Ebrahim, the maker of constitutions from Marabastad to Mogadishu

COMMENT

Hassen Ebrahim, whose book From Marabastad to Mogadishu: The Journey of an ANC Soldier will be launched on Sunday, has for two decades advised and counselled on the constitution-making experiences of a number of post-conflict countries.

As a veteran of the South African constitution-making process, and intimately involved in the negotiations over both process and substance, he has been well placed to do so. South Africa’s constitution-making process was no less than the peace talks to end the civil war and to terminate the divisive system of racial oppression.

But apart from the successful outcome of that process, and its much admired textual formulations, there are many reasons the process and its accompanying debates, have provided lessons, guidance and tools for conflict resolution in other settings. Indeed, the text itself may be the least transferable aspect of any foreign constitution.

The making and adoption of a constitution is the quintessential act of sovereignty. Constitutions can’t be borrowed or imposed. Countries embarking on the privileged path of framing a new social contract between its people have a duty to produce the best answer to the challenging dilemmas, serious fault lines, and hard social political and economic choices they have to make. In doing so they are equipped with the universal human capacity to find and agree the best arrangements by which a country’s diverse citizenry can live together in harmony, and in the knowledge that all citizens share a common destiny.

Only the country, through it’s chosen democratic method — not foreigners nor academics nor lawyers — can properly place the high stakes problem-solving in its historical, cultural, economic and political context. But it is precisely the domestic actors who are limited by their imaginations, imaginations which, in my experience, are almost always held hostage by national history, sectional perspectives, culture and traditions (including intellectual traditions) — the very same considerations that are the domestic actors’ strengths.

Here then is the role that Ebrahim has so carefully and diligently sought to play — it is to broaden the imagination, expand the toolbox of those whose responsibility it is to fashion a new durable, equitable and effective social contract — and to do so without usurping the domestic actors responsibility to make the right choice. This can be done in the face of a much broader set of policy and constitutional choices. In such an exercise, underlying logic, political consequences and lessons from successful examples and failures are more important than textual prescriptions.

This was our approach in South Africa — a shameless capacity to borrow in search of the best, rejecting inappropriate models and always aspiring to fashion the finest constitution for the country.

To understand the context in which the South African experience became a “go to” model, the 1990s witnessed a renaissance in an interest in constitutionalism and constitutional reform, notably as a means of recrafting the social contract in post-conflict countries. This interest drew its inspiration from the rather obvious observation that constitutions in conflict countries no longer represented a social contract that could manage the divisions in those countries. Indeed, they were often the cause not the solution to problems of regional- or identity-based exclusion and discrimination.

The earlier wave of constitutionalism, notably in Africa, had been driven by colonial ruptures and had been concerned to establish independence from the colonial power. Ironically, they were often modelled on the constitution of the colonial power, establishing winner takes all systems that assumed, with the connivance of domestic elites, the homogeneity of the population of the former colony. But the colonial boundaries had been arbitrary and the colonial experience would exacerbate linguistic, religious and regional divisions.

A veneer of multiparty democracy had only confirmed mono-ethnic dominance — and incentivised ethnic mobilisation and patronage, and group- rather than interest-based politics. Political power harnessed all economic opportunity and the result was permanent economic and political exclusion for identity-based minorities.

The 1990s saw a real attempt in Africa to deal with this — through representivity requirements, proportional representation, decentralisation, presidential term limits, entrenchment of electoral fair practice rules, guaranteeing respect for minorities without privileging any specific group, and even (until more recently discredited) legislative and executive power-sharing arrangements. South Africa served initially as a template for this approach — termed more broadly as an attempt to prioritise “inclusivity” into constitutional arrangements.

Ebrahim has been especially capable of driving home the importance of inclusivity. He has done this as an international adviser inside and outside the United Nations. He has done so in the difficult settings of South Sudan, Somalia and in other non-African settings, wrestling with ways to overcome tribal, clan and religious divisions while simultaneously building accountability to the “people” in a responsive democracy built on respect for human rights.

But if inclusivity was an important feature in the text of more sustainable constitutions (the “what”), then it needed to feature also in the approach to constitution-making (the “how”).

If people are to celebrate a constitution, or more importantly defend it, they will do so only if they feel that it speaks to their concerns, and that they had a hand in its making. Here Ebrahim has been more than a diligent scholar. He is a leading and internationally recognised practitioner, having managed the public outreach dimension of constitution-making for the South African Constitutional Assembly. The challenge is how to encourage citizens to participate in making their own constitution, the basic document that codifies the values to which they aspire; and how to do so in an exercise that was not a public relations sham. The answer lay partly in encouraging popular submissions but also in reflecting back to the public what they have said in their public submissions and in indicating how these submissions were dealt with.

Finally, Ebrahim has always encouraged a practical and realistic assessment of the constitutional project, be it reform, amendment or renewal. It is important to recognise that the constitution-making project is a divisive and even a potentially violent exercise. It disaggregates citizens and forces difficult debates between citizens and groups of citizens. Constitutional exercises force a reckoning with the past. It cannot be otherwise. What this means is that careful attention must also be given to the simultaneous potential for this exercise to build the nation, create opportunities for a rebirth and a consecration of shared national values, especially where conflict has left a legacy of bitterness and resentment. On this Hassen has been a thoughtful and committed counsellor. His book is a journey down the pathway of nation building.

l Hassen Ebrahim will be in conversation with Independent Media’s foreign editor, Shannon Ebrahim, at the launch of his book on Sunday December 8 at 2.30pm at the Al Ghazali Hall, 421 Van Leenhof Street, Erasmia, Pretoria. The keynote address will be delivered by the minister of public enterprises, Pravin Gordhan.

Nicholas “Fink” Haysom was the chief legal and constitutional adviser during Nelson Mandela’s presidency. He is the UN secretary-general’s special envoy for Sudan and South Sudan and was special representative of the UN secretary-general for Afghanistan, director for political, peacekeeping and humanitarian affairs in the office of the secretary-general, and head of UN constitutional support for Iraq