Constitution-building is intertwined with peace processes. Read our key findings below.
Constitution-building refers to processes for negotiating, drafting and implementing constitutions. This can be carried out as a tweaking and amending of the existing constitution, or by designing new constitutions. In collaboration with our partner organisation International IDEA, PeaceRep has been working to understand how constitution-building is intertwined with peace processes.
Peace agreements may include a constitution, such as the Dayton Peace Agreement in Bosnia Herzegovina, which included the text of a new constitution for Bosnia in Annex 4. Peace agreement can also be a constitution, such as the Interim Constitution in South Africa in 1993. Even when a constitution is not drafted as part of the peace agreement, peace processes often require constitutional reform or constitution-building as a part of the peace process, and many peace agreements provide for constitutional reform (Bell et. al, 2017).
Issues of sequencing of constitution-making within peace processes vary with four main sequences:
1) Partial peace (or ceasefire) agreements (not including transitional political arrangements) lead to a final constitution or a fundamental review of the old constitution
2) Transitional political arrangements (either in a peace agreement or a stand-alone document) lead to a final constitution
3) An interim constitution, perhaps preceded by a peace (or ceasefire) agreement, fulfils the role of a peace agreement and sets the stage for a final constitution
4) A combination of (2) and (3), whereby transitional political arrangements are followed by an interim constitution, which precedes the final constitutional drafting stage (Bell and Zulueta-Fülscher, )
Sequencing political settlement processes matters for successful transitions from conflict to stable constitutional order. In some cases, staged constitution-making processes are necessary. Constitution-making processes require public participation but also sufficient elite buy-in to build a political settlement. There is a need to think of wider strategies to support the constitutional discussions and pressures to ensure the agreement-seeking process continue (Ellis, 2018)
Constitution-building processes and electoral processes can interact in positive and negative ways. Elections can legitimise bodies involved in constitution-making and can add further checks and balances on executive power when legislative bodies are elected. However, unfair, poorly designed or badly designed referendums elections may also create new political tensions, making constitution-building efforts more difficult (Underwood, Bisarya and Zulueta-Fülscher 2017). Interim constitutions might give more time to local stakeholders for elections to be held and/or for the new constitutional dispensation to be drafted and adopted (Zulueta-Fülscher and Bisarya, 2018).
The use of referendums in processes of constitution-building in (post-)conflict countries has markedly increased in recent decades. ‘Constitutive referendums’ are used to create new states and/or new constitutions (such as in South Sudan in 2011). ‘Contained constitutional referendums’ are used to amend constitutions (Rwanda in 2015) (Tierney 2018).
Peace negotiations should only opt for a referendum with a clear idea of what a referendum does and the crucial role it can play in legitimizing a constitution, underpinning its sovereignty and helping to frame constitutional identity. A referendum can also have the converse effect, where the result is not in favour (Tierney 2018).
When thinking about the type of constitution-making bodies (CMB) that will be in charge of both the drafting and adoption of the new constitutional framework, stakeholders should consider a number of key issues. Where external commissions are used in conjunction with existing legislatures, they are usually paramount in determining the overall legitimacy of the process and the content of the constitution. Their composition must therefore be carefully considered to make it inclusive of all major interests (Zulueta-Fülscher and Bisarya, 2018).
When deciding on the specific type of CMB, decision makers need to bear in mind particular issues deriving from the fact that the CMB might or might not have to conduct day-do-day legislative tasks. Furthermore, defining the relationship between the CMB and the regular legislature will be the key to avoiding power disputes between both institutions (Zulueta-Fülscher and Bisarya, 2018).
Decision makers should also bear in mind that, in those cases where the CMB has been specifically elected for the drafting and adoption of the new constitutional framework, ratifying referendums are rare and the urgency to hold general elections immediately after adoption is diluted (Zulueta-Fülscher and Bisarya, 2018).
Sometimes where a peace agreement provides for territorial power-sharing, it also provides for a sub-state constitution (Zulueta-Fülscher and Welikala, 2017; Wise, 2018). Our work on sub-state constitution-making demonstrates the importance of ‘constitutional space’ as provided for in the central or federal constitution; and the substance of sub-state constitutions, including how they may protect ‘new minorities’ and account for local level governance (Zulueta-Fülscher and Welikala, 2017).
The right to produce a substate constitution does not necessarily equate to more autonomy. The level of autonomy of substate entities will be defined in the central-state constitution, or sometimes in peace agreements and/or transitional political arrangements. To give substate entities enhanced ownership, the central-state constitution should allow substate institutions to adopt/promulgate the substate constitution as much as possible, as well as to initiate and enact substate constitutional amendments, while developing a procedure for an independent body to ensure compliance with the central-state constitution (Zulueta-Fülscher and Welikala, 2017).
Interim constitutions represent a form of ‘political settlement’ that seeks to disincentivise armed conflict as a means of pursuing political goals. The adoption of an ‘interim’ constitution and/or some form of transitional framework is one possible way of resolving the tension between fluidity and order, and contributing to sustainable peace (Zulueta-Fülscher, Welikala, Bisarya and Bell, 2014).
Interim constitutions have the potential to facilitate consensus over time, cultivate culture of participatory constitutionalism and address sequencing issues regarding elections and institutions to implement constitutional frameworks. The international community has a role to play in the development of interim constitutions. It can return the governing control to national actors and can serve as guarantor of the process thus potentially lending it more respect and increasing likelihood of implementation (Zulueta-Fülscher, Bell, et.al. 2015).
It is important to understand and manage the ways in which constitution-making happens in an iterative process, incrementally over time, where interim arrangements can become ‘sticky’ and create pathway dependencies that are hard to break free from (Zulueta-Fülscher, Welikala, Bisarya and Bell, 2014; Bell et. al, 2017). The constitution may have to be tweaked or replaced to establish interim governance arrangements, which itself form mini-constitutional frameworks to govern the transition (De Groof, 2019).
Constitution-building & security
Security sector reform, democratization and constitutional reform are intrinsically linked. The constitution-building process can therefore provide a critical forum for negotiations over changes in the relationship between civilian and security sector institutions (Bisarya and Choudhry, 2020:6).
Analyse the context: The parameters of the potential interactions between constitutional reform and security sector reform will to a great extent be determined by context. Key considerations will include the state of the security sector at the moment of transition, the leverage of security sector agencies in negotiations, the critical interests of security sector leaders, including economic interests, criminal accountability and normative values, and how security sector agencies are represented in political negotiations (Bisarya and Choudhry, 2020:6).
Separate civilian ministries staffed by professional bureaucrats and led by a cabinet minister should be established for each security sector agency, to ensure political responsibility, direction and accountability for the actions of the security sector, while at the same time to serve as an institutional buffer that protects the security services from partisan abuse (Bisarya and Choudhry, 2020:6).
In addition, consideration should be given to constitutionalizing the oversight powers of parliament – for example, through mandatory reporting – and to the establishment of independent oversight bodies, such as a National Police Service Commission. The composition of such bodies should be inclusive of civil society representatives and broadly representative of the population (Bisarya and Choudhry, 2020:6).
The constitutional and legal framework must clearly distinguish the different roles and institutional architecture associated with different security agencies. For example, the military should be responsible for national defence and the police should be responsible for law and order (Bisarya and Choudhry, 2020:6).
National Security Councils can be critical bodies for coordinating security, sharing intelligence and enabling whole-of-government responses to threats, but their composition should include a civilian majority to maintain democratic accountability. Careful thought should be given to balancing the need for confidentiality with the establishment of adequate procedures for oversight (Bisarya and Choudhry, 2020:6).
Most constitutions provide for states of emergencies, during which security sector agencies may be given expanded roles beyond their usual mandates, and with less oversight. These provisions should be drafted clearly and with sufficient detail to avoid ambiguity and should include maintaining an oversight role for the legislature throughout the emergency (Bisarya and Choudhry, 2020:7).
Where possible, establishing principles and parameters in the constitution can be a powerful first step in strengthening the chances of extensive security sector reform, while the details can, and often should, be left to legislation (Bisarya and Choudhry, 2020:7).
Militaries in non-democratic regimes may often have significant economic interests (e.g. commercial activity, salaries, patronage networks), which they seek to protect during the transition. Constitutional reform may jeopardize these interests. Careful thought should be given to the impact of constitutional reform on these economic interests from the very outset (Bisarya and Choudhry, 2020:7).
Constitution-building & gender
Constitutions form the fundamental legal document in states where they exist, and will usually have priority over ordinary legislation. They provide an interpretive lens through which legislation will be applied, and set the tone for law-making generally. Women and minorities can anchor rights claims and legal claims against discrimination in constitutional language (Suteu and Bell, 2018:1).
Constitutions tend to be more difficult to amend than ordinary legislation, requiring special majorities in parliament and sometimes additional validation steps (such as popular referendums or court certification) for amendments to come into effect. It is important, therefore, for women’s rights to be enshrined in the constitution from the beginning (Suteu and Bell, 2018:1).
Constitutions also play a deeply symbolic role. They embody a new social contract, whose terms will signal the inclusion or exclusion of particular segments of society. The numerous references to “founding fathers”, “Father of the Nation”, “brotherhood”, or “sons” in constitutions signal the male-dominated understanding of the political community and women’s exclusion from it. Conversely, an explicit reference to “men and women” as part of “we, the people” can serve to clarify that the state takes women’s contributions seriously and recognizes women as full members of society (Suteu and Bell, 2018:1).
Gender equality and constitution-building are generally considered intertwined yet distinct fields of study and practice. While there is broad agreement that constitutions ought to be gender-sensitive in terms of both the drafting process and content, common approaches tend address issues of gender and sex equality in a compartmentalized and interest-specific manner. This partitioned approach does not sufficiently address the gendered nature of all constitution-making processes and all constitutions. Comparative constitutionalists, international advisors, peacemakers and national practitioners should have a deep understanding of gender concepts and issues of equality and discrimination (Houlihan, 2020).
Women need to anticipate the key issues which they would like to influence in any constitution-making process (Suteu and Bell, 2018:16; Houlihan, 2020). It can be effective to make a combination of principled and strategic arguments as to why the constitution should address women’s rights. Sometimes the inclusion of women and gender issues may facilitate other parties to broaden discussion on issues such as equality, beyond the social divisions at the heart of the conflict, in ways that are constructive to resolving those divisions. On other occasions, the parties to the conflict will view broadening of these issues as part of their opponent’s agenda, or as disruptive of dealing with ‘the main’ issues (Suteu and Bell, 2018:16).
It is important to create alliances around issues such as equality, and to brainstorm and understand which issues will be particularly contentious between the political-military parties to the conflict, and whether inclusion of which women’s rights will help resolve or exacerbate those tensions. It is also important to recognize that just as post-peace agreement constitution-making processes are moments of opportunity for women’s rights, they are also moments of opportunity for socially conservative forces to retrench women’s rights, and this may even be a consensus point across the parties to the conflict (Suteu and Bell, 2018:16).
Consitution-building & transitional justice
In many post-conflict or democratic transitions, transitional justice and constitution-making are in one instance shaped by and result in a ‘pacted transition’ based on comprise between the opposing groups at the centre of conflict. Transitions are not linear but are ongoing processes. Both should be understood both as a response to the contestation of the conflict, and as vehicles which are part of the ongoing debate and political bargaining over the nature of the state (Cats-Baril, 2019).
Transitional justice and constitution-making should be better integrated during transitions. The following areas require attention:
- Sharing of information and experiences between transitional justice and constitution-making communities. International donors, member states of key organisations and international organisations should all engage in more cross over opportunities at policy level.
- Ways to co-ordinate political and financial support at the top policy level. Part of this should involve attempts by national and country level donors to create and design mechanisms or institutional bodies which coordinate support for transitional justice and constitution-making.
- Addressing overlaps between the processes, ensuring they reinforce each other rather than undermine. International partners should ensure their efforts in both processes do not become disconnected (Cats-Baril, 2019).
Mechanisms from both TJ and constitution-building processes can complement or undermine one another, there is no right answer as to the order they should be implemented in – this should be resolved in context. For example, truth seeking processes preceding constitution building may help set out injustices and form an agenda for reform. Conversely, constitution building can be used as an impetus to actors involved in past events, providing them a guarantee and encouraging their political buy in to transitional justice processes (Cats-Baril, 2019).
Truth commissions and constitution making bodies often operate simultaneously, and in different ways both seek to generate narratives about the substantive wrongdoings during the country’s past and what future remedies should look like. These narratives must reinforce rather than contradict each other (Cats-Baril, 2019).
Compromise and negotiation between TJ and constitution-building processes are important for maintaining transition momentum. Part of this requires recognition from both processes of their shared political nature and origins in the political settlement which underpins the country’s transition (Cats-Baril, 2019).