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EXECUTIVE SUMMARY
Ukraine is at a crucial threshold with major internal divisions and global
powers. The ability of Ukraine to prevail as a unitary nation state will
depend upon interested parties working together towards a basic
constitutional framework that resolves outstanding issues. International
engagement and donor programming could be instrumental to a positive
outcome. Constitutional best practices provide guidance on the process
that should be supported to maximize the possibility of a positive outcome
that supports a durable rule of law culture. Rapid mobilization on the same
is critical, and New-Rule LLC is ready to provide the technical expertise
necessary to support the strategic design and launch of systematic national
consultations. This Advisory Note provides an illustrative description of the
issues and processes that would ideally be addressed programmatically in
the forthcoming weeks and months. Note: This document was circulated to
Western authorities in May 2014.
CONTEXT
The Geneva Agreement of 17 April 2014 describes a process for stabilizing
Ukraine and resolving the escalating conflict via consensual dialogue. In
particular, the Geneva Agreement references constitutional reform that is
built upon an inclusive consultative process with Ukraine’s regions and
political representatives. Despite the depth and breadth of issues involved,
the Interim Government has proposed an abbreviated process intended to
conclude a new draft within less than six months, September 2014. Recent
international reporting indicates the date could slip, but the salient point
would be that the restricted timeline itself was imprudent and lacked
grounding in rule of law best practices.
Concurrently, the Organization for Security and Development in Europe
(OSCE), has offered to help with promoting dialogue in Ukraine. However,
the OSCE has yet to articulate an alternative to the Interim Government’s
timeline and conceptualization of the process. Regarding the “national
dialogues,” U.S. news headlines comment on elite Ukrainians being
engaged. At the same time, Russian Foreign Ministry spokesman Aleksandr
Lukashevich presses forward with a targeted narrative on the lack of
sufficient inclusivity in the dialogues. The political barometric pressure is
rising rapidly, and while the relative peace of the Presidential election is
promising, the long-term stability will require constitutional consultations
that are viewed widely as legitimate. In the post-election press
conference, the OSCE was careful to highlight constitutional “reform.”
Nevertheless, it remains plausible that all parties, including Russia, will
support a rushed process that does not address the concerns of all
Ukrainians.
When on 15 May 2014, I personally asked Secretary General (SG) Lamberto
Zannier of the OSCE whether there was room for a more involved
constitutional process, he left room for discussion, but he did not offer new
ideas. At the same time, he was careful to emphasize his working
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relationships with the Ukrainian elites,
and he was clear they should engage
on, if not direct, the entire process.
While that might be a convenient ideal,
the reality is that the voice of the
average Ukrainian is equally crucial,
and the Ukrainian elites are not a
substitute. International Donors are
well placed to convene truly inclusive
dialogues that re-knit the damaged
social fabric, de-escalate tensions
between competing elites and average
citizens, and foster rule of law.
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In 1998, I worked intensively with
OSCE on an analogous constitutional
consultation project in another context
in Albania. That constitution was the
first and only constitution for that
country in the post-Iron Curtain
context. It involved all major donors,
and it lead to a constitutional process that is discussed as a rule of law model. The
programmatic themes in Albania apply directly to Ukraine, and I believe international donors
have the opportunity to get in front of this issue and offer a preemptive rebuttal to critics that
may pronounce the current trajectory as designed to be exclusive, non-transparent, and possibly
even corrupt. In summary, I would suggest that we look at five programmatic themes:
PROGRAMMATIC THEMES
I. Public Consultations Fostering a Full Examination of the Relevant Issues
Given that constitutions are central to the foundation of a stable legal state, if a constitution
does not address the fundamental concerns of the citizenry, then the basis of the legal state
may be contested from inception, destabilizing legal relationships of all types. At its worse,
constitutional instability may cause conflict instead of the social cohesion and cooperation that
should be the overarching goal of the constitution-making process. The events leading up to,
and including, the April Geneva Agreement make clear we face this situation.
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While Ukrainian political representatives may be generally familiar with the concerns of their
constituencies, public consultations would allow them to verify the precise nature and extent of
these concerns, as well as open themselves to learning about new and emerging issues. When
new issues are brought to their attention in this manner, public consultations afford the
politician the opportunity to seek immediate clarification from the Ukrainian citizenry.
Moreover, consultations give politicians the opportunity to hear the concerns of citizens who are
not of their constituency, leading to greater overall awareness and understanding. This
expanded knowledge is essential to creating the conditions necessary for compromise, as well as
the foundation for a durable rule of law culture.
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II. Public Consultation Develops Local Ownership and
Political Will
Meaningful involvement of the Ukrainian citizen could create ownership
and pride in the constitution and attendant legal order. For involvement
to be meaningful, the Ukrainians must have the opportunity to be heard,
and they must see that their input has been taken seriously. This standard
does not mean that every suggestion must be accepted and incorporated as
submitted, but it does mean that there must be a transparent process that
demonstrates respect and consideration of differing views. The rule of law
does not mean one side always prevails, but it does mean that disputing
views are debated publicly in a fair, transparent manner.
As one might expect, if Ukrainian public consultations do not meet this
minimum standard, they risk alienating the population. However, if
properly executed, public consultations can create a sense of ownership
that encourages the population to embrace their new government,
leadership, and associated laws. With such support, the citizens
themselves become a powerful stabilizing force and anchor for a state
based on the rule of law.
Ukrainian grassroots ownership could thus create political support for both
the constitution itself and the implementing legislation that must follow
from it. Politicians can translate this support into “political will” to
address the difficult issues that will be the day-to-day work of any new
legislative body. Social media makes this accessible with relatively little
effort in today’s world, but accurate data requires expertise. New-Rule
partners have produced dynamic web-based consultative mechanisms for
international donors in other contexts, and New-Rule has confirmed with
these partners that they are prepared to launch such a platform in
Ukrainian, Russian, and English in short order.
The new Ukrainian constitution can, and should, establish the broad
outlines of the social contract amongst the various interests, but the
details of this agreement will require considerable additional legislation
and regulation. So, if this process of transition is to proceed as smoothly
and successfully as possible, the implementing legislation must enjoy a
similar level of public support, and local ownership is the sine qua non of
the that type of support. Once established for the constitution, the same
dynamic web-based platform and consultative process can easily carry over
to the realm of implementing legislation, solidifying reform.
III. Public Consultation Promotes More Effective Public Education
Though most constitution-making processes include public information
campaigns as a strategic component, these campaigns are frequently one-
sided in structure with government entities delivering information through
various media outlets. This approach in Ukraine would be particularly
problematic. A robust, inclusive discussion is important for the success of
the public education process.
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Moreover, there is considerable research and experience demonstrating that adults learn more
effectively when interactive methods are employed. In participatory constitutional dialogues,
even those who are not directly involved will likely feel more engaged and listen more closely
when they see a common citizen like themselves making a comment. New media makes this
accessible on a broad scale, and important constitutional discussions will undoubtedly “go viral.”
In addition, direct dialogues with the citizenry help those in charge of the process to identify
where more education or clarification is needed. Thus, even where one-way delivery of
information is involved, it too can be shaped and refined to be more effective based on the
experience of interactive dialogue. At the same time, the modern social media is only
accessible with a threshold of technology, e.g., smartphones, and low-tech, manual alternatives
should be visible and acceptable.
IV. Public Consultation Helps to Contain Conflict and Spoilers
Constitutions always reflect a difficult set of compromises that some elements in society are
likely to disagree with, and perhaps take advantage of, for their own divisive purposes. Public
consultations help to manage the containment of these potential conflicts in several important
ways:
1) Public Record: A participatory, transparent process creates a public record that is
difficult to distort for parochial purposes. If someone makes an exaggerated or
outrageous claim, the public will know that it is unsupported on the facts because the
public record will demonstrate that, and those who are attacked can find support and
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Public consultation
develops local
ownership and
political will.
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strength in the public record. This component is the bulwark against allegations of
corruption.
2) Open, Inclusive Process: The full involvement of the people in a participatory process
creates a political base that extends beyond simple political parties or groups. As
citizen involvement grows, it becomes increasingly difficult for anyone to withdraw
because to do so would jeopardize the ability of the individual or group to harness and
benefit from the growing reservoir of political goodwill. Simply stated, a successful
constitution-making process benefits all and makes the cost of leaving it high.
3) Publication of Consultations: Finally, even where someone or some group chooses to
exclude themselves from the process, the direct connection established with the
people during consultations provides a source of legitimacy that is not easily
compromised by isolated individuals and groups.
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To manage these activities, there is a manifest
need for a secretariat to support public outreach
and documentation of consultations. There are
many forms that this secretariat might take. The
bottom line is that the secretariat must beyond
reproach in terms of its commitment to
transparent and fair consultations. In turn, this
ultimate objective strongly suggests international
involvement in a manner that is perceived to be
neutral and inclusive of all perspectives.
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V. Public Consultation Strengthens the
International Position vis a vis Process
and Resulting Government
The OSCE is in a leadership role that benefits from its multilateral composition. However, the
OSCE does not have donor expertise and capacity in grassroots programming. In fact, given that
they are at about 50% coverage in terms of authorized positions, it is difficult to say they are a
nimble, or exclusive, implementer in this context. Citing the Albania collaborative model, I
believe there is strong precedent for international donors to seize the initiative on this type of
program in support of the OSCE. There are at least two very significant components to consider
in this regard:
1) Donor Assistance: The international donor community may be hesitant to provide
technical or financial assistance to a process that may be viewed as favoring a
particular political party or group’s ambition. However, when the assistance is for a
process that involves the public at large the appeal is broad, and it is less likely to find
concern in the international community.
2) International Legitimacy: A legal system and government that emerges from a
participatory process frequently enjoys greater international credibility because it is
viewed as reflective of the will of the people. If and when internal conflict may
return, the international support may prove crucial to a successful resolution of the
associated crisis.
International donor action in the appropriate manner can address both issues expeditiously. Of
course, I would be remiss if I did not also note that failure to engage will likewise leave
international donors open to criticism. In that regard, a properly calibrated engagement on the
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constitutional process is a best practice, and regardless of result, I believe international donors
would receive recognition for their responsiveness to the Ukrainian constitutional crisis.
CONCLUSION
Constitutional consultation issues are more easily, and technically, addressed in 2014 than 1998.
The tools available are exponentially more sophisticated. However, the approach that is
currently being discussed does not adequately reflect the new technology and the lessons
learned, and it appears destined to play into a negative narrative that supports secessionist
claims. When I started on a similar process in Albania in 1997, many predicted it would be done
in six months. One year and a half later, it was completed, and we still felt rushed throughout
most of the process. While I would not suggest that eighteen months is the current standard, I
would strongly urge that you engage to promote a constitutional process that is considered
meaningful in the context. I look forward to discussing any thoughts that you may have and
thank you for your time and attention.
POST-SCRIPT
At the end of May 2014, New-Rule circulated this Advisory Note as a memo with relevant
attachments, e.g., Dominik Tolsdorf, Constitutional Issues in Ukraine (USIP, May 22, 2014). Since
its distribution, response has been limited, but generally positive. The decision to publish this
note is based on a sincere desire to contribute to the advancement of human rights and rule of
law, which is under assault in Ukraine at the moment. All comments, concerns, and questions
about the text are welcome.
