Workshop on the role of interim constitutions in post-conflict settings: 4-5 December 2014, Edinburgh, Scotland


“Interim Constitutions in Post-Conflict Settings”

“The crisis consists in precisely the fact that the old order is dying and the new cannot yet be born; in this interregnum a great variety of morbid symptoms appear” 

Antonio Gramschi, Prison Notebooks.

Participants engaged in discussion in the Raeburn Room at Edinburgh University Old College

Participants engaged in discussion in the Raeburn Room at Edinburgh University Old College

On December 4-5, International IDEA, the Edinburgh Centre for Constitutional Law and the Global Justice Academy hosted a workshop on “Interim Constitutions in Post-Conflict Setting” at Edinburgh University, funded through a grant from the Norwegian Ministry of Foreign Affairs.

This represent the beginning of what the three institutions hope will be an annual project to develop comparative knowledge resources in the area of post-conflict constitution building – with a workshop to be hosted at Edinburgh University and a subsequent policy paper to be developed based on the discussion.

The objective of this year’s project is to develop a policy paper to provide guidance in the development of interim constitutions – such as those seen currently in force in Nepal, Libya, Somalia and South Sudan. The workshop examined these cases, as well as a number of other recent cases in which the problems of establishing constitutional arrangements during an interim period were addressed in a variety of different ways.

Thematic presentations focused on the historical use of interim constitutions (Leena Grover), their contents (Professor Tom Ginsburg), their legitimacy (Hassen Ebrahim) and the process and procedures used to produce them (Professor Cheryl Saunders). These were followed by a series of interactive case studies led by a mix of practitioners and academics (for the full programme and list of participants see left hand menu).

In terms of historical use, Leena Grover presented findings from her database of interim constitutions which both highlighted the variety of settings and forms involved, and also highlighted some key definitional challenges. The presentation also proposed three key trends: interim constitutions are becoming more negotiated, rather than dictated by a single “victor” of previous conflict; there is an increased involvement of international actors and an increasing intimacy between different documents – peace agreement, interim constitutions and ‘final’ constitutions.

Professor Ginsburg set the context of drafting interim constitutional arrangements as one of bargaining between different parties. A central question raised was how detailed should interim arrangements be in order to provide enough information to settle immediate disputes while still providing incentives for further negotiation? Professor Ginsburg also highlighted the importance of building trust through agreements on key provisions, while Professor Christine Bell also suggested the development of a sense of community as a key function of Constitutions in interim periods.

Amongst other issues, Professor Saunders highlighted two key considerations related to the ‘why’ and ‘who’ of interim constitutions. She differentiated between three purposes – filling a gap in the constitutional order, providing a bridge between the old and new regimes and agreeing a process for the ‘final’ constitution. Each of these purposes would likely lead to different processes and contents. In terms of the ‘who’, Professor Saunders raised the issue of armed insurgents, and the effects of their inclusion or exclusion.

The last thematic presentation was given by Hassen Ebrahim, former CEO of the South Africa Constituent Assembly. Hassen stressed the importance and the challenges of legitimacy in the interim constitutions. Discussion amongst participants was divided in terms of how important broad participation might be at ‘interim stage’, but there was consensus around the fact that the key stakeholders needed to be included to ensure they had a stake in the developing State order.

Country presentations followed, each one highlighting different considerations in relation to the thematic issues and the responsibles for Constitition Building from the United Nations Department of Political Affairs, United National Development Programme and Interpeace provided inputs into the role of the international community in constitution building during interim periods.  

In the evening of 4 December, IDEA and Edinburgh University also hosted a public lecture by Nicholas Haysom - current UN Special Representative for the Secretary General in Afghanistan and member of the International IDEA Board of Advisors - on his experiences and lessons learned in various democratic transitions around the world.