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.

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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,

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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