What We’ve Learned: Constitution-building

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, PSRP has been working to understand how constitution-building is intertwined with peace processes. Key findings:

The peace agreement itself 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 (see Global Constitutionalism).

Or the peace agreement can even be a constitution, such as the Interim Constitution in South Africa in 1993 (see Global Constitutionalism).

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.

However, issues of sequencing of constitution-making within peace processes vary with four main sequences (see Bell & Zulueta-Fülscher):
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

Other critical questions include the type of body which is established to draft the constitution (see Zulueta-Fülscher & Bisarya), and the timing of elections and referendums (see Tierney and Ellis).

Sometimes where a peace agreement provides for territorial power-sharing, sub-state constitutions may be provided for. Our work on sub-state constitution-making noted 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 (see Zulueta-Fülscher & Welikala).

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 (see Zulueta-Fülscher, Welikala, Bisarya & Bell, and Global Constitutionalism).

The constitution may have to be tweaked or replaced to establish interim governance arrangements, which itself form mini-constitutional frameworks to govern the transition. Our research in this area sets out how countries and mediators achieve this in a peace process (see De Groof).

Constitutions implicate the inclusion of groups well beyond the armed actors, and our work on women and gender and constitution-making has shown the different issues which require to be negotiated which can particularly affect women.

Constitution-making and transitional justice, are processes that have many aspects in common. Better attention to the relationship between the two can lead to better design of both (see Cats-Baril).

Browse key PSRP and partner publications related to constitution-building below.

 

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.

This brief is part of a Gender Briefing Series to support women’s meaningful participation and the integration of gender perspectives in peace processes that aim to end violent intrastate conflict. This report is part of a PSRP series on inclusive peace processes for UN Women.

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Global Constitutionalism Special Issue: Constitution-making and political settlements in times of transition 

This special issue considers how constitutional design and adjudication must be understood to have a specific political role in constructing and enabling a political settlement. We understand the political settlement to be the shared understandings as to how power is to be held and exercised that forms the political constitution which the constitution attempts to institutionalise. 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.

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(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.

Key points:

• 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.

• Elections are not always necessary or possible.

• 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.

• Decision makers need to be aware that holding elections in conflict-affected settings might be destabilizing; especially in those cases where the existing institutional framework endures after the conflict, and the existing constitutional framework commands sufficient legitimacy to be changed according to its own rules, it might make sense for the existing legislature to be tasked with constitution-making. This decision will often be made as part of peace negotiations.

• 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.

• It is common in fragile and conflict-affected settings committing to a constitution-building process that elections might not be feasible at the outset of the process. 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.

• 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.

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Interim Constitutions in Post-Conflict Settings

This report is the outcome of an inaugural event in a series of annual workshops to be known as the Post-Conflict Constitution Building Dialogues which are closely connected to the Political Settlement Research Programme.

This first report deals with Interim Constitutions as key documents in political settlement bargaining processes. 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.

Policy points:
• Interim constitution need to be understood as a possible option.
• Context matters and needs to be considered.
• There is knowledge to draw from interim constitution processes and documents that worked.
• This report provides a number of contextual considerations and issues to consider.

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Interim Constitutions: Peacekeeping and Democracy-Building Tools

This Policy Paper (which follows the ‘Interim Constitutions in Post-Conflict Settings’ discussion report) 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.

Policy points:
• 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.

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Substate Constitutions in Fragile and Conflict-affected Settings

This paper examines substate constitutions in fragile and conflict-affected settings—inboth federal and unitary (or hybrid) states—adopted after the end of the Cold War starting in 1991. The universe of cases comprises 10 countries: Bosnia and Herzegovina, Comoros (Anjouan), Ethiopia, Indonesia (Aceh and Papua), Papua New Guinea (PNG, Bougainville), Russia (Chechnya and Dagestan), Somalia, South Africa, South Sudan and Sudan.

Key points:

• 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.

• The substate constitution-building process begins by defining the constitutional space, either in the central-state constitution or a peace agreement.

• 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.

• Defining the constitutional space often includes determining the process by which the substate constitution is drafted, adopted and certified.

• 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.

• Referendums are often not advisable or feasible in the ratification of substate constitutions in fragile and conflict-affected states. This heightens the need for robust and genuine public participation in the development of the substate constitution.

• The timing for drafting and adopting substate constitutions should be carefully considered.

• Substate constitutions should specifically protect minorities and their rights within the substate entity.

• The international community must seek the express agreement of the central government to engage in substate constitution-building processes.

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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. This Discussion Paper is based on a presentation by the author at the fourth Edinburgh Dialogue on post-conflict constitution-building, held in Edinburgh, United Kingdom, on 4–5 December 2017.

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.

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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. This Discussion Paper is based on a presentation by the author at the fourth Edinburgh Dialogue on post-conflict constitution-building, held in Edinburgh, United Kingdom, on 4–5 December 2017.

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.

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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.

Policy points:
• 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.

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The Features of Transitional Governance Today

This report presents an overview of relevant practice in relation to transitional governance (TG), that is, temporary governance arrangements put in place to manage transitions from violent conflict and increasingly social crisis. The report lays the groundwork for an analysis of how international law applies to TG. It focuses on the period during which a state’s constitution and institutions are held in abeyance during a transition, especially in the context of an armed conflict, or a threat to international peace and security.

This report suggests that five features of TG can increasingly be observed, and are likely to be further socialised by practitioners.

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

This paper was developed as a follow-up to the Fifth Edinburgh Dialogue on Post-Conflict Constitution Building held in December 2018.

There is increased recognition of the need for stronger coordination amongst peacebuilding, development and justice responses in fragile situations and for increased attention to be given to the possible linkages between these and other aspects of post-conflict and political transitions. This paper responds to these needs, 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.

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ImageAuthorsTitleDateThemesCountriesDownloadAboutauthors_hfilterthemes_hfiltercountries_hfilter
Radical disagreement and self-determination disputes
Radical Disagreement and Self-Determination Disputes2019articleFull Detailsbellpeace-processes
Moving Beyond Transitions to Transformation: Interactions between Transitional Justice and Constitution-Building
Moving Beyond Transitions to Transformation: Interactions between Transitional Justice and Constitution-Building2019policy paperFull Detailscats-barilpeace-processes
The Features of Transitional Governance Today
The Features of Transitional Governance Today2019PA-X reportFull Detailsde-groofpeace-processes
Sub-State Constitutions in Fragile and Conflict-Affected Settings: Workshop Report
Sub-State Constitutions in Fragile and Conflict-Affected Settings: Workshop Report2017reportFull Detailsmolloypeace-processes
Women, Constitution-Making and Peace Processes
, Women, Constitution-Making and Peace Processes2018reportFull Detailsbell suteugender
(S)electing Constitution-Making Bodies in Fragile and Conflict-Affected Settings
, (S)electing Constitution-Making Bodies in Fragile and Conflict-Affected Settings2018reportFull Detailsbisarya zulueta-fulscherconcepts
Reflections on Referendums
Reflections on referendums2018reportFull Detailstierneypeace-processes
Electoral system design in the context of constitution-building
Electoral system design in the context of constitution-building2018reportFull Detailsellispeace-processes
Building States while Building Peace? Statebuilding and Security Sector Reform in Peace Agreements
Building States while Building Peace? Statebuilding and Security Sector Reform in Peace Agreements2018PA-X reportFull Detailspospisilpeace-processes
Interactions between Elections and Constitution-Building Processes in Fragile and Conflict-affected States
Interactions between Elections and Constitution-Building Processes in Fragile and Conflict-affected States2018, reportFull Detailsideaconcepts peace-processes
Substate Constitutions in Fragile and Conflict-affected Settings
, Substate Constitutions in Fragile and Conflict-affected Settings2017reportFull Detailswelikala zulueta-fulscherpeace-processes
Bargaining on Constitutions: Political Settlements and Constitutional State-building
Bargaining on Constitutions: Political Settlements and Constitutional State-building2017, journal articleFull Detailsbellconcepts peace-processes
Letting off Steam: Interim Constitutions as a Safety Valve to the Pressure-Cooker of Transitions in Conflict-Affected States?
Letting off Steam: Interim Constitutions as a Safety Valve to the Pressure-Cooker of Transitions in Conflict-Affected States?2017journal articleFull Detailsrodriguespeace-processes
Eternity Clauses in Post-Conflict and Post-Authoritarian Constitution-Making: Promise and Limits
Eternity Clauses in Post-Conflict and Post-Authoritarian Constitution-Making: Promise and Limits2017journal articleFull Detailssuteupeace-processestunisia
The Alchemists: Courts as Democracy-Builders in Contemporary Thought
The Alchemists: Courts as Democracy-Builders in Contemporary Thought2017journal articleFull Detailsdalypeace-processes
Courting Peace: Judicial Review and Peace Jurisprudence
Courting Peace: Judicial Review and Peace Jurisprudence2017journal articleFull Detailssapianopeace-processes
International Law, the Scottish Independence Debate and Political Settlement in the UK
International Law, the Scottish Independence Debate and Political Settlement in the UK2016, book chapterFull Detailsbellconceptsscotland united-kingdom
Constitution-making and Political Settlements in Times of Transition
, , , , Constitution-making and Political Settlements in Times of Transition2017journal articleFull Detailsbell daly rodrigues sapiano suteupeace-processes
Interim Constitutions in Post-Conflict Settings
Interim Constitutions in Post-Conflict Settings2014reportFull Detailsbellpeace-processes
Interim Constitutions: Peacekeeping and Democracy-Building Tools, Final Report
, Interim Constitutions: Peacekeeping and Democracy-Building Tools, Final Report2015policy paperFull Detailsbell zulueta-fulscherpeace-processes
Constitution-Building in Political Settlement Processes: The Quest for Inclusion
, , , , Constitution-Building in Political Settlement Processes: The Quest for Inclusion2016, reportFull Detailsbell bisarya sapiano welikala zulueta-fulscherconcepts peace-processes
Sequencing Peace Agreements and Constitutions in the Political Settlement Process
, Sequencing Peace Agreements and Constitutions in the Political Settlement Process2016reportFull Detailsbell zulueta-fulscherpeace-processes

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