Negotiating Governance

Governance

Nicole Carle: Hello and welcome to this module on the issue of governance and peace negotiations. This session overviews the main conundrums and way out of such conundrums related to this topic. My name is Nicole Carle and I'm a counsel at the Public International Law and Policy Group, and I'm joined today by Dr. Paul Williams, President and Co-founder of the Public International Law and Policy Group. Welcome, Paul. 

Dr. Paul Williams: Great. Thanks, Nicole. It's great to be here. 

Best Practices To Approach Post-Conflict Governance 

Nicole Carle: Now, in general, what are some of the best practices parties to peace negotiations need to keep in mind when approaching these discussions on post conflict governance?

Dr. Paul Williams: Well, Nicole, the main issue to keep in mind is that during a peace negotiation, the parties are going to want to put as much detail as possible. You have a mediator, you're at a venue, whatever has happened, it's become ripe for a negotiation to resolve the conflict, and so while you're there, and you're thinking about governance issues, power sharing issues, state structure, the democratic nature of a state, you want to detail out as much as possible so that you can preserve that.

Now, that's a great idea, except for the fact that at the same time you're negotiating natural resource ownership, management, revenue allocation, you're negotiating whether there's going to be peacekeeping troops, you're negotiating security sector reform, you're negotiating DDR, disarmament, demobilization, and reintegration, you're negotiating human rights, you're negotiating all kinds of other issues.

You don't have time to actually turn the peace agreement into a constitution. But at the same time, if it's so thin because these other issues that are relating to stopping the war are so important that you just get a handful of principles, then you stopped the war, but you haven't made progress to building out a durable peace or designing a state which will ensure that there's a durable peace.

So, there's a few ways of dealing with this. One is to set out principles, but a fairly comprehensive, not necessarily detailed, but comprehensive set of principles that the parties agree that the nature of the state, as a result of these peace agreements, will include something about the state structure, something about its democratic nature, something about the inclusivity, in most instances, conflicts are driven by highly marginalized populations. So, how do you begin to include them? And then secondly, a framework for sorting out the details of a governance structure that will implement that framework. Will there be a national dialogue? Will there be a constitutional process? How long should the constitutional process take? Who can be included into it? Will there be a referendum? You have to decide all those issues, but you want to at least identify the outlines of a process for transforming those principles into a constitutional document. 

National Dialogues

Nicole Carle: You mentioned national dialogues, which is a key portion of designing a post conflict government. Can you talk a little bit more about what these entail? 

Dr. Paul Williams: Yes, Nicole. So, a national dialogue is oftentimes a precursor to a constitutional drafting process. The idea behind a national dialogue is it's an interim step between the peace negotiations, which oftentimes are not that inclusive.

Let's face it, it's the guys with guns and increasingly there is special accommodation made for civil society participation or women's groups, youth, marginalized populations, but still at the end of the day, the mediators want to stop the war, and so, the guys with guns have most of the prerogatives, so to speak, in those negotiations.

And then there's a constitutional process, which is oftentimes more inclusive, but it's also technical drafting of a legal document, a contract, basically a social contract to implement. And that as well as inclusive, but needs to have a heavy dose of technical expertise involved in it. So in the middle, you'll have a national dialogue, which can be quite inclusive.

The Yemen national dialogue had over 500 participants. You want to be able to represent all segments and all dimensions of society and have them come and say their piece. I think, if I recall the outcomes of the national dialogue, there were things that the people of Yemen had decided they wanted to see in a new Yemen state coming out of the conflict and transitioning from a totalitarian regime.

It allows you to basically assess the will of the people and then distill it into some type of document, which can then be picked up by a constitutional process.

Drafting and Amending Constitutions 

Nicole Carle: The drafting and the amending of a constitution seems to be a critical part of the post conflict government process. Can you talk more about what this looks like at the negotiations level?

Dr. Paul Williams: So, figuring out when and how to draft a constitution is crucial. As I mentioned briefly, sometimes it's important to just, look, set out the principles, maybe call them framework principles, have a national dialogue, and draft a constitution. In some instances, the parties will insist on the constitution now, because this is that one point in time where they have the political power or the military power to force the other party and then have the expertise of the mediators to help them navigate this.

So for instance, the Dayton peace accords include as one of the annexes, a constitution which will be used and is still to this day used to govern Dayton. You'll often find that there’s such an interest in changing the political system, or in the case of Bosnia, Yugoslavia had dissolved. There really was no existing political structure, so you needed the constitution. Or interestingly, in the case of the Lake Ohrid Accords with Macedonia, the peace agreement itself was a set of over a dozen amendments to the constitution. They didn't actually negotiate a peace agreement, they sat down in the peace process and negotiated direct amendments to the constitution.

I think that was a much more efficient way for the Macedonian Albanians and the Macedonian Slavs to be able to come together quickly, stop the conflict, avoid what had happened in Croatia, what had happened in Bosnia, so they skipped over the peace process and went right to amending the constitution.

If you're not going to do the Constitution, the peace agreement, and those are only in limited circumstances, and you do framework principles, you design a national dialogue, you design a process for the Constitution, you have to be cautious that you don't over design it, and that it becomes a five-six year long process, where there's momentum for peace that erodes. Essentially, the momentum for peace dissolves, disintegrates, and the parties don't see a tangible outcome of the conflict or the negotiations, they’ve just been put into some long process. This was the risk in Nepal. They had a peace agreement, they pitched it into a constitutional process, they created a constituent assembly so they could govern at the same time they were drafting the constitution, and they kept extending and extending and extending. They eventually did design a federal state and under a new constitution, they had a number of prime ministers and a number of elections while they were doing these constitutional negotiations, and there was a lot of concern that the people weren't seeing the benefits of the peace process, and that they might return to conflict because of the delay or the lag time and actually having a constitutional process. 

Timeline for Constitutional Modifications

Nicole Carle: So we're trying to avoid this five to six year process, but what is a typical timeline for constitutional modifications?

Dr. Paul Williams: Yeah Nicole, there is no typical timeline and there are a couple of bear traps. If we want to put out some signposts, Northern Ireland, the peace process, the constitutional modifications took almost a full two years. In Yemen, they had laid out a process of five months for the national dialogue. I think it ended up taking nine months, and then they set out four months for the constitution, which was only 17 people. The national dialogue was 500. The Constitution was only seven people that were supposed to be four. I think it ended up being more like, six or seven months. 

One of the issues in Yemen was that the national dialogue was so enthusiastic about its outcomes and its constitutional provisions that when the constitutional committee met, I was one of the legal advisors for the constitutional committee. We met in Taas and went through the outcomes to figure out how many of them were constitutional; 1200 of the outcomes recommendations were constitutional. Trying to take 1200 in a period of four months and put them into a constitution was a pretty dramatic task. 

East Timor, three months, and a little too quick. There were a lot of challenges and a lot of contesting of power under fairly ambiguous and vague constitutional provisions.

Look, in a peace agreement, you can split the difference and be vague because you often have peacekeepers, and they'll maintain the peace while you sort things out. Constitution, if it's vague, it's going to be very difficult to do. You end up pitching it to the court which is often a new court and it's very difficult for them to sort these issues in a way that doesn't destabilize or erode the durability of the new structure.

So there's no real answer. I would say, however, that one of the things that I was surprised by, there's oftentimes a disconnect between the ideal system and process for a constitution, which includes effective public participation, public education feedback, and socialization of the general population and actually getting constitution written in time so that the country doesn't flip back into conflict.

And I've been in so many meetings where we'll, with the mediation, so to speak we'll talk with the parties and the parties, both the non-state armed actors and the government actors are like, okay, we got to do this in three to four months, and then we'll have experts come in from the global community and they'll say a proper constitutional process really takes three to four years and they pull out a flow chart, and if you outline all of the different things you need to do for a proper constitutional process, it'll take years.

And the armed actors in the government look at one another like, we're okay with you now in these peace negotiations, and if we get some peacekeeping and we get some international assistance, we're probably okay holding this together. But, we're not gonna like you for the next four to five years. We're likely to return to conflict if we have to wait three to four or five years to get these political concessions or these new political arrangements that were negotiating.

So, you really do have a tension between the ideal of what an inclusive constitutional process would look like and the necessity of actually getting to a constitutional draft so you can start governing the country. And one last point is, without a constitution, you use the old system, and the longer the old system, which was a conflict driver, exists, the more threat there is to the durability of the peace agreement.

Interim Constitutions

Nicole Carle: Staying on the topic of constitutions, I want to talk a little bit more about interim constitutions and their purpose. Can you say a little bit about this and why states might implement an interim constitution versus going right to a permanent one? 

Dr. Paul Williams: Yeah, Nicole, in order to overcome the dilemma, which we were just discussing, oftentimes, mediators will suggest that the parties adopt not only some framework principles, but an interim constitution during the peace negotiation, or there will be an immediate follow on meeting sort of a phase two of the negotiations with still the same actors and maybe some additional experts and maybe some additional civil society that then drafts an interim constitution that would govern the country for a year or two maximum. So it's not the old structure, which in and of itself was a conflict driver, it's not a modern, crafted constitution with lots of public engagement and assistance, but it is something that can say, okay. Is there a prime minister? Is there a president? How are they appointed? Is there a cabinet? Are there going to be elections shortly? Will the interim constitution have an elections commission that in that one year sets up a process for elections?

A lot of countries in conflict don't really have elections or they haven't been free and fair or actually genuine elections. There's an infrastructure that needs to be designed. So the good news for an interim constitution is that it allows you to bridge the peace agreement to a full constitution.

The bad news is that most of the actors that assume positions of power and authority in the interim governing structure via the interim constitution are the guys with guns who negotiated the peace agreement, because, part of what they're negotiating, if they're doing DDR, they're engaging in security sector reform and professionalizing the military, they got to go somewhere.

They go into politics, they go into the government, they become part of this interim structure, and then they don't want to leave. Just about every interim constitution says those who hold positions of political power in the interim administration cannot run for election or cannot hold positions of power in the subsequent administration.

That always gets amended out. One of the first things they do in the interim constitution is amend out the restriction that those people can hold power. The other thing, we've seen this in South Sudan, we are in the tenth year of the operation of South Sudan's one year interim constitution. PILPG, we helped draft, we provided technical assistance to the government of South Sudan when they drafted that interim constitution, and it was as part of a transition. It was really focused on centralizing power in the executive, and our mistake working with our South Sudanese clients, we centralized too much power in the executive and the executive, still after a decade, doesn't see how the country could run without power being centralized in the executive. And they just keep extending the interim constitution and finding ways not to have a proper constitutional convention. So, even though there's a one year sunset clause, you have to kind of be careful what you put. Don't make your interim constitution too attractive for the old political elites that they'd never give up the power.

Constituencies and Voting

Nicole Carle: Now, touching back to something you mentioned earlier at the National Dialogue in Yemen, they had representatives from all over society. Do people or constituencies always vote for a new constitution or constitutional amendments? 

Dr. Paul Williams: Well, this is interesting, Nicole, because you want to have, as exclusive as a peace negotiation is, you want your constitutional process to be as inclusive as possible, and what could be more inclusive than subjecting the Constitution to a referendum? And so on its face, this sounds great. You know, the peace agreements are oftentimes brought into force by signatures, Security Council Chapter seven or Chapter six endorsement. Maybe the local parliament will endorse it as well, but seldom is it put to a referendum. 

The constitution is increasingly put to a referendum, but the difficulty we're finding there is that it's easier to vote no if there's one or two issues of maybe 54 that you're not happy with. And so, the Columbians put their peace agreement/constitution to a referendum and it was voted down in large part because the population of Columbia was unsatisfied with the degree of criminal accountability for those who had committed atrocity crimes. Now the parliament just changed a few words and said, okay, we're good. We don't need another referendum on this, so there's a little bit of a bait and switch there. 

Guatemala in 1999 tried something different and had five different questions. But it was really uncertain at the end of the day, what the voice of the people was. What was the will of the people because of all the different ways in which people had voted yes, no, yes, no on the five different questions, and it was also very confusing. The thing that any political scientist will tell you about a referendum is it has to be yes, no, it has to be simple.

South Sudan's independence referendum basically had the hand up, meaning independence, or the hands together, meaning unity, and they said separation or unity, and you ticked a box, and that was it. One word, one, one infographic, so to speak on one image, and that's what you voted on.

Countries get really complex in their constitutional referendum and at the same time, oftentimes neglect the question of, if you vote this constitution down, what governs? Back to the peace agreement, back to the interim constitution, what would replace this constitution? So great idea, but actually something that could erode the durability of a peace agreement.

Impact of Human Rights Protections in Governance Negotiations

Nicole Carle: Interesting. Thanks for sharing some of those stories. Now I have a couple of questions left and one more substantive thing I'm curious about is, how do human rights protections impact post conflict governance during peace negotiations?

Dr. Paul Williams: Yeah, Nicole, I think human rights are, it seems straightforward, every peace agreement should provide for the maximum protection of human rights, but you're oftentimes in peace negotiations because there's been serious violation of human rights, oftentimes atrocity crimes committed before and in the course of the war. How do you ensure that these rights are protected? And there's an intense debate in these negotiations between the government and then the non-state armed actors. Interestingly, the non-state armed actors are oftentimes more keen on power sharing, natural resources allocation, DDR, security sector reform, things along those lines.

And although they use human rights atrocities and human rights violations to build public momentum, they're not really that interested in protecting those in the context of the agreement. And that's why, again, I think for civil society and marginalized populations, it's important to find a mechanism for them to participate.

And it's incumbent upon the mediator because all of these human rights provisions are chiseled in stone in international law. I've seen many instances where the mediators have come in and said, you know what? We should have a conversation about human rights. You guys don't seem too interested in that, but here is a draft charter on human rights we'd like to include in these negotiations.

And there's a couple of ways of doing this. In the Dayton Accords, as we've discussed earlier, they basically just attached a list of over a dozen international human rights treaties and said all of the rights and privileges in these treaties are applicable to every citizen of Bosnia. And it was an easy way for them to scoop up the entire universe of rights and make them applicable, regardless of whether Bosnia or Yugoslavia previously had signed and ratified these treaties. You can do that, in a peace agreement, and then it was ratified by chapter seven. 

Now, the difficulty is if you ask a Bosnian citizen, what are your rights? They saw, I have rights under the convention of elimination and discrimination against women, the CEDAW convention.

Great. What are they? I don't know. I don't have a copy of that, and so they're less tangible. Now the South Africans went the other direction. They had a 24 page annex on human rights. So every South African can look up in their constitution exactly what rights they have. Now, the difficulty is they included all of the fundamental rights as well as the social rights as well as the economic rights, and they haven't implemented all of them.

And so, there's the concern that you degrade the right to free speech, freedom of assembly, to be free from torture, etcetera. If you have a bunch of other social and economic rights that you're not implementing, and yeah, okay, human rights are a feel good, they're not actually something that should be implemented.

But parties have different perspectives on that. So the takeaway on human rights would be, there's plenty of international law and international practice on human rights. There's plenty of international mechanisms that can be brought to bear, international tribunals, they have jurisdiction in all parts of the globe on human rights and the regional tribunals.

Make sure that they're embedded in and given jurisdiction to supervise and implement the agreement and then the mediator should take on the responsibility of ensuring that the parties have adequate human rights provisions in their peace agreements.

Key Takeaways

Nicole Carle: And last but not least, anything else that parties to peace agreements should keep in mind when addressing governance or lessons learned that they can implement. 

Dr. Paul Williams: Yeah, Nicole, I would only say there's two takeaway things that I would like folks to remember. And one is the governance provisions are a social contract, power sharing, natural resources, all the other issues we talk about. They're important and they're crucial, but the governance is teeing up the constitutional process. It's the social contract that ideally for decades, if not centuries, should govern the relations among the people of this state.

It's essential to fix what was broken from the earlier system in order to have a durable piece. And then the second thing is, you have to think about the future generations, most everything else that's negotiated in an agreement is between a party on one side and a party on another side, and who gets what, when, where and why that's all fine.

But governance is something that their children and other people's children and grandchildren are going to be governed by, essentially. And so it's imperative for the mediator to be thinking over the horizon about, okay, what are we putting into the agreement now that is going to create a very functional state in the future or is going to create a dysfunctional state.

And if you look at some places where the peace agreements have been successful, it's because the mediators have looked over the horizon, looked over the heads of the parties to think through how do we help these parties design a structure that will allow their grandchildren to live in peace?

Nicole Carle: And on that note, I'd like to end this discussion here and thank you for joining us, Paul, and enlightening us on governance as a key issue in peace agreements. Thank you to those watching, and please join us in the next video. 

Dr. Paul Williams: Thank you, Nicole.