External support to constitution-building: Some reflections based on the engagement of German actors in Africa

Johannes Socher

Johannes Socher is the Academic Coordinator at the RefLex Centre for Advanced Studies based at the Law Faculty of Humboldt-Universität zu Berlin and a Fellow at the Institute for International and Comparative Law in Africa, Faculty of Law, University of Pretoria. Between 2020 and 2021, he advised the German Federal Foreign Office on its engagement in rule of law and constitutional assistance in fragile contexts.

In the first chapter of Constitution-Building After the Arab Spring: A Comparative Perspective (CUP 2025), Francesco Biagi observes that the role of external actors in post-Arab Spring constitution-making processes was quite limited. In several countries, the exclusion of these actors in drafting the constitutional reforms “also had to do with the willingness to preserve the State’s sovereignty, as well as the diffidence toward foreign (especially Western) intervention” (p. 48). There were, however, exceptions, in particular the Tunisian constitution-making process of 2011–2014. Here, Biagi suggests that the drafters’ interest in foreign input can probably be explained by the desire that the new constitution would also be accepted by the international community (pp. 49–50).

If one shifts the scope of analysis from the Arab countries in the region to the African continent, the sometimes-heavy involvement of external actors turns out to be the rule rather than an exception. In their recently published mapping of 730 constitutional advising projects in 145 countries around the world, Hanna Lerner and others identify Africa as the leading region globally in terms of direct external intervention in constitution-building efforts, with international actors present in almost every substantive constitutional reform process on the continent since the so-called third wave of democratisation of the 1990s.

This blog post offers some reflections on this external support. It will show that a systematic understanding of the phenomenon has been limited so far. While a burgeoning scholarship has started to reflect on and develop frameworks to analyse the role of external actors in constitution-building processes, challenges with obtaining empirical data from the ground or making it available to the public make it difficult to get an understanding of the phenomenon that goes beyond the anecdotal. Given that I am most familiar with the support of German actors (who, according to the above-mentioned study by Lerner and others, form the second largest group globally, followed by external actors based in the United States), German examples will be used to illustrate a much larger phenomenon.

German actors engaged in constitution-building in Africa

For an overview of the different external actors engaged in the numerous recent or ongoing constitution-building processes in Africa, it is helpful to differentiate between the donors funding this support and the institutions and individual experts directly providing this support. In most cases, donors are governments that support constitution-building processes as part of their broader engagement in rule of law assistance and development cooperation. This is also the case for the German government, whose policy on crisis prevention defines constitutional assistance as a focus area.

Actors that are directly involved in constitution-building can be grouped into different sub-categories. First, academic and research institutions such as the Heidelberg-based Max Planck Foundation for International Peace and the Rule of Law, with projects in many African countries, particularly in West Africa and the Greater Horn of Africa. Second, non-governmental organisations and political foundations like Democracy Reporting International, Friedrich Ebert Stiftung or Konrad Adenauer Stiftung, with the latter running a dedicated rule of law programme for Sub-Saharan Africa. Third, the German governmental organisation Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ), which has also supported constitution-building efforts in some African countries as part of its wider engagement in promoting the rule of law on the continent.

In addition, Germany is a member of a number of intergovernmental and international organisations providing external support to constitution-building processes. Germany is a member of International IDEA and has supported many United Nations efforts to assist constitution-making processes after conflict or during transitions from authoritarian rule. For example, the UN Support Mission in Libya had the explicit mandate to “assist and support Libyan national efforts to (…) undertake inclusive political dialogue, promote national reconciliation, and embark upon the constitution-making and electoral process”.

Often, many external actors are simultaneously engaged in the same process. For example, the peace process that eventually led to the initiation of a constitution-making process in South Sudan in 2022 was led by the Intergovernmental Authority on Development (IGAD), a regional organisation consisting of eight Eastern African countries, which has supported a number of constitution-making processes in the region. In addition, IGAD has been supported by the Max Planck Foundation, with funding from the European Union.

Types of external support

Different typologies have been proposed to distinguish different forms of external support to constitution-building processes. For example, in one of the few early attempts to systematise the phenomenon, Philipp Dann and Zaid Al-Ali have suggested a classification by the degree of external influence. In another contribution specifically on Africa, Dann has suggested further differentiating between the different phases of engagement: capacity-building measures for future constitution makers and other stakeholders; technical assistance in an ongoing drafting process; and support with the implementation of existing constitutions.

If one applies this typology to the many projects that have been implemented by German actors in Africa, it becomes clear that the involvement of external actors normally takes place before or after the constitution-making process, but only rarely while a new constitution is being drafted. For example, the Max Planck Foundation’s engagement in Africa has ranged from targeted ad hoc support such as organising an academic conference on the progress with implementing Zimbabwe’s constitution to comprehensive long-standing engagements aimed at different stakeholders involved in the constitution-building process in Sudan, South Sudan and Somalia. However, only in the latter case did it include active support for the drafting of constitutional provisions. 

While classifying these different forms of support helps to systematise the different ways in which external actors support constitution-making processes, it does not explain different approaches to this support. Policies and strategies issued by these actors give some indication in this regard. The German government’s Strategy for Rule of Law Promotion, for example, takes the United Nation’s understanding of the rule of law as the starting point for its support, but also highlights Germany’s own legal and constitutional tradition. Being mindful of “different legal traditions and understandings of the rule of law in each cultural context and partner country”, the Strategy notes that “specifically German expressions of the concept of the rule of law, for instance in administrative or constitutional jurisdictions, meet a great deal of interest in many partner countries”. The Max Planck Foundation, by contrast, highlights its comparative perspective and stresses political neutrality and impartiality as guiding principles for its work.

Limited empirical knowledge

While an abundance of guidance on constitutional assistance exists, sometimes even with an explicit focus on the role of external actors, empirical knowledge about the factors relevant to the success of this assistance is limited. A major reason for this is a small evidence base of experiences from the field that goes beyond the anecdotal and cuts across different projects and contexts. While donor-led evaluations exist, the findings of these assessments are often not accessible to the public. For example, the German Federal Foreign Office has recently tasked an evaluation firm to assess the German government’s global engagement in constitutional assistance, but the findings and recommendations were not made publicly available. This is also the case for an earlier evaluation of the German government’s support to constitutional review bodies (although I was at least able to report and further analyse the findings in relation to the Constitutional Court of Mali).

It is arguable that this difficulty with obtaining empirical data from the ground or making it available to the public is partly the reason why a community of practice has not yet emerged. It is therefore interesting to observe an increasing interest in the role of external actors in constitution-building processes over the past five years or so among scholars and experts despite these challenges. Among this burgeoning literature, a recently published report with Cheryl Saunders as lead author stands out (for further noteworthy examples, see the contributions by Sumit Bisarya, Katrin Seidel and Elisabeth Perham). Based on a comprehensive literature review supplemented by expert interviews and a rich set of practical cases, the Saunders report proposes a framework to assess the effectiveness of external constitutional assistance that is not confined to the evaluation criteria developed in international development cooperation.

Factors determining effective support

The first factor relevant to the effectiveness of external support identified in the Saunders report is “national ownership”, which can be understood in two ways: “thin” in the sense of local rather than external ownership, or “thick” in the sense that the support is not limited to political leaders or excludes women, minorities, or political opponents in the constitution-building state. While the importance of national ownership is consistently also highlighted in the guidance mentioned earlier, a “thin” understanding nevertheless seems to prevail in many cases in which the primary targets of support are elites and stakeholders close to the state (see, e.g. here for an example from South Sudan where the external support primarily helped advance the interests of already dominant local actors). 

The second factor concerns the “quality” of the assistance, which the Saunders report defines as the external actor’s breadth of comparative knowledge, methodological capability, cross-cultural and interpersonal skills, integrity, understanding of context and responsiveness to it. It also entails coordination with other external actors to avoid the risk of duplication and to limit the likelihood of mixed messages. While the importance of the latter aspect is again routinely stressed by external actors, it is nevertheless a common criticism in assessments of their work (see, e.g. here for an example from Mali where different external actors failed to sufficiently coordinate their support to the Constitutional Court).

The third factor determining the effectiveness of external support is “added value” which, according to the Saunders report, is given “when it offers something that cannot be done locally or makes local processes more efficient and productive”. Apart from obvious instances such as the provision of infrastructure that would otherwise be lacking in the absence of local capabilities and resources, the report also mentions the provision of specialised expertise in mediation, negotiation, and peace-building in this context. The report furthermore highlights that attempts to agree on a new or revised constitution may only be a short-lived gain or even counter-productive in a broader peace process (see, e.g. here for an example from Sudan where the development of model constitutional provisions to prepare stakeholders for the drafting of a permanent constitution was arguably premature).

The final factor identified in the Saunders report concerns “reception and weight”, by which the authors understand the extent to which local decision-makers are open to external support for a constitution-building process and how useful this support is perceived by them. Conversely, the report also stresses in that context that there might be circumstances in which external support should not proceed. “External support can give credence to processes and leaders where this is not warranted”, the report rightly notes (see, e.g. again here for an example from Mali where the support to the Constitutional Court was continued after it had issued a decision legitimating a military coup).

Towards a community of practice?

The role of external actors in constitution-building processes is increasingly also reflected by these actors themselves. For example, the South African constitutional expert and longstanding member of the UN Mediation Support Standby Team Christina Murray has recently reflected on her own role as a member of the Committee of Experts in the constitution-making process in Kenya in a contribution for an edited volume. While the points Murray raises would be worth discussing in more detail, what is most important here is that they are articulated explicitly, thereby making the details of her role transparent and thus open to public debate.

On the other hand, the general challenges with obtaining empirical data from the ground remain, at least for those who have no privileged access or insider knowledge thanks to a personal involvement in a constitution-making process. Therefore, as long as an arcane culture persists among donors and other external actors involved in constitution-building processes, it will remain difficult to get a systematic understanding of the phenomenon that goes beyond the anecdotal.

Johannes Socher is the Academic Coordinator at the RefLex Centre for Advanced Studies based at the Law Faculty of Humboldt-Universität zu Berlin and a Fellow at the Institute for International and Comparative Law in Africa, Faculty of Law, University of Pretoria. Between 2020 and 2021, he advised the German Federal Foreign Office on its engagement in rule of law and constitutional assistance in fragile contexts.

Suggested citation: Johannes Socher, ‘External Support to Constitution-Building: Some Reflections Based on the Engagement of German Actors in Africa’, IACL-AIDC Blog (8 October 2026) External support to constitution-building: Some reflections based on the engagement of German actors in Africa.