2.1.9 Interim constitutional arrangements

It has been estimated that one third of all constitutional design processes from 1975 to 2003 involved interim documents. If the meaning of the word “document” extends beyond constitutions, then the number of interim arrangements would be even larger, as some of them are based on understandings, treaties, or peace arrangements that affect the way state power is to be exercised, but are not constitutions. Several terms can be used to refer to what we call here “interim arrangements”: provisional, temporary, interim, and transitional constitutions. In many cases it is impossible to understand the design of a constitution-making process without knowledge of the interim arrangements, which are indeed part of its overall objectives, strategy, and design.

Interim and incremental: Connected but different

Incremental reforms are different from interim arrangements. They are sometimes called “minimum reforms,” though this can be a misleading term in some instances of incremental reform, such as in Indonesia, where the changes made were far from minimal. Incremental reforms are contrasted with grand reform; unlike the latter, they are piecemeal, but, unlike interim arrangements, they are not necessarily a prelude to broader reforms. They are often the best reforms that are possible in difficult circumstances, and the hard decision is whether to reject them, recognizing that this may prevent further reforms, or to accept them in the hope that they will lead to broader reforms later, perhaps as a result of the dynamics of small but strategic early reforms. Chile, Hungary, and Indonesia offer significant examples of incremental processes that resulted in significant changes to the structure of the states in question. (For some arguments against a full-blown constitution-making process, to which incremental change might be an alternative, see part 2.1.2.)

Reasons for interim arrangements

When negotiating for peace, it is important that an agreement on a cease-fire be concluded speedily, but a long-term settlement, often seen as a new constitution, dealing with the underlying causes of conflict, would need considerably more time (as in South Africa). It may be premature to start negotiations on a new political order when myriad issues normally dealt with in a peace agreement have not been satisfactorily resolved (such as disarmament, demilitarization, exchange of prisoners, demobilization or integration of armies, and resettlement of the displaced). Depending on the sequence of events, if elections are to be held before the adoption of the final constitution, considerable time would be required to establish political, administrative, and security arrangements (as in Cambodia, Iraq, and Nepal), including decisions on who is entitled to vote—perhaps involving “lustration” (in this context, exclusion of those associated with past regimes), as in Iraq, or inclusion of communities hitherto excluded from citizenship and the franchise, as in Nepal.

A constitution-making process bedevilled by mistrust is unlikely to deliver a good, or any, constitution. Trust is a general condition for the success of any process, but it is particularly important when the negotiating parties have waged war against one another until recently. It has been argued that the difficulties in the Iraqi process arose because it was rushed; there was no time to build trust or develop a vision of the country.

It is desirable to use the “transitional” peaceful period to establish trust among the previous antagonists. At this stage a consociational approach may be important (where all key groups are represented), even if it is not the intention to retain this approach for the permanent constitution (as in Iraq, South Africa, and Sudan). Interim arrangements are sometimes a way to postpone difficult issues, which are hard to resolve in the aftermath of conflict but may be easier to tackle in the future with the goodwill that may have been established in the interim period.

The overall record of such arrangements is not impressive. But in many conflict and postconflict situations, some form of power sharing seems inevitable (as in Kenya in 2007, Cambodia, Iraq, South Africa, Sudan, and Zimbabwe). Consequently, more attention needs to be given to the modalities of the partnership arrangements. (In Fiji, Indo-Fijian parties declined the prime minister’s invitation to join the government, preferring to fight the next election without the “stigma” of participation in that government, before or after the 1997 constitution was agreed to. Perhaps unwisely, the basis of that constitution was a “government of national unity,” and a partnership between its two leading architects before the elections had laid a political foundation for it that did not hold when, contrary to their expectations, their parties performed poorly in the first election under the new constitution.)

A transitional constitution may be thought necessary to provide the legal framework for the running of the country when old institutions have collapsed or the old parties have disappeared or been greatly weakened (as in Somalia). In Afghanistan, for example, the arrangements were called “emergency interim arrangements” and justified due to “the unstable situation,” in view of the time it would take to re-create the state of Afghanistan. Crucial state institutions may have to be rehabilitated urgently while negotiations on a long-term settlement proceed (as in Afghanistan, Cambodia, and Iraq). Sometimes the old constitution may be considered unacceptable, for historical or ideological reasons, to one or more previously excluded groups, even if, through amendments, political understandings, or administrative measures, these groups could be given a share in governing the country (as in Nepal with the Maoists). In some countries, one or more key institutions involved in amendment procedures may have collapsed, making it impossible to amend the constitution, as can also happen if one key institution refuses to give consent to amendment. This might well have happened in Nepal, where the consent of the king, who had been sidelined by political parties, would have been necessary.

An important reason for interim arrangements is to provide a framework within which previous enemies can share state power, to facilitate the conclusion of the peace process, and to negotiate for a new constitution. They can promote stability in what could otherwise be a period of turmoil. Such arrangements can, however, give rise to their own problems, as the parties may

see them merely as a truce, before political “war” (competition for state power) starts again. This happened in Nepal and Sudan, where turmoil and suspicions continued well after the cease- fire and the peace agreement. Moreover, decision-making under interim power-sharing arrangements tends to be cumbersome and slow, and often requires consensus.

Another reason for interim arrangements is that in the immediate period following the cease- fire, previously warring parties dominate the political scene. Most of them have probably committed crimes against humanity, and may enjoy little public legitimacy. If the country were to move quickly to the permanent constitution, chances are that these warring parties would monopolize the process (as was the tendency in the Norwegian-sponsored process in Sri Lanka). It may therefore be better that the deals they make should be temporary, so that the process for the permanent constitution commences when conditions for greater public participation and the consideration of a wider range of social issues arise. On the other hand, it has been argued that the temporary nature of the arrangements makes it possible to find more imaginative solutions and cover issues that might not be dealt with in a permanent constitution.

A new use of transitional arrangements can be found in Kenya, Madagascar, and Zimbabwe following elections the results of which have been strongly contested. (The arrangements in these cases probably involve some modifications of the existing constitutions, especially concerning the structure of the executive; the ultimate aim may be a new constitution or a full return to the existing constitution. Kenya and Zimbabwe belong to the former category.)

The negative side of interim arrangements

Interim arrangements can be used to hijack the reform process. In Kenya in the mid-1990s, politicians used interim, and essentially minor, reform to forestall more fundamental change, taking the steam out of the civil society reform movement and holding up reform for at least a decade. Nepal in 1951 was under considerable pressure to democratize the political system through constitutional reform; the king promulgated an interim constitution as a prelude to reforms by a constituent assembly. Instead the interim arrangement lasted for eight years (and was changed to return to the king his old powers). It was not until 1990 that constitutional reform got back on track.

There are dangers in a long transition: momentum may dissipate, and agreement among the parties may disintegrate. If the focus is on the long-term democratic system, interim arrangements have to be dynamic, leading gradually to more inclusive forms and more accountability.

There is also a danger that if some reforms are instituted, the movement for radical change will lose momentum. The trick is to institute reforms whose logic is further reform, thus promoting the irreversibility of reform. (This could, for example, be done by inclusion of hitherto marginalized communities in the process.)

A transitional constitution may give opposing forces time to regroup and consolidate, which may put the objectives of peace at risk.

Interim constitutions have in some instances become the broad copy for the permanent constitution. In Iraq the earnest and prolonged nature of the negotiations on some issues in the Transitional Administration Law was such that the parties must have intended them to be the ultimate solutions (especially on issues such as federalism, language, and the future of the Kurdish forces, the peshmerga).

An interim constitution may exclude particular groups or issues. Both in the way it structures the process for the permanent constitution and if it becomes the model for the permanent constitution, this may have serious consequences for the country, and for the durability of the peace and the constitution.

Interim arrangements as road maps to a new constitution

To overcome the risk that change will lose momentum, it is essential that the interim arrangements include a road map to the new constitution. Indeed, some interim arrangements are largely about the road map, especially those negotiated under international auspices (as in Afghanistan, Cambodia, Kenya, and Sudan).

When the focus is the road map, it is not unusual to find more than one set of transitional provisions, sequentially. Both Afghanistan and Iraq demonstrate this: an initial bureaucratic procedure yields to a more consultative and representative administration, which has the basic responsibility of leading the nation to a new constitution or to elections for a constitution-making body.

Box 6. Negotiating interim arrangements in Nepal

After the People’s Movement of 2006 led to the end of the king’s absolute power, and in accordance with the agreement between the Maoists and seven “democratic” parties, decisions were made by consensus, and this is how the interim arrangements were decided. (The king, though nominally still present, was left out of the negotiations.) The initial decision on transitional arrangements (involving the removal of articles dealing with the monarchy and the recall of parliament with its immediate past members) was made nominally by seven parties, in reality by fewer. This happened in the face of Maoist opposition, but increasingly it was seen as a prelude to the next set of interim arrangements, in the making of which the Maoists would play a full role. Already the parties had conceded to the Maoists’ demands that the constitution would be made by a constituent assembly. Although an expert committee, under a much-respected Supreme Court judge, was appointed to draft the interim constitution, in practice the key decisions were made by nominees of the eight parties. Nearly five thousand submissions were made by the people, but there is little evidence that much heed was paid to them. The interim constitution was enacted nearly ten months after the recall of the ad hoc parliament.

The scope of the interim arrangements depends on factors such as the anticipated length of time before the ultimate constitution is in place (the longer that time, the more detailed the interim arrangements must be); the feasibility of using the existing constitution for the time being; the discretion to be left to constitution-makers (the less the discretion, the longer the interim arrangements); and whether the interim arrangements are under the administration of the international community (in which case they will be brief—as in Cambodia and Timor-Leste).

The orientation and scope of the interim arrangements

It is clear, then, that the orientation and scope of interim arrangements depend on the context and strategies for establishing the new political order. Hence there is great variety in such arrangements. Some are brief, largely concerned with the road map, adjusting state institutions toward that objective. Some would even lack various institutions of government. Others are as detailed as a final constitution would probably be. The Nepal 1951 constitution had no provision for a legislature, but only for an advisory assembly for the king. The 2007 interim constitution of Nepal made no provision for elections. But the South African interim constitution of 1993 was complete and detailed.

Expert opinion seems to waver between those who favor a short and businesslike document with a bare minimum of content and those who argue that the interim constitution should offer considerable detail and be as democratic as the final constitution should be (in part to cultivate democratic practices and habits). The latter is not so easy given the difficulties in transition that we have mentioned. It might also introduce rigidity when flexibility is needed (particularly in volatile contexts, as Nepal discovered). It is perhaps more important to make the process itself inclusive and principled than to attempt to set forth democratic rules for the interim administration. But much depends on the context, and it is hard to be dogmatic about these matters.

Who negotiates the interim arrangements

As with other aspects of interim arrangements, there is great variety concerning their negotiation. In general they are negotiated, but in some instances they can be prescribed by one party when it is in general control of the state. The Ethiopian and Ugandan arrangements were the decisions of the governments that had captured state power. A unilateral decision is also the practice of military authorities on the execution of a coup d’etat.

In South Africa the interim arrangements were negotiated almost exclusively among several political parties. Most of the negotiations at this stage were held behind closed doors. If there were disagreements among the parties, decisions would be made by the two major protagonists, the African National Congress and the National Party, concurrence between which was described as “sufficient consensus.”

If the interim constitution is to be negotiated by internal forces, there is an obvious dilemma: if circumstances are not right for deciding on the final constitution, how much detail will it be possible to decide on—other than the actual process for producing the final constitution? For this reason, interim constitutions sometimes bear considerable resemblance to a previous constitution, perhaps with the most obviously offensive provisions removed. This was notably true in Nepal. If, on the other hand, full negotiations for the interim constitution are possible, won’t the same considerations effectively continue? And why should the final constitution be different? This was largely the case in South Africa [1996], where the detailed negotiations over the interim constitution produced provisions that were substantially reflected in the final constitution.

In recent years, the international community has played a key role in devising interim arrangements. This was true in Afghanistan [2004]. In Iraq [2005], major decisions were initially made by the United States, but the intervention of the United Nations was instrumental in reaching agreement on crucial aspects of the interim arrangements, including the road map. In the case of Cambodia [1993], major decisions were made in Paris at a conference that included key Cambodian groups, several interested states, and the United Nations. In both Sudan and Somalia Western states have played an important role.

On the whole, little space has been found for public participation by civil society. Where political parties are dominant, they may have influence on the negotiating parties (as in South Africa [1996]), but even then, the role is limited. In Nepal [ongoing process], groups that were excluded from decision-making were able to secure amendments to the arrangements after considerable agitation, accompanied by violence.

Forms of interim arrangements

There is considerable variety in the ways in which interim arrangements—meaning how affairs of the state are to be managed during the period when negotiations begin and the final settlement is implemented—have been organized. In many cases it is possible to use existing mechanisms (suitably modified, as in many transitions in Eastern Europe), while in others new arrangements may have to be created (which can consume time and energy). One factor is whether the new forces agitating for recognition can be accommodated within existing arrangements. Generalizations are hard, because much depends on the context.

A particular dilemma in structuring interim arrangements is whether to try to stick to the existing, even if discredited, constitution or adopt an interim constitution. The arrangements in South Africa [1996] illustrate several of the issues mentioned above. Although the African National Congress had fundamental moral and political objections to the apartheid constitution, it agreed to work within it for an initial phase. Its decision was motivated by at least two considerations. The first was to reassure the members of the white community that changes would not be abrupt and would not be imposed on them (since they were in charge of the amendment procedures). The second reason was to lay the foundation for the rule of law by

accepting the principle of legal continuity. (See part 2.1.6.) The “interim arrangements” dimension was part of the agreement among the parties engaged in negotiations that the government and the legislature would act in accordance with the instructions of an unofficial interparty executive council. (During this period the main legal pillars of the apartheid system were repealed by the apartheid legislature.) But even with this concession, the supporters of the African National Congress would not have accepted the extension of the apartheid constitutional and legal system. The initial interim period was therefore used to agree on new arrangements for the next phase. The new arrangements, in the form of an interim constitution, were fundamentally different from the apartheid constitution and were decisive in the move to a nonracial democratic system. They included elections to a constituent assembly, which changed the power configuration of South Africa. Interim arrangements played an important, constructive role in South Africa (in contrast, for example, to Sri Lanka, where few attempts at interim arrangements as defined here have been made other than the proposals by the Tamil Tigers— the Liberation Tigers of Tamil Eelam—which seemed designed to entrench their preferred system ahead of negotiations).

It may sometimes be possible to use the existing constitution either in slightly amended form (e.g., in Kenya in 2007) or without any amendment but with an understanding that authority under it would be exercised through joint decisions of competing groups (as in Hungary as it gradually moved away from communism). In Afghanistan an older constitution, deemed the most democratic of all previous constitutions, was adopted, but with so many modifications that it imposed little in the form of an effective framework for key decisions made during the interim constitution or on the road map.

Legality of interim arrangements

The question of the legality of the interim arrangements is likely to arise. Those opposed to the forces that come into power may challenge the legality of their actions. The safest course therefore might seem to be to operate through the existing constitution. As we have seen, often this is not possible. Others insist that new arrangements can be justified under the concept of “revolutionary legality.” (See box 4.) Unless revolutionary legality is bounded by clear principles and rules, it can easily degenerate into arbitrariness and even anarchy. The mandate of the people, which is frequently referred to these days, is too imprecise and its contents too contested to serve as the foundation for revolutionary legality.

If it is essential to establish interim arrangements outside the framework of the existing constitution, it is important for their legality that they be based on broad consensus. This consensus could perhaps be achieved through a roundtable with key groups.

Box 7. “Incremental” change in Chile

Chile is an example: after the military rule, General Pinochet lost a plebiscite in 1998 on his future as a presidential candidate, and the country moved gradually to a democratic system. Between 1989 and 2005 the constitution was amended seventeen times, until two commentators said that if the latest batch of reforms was adopted, “institutions will finally catch up with the democratic process” (Esteban and Vial 2005).

Managing the transition period

We now turn to how interim arrangements may deal with managing the period of transition until the new constitution is prepared. A key factor is whether the process is driven by local or external factors. If external, there are two possibilities: (a) the country is taken into international care and the United Nations or a regional organization takes over management of state affairs (as in Cambodia, Kosovo, and Timor-Leste), or (b) there is massive international involvement (as in Afghanistan, Bosnia-Herzegovina, Iraq, and Namibia). In the former case, power is restored to the country only after the dispute has been “resolved,” law and order established (including possible disarmament), a new constitution adopted, and elections held. In the second case the international group works closely with the national authorities (which are often of an “interim” nature) and keeps open the “seats of power” for a competitive electoral process. In Namibia [1990], for example, authority was vested in a South African administrator (sympathetic to the white-dominated faction) but his powers were exercised in close consultation with the United Nations representative, who was ultimately responsible to the Security Council through the Secretary-General. In Afghanistan [2004], the Bonn Agreement provided for an interim government that was to be endorsed by a partially elected Emergency Loya Jirga, and the United Nations was asked to provide assistance to it. In practice, the United Nations advised Hamid Karzai and provided a considerable measure of administrative support.

Cambodia’s [1996] and Iraq’s [2005] arrangements were in between complete external control and complete local control. In Cambodia, certain functions were discharged by the United Nations, particularly the organization of elections to the constituent assembly and the protection and promotion of human rights. The day-to-day administration was carried out in accordance with the decisions of the Cambodian cabinet, which consisted of various local political groups.

In Iraq the administration was at first completely under the authority of the United States, represented by Paul Bremer, an appointee of the United States president, under the general authority of the Coalition Provisional Authority, which consisted of the United States and the United Kingdom. In July 2003, Bremer appointed twenty-five Iraqis to the Iraqi Governing Council to assist him in this task. The council appointed a council of ministers and a constitutional preparatory committee. Bremer’s initiative was intended to speed up the process for the adoption of the final constitution, as Iraqi politicians were reluctant to move fast, considering that they needed time for public consultation and to establish trust among themselves.

Bremer’s plan was torpedoed by the Grand Ayatollah Ali al-Sistani, the most influential Shia cleric in Iraq, who insisted that only an elected body should draft the constitution. The interim constitution (the Transitional Administration Law) was drafted by a committee of the Iraqi Governing Council and adopted by it. An interim government (consisting mostly of members of the former council) was set up; it took responsibility for elections and the operations of the constituent assembly. The constitution was adopted largely in accordance with the time limit, and fresh elections produced a new government and parliament.

The transitional phase was dominated by the concerns of the United States, and the Transitional Administration Law was in part a document negotiated between the Iraqis and the United States, touching on matters of special economic and political interest to the latter.

Internally managed interim arrangements

Since the start and the progress of negotiations often have a dynamic effect on the relations among the parties, it is not unusual that interim arrangements tend to be modified over a period of time. South Africa provides a good illustration. It passed through two distinct stages of interim arrangements. At first it continued with the system and government set up under the old (and disputed) constitution. Nelson Mandela was anxious to maintain legal continuity. But the old system was infused with a decision-making process in which all key parties to the negotiations participated. An executive committee of these parties was set up under the peace process. The cabinet agreed to exercise the powers of the government and, to the extent necessary, of the legislature, in accordance with the advice of the committee. Using this mechanism, some apartheid laws were repealed, and considerable progress was made toward a new constitutional settlement. The second stage was reached with the settlement on an interim constitution (which was adopted under the old constitution) and the holding, under the interim constitution, of the country’s first nonracial general elections. During this second stage, there was a government of national unity in which all major political groups were represented in the cabinet. A principal mandate of the newly elected parliament was to draft and adopt the final constitution. On the dissolution of parliament, elections were held under the new constitution—and a government was formed to usher in the end of the transitional period.