Constitution Writing & Conflict Resolution

Transitional Justice

Constitution writing may take place after a period of violent national crisis. In these instances, policy makers face a difficult dilemma. On the one hand, popular opinion may wish to see wrong-doers punished. On the other, the regime that tolerated the wrong doing may still wield enough force to disrupt proceedings and sink the country back into violence.

Politicians who represent a new order may wish to demonstrate a break with the past. They may pursue transitional justice as part of the effort to rebuild the political community. This justice may take several forms, including lustration,* criminal prosecution, creation of a truth and reconciliation commission, and selective amnesty. These decisions may affect the tone of proceedings.

Early analysis of the data collected in this project suggests that a forward-looking tone, combined with selective amnesties or a truth and reconciliation process, is often associated with a decline in levels of violence. Lustration and criminal prosecution correlate more frequently with increased violence or with the sudden suspension of the new constitution. These statistical associations are not iron laws; nor are they moral statements. However, they do point to the need for careful consideration of pros and cons.

The procedures and tone set by key negotiators, chair persons, and the incumbent head of state are an aspect of transitional justice that has received little attention. Success is more likely if the main deliberative bodies eschew the creation of sub-committees devoted to the study or prosecution of past abuses and focus instead on institutions that will dampen conflict and expand choice in the future. The 1992 constitutional proceedings in the Republic of the Congo provide an unfortunate textbook case of how a focus on abuse and repentance can aggravate difference and spawn civil war. By contrast, the tone of proceedings in Benin, South Africa, and Spain, while not devoid of recrimination, brought powerful parties with very different interests together.

* Lustration comes from an old Latin term that means, “to cleanse” or “eliminate.” Today the term refers to rules that limit the ability of those who served in the previous regime (collaborators) to run for office, hold positions, etc. Lustration may involve other penalties or prosecution as well.

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