Interim Governance Arrangements in Post-Conflict and Fragile Settings (3-3)
Robert Forster
2. Challenges inherent in interim governance arrangements
Each reform process and institution that make up interim governance arrangements must navigate several challenges related to inclusive participation, the deliberation process, the sequencing of reforms, and how to provide sufficient security and economic well-being to enable these to happen. Failure to successfully navigate these issues is likely to de-incentivize buy-in and potentially stall the process. Ultimately, stakeholders must anticipate and prepare for the challenges that may arise, and design adequate dispute resolution mechanisms to enable them to adapt to the inevitable ongoing changes in circumstance as the transition progresses.
Some typical challenges are apt to arise, as outlined below, where each touches on core issues of buy-in and the legitimacy of the process. Each challenge is driven by ongoing political bargaining over how the interim arrangements will impact on the post-transition political landscape,1 related to the ambitions of conflict stakeholders to stay in power. While an interim period is useful as a means of re-establishing government legitimacy, postponing contentious issues and providing stop-gap temporary measures until a more inclusive process can take place (Brandt et al. 2011: 67–70), it is also the time when many stakeholders (not just the government and armed groups) have the opportunity to define the political agenda. Therefore, the interim period becomes a time of intense political competition to ensure political relevance and to maximize gains. The high stakes mean that the entire process is vulnerable to commitment problems when stakeholders (particularly powerful stakeholders) hedge against the process if they believe that they may be able to improve their bargaining position in the future (Mattes and Savun 2009).
2.1. Inclusion and participation
Over time, and given that many transitions have been triggered by civic protest, increased forms of public deliberation, broad inclusion and public participation in transitional politics are now an expectation among key stakeholders and the international community. In practice, the transition must often strike a balance between the elite pact (i.e. the horizontal deal between the parties to the conflict) that is necessary to end the violence and a broader, deeper, new social compact based on popular buy-in (i.e. the vertical relationship between the government and the people). Central to the social compact will be assurances of greater rights, recognition and greater equality in the distribution of public power and resources. Decisions will affect how a transition is perceived, which must be balanced by realistic expectations of the tasks the transition is expected to fulfil. Key elements of the transition,
2. Challenges inherent in interim governance arrangements such as a constitution-making or constitutional reform process, in particular need broad participation, given their nature as a sovereign exercise of the people and given the broad impact on transition outcomes.
Common questions related to participation include: Who are the stakeholders? Which stakeholders are included in what processes? What are the criteria for inclusion? How are representatives from each group chosen? How does the choice of representatives affect the political impact of the group? These questions come up repeatedly in relation to transitional institutions related to governance and legal reform (such as interim government, transitional parliament, constituent assemblies). How these questions are answered can throw up multiple sticking points that in turn can undermine the interim arrangement.
At the elite level, a common method for deciding which stakeholders to include is based on identifying ‘veto players’, i.e. choosing groups that can single-handedly continue the conflict if unsatisfied with the terms of agreement. However, although this principle appears simple, the criteria for identifying veto players is not always clear in each conflict context and conflict level, and the true capability of actors may be obscured through propaganda and other informational barriers (especially where local, national, transnational and international conflicts are ‘nested’). An over-emphasis on including armed actors (most often considered to be veto players) may also incentivize new groups to increase their levels of violence so as to gain access to the political space. Broadening vertical inclusion to facilitate a new social compact or ‘constitutional deal’ is also not a straightforward task considering the potential number of stakeholder identities (including religious, civil society, political, ethnic and gender) that may lay claim to participation. While inclusiveness matters, an argument given for limiting participation is usually that a larger number of actors makes agreement more difficult. Another challenge with regards to inclusion is how to ascertain, in the absence of elections, whether participants are truly representative of their purported constituents. Without adequate legitimacy and authority among those constituents, the compromises they will inevitably have to make at the negotiating table may not hold.
Jostling between stakeholders over where the lines of participation are drawn is a central aspect of interim governance arrangements. This tension played out in the formation of Sudan’s Transitional Government in August 2019, which consisted of five members selected by the Transitional Military Council (TMC), five members selected by the opposition coalition and one consensus member chosen by both parties. One apparent strength of this arrangement was the inclusion of a tiebreaker in the final member. However, others questioned the extent of genuine reforms possible due to the powerful role played by the military and the connection between TMC members and the Rapid Support Forces - a militia linked to human rights violations in Darfur (Ghitis 2020). The future role of the Sudanese military in domestic politics and its potential impact on democratization is now a central question in the transition process.
Renegotiation of the lines of elite participation regularly takes place as the transition progresses, often simultaneously in multiple arenas, by setting criteria for political parties, limitations on reform processes and rules about who can run for office and so on. The degree of popular participation, on the other hand, is affected not just by the criteria for inclusion, but by the wider civic space and issues such as rights provisions, including freedom of speech and assembly, criteria for who can vote or legal regulation over non-governmental organizations. The parameters of popular and elite inclusion have an impact on the structure of transitional institutions and the parameters of participatory deliberation, such as the form of the interim government, the form of the legislature, election modalities (including defining administrative territories) and the design of national dialogues and other public consultations.
The power to change regulations unilaterally is also a means through which one group can alter the playing field in their favour in ways that first appear innocuous. In Madagascar, for Interim Governance Arrangements in Post-Conflict and Fragile Settings instance, the incumbent, Andry Rajoelina, lowered the age of the presidential candidacy (allowing himself to stand for election) and introduced restrictions on persons with multiple citizenships standing (denying one of his opponents from running). Many transitional processes stumble when one or more of these modalities are manipulated or appear to be manipulated to the exclusion of other groups (whether political, ethnic or gender-based). The issue of participation as it arises throughout the process in the form of input into in deliberation modalities is explored below.
2.2. Deliberation modalities
Interlinked with the issue of participation is the institutional design of deliberation modalities and mechanisms and their impact on the choices that are made during the transition, which reflects the quality of decision-making. The process of how decisions are made is intensely scrutinized by each transitional stakeholder, and to ascertain the advantage of each particular stakeholder in the decision-making process requires intimate knowledge of the context in which the transition is playing out. Common questions related to the deliberation process include: Was the decision-making mechanism fair and representative? Who designed the decision-making mechanism? Did a stakeholder have an advantage (such as over-representation, veto power) when making decisions using that mechanism? Was the decision ‘fair’? Could the decision have been made in a better or more comprehensive forum? Similar to the questions related to participation, the response to these questions may highlight sticking points in interim institutions.
An example is found in the Yemeni transition, which had an innovative popular consultation mechanism through the NDC. Despite the NDC’s strengths, problems of participation arose, and in turn impacted on deliberation of particular issues. Among other issues was the fact that two insurgent movements - the Houthis and the Southern Movement - were not consulted in the initial call for the NDC outlined in the GCC Initiative that established the framework for the transition. Their inclusion in the NDC, each with its dedicated working group, did not repair the initial exclusion, and both groups announced on multiple occasions that the NDC was illegitimate and hedged against it. Discontent intensified when the broad-based modality of the NDC was pared down to the 82-member National Body, where the insurgent movements once again felt inadequately represented.
Paralysis over the final form of the Yemeni state and its proposed regions led to interim President Hadi using veto powers to break the deadlock - paring down deliberation modalities even further and contributing in part to a return to a steadily escalating conflict. The case of Yemen indicates how the design of institutions should remain consistent with the ‘spirit’ of a transition, i.e. if a transition is touted as ‘inclusive’ and there is popular expectation that this will be delivered, then interim governance arrangements should attempt to reflect those expectations. The inclusion of a group’s representatives does not necessarily guarantee their influence on the process. An inability to have meaningful influence can erode that narrative and be held up by opposing stakeholders as a reason to defect.
2.3. Sequencing of modalities and reform processes
Sequencing refers to how an interim governance arrangement sets out transitional tasks and timetables, and it poses a number of challenges. Should certain reforms occur before others? Does a particular sequence help to stabilize and consolidate the process? What administrative and practical obstacles affect sequencing? What is the procedure if a process is unavoidably? Challenges inherent in interim governance arrangements delayed? Interim governance arrangements are a paradox in that they usually contain at least some explicit process sequencing outlined in transitional documents, but this runs against the more ‘organic’ sequences produced by the ‘logic of negotiations’.
Sequencing adopted in interim arrangements is based on four assumptions that emerge from the logic of transition and are underlined in peacebuilding literature. First, the overarching assumption is that interim arrangements are based on the adoption of an incremental approach to peacebuilding, where issues are dealt with one by one and divided into more manageable pieces (Weiss 2007).
Second, it is widely considered necessary for a relative degree of security to be present for a transitional process to progress. The third assumption is that an interim government must be put in place for many of the reform processes to be possible, and for the country to function in the meantime. A final assumption is that the institutionalization of the state should occur before the liberalization of politics, either because of the potentially destabilizing impact of elections and open political discussion and/or because often some sort of institutional reform is necessary before it is possible to hold free and fair elections.
Elections often require popular consultation modalities and broad-based stakeholder participation during particularly fragile periods. One means of offsetting this challenge and providing sufficient time to build trust and stabilize the country is through an extended transitional period. However, the longer the time period lasts, the more an appointed unelected interim government will appear illegitimate. In practice, the often short timelines included in transitional documents are often driven by practicalities—shorter transitions are less expensive and promise to minimize the period of unsettlement, which can boost international and local support. From an international perspective, backers of interim governance arrangements rely on funding cycles that push for shorter transitions to ensure their own ability to disengage from the process.
2.4. Security challenges
Throughout the transitional process, domestic stakeholders experience multiple security challenges, which can affect how a transitional period progresses. In the beginning of negotiations, governments experience a challenge over whether to negotiate with non-state groups, thereby legitimizing their struggle and potentially incentivizing other insurgents who see a possible pay-off to picking up arms. Non-state actors, on the other hand, face a security challenge during the disarmament process, in that, once they disarm, there is no recourse should the government, which keeps its armed forces, decide to crack down during the implementation process.
All stakeholders’ face a security challenge during the implementation process because they can be put at a disadvantage if another party decides to defect from the agreement and strike first. Similarly, during ceasefires, there are multiple examples of conflict actors using the designated time to manoeuvre troops to their advantage in anticipation of the next round of conflict. These challenges are present in all peace processes and are not particular to interim governance arrangements, but national and international actors are required to manage them if the transition is to move forward.
In part due to the challenges outlined above, interim governance arrangements are prone to break down or to revert to the status quo, wherein the process continues through the instalment of iterative processes. Some of the issues that arise are listed below.
Broken ceasefires
The defection of conflict actors is possible at any time during a transition. Defection can be the result of any of the above-mentioned dynamics relating to deficits in participatory deliberation modalities, the fact that stakeholders feel that they can get a better outcome outside of the agreement, or the inability of the arrangements to provide sufficient security guarantees to enable the stakeholders to move into interim arrangements. If interim governance arrangements are established, a ceasefire at the start of the process between the main conflict parties is necessary, as stakeholders will be unable to form a power- sharing government if their constituents are in open combat. Nonetheless, the implementation of some transitions has continued, despite regionalized violence (for example, the continuation of regionalized insurgencies in the Democratic Republic of the Congo during the implementation of the 2003 Sun City Accord). These conflict dynamics reflect the increased elements of conflict, where local, regional and national conflicts are often nested within each other, to create a wider conflict system which poses a challenge for transition management.
Power-sharing challenges
As a means of guaranteeing political survival and the continued relevance of the conflict actors during the transitional process, power-sharing modalities are good at enticing stakeholders to reach agreement, but often present difficulties for implementing the transition. November 2019, for instance, saw the extension of South Sudan’s ‘pre-interim’ period, which aimed to assemble the transitional power-sharing government within 100 days due to lack of agreement over the government composition. Not only do difficulties arise in appointing ministers according to power- sharing formulas, but problems may arise when stakeholders refuse to integrate parallel structures such as loyalist military units into the state army as part of military power-sharing security arrangements. It is necessary to manage power-sharing deals in order to minimize incentivization of coercion and competition between stakeholders. National- level power-sharing deals also face difficulties if such arrangements are limited to elite institutions that have no capacity to support institutional development and conflict resolution at the local level, meaning that arrangements are perceived as elitist and not relevant to the wider population. Meanwhile, when power-sharing arrangements do stretch to the sub-state level, they are often the cause of mass turnover of employment when local administrations attempt to match local power-sharing formulas, resulting in a loss of institutional memory and potentially the employment of unqualified persons. There are also critiques of power-sharing arrangements as institutionalizing the political divisions of the
3. Stumbling blocks during the interim period conflict in ways that prove difficult to move on from. Power-sharing institutions may also unintentionally increase the size of the state itself by creating otherwise superfluous or inflated transitional institutions, such as expanded presidential councils, numerous overlapping advisory bodies or inflated legislatures.
Unclear institutional mandates. In designing transitional arrangements, ambiguity may be useful in providing enough leeway around contentious issues; however, if this results in unclear institutional mandates it can throw up tensions. Unclear institutional mandates are often incorporated into transitional documents through ‘a combination of all parties inserting the mechanism they want, and international mediators throwing as many solutions at the problems as possible’. However, the need to find a way to clarify and implement mandates indicates why interim governance arrangements are not the final step in peace negotiations, and why dispute resolution mechanisms and continued negotiation are essential to circumvent deadlock that occurs as a result of institutional design.
Difficulty of managing ‘transitions within transitions’. When an arrangement deteriorates, mediators and stakeholders often attempt to piece together a new transition. These may diverge from the previous interim governance arrangements, but usually they are heavily based on previous frameworks. The 2018 Revitalised Agreement on the Resolution of the Conflict in the Republic of South Sudan, for instance, attempted to re-institute the 2015 agreement of a similar name with only minor revisions. A more drastic example relates to the 2015 Libyan Political Agreement, which attempted to renegotiate the transition that initially relied on the 2011 Constitutional Declaration as the originating legal framework. ‘Transitions within transitions’ are complicated to implement as the legacy of previous agreements shapes the available options, and the failures of earlier arrangements can tarnish newer attempts to wider the transition.
Governance actors unprepared to exit power at the end of the transition. Many interim governance arrangements feature members within the leadership that are unwilling to leave power. This is not unsurprising considering that the struggle for power and inclusion will have triggered the need for a transition in the first place. This reality means that interim governance powerholders will often seek to rig the outcome of the transition to enable them to continue in power, or else that they will simply be disincentivized to see the process to completion. One result can be the extension of the transition itself with the same leadership, or officials find a way to remain in power beyond the transitional period, even if lacking in legitimacy. Individual motivations are important but remaining in power is made possible in part due to the political economy of transitional processes. Participation in interim governance arrangements grants newfound access to rent via state institutions, international funds (including funding for peace processes) and profit from war economies. This access grants individuals the ability to consolidate patron–client relationships and increase the durability of their supposedly temporary positions. With few incentives to move into the next phase of the transition, the process will stall. A second potential result occurs when there is sufficient follow-through and elections are held. Even when elections are free and fair, transitional figures are often in a good place to win given that they are public figures with a track record in leadership and therefore have an advantage in the campaigning process. Although not inherently in bad faith, it highlights how members of the so-called interim government become entrenched. An example of a transitional figure continuing post-election is Hamid Karzai of Afghanistan, who was first appointed President and Chairman of the Interim Governance Arrangements in Post-Conflict and Fragile Settings Interim Administration for the period between 2001 and 2004. In 2004, Karzai won the presidency, and he was re-elected to a second term in 2009 until 2014.
Absence of on-the-ground impact. Speaking about the 2019 Sudan transition, one lawyer noted: ‘Changing the law is the easy part . . . how to change the mindset—that is the challenge’. A key driver of success for interim arrangements is ensuring that the political reforms promised at the national level are felt on the ground. If pre-transitional practices continue—whether it is violations by security forces or corruption by local officials —the gains made in national-level talks and the optimism regarding the process diminish. Another equally important facet is the need for improving economic conditions on the ground. Political upheaval often brings with it a number of economic issues, including the disruption of the economy, a decrease in investor confidence, monetary inflation, influxes of displaced persons and an increased cost of living, in addition to the immense costs of reconstruction. Transitional governments are further disadvantaged due to the destruction of government, accounting systems and public infrastructure, corruption and the inability to keep skilled workers, and cash-flow concerns including difficulties in paying the salaries of public servants. Broader unemployment creates a labour pool from which combatants are more easily recruited. Conflict may have weakened infrastructure and damaged public services including electricity provision and waste management. In some cases, development funding may dry up as it is funnelled into political processes and programming rather than maintaining already precarious humanitarian and development programming.
Difficulties of delay, extension and postponement. Initial euphoria may die down if transitions are delayed or extended; moreover, transitions may be deemed less legitimate, especially when governments are unelected. It should be made clear which reform processes will extend past the initial transitional period and, if possible, these should be ‘detached’ conceptually and politically from the rest of the process. In other areas, where there is potential for delay—such as the formation of government and the implementation of popular consultation modalities—dispute resolution mechanisms should be incorporated.
Difficulties of adaptive management. Incorporating dispute resolution mechanisms is essential for the adaptive management of an interim arrangement. Documents outlining arrangements are produced by a specific constellation of stakeholders at a particular moment in time, and these conditions are likely to change and do so rapidly. New actors may emerge, others may become less relevant, international support may wax and wane, and political moments may galvanize new alliances or drive existing ones apart. The strain under which interim governance arrangements must perform means that they regularly fall apart or threaten to do so. The many arrangements renegotiated due to conflict are ample evidence of this —particularly those that ‘widen’ the settlement to include new actors through additional seats in the cabinet or seats in the legislature.
A reliance on ‘consensus decision-making’ in the hope of optimizing the views of all stakeholders assumes that all parties negotiate in good faith, which is often not the case. The presence of third parties—particularly armed peacekeepers—is effective when enforcing negotiated settlements. In the absence of such commitments, some processes rely on international mediators to solve disputes (e.g. South Sudan 2013–ongoing). In less internationalized contexts, indigenous solutions must be found. If independent, courts can be an effective method of dispute resolution that does not create additional transitional bodies (e.g. Kenya and Nepal). Other methods from peace processes (although not necessarily interim governance arrangements) include implementation and monitoring commissions (e.g. Colombia, Nepal, South Africa) or dispute resolution committees (e.g. Libya), the use of traditional dispute resolution mechanisms (e.g. Kenya, Nigeria, Philippines/Mindanao, South Sudan), or the adoption of specific dispute resolution procedures (e.g. Papua New Guinea/Bougainville).1 Dispute resolution mechanisms can also be sector specific, with electoral disputes often being the domain of supreme courts or
3. Stumbling blocks during the interim period national electoral commissions. Whenever considering a mechanism, it is worth considering whether the chosen body may become politicized. Relying on non-neutral parties to break deadlocks could inflame tensions further.
4. Ways of easing the pressure on interim governance arrangements
Each reform process or interim body incorporated into interim governance arrangements introduces another ‘field’ in which stakeholders can continue their conflict non-violently through negotiation. Therefore, each field also opens up the possibility of deadlock, failure or disappointment that may delegitimize a transition process and is therefore also a source of potential vulnerability. Under the demands made by international and domestic stakeholders, interim governance arrangements have the potential to ‘balloon’ and become unwieldy with multiple ongoing and interlinked negotiations that have the potential to escalate conflict rather than placate it. A key consideration is whether it is possible to streamline interim governance arrangements in the hope of avoiding overloading the ‘bridge’, recognizing that the process is only a means to an end. The following recommendations suggest ways to achieve this.
Prioritize interim governance infrastructure. Prioritize the formation of inclusive interim governance bodies with checks and balances and clear deliberation modalities. Many processes stall simply because of the inability of stakeholders to agree on who shall hold which office. Ways of incentivizing broad-based commitment should be developed, by establishing fair practices relating to the selection of offices, or by introducing measures such as rotating offices or quotas. Interim governance bodies provide leadership that, although at times precarious, is nonetheless a symbol for the transition; delaying their appointment may be a hindrance to the transition overall.
Identify agenda items that can be dealt with through existing institutions, or after the period has formally ended. Not all issues need to be addressed in their entirety through peace talks and placed on reform agendas. For many issues, infrastructure may already exist that can help in resolution. Relying on existing institutions and bureaucracies, when they have some capacity and participative legitimacy, can help to avoid questions related to inclusivity or deliberation modalities in new institutions.
Agree on dispute resolution mechanisms. There are a variety of institutional types and structures that can be adopted for the purpose of resolving disputes, and multiple aspects must be considered including their longevity, structural make-up, neutrality, political independence, mandate and legal authority, as well as the persons involved. If a process relies on consensus decision-making, then mediators should incorporate support structures to help overcome deadlock; these should be either informal or formally linked to the process.
Be realistic about the transitional timeframe. It takes time to build up trust and a culture of cooperation between stakeholders and within institutions, and the 12–24 months
4. Ways of easing the pressure on interim governance arrangements usually designated for transitional periods will often not be long enough for all tasks to be completed. Attention to sequencing and realistic time periods for different reform tasks is important, and insight can be drawn from the actual timescale in other contexts. To achieve the reintegration of forces, it took the Nepali transition process almost six years. Transitional justice is also a lengthy process: Rwanda’s gacaca courts, for instance, took a decade to try almost 2 million individuals. Therefore, even processes that are often considered technical can take many years. While setting timeframes in interim governance documents is important for establishing clear timetables and goals for the process, it is often wise to recognize that they may need to be adapted. A balance must be struck between keeping some momentum in the process and having the capacity to adapt.
Conceptualize longer reform processes to be outside of interim arrangements. Alternatively, isolating processes that are likely to extend beyond the transitional period or sequencing multiple task-focused transitions, more akin to South Sudan’s adoption of a pre- interim period for the formation of an interim government, may be helpful in better managing and focusing transitional tasks. Although such mechanisms appear to involve semantics (what is a pre-transition period as opposed to a transition period?), they can help to bolster the narrative of necessary incrementalism, lowering the stakes for stakeholders to participate by suggesting that not all matters involving participation are irrevocably settled.
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In conclusion, transition management often involves a balancing act between elite inclusion and broader participation; between creating forward momentum in a transition process, without moving so fast as to collapse the process; and between not moving into elections before they can bestow legitimacy beyond the transition, while recognizing that the transitional structures will lose any legitimacy they have the longer the transition continues without elections. The metaphor of transition as a bridge from a conflicted past to a more peaceful future is useful in cautioning stakeholders not to overload the bridge with expectations, which can cause it to collapse. However, the bridge is one that in a sense has to be built and rebuilt as a country travels along it, because the conflicts and power relationships which it must account for are complex and shifting.
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