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Interim Constitutions: Peacekeeping and Democracy-Building Tools Interim Constitutions Peacekeeping and Democracy-Building Tools PolicyPaper October 2015 International IDEA at a glance What is International IDEA? The International Institute for Democracy and Electoral Assistance (International IDEA) is an intergovernmental organization with a mission to support sustainable democracy worldwide. The objectives of the Institute are to support stronger democratic institutions and processes, and more sustainable, effective and legitimate democracy. What does International IDEA do? The Institute’s work is organized at global, regional and country level, focusing on the citizen as the driver of change. International IDEA produces comparative knowledge in its key areas of expertise: electoral processes, constitution building, political participation and representation, and democracy and development, as well as on democracy as it relates to gender, diversity, and conflict and security. IDEA brings this knowledge to national and local actors who are working for democratic reform, and facilitates dialogue in support of democratic change. In its work, IDEA aims for: • Increased capacity, legitimacy and credibility of democracy • More inclusive participation and accountable representation • More effective and legitimate democracy cooperation Where does International IDEA work? International IDEA works worldwide. Based in Stockholm, Sweden, the Institute has offices in Africa, the Asia-Pacific and Latin America and the Caribbean. Interim Constitutions Peacekeeping and Democracy-Building Tools Lead author Kimana Zulueta-Fülscher International IDEA Resources on Constitution-Building Processes © International Institute for Democracy and Electoral Assistance 2015 International IDEA publications are independent of specific national or political interests. Views expressed in this publication do not necessarily represent the views of International IDEA, its Board or its Council members. Applications for permission to reproduce or translate all or any part of this publication should be made to: International IDEA SE-103 34 Stockholm Sweden International IDEA encourages dissemination of its work and will promptly respond to requests for permission to reproduce or translate its publications. The electronic version of this publication is available under a Creative Commons Licence Copyright (CCl)—Creative Commons Attribute- NonCommercial-ShareAlike 3.0 Licence. You are free to copy, distribute and transmit the publication as well as to remix and adapt it, provided it is for non-commercial purposes, that you appropriately attribute the publication, and that you distribute it only under a licence identical to this one. For the full conditions of this CCl, see: <http://creativecommons.org/licenses/by-nc-sa/3.0/>. Graphic design by Turbo Design Printed by Trydells Tryckeri, Sweden ISBN: 978-91-7671-025-8 International IDEA Contents Key recommendations...................................................................................... 2 Executive summary .......................................................................................... 3 1. Introduction ........................................................................................... 6 2. Interim constitutions: a conceptual framework ............................ 8 A working definition ................................................................................ 8 Peace agreements and interim constitutions ......................................... 9 Interim arrangements and interim constitutions .................................... 12 3. Interim constitutions in conflict-affected settings ....................... 13 Analysing the data................................................................................... 13 Managing expectations ........................................................................... 15 The interim constitutions in Nepal and Somalia .................................... 16 4. The design of interim constitutions .................................................. 18 Level of detail .......................................................................................... 18 Scope of issues covered .......................................................................... 18 The amendability of interim constitutions ...................................... 20 Setting the institutional framework for the transition ................... 20 Outlining the constitution-making process ..................................... 21 5. The process of drafting interim constitutions ................................ 25 Levels of participation and representation ............................................. 25 Approval mechanisms ............................................................................. 26 The role of international actors ............................................................... 26 6. Conclusions........................................................................................... 27 References and further reading ....................................................................... 29 Acknowledgements.......................................................................................... 32 About the author .............................................................................................. 33 1 Key recommendations Understanding a country’s context—specifically, the nature and drivers of conflict, 1 the political landscape, the constitutional and political history, and the role of the international community—is a necessary preliminary step towards appreciating the need for (and the parameters of) an interim constitution. Post-conflict interim constitutions can serve similar functions as peace agreements, 2 but they should focus more on principles and values, and on the organization and powers of state institutions during the transitional period. While peace agreements and interim constitutions are sometimes conflated, ideally they should be part of a staged process in which interim constitutions consolidate the previously agreed peace. Due to the contexts in which they are drafted, interim constitutions will commonly 3 be drafted without the full participation of the broader society. However, the process should include as many politically salient groups as possible in order to avoid potentially negative consequences, such as the creation of new spoilers. In general, the scope of interim constitutions is narrower than that of final 4 constitutions. This reflects the limited representation of societal interests when drafting interim constitutions, as well as the remaining enmity among negotiating parties. The content of interim constitutions should therefore be limited to what is necessary to bind the parties to the agreement, and should avoid alienating sectors of society that are not represented at the table. The content may also prove to be ‘sticky’. Stakeholders should be aware that constitutional design choices have inertia, and that change will prove more difficult than maintaining the status quo in the final constitution. Provisions related to drafting the final constitution should be as detailed as possible, 5 include more diverse participants in the process and incorporate deadlines (as well as procedures to follow if they are missed). Setting a deadline for the expiration of an interim constitution (and including provisions for extending it) are good practices. Due to the fluid nature of transitional processes and the (often low) level of 6 participation in the initial stages, procedures for amending interim constitutions should be included, and should not require an excessively high threshold for agreement. The supreme legal status of the interim constitution is crucial to avoiding ambiguity 7 regarding its binding status and deterring violations. The role of courts as guarantors, particularly regarding the constitutional process, should be carefully considered. Using the courts in this way may be desirable where they have a high degree of trust and legitimacy, but may be ineffectual or lead to their overpoliticization in other contexts. A number of formal and informal mechanisms can help overcome parties’ unwillingness to compromise—for instance, the dissolution and reformation of the constitution- making body, ambiguity or by-law clauses, reducing the threshold for legislative approval, sunset clauses, and engaging in mediation or seeking external advice. Where the international community has played a dominant role in the broader peace 8 process, an interim constitution can, and should, serve as a mechanism through which control over constitution-building is handed over to national authorities while providing a degree of assurance regarding political inclusion and democratic governance. 2 International IDEA Executive summary n interim constitution should serve as a bridge during a transition from one constitutional order to another (or in some cases, the lack of any constitutional Aorder and the birth of a new order). Interim constitutions provide both a temporary institutional structure for government and a framework for negotiating the final constitution. They can be formally defined as constituent instruments that assert ‘legal supremacy for a certain period, pending the enactment of a contemplated final constitution’ (see Section 2 for a full discussion of this definition). Peace agreements are usually understood as contracts between contending parties designed to end a violent conflict through either a ceasefire or the design of new political and legal structures. While they
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