Truman National Security Project

The Transitional Bridge: A Challenge and Opportunity for Mediators

Praying_in_Tahrir
By Sean Kane | 2.15.13
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The Arab Spring has reminded us of the importance of properly understanding the tasks, pace and sequencing of political transitions. Following the heady days of Tahrir, Egypt has become a sobering study of an incoherent transition. To varying extents, Tunisia, Libya and Yemen have also faced questions as to the viability of the choices made in their own transitions.

With their attention captured by the imperative of ending armed conflicts and competing visions of the new state, mediators and stakeholders alike often overlook the importance of the transitional period that forms the bridge between the two. Yet transition is a time of institutional vacuum and great uncertainty – perhaps the most challenging period in the building of a new democracy. During transition, systemic challenges on the political, security, and economic fronts are likely to coexist simultaneously. At the same time, popular expectations of a democratic dividend will be soaring. Moreover, many of the key tasks of the transition – such as elections and constitution-making – are inherently controversial and often divisive.

While much can go wrong in a transition, it is also a time of great opportunity and creativity if approached correctly. From the standpoint of the mediator, the charge is to avoid conflating the tasks of the transition with the final agreement on the construct of the new state. The overriding focus of negotiations on transitional arrangements should be on how they can help secure the conditions of peace and how they provide a process to produce a sustainable social compact in a divided society.

The ongoing democratic transitions in the Middle East region illustrate the complex choices which those negotiating a future Syrian transition may be forced to navigate
as early as 2013. Given the regional sectarian overlay to its vicious internal conflict, Syria is likely to face the most challenging transition of them all. The wholesale societal deconstruction that Syria is undergoing means that it will have little margin for error in any transitional agreement.

The Transition as a Bridge

We refer to the period between the end of the old order and the coming into being of the new enduring social contract as the transition. It follows that a transition is a bridge between the circumstances which prevailed during the conflict or old order, and the constitutional arrangements which will govern the new state. This bridge must be structurally sound because transitions are inevitably high-stake ventures. Their very temporariness is, however, a real advantage to the mediator in search of creative solutions. It allows for compromise and special rules for participation that might not ordinarily be acceptable under electoral democracy. This flexibility can be vital in buttressing the bridge.

Through this lens, the paramount tasks of transitional arrangements are threefold. Firstly, to hold society in place under volatile conditions. Secondly, to guarantee the process of transition and render it irreversible. Finally, to complete the tasks necessary to form the transitional bridge. These usually include elections and constitution-making, which can either contribute to nation-building or may polarize societies. If handled in the wrong way, the political transition in a divided society can become a daily referendum on identity.

Who Supervises the Transition?

The starting question for any transition is: who should be responsible for managing the process? Given the fluidity of transitions there can be no clear-cut templates, but our experience suggests three broad approaches.

The first approach empowers the existing authorities to implement the transition. This route has the potential benefit of expediting the transitional process by placing responsibility for it with those actors who have the capacity to implement it and who can be held accountable by the international community. But this choice runs the risk of transferring legitimacy to the old order without diminishing its control. Historically successful in South Africa’s democratic transition, this approach has largely been rejected by popular movements during the Arab Spring. While not necessarily making a deliberate choice to do so, Egypt came closest to this model.

To maintain credibility, this route normally requires another powerful and credible mechanism to supervise the implementation by the old order. Authorities in Bahrain and Syria have for example cynically and unsuccessfully made cases for government-run transitions. Even in Morocco, the topdown constitutional reforms granted by King Mohammed VI in June 2011 are increasingly criticized for not touching the paramount powers of the monarchy.

In contrast, the power-sharing approach prefers the immediate participation in government of factions excluded by the previous regime. Under this route, inclusive interim institutions force the parties to take joint responsibility for managing the transfer of power. But this type of transition may stagnate because of the need for consensual decision making. The clearest example of this approach during the Arab Spring is Yemen, where the interim cabinet is evenly divided between the government and the opposition, and parliamentary decisions are made by consensus. The International Action Group for Syria’s Geneva Communiqué also calls for a transition supervised by a neutral transitional authority that “could include” members of the present government, opposition and other groups.

The third approach insists on the expulsion of incumbent leaders and on vetting the government bureaucracy for ties to the former regime. It usually follows an unambiguous overthrow of the old order. This approach can provide a ‘clean break’ with the past, but it can also be polarizing if implemented in a partisan fashion (as with de-Baathification in Iraq). In the Arab Spring, authorities in Libya and Tunisia most closely followed this route of lustration. The picture has proved far more complicated in Egypt, while the “de-Salehfication” of the military and civilian structures in Yemen risks degrading the elite power-sharing agreement underpinning its transition.

In any of these scenarios, transitional arrangements may make a distinction between the transitional government and the authorities supervising it. This can be addressed by an inclusive ‘supervisory’ committee comprised of a broad range of actors. Such an inclusive supervisory mechanism can allow for necessary amendments to the agreed arrangements – an important consideration. This type of broadly accepted supervisory body was successfully created in Tunisia. In Egypt, the establishment of an interim presidential council and non-partisan governing authority was mooted early in the transition – possibly a key missed opportunity.

The Pace of Transition

The next critical question is whether the transition should be fast-forwarded to expedite elections even if proper normalization of the security and political environment has not been achieved. The generic dilemma is that early elections are likely to favour both old regime incumbents and the best organised opposition, while late elections delay the injection of popular legitimacy into the new order and potentially allow the provisional government to entrench itself.

For example, in order to achieve the irreversibility of the transition from military rule in the late 1980s, Chilean democrats accepted an early general election under imperfect conditions. It was this election that cemented the transition by paving the way for the demilitarization of the institutions governing public life. Likewise, in the bottomup “people power” uprisings of the Arab Spring, there has been a popular push for early elections. The primary intention has been to replace self-appointed interim institutions with elected authorities. But there have also been sharp debates, especially in Egypt and Tunisia, reflecting fears among some stakeholders that their countries were
being propelled into early electoral contests, favouring established Islamist opposition parties before new political actors were able to organise.

Contrary to the early elections approach, in the South African transition, the political playing field was leveled through an overhaul of public institutions and laws prior
to holding the first democratic national election. But this was only possible because the major players had confidence in the irreversibility of the transition and due to
the existence of a credible all-party monitoring and supervisory committee. Similarly, in Tunisia, the formation of the High Commission for the Realization of Revolutionary
Objectives was a critical political pre-condition for delaying the first set of parliamentary elections. Confidence in the inevitability of the move towards democracy and the willingness of interim actors to hand over power was not as prevalent in Egypt and Libya, helping to drive their relatively early polls.

Sequence of the Transition

Trust, tradition and context determine whether a transition will allow for a few “wise men” to write a new constitution. This was the method used in Morocco, where King Mohammed VI outlined guidelines for the new constitution and the new charter was quickly written by an appointed commission of experts rather than by an elected assembly. 6 The international tendency, however, is in the opposite direction – towards respect for a process that provides for direct participation of the citizenry. This stretches the transition and brings to the fore the question of how to sequence elections and constitution drafting.

The sequencing debate turns on how the legitimacy of the new constitutional order can best be secured. Writing a constitution prior to elections entrusts the drafting process to an unelected transitional authority. But with the political strength of various actors untested by elections, founding fathers and mothers may be more likely to establish meaningful checks and balances on the exercise of power. This type of sequence is suggested in the Action Group for Syria’s communiqué, which proposes a review of Syria’s “constitutional order and legal system” prior to multi-party elections.

In contrast, having constitution-making supervised by an elected body provides a substantial boost of popular legitimacy to constitution making. In Iraq, Grand Ayatollah Ali al-Sistani famously prevailed upon the U.S.-led Coalition Provisional Authority as regards the holding of elections prior to writing a new constitution. More recently, this sequence was followed in Egypt, Libya and Tunisia. Among divided societies, however, there is often the concern that the winner of the first elections may seek to dominate the writing of a new social contract. This route, therefore, assumes a substantial sense of national responsibility on the part of the electoral victor. In the Arab Spring, such a spirit of political generosity has been more visible in Tunisia, for example, than in Egypt.

In the latter case, a coalition of “constitution-firsters” (primarily liberals) argued that the drafting of the constitution could be made more participatory and representative if supervised by an appointed and inclusive interim council. Behind this proposal was a fear of being sidelined in constitution drafting by an elected Parliament that was likely to have an Islamist majority. Islamists meanwhile argued that that the constitution would be more legitimate if supervised by an elected body. Egypt’s inability to resolve this tension led to virtually every step in the latter half of its transition being legally and politically contested. As of writing in early December, its transition was set to culminate with a hostile rather than confirmatory constitutional referendum.

Most transitions are guided by the logic that the new enduring social contract should be popular and legitimate. This usually implies an elected constitutional assembly and a process that is of sufficient duration to enable consultation, deliberation, negotiation and agreement. Concerns about a tyranny of the newly elected majority can be ameliorated by transitional agreements providing guidance on how constitution drafters are selected, setting out decision-making rules that favor consensus, and preagreeing broad principles that the future constitution must respect (these points are discussed further below).

Hasty processes involving non-inclusive quick fixes can have long-term disastrous consequences (as seen in post-2003 Iraq). Tunisia and Yemen seem to have internalized this. In contrast, Libya’s original roadmap provided only 60 days for drafting its new constitution.

What should a transition agreement address ?

To varying extents, the Arab Spring countries passing through political transitions have suffered from the lack of clear visions on transitional goals, complicating their democratic development. With this in mind, we now attempt to suggest issues, other than those dealt with above, that a model transition agreement might ordinarily address.

A time-bound roadmap:
A transition agreement’s particular contribution to securing the conditions of peace is to set out a time-bound roadmap for the process. The urge to continue in conflict is difficult to remove until there is an agreed roadmap; otherwise there are simply too many unknowns and everything left to contest. Thus, it is striking how often Arab Spring transitional agreements did not take up this fundamental task. The Yemeni and Libyan agreements did contain specific roadmaps, but formal timelines have generally been absent in constitutional declarations in Egypt and Tunisia.

For the legitimacy of the process, it is also vital that the transition follows the agreed rules and timeframes. A constitution-making process which arbitrarily deviates from its agreed rules may subvert its own standing and, to some extent, this has been the case in two very different recent transitions: Iraq and Egypt.

Decision-making formulae:
Negotiators of transitional agreements have at their disposal a wide range of options with respect to decisionmaking rules. However, one of the ever-present dangers in the transitional process is that joint decision-making can result in gridlock. Careful consideration should be given to decision-making formulae so that they reflect the need for consensus between major actors without allowing one, perhaps minor, player to hold the process to ransom. Frequently, transition agreements also anticipate some form of deadlock-breaking mechanisms in the event of a failure to find agreement during constitutional negotiations.

Pre-agreeing principles:
In highly polarized societies, transition agreements may need to guarantee broad but fundamental principles that will govern the transitional process. These statements of principles can serve as a confidence-building device to allow previously conflicting parties and the general public to see that their basic anxieties and aspirations are addressed in advance. For example, in Tunisia, the elected National Constituent Assembly took the step of pre-publishing the Preamble of the new Constitution ten months ahead of the expected completion of the actual text. This was part of an effort by the Islamist-led majority coalition in the National Constituent Assembly to convince various elements of Tunisian society of the non-radical nature of its political programme.

Security and transitional justice:
One of the principal functions of a transitional period is to build peace and public order for citizens to exercise their new rights. In an insecure environment, the establishment of basic stability can be sine qua non for the transition to succeed.
There are a host of security sector reforms that could require action during the transition, such as integrating government and opposition forces as in Yemen, or building trust between the political leadership and local fighters as was the case in Libya, and which will likely be a challenge in Syria, too. The political priority meanwhile is likely to focus on securing a civilian rather than military-run transition. The initial year of Egypt’s transition provides a cautionary tale on the latter path.

Transition documents may also be required to address transitional justice issues, including the past behavior of security forces and insurgents, if only to guarantee their proper treatment once permanent democratic institutions are in place. The failure to do so can lead to popular revenge-taking, as witnessed in Iraq and Libya, and which is anticipated in Syria.

There can be no quick fixes to these complex security and transitional justice matters. The issue for the transition may, therefore, be conceived as how to send the right signals at the early stages, while recognising the longer-term tasks.

Minimum governance:
In addition to a possible long list of tasks typically relating to transition and not detailed here, there is a general need to provide for minimum governance during the transition. This cannot simply be held in abeyance until the transition is completed. The high hurdle that must be cleared is not to allow the likely need for increased inclusivity in government to result in an ensemble of ineffective governance structures that magnify the challenge of meeting basic needs of the population.

Permanence of the temporary

In encouraging negotiators and stakeholders to make use of a wider array of governance and decision-making options in developing transition agreements, we are aware of the dangers of establishing compromised institutions and rules. These relate primarily to the tendency of temporary institutions to become permanent – to insist on their own survival. Looking forward, Syria appears to embody almost every conceivable challenge that a transition could encounter. The issues addressed in transition agreements may often
sound technical. However, holding elections, constitutionmaking, broaching transitional justice and initiating security sector reform are all profoundly political tasks that alter the balance of power in a country. The question is whether an agreed set of rules can be developed to politically intermediate this contest. Such an agreement is not a sufficient condition for the success of a transition in Syria, but it is probably a necessary one.

Sean Kane is a Truman Security Fellow. He co-authored this article with Nicholas Haysom. This article originally appeared in the Oslo Forum’s publication “Building Peace in 2013.”