KOSOVO: AHTISAARI-MANDATED CONSTITUTIONAL DRAFTING

C O N F I D E N T I A L SECTION 01 OF 03 PRISTINA 000764 SIPDIS SIPDIS DEPT FOR L, EUR/SCE NSC FOR BRAUN USUN FOR DREW SCHUFLETOWSKI EUR/ACE FOR BORIS USAID FOR E&E/ECA, MFOSTER; E&E/DAA, DATWOOD; E&E/DG, SFERTIG-DYKES E.O. 12958: DECL: 10/23/2017 TAGS: PREL PGOV KDEM KV SUBJECT: KOSOVO: AHTISAARI-MANDATED CONSTITUTIONAL DRAFTING PROCESS MOVES FORWARD REF: PRISTINA 503 Classified By: COM Tina Kaidanow for reasons 1.4 (b) and (d) ¶1. (C) Summary. A three day off-site planned for November 1-3 should see the culmination of seven months of intense discussions by the so-called "Pre-Constitutional Working Group" -- whose activities have been closely monitored and guided by USOP and ICO -- and result in a first rough draft of the Constitution of Kosovo. Of the many working groups created to manage Kosovo's anticipated transition from UN protectorate to independent state, the pre-constitution working group has been among the most successful. Notably, the working group has brought together key stakeholders, including a select, low-profile group of Serbs, representatives of other ethnic communities, and the ethnic Albanian political opposition, to ensure a product that can be supported by a broad spectrum of Kosovo society. The work of USG-funded American constitutional experts and of our own resident USAID legal advisor has been critical to the success of this undertaking. Continued close management of the process should result in an Ahtisaari-compliant draft constitution ready for expeditious adoption, though considerable work remains to be done to ensure the constitution is both internally consistent and fully harmonized with other Ahtisaari-mandated draft legislation. End Summary. Incorporating Ahtisaari ¶2. (C) A prior conference on the elements of constitution drafting, held in June in Skopje (reftel),was valuable in channeling the energy and efforts of the pre-constitution working group (note: the group is so designated in order to avoid charges by Russians, Serbs and others that its efforts pre-judge a status decision). Though work slowed in late summer, members of the working group began incorporating what they had learned at the June conference when the group reconvened in September, taking to heart the imperative to include key elements of Ahtisaari in their draft and to produce a document based on modern constitutional standards. Various sub-groups were created to flesh out chapters of a draft constitution; most sub-groups were active and responsible in convening throughout October, and sent forward the results of their work to the Working Group's secretariat, where the contributions have now been compiled in rough form. That compilation, which is not yet fully complete nor of standardized quality, will be the basis for further work at the November 1-3 off-site. International Assistance 3.(C) USOP and USAID have provided crucial assistance in the drafting process by bringing in constitutional experts from the U.S. and by shepherding the Working Group's activities in an organized and focused manner. USOP, together with ICO PT, also helped to broker the agreement between the largest Kosovo political parties that finally provided clear guidance to constitution drafters on the division of power among the executive, legislative and judicial branches of government. Fortuitously, the same U.S. experts who participated in the Skopje conference last June will be able to attend the November event. Judge John R. Tunheim, a federal district judge from Minnesota, Christie Warren, Professor of Law at the College of William and Mary, and Louis Aucoin, Professor of Law at the Fletcher School of Tufts University, will provide a broad base of knowledge and experience upon which the Kosovar drafters can draw. Tunheim will arrive a week before the off-site and remain afterwards for several days to help guide the text harmonization process. His participation in the June conference was key, and he will likely provide the main focal point as the various pieces of this document are knit together over three days. PRISTINA 00000764 002 OF 003 ¶4. (C) Additionally, ICO is bringing in European constitutional expert Thomas Markert from the Council of Europe's Venice Commission (the body responsible for evaluating constitutional standards within the European context). Markert was in Skopje in June and worked well with U.S. experts. Another noted international constitutional expert, South African Roelf Meyer, visited Pristina in early October under the auspices of the private Rockefeller Brothers Foundation; Meyer told USOP that he was impressed with the work done so far and that he would remain available to engage in the future if an appropriate opportunity arose. (Note: The Working Group will send Meyer, along with other international experts both in Kosovo and abroad, the draft constitution for review and comment after the November off-site produces a consolidated product. End Note.) Opposition and Minority Participation ¶5. (C) The Pre-Constitution Working Group, headed by Hajredin Kuci (a senior level official in the opposition PDK party), has functioned more smoothly than many of the other transitional working groups, with valuable engagement from all political stakeholders, including representatives from the Serb, Turkish and Bosniak communities. Serb participation, given pressure from Belgrade and from the hardline Serb leadership in Kosovo, has of necessity been low-key, but nevertheless consistent. Prior to setting the dates for this off-site, USAID and Kuci reached out to Kosovo Serb leaders from both the Serb-majority north and the southern enclaves to encourage them to participate, and several agreed, in principle, to do so. However, given the political sensitivities surrounding upcoming Nov. 17 Kosovo elections (and the vehement Serb boycott proclaimed by Belgrade) it remains unclear which representatives will in fact attend. Confirmation has been received from current PISG Minister of Communities and Returns Branislav Grbic, who will attend with two additional members of his New Democracy Party. Additionally, a briefing for all Serb party representatives will be offered after the conference to elicit comments and additional input. Public Roll-Out ¶6. (C) Mindful of the ongoing Troika talks and the need for a status resolution in advance of public discussion of a constitution, the Working Group has been careful to avoid publicity and open discussion at this stage of its work. Nevertheless, a comprehensive plan for rolling out the draft constitution exists. The working group, or "commission" as it will be called post-status, will have a website which will make available the text and other supporting material for public review and comment. A broader public awareness campaign will be launched at the appropriate time, and USAID implementer National Democratic Institute (NDI) is also ready to launch a program to help disseminate information and answer questions about the constitution. Comment ¶7. (C) We have been pleased with the progress of this working group, made possible in large part by the vigorous engagement of our USAID Kosovo legal advisor and U.S. constitutional experts. Ample credit should also be given to the leadership of Hajredin Kuci, who despite his position as vice president of the main opposition party has created a collegial and politically-neutral atmosphere in the Working Group. The goal of the early November off-site is to create the first draft of a Kosovo constitution that can be vetted with key international stakeholders and -- later, when status is determined -- swiftly rolled out for public comment, requiring only final editorial touches before being moved to the Assembly. Considerable work remains to be done, however, PRISTINA 00000764 003 OF 003 not only in making the text internally consistent, but in harmonizing the constitutional draft with all other Ahtisaari-related draft legislation, not all of which has yet been produced by the relevant transition working groups. We and the ICO continue to work on all fronts to push these items forward and ensure that the bulk of the constitutional and legislative drafting is done by month's end. End comment. KAIDANOW