Potential strengths

Varol^{Footnote 26} and Ludsin^{Footnote 27} have both canvassed a range of potential benefits from using interim constitutions. This article builds on that scholarship, arguing that in contexts suffering from conflict or dealing with the immediate aftermath of conflict, an interim constitutional process can: (i) give parties a critical window of time during which to (re)build trust; (ii) facilitate an iterative process through which consensus can be built around complex or controversial issues; (iii) enable constitution-makers to test out new political and institutional arrangements and (iv) allow for more meaningful public participation.

An interim constitution can provide a roadmap out of conflict and allow time for trust building

Interim constitutions have commonly been implemented in highly conflict-affected contexts as a mechanism for addressing immediate political demands, while setting in place a legal framework within which to discuss a more final political settlement. In such a situation the interim constitution acts as a national political roadmap towards reform while giving both elites and the public time to work their way through contentious issues. A specific outcome of a more extended period of deliberation is that the process of negotiation and discussion can provide space for a concurrent process of political and social reconciliation, as trust is rebuilt through the process of consensus-building.^{Footnote 28} Such a process also lays the groundwork for a political culture of multiparty consultation and cooperation,^{Footnote 29} while reassuring the public that they will be able to participate as the process moves forward.

The South African 1994 Interim Constitution is often held up as one of the most effective examples of an interim constitutional agreement. It set out a clear constitution-making roadmap that enabled the peaceful political negotiation and participatory drafting of a successful final constitutional settlement (which has now held for more than 20 years). Responding both to the concerns of the white minority community that they would lose any influence on a post-election constitution-making process, and the expectations of the oppressed majority that the constitution could only be drafted in conditions of democracy, the 1994 Interim Constitution skilfully struck a balance between both sets of demands^{Footnote 30} by using the mechanism of an interim constitution. The African National Congress (ANC) was able to take some of the sting out of the transition as perceived by the white minority, by setting a negotiated constitutional framework in place which gave those stakeholders time to acclimatise to the new post-apartheid environment and use the interim process to reassure them as to what would be guaranteed in a constitution drafted after a transfer of power. Thirty-four constitutional principles ensured that the fundamental elements of the negotiated constitutional agreement would be translated into the final constitution.^{Footnote 31} While falling short of the minority rights entrenchment the white South African Government had wanted, the device of the interim constitution provided some reassurance as to minority rights. At the same time, it enabled the ANC to satisfy its own constituency as to the democratic basis of the new constitutional arrangements, with the election of a new National Assembly in 1994, the creation of a Constitutional Court, and ultimately the final Constitution being produced incrementally through a highly transparent process.

Significantly, the 1994 Interim Constitution itself took three years to negotiate, with various setbacks stalling the process.^{Footnote 32} Significantly, in July 1996, the draft of the final Constitution was sent to the South African Constitutional Court for certification, but in September 1996 the court rejected the draft text for non-compliance with the constitutional principles which were an integral part of the interim constitutional process.^{Footnote 33} This led to another round of negotiations and drafting before another text was finalised and finally certified by the Constitutional Court,^{Footnote 34} backed by one of the most participatory and open constitution-making processes undertaken up to that point.^{Footnote 35} While the Final Constitution was not endorsed at a popular referendum it was still widely seen as popularly legitimate. The case study illustrates that taking proper time to build trust around the interim political consensus enshrined in the 1994 Interim Constitution was crucial.^{Footnote 36} The use of the Constitutional Court as an oversight mechanism for the final constitutional settlement, also illustrates the value of forms of guarantee: the certification mechanism reassured those committing to the interim constitution, that the processes and the principles agreed therein as the basis for a new political settlement would be honoured, while the process of judgment helped establish the legitimacy of the Court as guardian of that settlement.

An interim constitution can allow for an incremental political settlement process in difficult circumstances

In FCAS in particular, the context in which a constitution-making process is characterised by its extreme complexity. Violent conflict may still be occurring, national and community politics may be highly polarised (whether for ethnic, religious, historical, social or other reasons), regional geopolitics may be impacting on the national scene and the international community may be exerting diverse influences. In such fluid environments, an interim constitution can allow time for such issues to be addressed, ideally in a way which will enable the process of finalising a permanent constitution to be undertaken in a more conducive, peaceful environment.^{Footnote 37}

A complicated and controversial example is provided by Somalia, where not one but two interim constitutions were used to set out a roadmap to peace which could build towards a more comprehensive political settlement. Both interim constitutions were intended to stand up new institutions in the context of Somalia’s transition from being a so-called ‘failed state’, while also building trust amongst a highly divided society in order to lay the groundwork for a more sustainable political settlement. While Somalia is often considered one of the most challenging constitution-making processes of this century, in actual fact, the slow but steady development of institutions and stability over the last decade could well be assessed as relatively successful given the context, in using an interim period to build trust and make adjustments to the constitution-making process along the way, or at least enabling some form of constitutional process to iteratively emerge.

In 2004, following decades of civil war, Islamic insurgency and warlordism, national counterparts working with the international community put in place the 2004 Transitional Federal Charter, which sought to establish new Transitional Federal Institutions (TFIs) for the country that could work together to develop a long-term constitution for Somalia.^{Footnote 38} This was an unusual process, in the absence of any formal overarching peace agreement (which was impossible in the context of an ongoing insurgency against the state by Al-Shabab and warlords), but was an innovation that sought to build on hard-fought security gains to put in place political processes and administrative institutions that could guide a transition to more stable governance. A new Independent Federal Constitutional Commission (IFCC) was established to draft a federal constitution by 2007 using a participatory process. The entire process was significantly delayed for a range of political and security reasons, not least the fact that the country was still suffering from major violent conflict and the new TFIs initially had very limited functioning. Nonetheless, arguably the very existence of the TFC and the new TFIs was a contributing factor in Somalia’s slow progress towards implementing the rule of law and more democratic institutions. By putting in place an interim constitutional framework, the previous lawlessness of Somali powerbrokers was reined in to some extent and a symbolic message sent to the people of Somalia that political power was to be exercised in accordance with some form of written legal text.^{Footnote 39} New government institutions were established, including the new Transitional Federal Government and Transitional Federal Parliament. Both institutions were flawed and plagued by corruption, however they nonetheless represented the first formal central government institutions for many years and the first trial of democratic power-sharing bodies.

In August 2012, after numerous delays and political breakdowns, pressure from the international community resulted in the signing-off (by six high-level political signatories and the UN Special Representative of the Secretary General, following a hastily convened National Constituent Assembly process) of a Provisional Constitution to replace the TFC. Interestingly, the decision to endorse a second interim constitutional framework was made only months before its endorsement, after years of effort aimed at producing a final constitution. In actual fact, the development of the 2012 Provisional Constitution as interim rather than final appears to be the result of a simple inability to reach agreement on key issues (namely, the states comprising the new Federal Republic, the division of powers between levels of government and the form of the federal government), coupled with a recognition that some constitutional output nonetheless needed to be agreed to meet the timelines being pushed by the international community.^{Footnote 40} As an aside, the case of Somalia’s first interim constitution is an interesting example of the impact of ‘interimness fatigue’ by the international community during a peacebuilding process. At the time the Provisional Constitution was agreed, the UN and development partners who wanted the TFG to ‘get the job done’ had very little patience for continued delay and pushed hard for a final constitution.^{Footnote 41} Arguably, their persistence may eventually come to be seen as an effective tactic, as the peaceful agreement of an updated interim constitutional framework in the form of the Provisional Constitution at least set a precedent of Somali political leaders working together to reach some basic consensus, even if they were not able to agree on all issues. Using an initial elite bargain at this stage of the constitution-making process was contentious,^{Footnote 42} but reflects the absence of a broader political settlement and may well therefore prove to have been a ‘necessary evil’ on the road towards a more inclusive and sustainable process.

Under the 2012 Provisional Constitution, a four-year timeline was provided to create federal states, negotiate a final text, hold a referendum and then organise national elections, all of which was to be achieved by no later than September 2016. Considering that Somalia continues to face a major civil conflict/insurgency and had virtually no formal democratic institutions in existence at the time the Provisional Constitution was finalised, a four-year timeline to agree a final constitutional was highly optimistic. However, Somalia may prove to be an example of stakeholders who are learning to balance the useful pressure provided by an interim constitutional deadline with the need to allow enough time to enable stakeholders to consult, build trust and negotiate over contentious issues. In fact, the last three years have been relatively productively spent on building up the federal government’s administrative structures, while also establishing the building blocks of the new federal state through negotiating the creation of new sub-national units.^{Footnote 43} This process of federal state formation was a crucial phase in the overall constitution-making process, but it remains to be seen how the current Somali political leadership addresses that fact that the state formation process has taken up the majority of the constitutional review timeline.

A key lesson from this case study is the need to balance clarity around the process with flexibility to respond to a fluid operating environment. The Provisional Constitution should have been clearer on the actual process to be used to move from the current text to a final agreed constitution, including permitting for amendments to the process if necessary, to accommodate unexpected political challenges. The Transitional Chapter of the Provisional Constitution reads as if the constitutional review and finalisation process was to be run primarily as a technical exercise, rather than an ongoing process of fraught political negotiation over the possibility of a political settlement.^{Footnote 44} The approach of the Provisional Constitution was one which contemplated legal drafting to be led by the Parliament with support from a Commission of experts. It did not recognise that there were key elements of the political settlement that were clearly still unagreed (e.g. the federal division of powers and money, separation of powers, federal member state borders) and that without that settlement, there could be no final constitutional text. Reflecting upon the drafting of the Provisional Constitution, it both lacked sufficient detail on the process to be clear on how political consensus is to be agreed before the technical drafting commences, while having too much detail on the institutions responsible for the constitution-drafting to allow for flexibility in the constitution-negotiating process. This impasse was never resolved with the result that the arrival of the September 2016 deadline for elections has seen efforts at constitutional reform lapse until a new Federal Parliament is (s)elected.

An interim constitution can test out new institutional arrangements

In FCAS where institutions have been gutted or run down by years of conflict, an interim constitution may serve the critical purpose of setting out an administrative roadmap to help quickly establish the basic infrastructure of a new governance regime, while still allowing flexibility to test out what works and what does not, before settling on a final form set of institutional arrangements. As mentioned above, this was the case with Somalia, whereby the 2004 Transitional Federal Charter established an initial set of Transitional Federal Institutions, and the 2012 Provisional Constitution updated and built upon these initial institutional arrangements. Somalia provides a good example of the use of an interim constitution to ‘test out’ new arrangements and update them as necessary in the next constitutional iteration. For example, the form of government was strongly presidential under the TFC, with the President wielding strong powers and supported by a weak Prime Minister,^{Footnote 45} but the Provisional Constitution inverted the power balance and gave the Prime Minister executive authority^{Footnote 46} in an attempt to rein in the powers of the presidency to limit their corrupting influence. This trialling of new arrangements can be a particularly valuable use for an interim constitution, allowing a newly democratising state such as Somalia to experiment with different arrangements before the (usually) high bar of constitutional amendment is introduced via a permanent constitution.

Another very interesting, but rarely discussed, example of this approach is the Autonomous Region of Bougainville (ARB) in Papua New Guinea, where the Bougainville Peace Agreement^{Footnote 47} saw agreement to an ARB Constitution as part of the peace process between the PNG Government and the rebel Bougainville Revolutionary Army. The Peace Agreement and ARB Constitution brought an end to more than a decade of civil conflict and provided an initial breakpoint in the push for immediate secession by Bougainville from the greater state of PNG.^{Footnote 48} It enabled the establishment of a new ARB Government with a more autonomous local budget and institutions. The ARB has its own President, Cabinet and legislature. Although not explicitly named as an interim constitution, the ARB constitutional framework is clearly provisional as it anticipates a fundamental review after a decade, at which point the people of Bougainville will have an opportunity to participate in a referendum in order to determine the final form of their legal/constitutional relationship with PNG.^{Footnote 49} If the people of Bougainville vote to secede and this is implemented, a new constitutional process will need to be undertaken. Arguably, by disconnecting the question of secession from PNG from the initial constitutional negotiations (which focused on power-sharing, resource-sharing and new government institutions for Bougainville) some of the heat was taken out of the first round of constitutional decisions. A decade of breathing space was given to all parties during which they have been able to build trust, gain experience of democratic governance and develop their own local political processes. This now leaves open the way for a second round of peaceful constitutional negotiations, as needed, although this is not entirely without risks.^{Footnote 50}

An interim constitutional process can allow for more meaningful public participation if the interim period is sufficiently long

In FCAS contexts, peacebuilding efforts often result in an initial ‘elite bargain’ to broker a ceasefire and/or an initial political settlement.^{Footnote 51} However, the inherently undemocratic nature of such bargains means that there is often an urgent push to transition from an unelected transitional government to a (presumably) more legitimate elected government reflecting the public’s will as expressed at the ballot box. The desire to see a more principled bargain put in place is also often one of the reasons why there is often a demand for a quick final constitutional settlement. Where the context of the transition or conflict requires a speedy peace agreement enshrining that initial settlement in an interim document rather than a permanent one can help avoid the immediate balance of power constraints on principled constitutionalism being translated into a permanent legal document. In particular, it limits the possibility of a ‘victor’s peace’ and/or the exclusion of the voices and needs of non-combatants.^{Footnote 52} An interim constitutional process can allow more time to engage in public consultations and to implement participatory process that can contribute to reconciliation through dialogue across different sectors and levels of society, opening up the initial constitutional ‘deal’ to broader normative ambitions.^{Footnote 53} The challenge in countries grappling with conflict or its immediate aftermath, however, is that the mechanics of enabling public participation and dialogue can be very difficult logistically and, in some contexts, ongoing conflict can make it impossible. In Somalia and the Central African Republic for example, both countries have had to manage constitution-making exercises during periods when both have had sizeable portions of their citizenry in areas of the country suffering from ongoing violence and insurgency.

An interim constitutional process can be useful in allowing more time to focus on initial efforts to stabilise the security situation, while at the same time creating space for innovative ways to reach out to communities in conflict zones. This benefit can only be harnessed where the interim constitution ushers in an interim period sufficiently long to enable time for stabilisation and the development and implementation of meaningful public outreach. In Somalia for example, the four-year timeline for revision of the 2012 Provisional Constitution has allowed time for the Government to focus on basic institution-building and planning in the initial years of the current process, with efforts to undertake public outreach now being rolled out to more communities as military successes create a more conducive environment and/or sub-national state formation efforts build more effective institutional capacities.^{Footnote 54} Even so, it is likely that more time will be needed for public consultations and the process of finalising the constitution.^{Footnote 55}

Similarly, the Central African Republic enacted an interim constitutional charter in August 2013 allowing for an 18-month period for a new Transitional Council and the Government to develop a new constitution for the country.^{Footnote 56} This was an optimistic deadline, considering the extent of conflict underway, but the parliamentarians/Transitional Council nonetheless pledged to undertake public consultations.^{Footnote 57} The process stalled a number of times as violence continued to undermine the efforts of the transitional government. However, as the country started to stabilise in 2015, the constitutional process picked up again and more public engagement was possible. Significantly, the interim constitution allowed for an extension of the interim period by six months, presumably envisaging that the process would be a fraught one. This extension period was invoked with the final constitution being approved by the Transitional Council two years to the day from the enactment of the interim constitution.^{Footnote 58}

This case study highlights the challenge of balancing the time needed for meaningful public consultations and negotiations amongst elite political stakeholders with the imperative to have deadlines which propel some momentum towards moving from transitional governance arrangements to something which is seen as more ‘legitimate’ and democratic (though whether or not elections in highly conflicted contexts actually do service as a legitimising process remains an area for debate). In this context, the inclusion of an extension process within the interim constitution was an important constitutional design element which served to enable the process to maintain its momentum without causing further political complications.

Using an interim constitution to allow more time for participation and to facilitate greater inclusiveness has clear benefits for the overall constitution-making process. Where constitution-making processes are closely connected to peacemaking processes, non-violent groups (in particular women, but also minorities and peaceful civil society) are often excluded from negotiations as the emphasis remains on the immediate need for a cessation of hostilities and a political settlement.^{Footnote 59} An interim constitution-making process which takes place over a longer period and covers a process of ceasefire and demobilisation can enable a shifting of emphasis from an elite bargain amongst combatants to a broader, more participatory process and constitutional bargain.^{Footnote 60}

Potential drawbacks in using interim constitutions

While interim constitutions offer a number of benefits to countries attempting to undertake constitution-making during or immediately after a period of violent conflict, they also carry inherent risks. These include, for example, that constitution-makers become complacent about reaching a final constitution, that an extended interim period may lead to default entrenchment of interim provisions and that there may be a bias in final decision-making towards the interim status quo.

Domestic stakeholders may be unwilling or unable to wait for a permanent constitution

While it would appear to be an obvious benefit that an interim constitution allows time to build critical trust amongst stakeholders in FCAS recovering from violent conflict and/or transitioning from dictatorship, experience has shown that the pressures for a quick and permanent transition can still be difficult to resist. Despite the now well-accepted observation that participatory constitution-making takes time,^{Footnote 61} it has been a marked feature of constitution-making in FCAS contexts that time has been considered to be of the essence, with very tight timelines often put in place for the completion of constitution-making processes. While peace agreements often resort to the establishment of extra-constitutional transitional mechanisms – such as transitional unity governments and/or transitional constitutional charters – their temporary and unusual legal status contributes to the impetus for a quickly drafted final constitutional settlement which will enable the transition process to end. Arguably, the expectation that a new constitution can be drafted quickly reflects a historical tendency to negotiate constitutions (and/or peace agreements) amongst a small coterie of elites – usually men, often ex-combatants and/or unelected technical experts – rather than via more broad-based participatory processes^{Footnote 62} that, by their nature, require substantial time to educate the public, consult on their views and build support for the final constitutional text. More simply, the revolutionary push for a new constitutional dispensation in FCAS often brings an impetus of its own, as the people’s demands for a new government and/or new elections to choose their new leaders takes precedence over all other factors. Exacerbating this demand, the apparently undemocratic nature of transitional governance arrangements – particularly where these involve interim military governments and/or unelected/unrepresentative interim leaders – means that there is a strengthened demand for a speedy permanent constitution to enable elections and ‘legitimate’ government as soon as possible.

All of these factors affected the constitution-making processes in Egypt following the January 2011 revolution, where the drafting of a permanent constitution was seen as a necessary and urgent precondition to presidential and/or parliamentary elections to usher in a new order. In the heady post-revolutionary days after the toppling of a president who had been in power for decades, an interim military government was put in place within days. Of itself, the installation of military leaders strengthened the demand for as quick a transition as possible, with the military agreeing to step aside only after elections.^{Footnote 63} Responding to the vocal demands of crowds of protesters still occupying the streets, the interim military government set up a constitutional committee within four days of suspending the constitution, with a mandate to draft an Interim Constitution within ten days, which was ratified within one month.^{Footnote 64} This was then to be used as a stopgap until a permanent constitution was drafted within six months (though in the end this period pushed out to more than 18 months).

As the subsequent course of the Egyptian political transition shows, however, an attempt to push for a speedy constitutional rewrite, without taking time to reflect on the past, engage in serious dialogue and reconciliation and address underlying drivers of conflict (such as Islamist vs secularist, between regions, between religions) severely undermined the Egyptian constitution-making process and its outcomes.^{Footnote 65} Where the strategic use of an interim constitution could have given stakeholders breathing space to meaningfully reflect on the revolution, build consensus and carefully negotiate through their disagreements, instead, the unconsultative development of the interim constitution by a self-appointed interim military council in early 2011 arguably sowed the seeds for the ongoing discontent. The ineffective use of the 2011 interim constitutional process to build constitutional consensus was a critical problem, but illustrates the difficulty of balancing the need for immediate legitimate government (particular when the public is demanding transformational change), with longer-term constitutional development.

As a result of massive public distrust of the interim military government immediately following the fall of Mubarak in January 2011, there was an urgent push for a new constitution and elections, in the absence of any kind of national dialogue or consensus-building effort. Contentious issues were left unresolved and a majoritarian system then allowed for the endorsement of a constitutional text that did not represent a broad-based political settlement, resulting in constitutional breakdown within less than 12 months of the promulgation of the 2012 Constitution.^{Footnote 66} Even more problematically, the same process and mistakes were repeated a year later when, following the 2013 overthrow of the Government by the military, another interim constitution was hastily drafted by a small group of 10 technicians, and a 100-member group was then selected to draft a constitution within three months.^{Footnote 67} The tension between the need for a quick transition to ‘democratic’ institutions, and the need for a political settlement which reflects a genuine agreement between different sectors of society is a complex challenge, which plagues constitution-making processes howsoever they are designed. That said, the case study illustrates, less the failure of the concept of the ‘interim constitution’ and more the need for it to be used to design a process with sufficient checks, balances and incentives for parties to reach consensus as regards the most polarising aspects of complex political transitions.

An interim constitution may enable self-interested stakeholders to delay progress

While some interim constitutions suffer from being used as mere legal window dressing for rushed constitutional drafting processes, conversely, the use of an interim constitution runs the risk that power holders operating within the new interim constitutional regime will become comfortable in their new roles and may unconsciously or even deliberately stall efforts at more permanent constitutional reform. As an interim period starts to lengthen, the imperative for agreement may wane, with negotiation fatigue setting in amongst constitution-makers, goodwill amongst the public giving way to cynicism and/or international attention and support subsiding. Nepal provides a well-known example of all of these problems. Following a ten-year civil war, in 2006 a peace process commenced amongst the warring parties which involved the immediate development of an Interim Constitution.^{Footnote 68} Similarly to the South African process, the Nepal Interim Constitution contained sufficient detail to enable a new government regime to be elected (to replace the monarchy), but left more contentious issues (such as the structure of the new federal state, the electoral system and the judicial system) to subsequent negotiations. This process recognised the absence of a fully developed political settlement and the need for time to build consensus and trust necessary to reaching it. The Interim Constitution which came into force in January 2007 called for an elected Constituent Assembly that would be responsible for negotiating and drafting a new permanent constitution within two years (as well as operating as the new national parliament), although the Constituent Assembly was only elected a year later in April 2008.^{Footnote 69} Stakeholders and observers were optimistic that the two years allotted to negotiations and public consultations sufficiently balanced the need for a timely transition with the imperative to build widespread support for the fundamental political transformation which the new constitution was anticipated to put in place,^{Footnote 70} but this proved not to be the case.

The Nepal case study is characterised by the repeated failure of the key protagonists to agree a constitution and resolve the fundamental disagreement between the key parties on the approach to decentralisation/federalism which dominated the entirety of the negotiation process and arguments over the form of government.^{Footnote 71} As the process repeatedly stalled, it became less and less inclusive over time, with the federal options under consideration becoming less accommodating of different interests. Repeated failures to reach consensus on key issues resulted in the May 2010 deadline for agreement on a final constitutional text being missed, and amendments to the Interim Constitution were passed to extend the process twice.^{Footnote 72} The national Supreme Court finally responded in an attempt to curtail the extended delays, ruling in November 2011 and again in May 2012 that the Interim Constitution timelines meant that no more extensions would be permitted and the Constituent Assembly would have to be disbanded if agreement was not reached by 27 May 2012. This was, in fact, what transpired.^{Footnote 73}

The dissolution of the Constituent Assembly left the country without an interim legislature, but political disputes again caused delays, with elections only held in November 2013 for a new Constituent Assembly. The second Constituent Assembly also faced challenges of government formation, and consensus continued to be elusive on critical outstanding issues. The process stalled again until the devastating earthquake which hit Nepal in April 2015 had the unintended consequence of reinvigorating the process. Political leaders under pressure pushed to agree a way out of the extended impasse, with the four major parties (out of a total of 31 parties in the Constituent Assembly) finally reaching agreement on a form of federalism.^{Footnote 74} The smaller parties resisted what they felt was an exclusive deal between the major powerbrokers and had the backing of the Supreme Court which rejected an initial set of 16 Principles for the new constitution as failing to accord with the federalism principles agreed as part of the initial peace agreement framework for negotiations.^{Footnote 75} Despite the intense resistance of the minor parties and their constituents, a new constitution was endorsed by the Constituent Assembly in September 2015 – almost a decade after the initial peace agreement was signed. However, the rush with which the major parties finalised the constitution in part reflected a move away from a broad approach to political settlement towards a more limited and exclusive form of settlement, and undermined wider public trust-building that had taken place over the seven years of the Constituent Assemblies’ tenure.^{Footnote 76} Drawing out the interim process has led to a move away from the inclusivity ambitions of the initial peace process, towards a narrow form of deal-making based on the self-interest of the larger groups. As a result, disagreement still exists regarding the federal structure in particular^{Footnote 77} and there remains strong resistance to the final agreement from indigenous groups who argue that they have been marginalised.^{Footnote 78} The Government has been forced to reconsider the final agreement on federalism and contemplate amendments to create additional federal units,^{Footnote 79} a sign itself that the ‘final’ constitution remains to some degree ‘interim’, as fundamental amendments are still under consideration.

Again, any assessment as to whether Nepal constitutes a ‘failure’ of interim constitution-making as a device, or merely a failure of this process, needs to consider whether a process which had attempted to push for a permanent constitution in the immediate aftermath of conflict would have had a better outcome. Although the situation is still in flux, and hindsight judgments difficult, it can be argued that there was still significant benefit to allowing more time for negotiations because the parties were not forced to agree on contentious issues within a highly pressurised environment in the immediate aftermath of the cessation of conflict, which realistically risked a reversion to war. Considering the distrust that still permeates the process, arguably a permanent constitution would have been virtually impossible in the short term following the cessation of hostilities.

However, again the process could perhaps have been better designed. More systematic and entrenched use of the Supreme Court as an arbiter of the final constitution as was used in South Africa might have bolstered Supreme Court interventions. Nonetheless, despite the deaths that occurred during the eight-year transition period and the numerous public protests and strikes that took place to protest the delays,^{Footnote 80} a reduced period of violence over a fairly long time was still a clear improvement over the thousands left dead by the civil conflict, and the country arguably continues to have possibilities for some level of consensus on the final constitutional outcome. While there was considerable frustration domestically and internationally at the intransigence of the parties during the negotiating process, nonetheless, the final result may show that using an interim constitution to release some of the pressure that built at moment of high tension contributed to an environment in which peace could be built at multiple levels.

Interimness may lead to default permanency

A further risk is that using an interim constitution to capture the compromises made during a peace process can create pathway dependencies that operate to entrench problematic outcomes. In South Africa, as discussed, default permanency of the interim constitution’s partial political settlement was avoided by specifically agreeing the ‘Constitutional Principles’ which incorporated a political settlement framework, but left room for further negotiation. In Somalia by contrast, federalism was entrenched throughout the text of both the Transitional Charter and the Provisional Constitution, despite the fact that many stakeholders have since argued that alternative forms of devolution with a strong central government would have been a preferable option.^{Footnote 81} Without very careful design at the outset of the process, however, there is a substantial risk that the baseline compromises of hastily negotiated agreements will inadvertently become permanent, as powerbrokers who benefit from them resist their amendment. Formal decision-making rules which require a high degree of consensus to amend provisions and/or informal behavioural biases toward retaining the status quo could have problematic and unintended consequences.

Indeed, status quo bias may be accentuated due in part to the very fact of it being given the special status of constitutional recognition in an interim constitution, even though that recognition is only provisional. This is a particular risk where interim constitutions are closely linked to peace agreements, as peacebuilding compromises may be made for highly political strategic reasons and/or in an attempt to defuse the escalation of violent conflict, but may in fact make longer-term peacebuilding and constitution-making processes more difficult. The process through which South Sudan was created from Sudan is arguably a case in point. Following decades of civil conflict as part of Sudan, in July 2002 a ceasefire was agreed between the Sudan Government and the rebel group representing South Sudan, the Sudan People’s Liberation Movement (SPLM).^{Footnote 82} The negotiations were highly complicated, with competing peace processes being supported by African and Arab stakeholders and the United States also playing a major role in the peace negotiations.^{Footnote 83} Eventually, the two processes were captured in the 2005 Comprehensive Peace Agreement (CPA), which agreed a cessation of hostilities, provided for different religious treatment in the South and North, and gave South Sudan a right to self-determination by referendum at the end of six years.^{Footnote 84}

The CPA, in effect, operated as an interim constitution setting out the institutions of democratic governance, power-sharing, federal divisions and wealth sharing. Although the CPA specifically included a clause calling on parties to ‘design and implement the Peace Agreement so as to make the unity of the Sudan an attractive options especially to the people of South Sudan’,^{Footnote 85} by intertwining the ceasefire with the secession referendum the CPA arguably weighted the interim process heavily in favour of secession, with little likelihood that the so-called ‘interim’ arrangements enshrined in the CPA would be sustained.^{Footnote 86} Unsurprisingly, at the end of the interim term specified in the CPA, in January 2011 South Sudan exercised its right to self-determination and voted to become an independent nation. In the intervening period before its official creation as a new state, South Sudan developed its own Interim constitution, the Transitional Constitution of the Republic of Sudan 2011, to carry it through the initial period of transition from the CPA framework to independence and beyond. This subsequent Southern Sudanese use of an interim constitution further illustrates some of the weaknesses of poorly designed interim constitutions including: the lack of a sufficiently clear process for reaching a final constitution; delegation of excessive power to the President to fill the initial power vaccum at the time of transition; insufficient checks and balances; resulting increased executive dominance of political processes; and an absence of principles to guide the development of broader political settlement processes rooted in inclusion of key groups and broad participation.^{Footnote 87} Together, these have exacerbated underlying political tensions and have arguably contributed to the civil conflict that continues to plague the country in the absence of a political settlement.

The interim constitution may be too incomplete to deal with constitutional impasses

While interim constitutions may sometimes facilitate political delays by enabling the negotiating parties to push back decision-making dates, more problematically, they may also simply veer off track, as the ‘interimness’ of the agreement leaves the constitutional framework too incomplete to address the unravelling or undermining of a fragile peace and/or the breakdown of already weak or compromised institutions. Of course, one can query whether this is the fault of the interim constitution or whether the fact that only an interim agreement was possible is reflective of the divisiveness characterising the constitutional environment more generally. Libya provides an important, if complex, case study in this regard. At the outset, it is necessary to recognise that an interim constitution was used in Libya in an environment where there was no political settlement, very little public trust, the absence of any form of constitutional democracy on which to build and ongoing violent conflict. In this context, the 37 Article interim Constitutional Declaration now looks woefully inadequate to serve the broad peacebuilding, reconciliation and state-building objectives which should have been at the heart of Libya’s constitution-making project.^{Footnote 88} However, I would still suggest that although in recent years violence has spiralled out of control and Libya has become an increasingly complex and intractable context for peacebuilding and constitution-making, in the early days after President Gaddafi was overthrown there was arguably momentum that could have been harnessed for more effective peacebuilding had more consideration been given to the design of the interim constitution.^{Footnote 89}

Following the 2011 ousting of President Gaddafi, in the immediate aftermath of the revolution a National Transitional Council (NTC) was formed as a transitional government and parliament for the country.^{Footnote 90} The NTC enacted a Constitutional Declaration in August 2011 which envisaged that a General National Congress (GNC) would be elected as a new parliament, which would then appoint a technical committee to draft a constitution in 60 days that would be submitted to the GNC before being put to a public referendum.^{Footnote 91} Only weeks before the end of its term, the NTC amended the Constitutional Declaration to require the election (not appointment) of a Constitutional Drafting Assembly (CDA), which would draft a Constitution within 120 days that would be sent straight to referendum, bypassing the elected GNC.^{Footnote 92} This set off a major political battle: wrangling over both the composition of the new Government and whether the CDA would be elected or appointed followed the GNC elections in July 2012 and saw a major delay in the constitution-making process.^{Footnote 93} Elections for the CDA were held more than 18 months later in early 2014.^{Footnote 94} By the time the CDA was finally operational in May 2014, the political situation in Libya had substantially deteriorated: the security situation had unravelled with militia claiming territory across the country and the central government was virtually unable to exercise authority in parts of the country. The deadline for a new constitution continued to be extended as the CDA laboured slowly, while the political and security situation worsened. Eventually new elections were held to break the political deadlock gripping the country, but the result contributed to a further political impasse with the old GNC and new House of Representatives both claiming authority as the national legislature following disputed elections.^{Footnote 95}

The interim constitution was drafted in 2011 at a time of considerable optimism in Libya, and no conflict mitigation mechanisms were included in the text which could respond to the deteriorating situation. The text of the interim constitution assumed a functional government, parliament and constitution-making process, with the short time frame allowed for the constitution-making process.^{Footnote 96} Once each of these began to break down, the interim constitution was unable to operate as a meaningful guide to resolving political conflicts, particularly in the absence of any overarching constitutional principles to encapsulate even a minimal political settlement and guide the process, as had been put in place in the South African or even the Nepalese context. At the time of writing, there is still no conclusion to the constitution-making process, with efforts to merge the two competing national legislatures and governments through an extralegal UN process slowly gaining traction^{Footnote 97} and the CDA still attempting to finalise a draft text in the absence of any overarching national political leadership.^{Footnote 98}

Of the many lessons learned from the Libya transition process, possibly the most useful regarding interim constitutions is the importance of deliberately putting in place an interim constitutional process with a proper timeline, clarity on the overarching issues to be addressed, and mechanisms for breaking constitutional deadlocks and for overseeing the implementation of the interim constitution. In 2011, when the Constitutional Declaration was first being drafted, it is possible that the optimism of the revolution led to the assumption that constitutional consensus would be easy to come by and that the pressure to quickly transition from dictatorship to an elected government mean that detail regarding process was foregone; hence the very short anticipated drafting timeline. However, constitution-making speed has arguably been the enemy of consensus in Libya, and the need to ‘legitimate’ the process by introducing elections in the interim period exacerbated, or at least brought to the fore the lack of underlying political consensus around the process and direction of the constitution-making exercise. While the current political and security breakdown in Libya clearly has many complex causes that are beyond the scope of this article, it is submitted that the unrealistic deadlines for constitutional drafting and the inability of the interim constitution to guide a response when those deadlines were missed, certainly contributed to the highly fraught political environment.