Emergency Law Responses to Covid-19 and the Impact on Peace and Transition Processes

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Emergency Law Responses to Covid-19 and the Impact on Peace and Transition Processes Emergency Law Responses to Covid-19 and the Impact on Peace and Transition Processes Seventh Edinburgh Dialogue on Post-Conflict Constitution-Building, 2020 Emergency Law Responses to Covid-19 and the Impact on Peace and Transition Processes Seventh Edinburgh Dialogue on Post-Conflict Constitution-Building, 2020 Sean Molloy © 2021 International Institute for Democracy and Electoral Assistance 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. The electronic version of this publication is available under a Creative Commons Attribution-NonCommercial-ShareAlike 3.0 (CC BY-NC-SA 3.0) licence. You are free to copy, distribute and transmit the publication as well as to remix and adapt it, provided it is only for non-commercial purposes, that you appropriately attribute the publication, and that you distribute it under an identical licence. For more information visit the Creative Commons website: <http:// creativecommons.org/licenses/by-nc-sa/3.0/>. International IDEA Strömsborg SE–103 34 Stockholm Sweden Telephone: +46 8 698 37 00 Email: [email protected] Website: <https://www.idea.int> Copyeditor: Kelley Friel DOI: <https://doi.org/10.31752/idea.2021.24> ISBN: 978-91-7671-401-0 (PDF) This is an output for the Political Settlement Research Programme (www.politicalsettlements.org) funded by UK Aid from the UK Foreign, Commonwealth & Development Office (FCDO) for the benefit of developing countries. The information and views set out in this publication are those of the author(s) and do not necessarily reflect the official opinion of FCDO. Neither FCDO nor any person acting on their behalf may be held responsible for the use which may be made of the information contained therein. Created with Booktype: <https://www.booktype.pro> International IDEA Contents Acknowledgements ....................................................................................................................... 6 1. Introduction ............................................................................................................................... 7 1.1. States of emergency, Covid-19, and peace processes and transitions ..................................... 7 1.2. Key questions for conflict-affected settings ........................................................................... 8 1.3. Structure of the report .......................................................................................................... 9 2. Emergency law responses in the context of Covid-19 ......................................................... 10 2.1. The constitutional model ................................................................................................... 10 2.2. The legislative model .......................................................................................................... 11 2.3. Ambiguous groundings ...................................................................................................... 12 3. What explains choices of emergency law responses in conflict-affected settings in transition? .................................................................................................................................... 14 3.1. The legal frameworks in place ............................................................................................ 14 3.2. Political calculations and institutional safeguards ............................................................... 14 3.3. Histories of emergency regimes .......................................................................................... 15 3.4. Pandemic unpredictability .................................................................................................. 16 3.5. Level of conflict and impact of Covid-19 ........................................................................... 16 3.6. The political settlement ...................................................................................................... 16 3.7. Summary ............................................................................................................................ 17 4. How have emergency law responses affected transitions? ................................................ 18 4.1. Executive powers and institutional safeguards .................................................................... 19 4.2. Disproportionate encroachment on rights .......................................................................... 20 4.3. Securitization of the state ................................................................................................... 21 4.4. Opportunities for non-state actors to exploit ...................................................................... 22 4.5. Discussion: deepening conflict fault lines ........................................................................... 23 5. Elections ................................................................................................................................... 24 5.1. Complicating peaceful transfers of power ........................................................................... 26 6. Substate governance in conflict-affected states in transition ........................................... 27 6.1. Hindering ongoing or potential territorial arrangements .................................................... 27 6.2. The emergency law response of the central state ................................................................. 27 6.3. Competing legal arrangements ........................................................................................... 28 6.4. Taking power from the peripheries ..................................................................................... 28 6.5. Capacity issues ................................................................................................................... 29 6.6. Summary—unbalancing fragile territorial power sharing .................................................... 29 7. Findings and recommendations ............................................................................................ 30 References ................................................................................................................................... 32 Annex. Agenda ............................................................................................................................. 36 About the author ......................................................................................................................... 38 About International IDEA ............................................................................................................ 39 Emergency Law Responses to Covid-19 and the Impact on Peace and Transition Processes Acknowledgements This Report was developed as a follow-up to the Seventh Edinburgh Dialogue on Post- Conflict Constitution-Building held in December 2020. The dialogue 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. We would like to thank the many people whose insights and conversations helped with the conceptualization of this Report as well as the case study experts that helped shape it. In particular, we thank the participants at the Edinburgh Dialogue themselves, who provided invaluable written and spoken contributions as well as Christine Bell and Asanga Welikala of the University of Edinburgh, Erin Houlihan and Kimana Zulueta-Fülscher of International IDEA, and Joelle Grogan of Middlesex University London, for editing previous drafts. Thanks are also due to Pablo Grez Hidalgo of the University of Edinburgh for research assistance. 6 International IDEA 1. Introduction 1. Introduction On 9–10 December 2020, International IDEA, together with the Edinburgh Centre for Constitutional Law and the Political Settlements Research Programme at the University of Edinburgh, and with financial support from the UK Foreign, Commonwealth & Development Office, hosted the Seventh Edinburgh Dialogue on Post-Conflict Constitution-Building. The event considered the ways in which Covid-19 pandemic emergency law responses have affected peace and transition processes in conflict-affected countries. 1.1. States of emergency, Covid-19, and peace processes and transitions The World Health Organization declared the outbreak of the Covid-19 pandemic on 11 March 2020. This global health crisis demanded a quick, decisive and efficient response by governments to protect lives, curb the spread of the virus and prevent public health systems from being overwhelmed (Ginsburg and Versteeg 2020; Grogan 2020). Governments in many countries have triggered emergency legal frameworks to disable some ordinary (democratic) procedures and set aside standard political and legal accountability mechanisms as part of their Covid-19 response. Elections have been postponed and sometimes cancelled, and central governments have assumed enhanced responsibilities, which have often included powers otherwise designated to local or regional governments. While the impacts of both the pandemic and the responses to the contagion have been felt globally, they often have quite different consequences in countries attempting peace and democratic transition processes. This report defines countries that have (or have had) peace and democratic
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