of guiding principles. In certain contexts, these openings can help galvanize public opinion and mobilize international support, as well as create some level of pressure on the regime to accommodate minority interests.

What are the issues commonly covered in guiding principles?
Guiding principles often cover a range of issues aimed at shaping the content of a new constitutional framework. These principles can reflect key aspects of the historical context in which the constitution-making process is taking place, as well as international norms and standards. They can often include more or less broad declarations related to the independence, territorial integrity and national unity of a country, as well as the defence of fundamental rights and freedoms, the protection of the rule of law and political pluralism. They may also include specific elements of the future political system or a new state structure. In some cases, one might also see detailed provisions related to specific issues that have been contentious in the past, such as exclusion and discrimination, transitional justice issues or the fight against corruption.

What level of detail do guiding principles contain?
The scope and level of detail of the principles are often influenced by factors beyond the control of any single actor. Detailed principles can serve to protect some fundamental interests of minority groups, as well as significantly constrain the constitution-making body, offering less margin for interpretation and greater assurances to negotiating parties that what they agreed upon will be reflected in the new constitutional text. However, agreeing on details is always difficult, especially after violent conflict, and even detailed principles can be subject to different interpretations.

Vague or abstract principles may be easier to agree upon and may serve to initiate dialogue and foster trust between warring parties. But higher levels of abstraction also provide less assurance to those parties that may be affected. At the same time, broad guiding principles can also drive radical constitutional shifts, as they may articulate necessary and significant changes to past constitutional frameworks, orienting the drafters in particular directions, such as a change from a one-party system to a multiparty democracy or, like in Nepal, from a centralized monarchy to a federal republic.

What elements contribute to the effective implementation of guiding principles?
Several factors may have an impact on the adherence to guiding principles and their operationalization in the constitutional text. Some stakeholders try to incorporate these principles into a legally binding document but, as mentioned above, those principles will only impact the constitution-making process if they are sufficiently detailed and there is a mechanism or institution mandated to verify their implementation. For these types of institution to have a meaningful impact, though, their legitimacy is key. Sometimes this may mean that a new specialized institution needs to be established rather than granting this mandate to an existing institution. At the same time, to mitigate the risks of controversies and politicization, the mandate of this institution and the legal consequences of its decisions should be clearly defined from the outset. Additionally, if the certification is not mandatory but is conducted on request, there should be clear standing rules to define who can initiate the verification process, and opposition groups and those stakeholders who participated in negotiations over the substantive principles should have the right to file a case.

However, as mentioned above, incorporating guiding principles into a political agreement—rather than a legally binding document—and not establishing a monitoring or certification procedure, may lower the stakes for the negotiating parties, making it potentially easier to agree on detailed principles but reducing the likelihood of effective implementation in the constitutional text.