Accidental constitutions

Abstract

The study of constitution-making should matter to anyone concerned with the question of how to achieve stable, durable and effective constitutional governance in the modern world. At its best, constitution-making presents an opportunity for a new beginning, to enshrine guiding principles for future generations. At its worst, as numerous recent constitutional transitions have shown, it can lead to cycles of conflict and instability. There is increasing scepticism about whether prevailing approaches, modelled after the American and French post-revolutionary constitutions, are suitable for modern transitions, often occurring in fragile, deeply divided, and post-conflict settings. There is growing recognition of the need for more flexible, incremental processes that better address the competing needs of diverse populations. This thesis examines the role and performance of interim constitutions as an incremental constitution-making strategy. Interim constitutions, characterized by their ostensibly temporary nature, represent a two-stage approach to constitution-making, with the expectation that they will be replaced by a subsequent, permanent constitution. Despite growing interest in alternative constitution-making strategies, interim constitutions have received limited academic attention. Remarkably, 5 of the 7 interim constitutions currently in force have lasted over a decade – a significant duration considering the 19-year average lifespan of permanent constitutions. The constitutions of Germany (1949–), Libya (1969–2011), the UAE (1971–), Hungary (1989–2011) and Eritrea (1993–) all endured for decades despite being “transitional” in name, failing to deliver on their promise of a two-stage process. This research investigates why interim constitutions become accidentally permanent, and what this phenomenon reveals about their effectiveness as an incremental constitution-making strategy. The study addresses these questions through a comprehensive quantitative and qualitative analysis of 37 interim constitutions enacted since 1990. Notably, 80% exceeded their intended lifespans. This thesis identifies three primary factors for this unintended endurance: conflict, inertia, and abuse. Interim constitutions enduring due to conflict reveal the challenges and opportunities of incrementalist constitution-making in contemporary settings, with statistical analysis finding conflict intensity during the interim period to be a reliable predictor of interim constitution lifespans. Interim constitutions enduring due to inertia underscore the effects of path dependence in incremental processes: case studies of Hungary, Germany, South Sudan and Somalia illustrate how interim constitutions and their provisions can generate self-enforcing pathway dependencies, hindering the very processes they are supposed to facilitate and risking long-term entrenchment of short-term solutions. Finally, this thesis presents the first comprehensive analysis of the relationship between interim constitutions and authoritarianism, finding that 60 of 64 interim constitutions since 1950 were born to authoritarian regimes. Case studies of Libya (1969–2011), Iraq (1958–2003), Eritrea (1993–) and South Sudan (2011–) reveal the susceptibility of interim processes to abuse, with sham “interim” labels used to disguise authoritarian constitutions as transitional measures. The significance of this research lies in its potential to inform contemporary constitution-making theory and practice, particularly in fragile and conflict-afflicted settings. This thesis presents an original empirical and normative assessment of the use, performance and effectiveness of interim constitutions as an alternative, incremental strategy of constitution-making.