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).

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).

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).

‘Formal Adoption – Informal Subversion’: Limits of International Constitutional Assistance

Peace processes involve reforming or rewriting constitutions as a pathway to establishing an inclusive state, often with international constitutional assistance (ICA). Examining Nepal’s post-conflict constitution-writing process, this article explores why ICA fails to deliver on inclusion. It argues that ICA’s prioritisation of formal aspects – inclusive institutional design and participatory process – makes it unable to influence informal politics through which elites informally subvert formal commitments on inclusive institutions in a bid to retain their power. This ‘formal adoption-informal subversion’ of inclusion-related commitments by elites is enabled by elites adopting four strategies, namely neglect, overwrite, trade-off, and exploit of formal commitments.

Sequencing Peace Agreements and Constitutions in the Political Settlement Process

This paper focuses on sequencing peace agreements and constitutional arrangements within the broader political settlement processes in fragile and conflict affected settings. Political settlements comprise the underlying agreed understandings about how power is to be held and exercised. It is often assumed that there is a specific sequence to reach a political settlement: typically, a ceasefire or peace agreement that includes (or is followed by) transitional political arrangements or an interim constitution that culminates in some form of long-term constitutional arrangement. According to this assumption, the political settlement is understood to develop as part of the peace and constitution-building process. In practice, matters are likely to be much more complicated. Peace agreements and constitutional arrangements often fail to reflect a broadly shared political settlement, and require further negotiations to resolve conflict and start building sustainable peace.

Constitution-making and Political Settlements in Times of Transition: Special Section, Global Constitutionalism

This special issue addresses in particular constitution-making and political settlements in times of transition. We consider how constitutional design and adjudication must be understood to have a specific political role in constructing and enabling a political settlement, as in the shared understandings as to how power is to be held and exercised, that forms the political constitution which the constitution attempts to institutionalised. We collectively argue that traditional constitutional devices have to be understood as operating differently in times of transition where the constitution plays a very constructivist role with respect to the forming of agreement, rather than reflecting prior agreement.

Interactions between Elections and Constitution-Building Processes in Fragile and Conflict-affected States

This policy paper explores the issues specific to the interaction between elections, constitution-building and referendums in fragile and conflict-affected states. In many ways, the electoral and constitution-building processes are intertwined as two elements of the overall political settlement process, and crucial elements in the establishment of a new, legitimate political order. Those concerned with the design and structuring of transitional political processes should understand the ways in which electoral and constitutional processes interact in order to maximize the benefits, and minimize the risks. This paper sets out key policy decisions that occur during the constitution-making process.

(S)electing Constitution-Making Bodies in Fragile and Conflict-Affected Settings

This policy paper examines the types of constitution-making bodies present in 37 constitution-building processes that took place from 1991 to 2018 in the aftermath of conflict. Peace mediators and constitutional advisors should bear in mind that the constitution-building process after conflict often starts before the actual making of the new constitutional framework. 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. This paper sets out key policy decisions that occur during the constitution-making process.

Interim Constitutions: Peacekeeping and Democracy-Building Tools

This policy paper aims to fill a significant gap in the policy and academic literature on the process and design of interim constitutions in conflict-affected settings. It argues that, unlike both peace agreements and interim arrangements, the strength of interim constitutions lies in their legal enforceability. It examines the diversity of post-1990 interim constitutions in terms of their structure and their role in broader peacebuilding processes. Despite key differences that also relate to the relationship between the country context and the choice of procedure and design, interim constitutions potentially offer time or the opportunity to facilitate consensus over time. They also have the potential to contribute to a culture of participatory constitutionalism, and address sequencing issues around elections and the strengthening of key institutions responsible for implementing constitutional frameworks.

Women, Constitution-making and Peace Processes

This brief sets out guiding questions for women seeking to brainstorm and engage in constitutional reform processes, and notes some of the key areas where a gender influence is often brought to bear, or where there are significant risks for women if issues of gender are ignored. The report finds that to influence constitution-making or constitutional reform discussions, women will have to engage with the peace negotiations and the peace agreement which will lay out the road-map towards constitutional reform.

Women Constitution-Makers: Comparative Experiences with Representation, Participation and Influence

This report was developed as a follow up to the First Annual Women Constitution-Makers Dialogue held in October 2019. The workshop was jointly organized by International IDEA and the Edinburgh Centre for Constitutional Law as part of the Political Settlements Research Programme of the University of Edinburgh. The report focuses on women’s representation and participation in national constitution-making processes, examines constitutional outcomes from a gender perspective, and considers commonly contested constitutional design choices more broadly. It identify opportunities and obstacles to women’s participation and influence from both a country-level and global perspective.

Security Sector Reform in Constitutional Transitions

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. This policy paper aims to support advisors and decision-makers in navigating these complex transitions. The paper focuses on the relationship between security sector reform (SSR) and constitutional reform processes. While SSR and constitution-building are typically seen as separate issues, in practice they are deeply interconnected, and the success of a transition to constitutional democracy depends on the successful handling of security sector issues. Constitutional reform and SSR processes intersect in democratic transitions from military rule, civil war and authoritarian regimes.

Moving Beyond Transitions to Transformation: Interactions between Transitional Justice and Constitution-Building

This paper responds to the need for stronger coordination amongst peacebuilding, development and justice responses in fragile situations with a focus on the interactions between two particular processes: transitional justice and constitution-building. Examining the interactions between transitional justice and constitution-building is worthwhile because of the frequency with which the two processes occur in overlapping settings and also because of the substantive overlap in the principles that shape the processes. This suggests that anticipating and intentionally designing for the coordinated implementation of the two processes could allow both transitional justice and constitution-building to better meet their proclaimed aims, including reconciliation, institutional reform and, arguably, sustainable peace.

Substate Constitutions in Fragile and Conflict-affected Settings

This policy paper examines substate constitutions in fragile and conflict-affected settings—in both federal and unitary (or hybrid) states—adopted after the end of the Cold War starting in 1991. It finds that in order to understand whether (and how) substate constitution-building might help address the relationship between substate communities and the central state, it is important to examine the relationship of territory and identity to conflict. It also finds that once authorities at the central and substate levels decide to embark on substate constitution-building, it is key to understand that this process begins by defining the constitutional space, either in the central-state constitution or a peace agreement.

Reflections on Referendums

This paper argues that the use of the referendum has come to be seen as both highly significant and potentially problematic, particularly in territories beset by conflict or inter-ethnic division. The use of referendums in processes of constitutional formation and change has increased considerably across the world in recent decades. This proliferation means that referendums have occurred in some of the most fragile and conflict-affected states, where there are many issues surrounding democracy and stability.

Electoral System Design in the Context of Constitution-building

This paper argues that, while the timing, stages and sequencing of a constitutional transition might be thought to be relevant to electoral system choice, there does not currently appear to be any strong link between them. Electoral system design plays a crucial role in political settlement processes. However, it is a world with which political actors in transitions—and even to some extent the constitutional community itself—often have limited familiarity.