The Role of International Experts
in Constitution-Making:
Myth and Reality

Louis Aucoin

The creation of new governments in Afghanistan and Iraq has drawn U.S. media attention to American experts who have ventured to these war-torn zones to counsel indigenous actors drafting new constitutions. Some of this attention has fostered the misconception that a pool of entrepreneurial experts travels the globe writing constitutions for recipient populations perceived as incapable of accomplishing the task themselves. A New York Times article entitled, "Constitutionally, a Risky Business," asserted that the challenge of constitution-making "has produced a cottage industry of constitutional consultants."1 The article highlighted the role of American scholars in particular, asserting that they "tend to dominate the constitution-advice business" and "are often seduced by the mythology of their own constitution…as a document that can and should be reproduced around the world."2 In discussing the science of constitution-making, the author did include dissenting expert opinions. Nevertheless, such nuances are likely lost to a patriotic reading public predisposed to believe the myth of U.S. experts, acting as modern day James Madisons, recreating models of Jeffersonian democracy across the globe.

This myth stems from a trend in constitution-making prevalent during the period of decolonization, when colonial powers played a dominant role in creating independence constitutions, particularly in Africa. This method of constitution-making has become deeply resented; many see it as contributing to the failure of the political regimes it created. The chairman of Eritrea's Constitutional Commission from 1993 to 1996, Bereket Habte Selassie, explains bluntly: "In the 1950s, Europeans summoned African leaders from twenty-five to thirty countries to capitals like London, Paris, and Brussels and shoved constitutions down their throats."3 The lingering memory of this post-colonial phenomenon has led to a general resistance to foreign involvement in the constitution-making process. This is evident currently in Afghanistan and Iraq, and may well explain why foreign advisers were largely shut out of the South African process during the three years prior to the adoption of its 1996 constitution. This legacy also explains the distance that sometimes characterizes relationships between local and foreign advisers involved in constitution-making.

Foreign advisers play a dramatically different role in modern constitution-making than the myth suggests.

Louis Aucoin is Associate Research Professor at the Institute for Human Security at the Fletcher School, Tufts University.