We use the term “foreign adviser” broadly to mean any international actor who supports the administrators, managers, or constitution-makers in planning and carrying out their tasks, regardless of whether such actors serve as mentors, technical advisers, or substantive advisers on the content of the constitution.
Why are foreign advisers needed? Preparing a constitution is not an everyday event. In some countries few if any local actors may have ever participated in or witnessed a constitution- making process; local actors may have little or no experience with governance, and professionals may have fled the conflict. Foreign advisers have played effective advisory and mentoring roles in many such contexts and have assisted with a variety of tasks, including sharing their comparative constitutional experience on how to structure the process, the content of the constitution, setting up websites, information technology systems, and financial systems, supporting the running of large assemblies, coordinating security, and observing electoral processes. Here we focus mainly on the roles of advisers other than those with expert specialist knowledge of constitutional issues and the drafting of the constitution whom we categorize as “experts” (adopting a term for such persons used in a number of processes). We discuss “experts” (local and foreign) in part 3.4.1.
Ideally, the foreign adviser will not simply take over a position but also serve as a mentor to appropriate counterparts, helping them develop the capacity to do the job. However, this requiresthe foreign adviser to have not only skills in transferring knowledge, but also a good understanding of the local context (history, culture, and so on)—and not all do. Moreover, for foreign advisers to succeed, they should view the transfer of knowledge as a reciprocal process, and so should not just read books and papers to research the historical, political, and cultural contexts in which they are working (many do not even do that) but should also seek assistance from the national staff they work with in an effort to better understand local context and how it may best be taken into account to improve the effectiveness of their work.
Avoiding common pitfalls of using foreign advisers
When foreign advisers are involved, careful planning is required to avoid common problems. Some foreign advisers have been inexperienced, have provided advice that did not suit the context, have taken over the jobs of national actors without developing local counterparts, have pushed the agendas of their home countries, or have advanced their own personal interests. In this section, we discuss some practical tips for avoiding these pitfalls.
Before hiring or accepting foreign advisers or mentors, managers should ensure that local knowledge and expertise are harnessed by the local constitution-making bodies. It is best to determine needs through the strategic planning process and request the types of foreign advisers, if any, that will further the process. Such advisers have ranged from experts on analyzing public consultation views to graphic designers.
Some countries do not attract much international attention, and if foreign advisers are needed they must be requested. But in higher profile processes, embassies or international organizations are usually keen to provide advisers. Before accepting assistance, the constitution-makers should determine whether the foreign adviser or mentor will be viewed as an unacceptable foreign intervention in the process—in particular by spoilers. In some contexts, the international community is viewed as having caused the conflict. If the context is sensitive, all foreign advisers (or those from a particular country) may be refused, or other measures may be taken, such as having the advisers sit separately from the constitution-makers or even answer questions via the Internet or telephone.
The constitution-making body may be able to select and budget for its own foreign advisers. However, they can be costly. Embassies or other international actors will sometimes offer advisers at their own expense. In this case, the constitution-makers or managers should request to see the qualifications, evidence of experience, and references of the proposed advisers, or else suggest their own. Managers will have to be diligent in seeking out the right types of advisers. To give an example relevant to the category of experts (discussed more in part 3.4.1), if advice is needed on an issue such as federalism, Western countries tend to offer only Western advisers, from countries such as Australia, Canada, Germany, or Switzerland, when experts from India, Malaysia, Nigeria, or elsewhere may be more relevant or better qualified. There should be a trial period to see if the foreign adviser is well suited for the task at hand and fits the context.
To ensure that managers and advisers both understand what is expected, the foreign adviser or mentor should be provided with clear information about tasks, length of trial period and employment, reporting lines, expectations of confidentiality, and the like. If the adviser is being seconded from an international agency or organization, it will be important to be clear about who will manage the foreign adviser and to whom he or she will report.
It is essential that foreign advisers understand the context in which they are working—both the historical and the cultural context—and also the aspects of culture that can affect working life and relationships where absence of understanding and sensitivity can lead to misunderstandings and conflict in the workplace. Ideally, the foreign advisers selected should be persons who already have an extensive knowledge of the country in question, or have worked in countries with similar circumstances. If the only ones available have little or no knowledge of the local context, the foreign advisers should be briefed. A packet of reading material illuminating the local history, politics, and culture—or at least a reading list—should be put together. If there is a group of foreign advisers, it might be possible to arrange a briefing seminar. Neither the host country nor the advisers should feel that this is inappropriate; ignorance or biased knowledge derived from casual conversations with interested actors will not enhance the contribution of the experts.
Ideally, foreign advisers will be accountable to and report to the national managers of the constitution-making process. There should be a duty of confidentiality if they are advising on sensitive matters, and the advisers should sign a contract to this effect. In one instance, a constitutional adviser helped with a sensitive process, and then upon returning to his academic institution wrote an article divulging information that endangered the process.
It may not always be possible to find an adviser with both the necessary expertise and the relevant language skills. The adviser should be offered the necessary translation or interpretation services (see part 2.3.9) and whatever material resources are needed, such as a cell phone, computer, desk, transportation, and housing.
When managed properly, foreign advisers have played effective roles in many contexts and have assisted with a variety of tasks. In general, foreign advisers who have been effective:
- had relevant experience in a number of diverse constitution-making processes;
- were good listeners and humble and remained in the background;
- either knew the local context well, or learned and worked closely with and respected those who did;
- did not advise on issues or aspects of the process for which they were not qualified, and helped find qualified advisers when necessary;
- supported a nationally owned and led agenda without attempting to take over the process or take credit for the official work of the constitution-makers (as one South African noted, “if I had a dime for every international who has claimed to write the South African constitution I would be rich”);
- emphasized the development of national actors rather than always doing the task themselves; and
- remained engaged in the process over the long term (although sometimes it is helpful for specific experts to fly in for a short time to advise on a specific issue or problem or assist with a discrete task). In some processes, foreign advisers have remained in-country or have returned regularly to work closely for years with the constitution-makers, managers, and staff members turned implementers.