Discussion paper: Transitional arrangements for implementing peace agreement Reflections for Dialogue in Mindanao 1 Kristian Herbolzheimer, February 9, 2012 The challenge While peace negotiations are a difficult and most often tedious endeavour, implementing peace agreements can be an even bigger challenge due to: Lack of commitment by either party. Opposition to change by power-holders (defenders of status quo). Difficulty in balancing high expectations: addressing immediate needs of people while managing long term structural change. Lack of skills and funds. Inappropriate international support (not adjusted to the context specific needs). Given these (and other) difficulties, the track record of implementation of peace agreements in the past decade is deceiving 2 : Peace agreements can fail and new episodes of violence re-erupted. On other occasions a peace process leads to a stalemate with limited implementation but no violence recurrence. Only a limited number of peace processes can be considered successful, but even then with severe limitations. In face of these significant limitations, a number of studies have re-assessed the underlying assumptions in peacebuilding. The global approach in the 90s and early 00s was determined by the liberal peace paradigm, strongly influenced by the UN. This paradigm assumed that early elections would lead to a legitimate transitional power, and free market would attract foreign investment and spur development. Based on the record thus far, this paradigm needs re-examination and contextualization. This paper focuses on the challenge of providing transitional governance structures for implementing peace agreements with the needed legitimacy to strengthen their ability to deliver. This document does not offer any ready-made responses to the challenges in Mindanao. Instead, it describes international trends and developments and provides some references to stimulate a creative, inclusive and context-specific discussion by concerned actors in Mindanao and the Philippines. Questions for the Mindanao peace process How would a transitional government in self-governing Mindanao look like? A government that is: o Widely acceptable to the diversity of local as well as national stakeholders. o Capable of responding to the multiple and sometimes conflicting expectations of the people in the region. o Accountable to the people in the self-governing region as well as for managing national and international resources. What are the sources of legitimacy for a transitional government? 1 Conciliation Resources drafted this document as a contribution to discussions at the negotiating table between the Government of the Philippines and the Moro Islamic Liberation Front (MILF). After the signing of a Framework Agreement of the Bangsamoro (October 15 2012) CR decided to publish this and other related Discussion Papers, to trigger further dialogue on the implementation of the Agreement. 2 How to measure success and failure of a peace process is still a contentious issue. We therefore don t provide specific figures. 1
What would be the role of the self-governing and of the central governments and institutions? How long should such a transitional structure last? What are the options to prevent sceptical power-holders from opposing and instead joining efforts for structural change (anti-moros; Moros who currently hold traditional political offices and power; national policy elites concerned about Philippine unity and power; military elites concerned either about national security or about the perks that come with continued unpeace ). International trends and developments In 2007 Roland Paris head of the research unit at the UN Department of Political Affairsalerted that the liberal peace assumptions were flawed in most post conflict scenarios. In such fragile environments, indeed, early elections most often led to increased polarisation, and new and inclusive political alternatives had a hard time competing with traditional power-holders. He therefore advocated for a more people-centered and context sensitive cosmopolitan peace, with a need to strengthen institutions before holding elections. Oliver Richmond (2009: 1) argues that liberal peacebuilding rests upon cultural assumptions that legitimate liberal governance of politics over the socio-economic well being of the territories state s inhabitants, as well as over any local cultural dynamics. These initial suggestions have subsequently been fine-tuned. Paul Collier (2009) argued that consensus-building, rather than voting and its winner takes all philosophy has a better chance to lead to reconciliation. De Coning et al (2010) alerts that major flaws in contemporary peacebuilding practice include the tendency to overemphasise technical institution-building rather than social and political considerations, a focus on efficiency rather than effectiveness, and the lack of meaningful local ownership despite principles and policies to the contrary. The International Dialogue on Peacebuilding and Statebuilding 3 is suggesting a New Deal for engaging in fragile states in the light of poor results and value for money of previous efforts. The New Deal further identifies the need for continued inclusive Political Dialogue beyond the peace agreement to mitigate conflict and address a plethora of issues that arise during the implementation phase. In this frame the empowerment of women, youth and marginalised groups, as key actors for peace, are at the heart of successful peacebuilding and statebuilding. Traditional and informal actors such as religious and customary institutions, civil society and media, are called to play an essential role. The World Bank 2011 Development Report for the first time put conflict prevention and citizen s security at the heart of the development agenda. It highlights the need for restoring confidence and transforming the institutions that provide citizen security, justice, and jobs. The report is not only referring to formal institutions but also to the informal ones, including the unwritten rules and norms people live by. The biggest challenge when developing alternatives to the liberal peace model is to identify instruments and approaches that do not undermine democratic principles while being responsive to traditional practices. Policy-makers and researchers are increasingly acknowledging that new theoretical frameworks will develop from practice. These frameworks are likely to take a hybrid form, combining international democratic standards and local practices (Boege 2006; Richmond 2009). 3 This initiative is headed by the G7 and 19 fragile and conflict-affected countries. 2
Key concepts: Peacebuilding. The UN considers this to be a post-agreement process aimed at creating conditions necessary for positive and sustainable peace by addressing deep rooted structural causes of violent conflict in a comprehensive manner. Statebuilding is the process of construction of postwar legitimate effective governmental institutions. Transitional or interim governance. The government structure in charge of leading on the implementation of the peace agreement until elections or the enactment of a new legislation or basic law. Such a structure is typically coordinated by some form of Joint Commission between the signatories of the peace agreement. The challenge of legitimacy In transition, challenge is to identify where legitimacy comes from. Any power-sharing agreement immediately raises the issue of legitimacy. Governments (and until recently the international community) tend to highlight elections as the main source of legitimacy. Rebel organisations, instead, may argue that the peace negotiations are the main source of legitimacy. If the very reason for taking up arms was to challenge existing governance structures, they will hardly join the mainstream politics until some structural change has taken place. Other stakeholders who may advocate for structural change but did not support armed struggle will complain if only those who took up arms have a say in shaping the new institutional landscape. Finally, a wide variety of power-holders most often feel threatened by any prospects of change and can easily become spoiling actors. There is therefore a need for some form of compromise that allows legitimising the peace agreement, the interim government and even the revolutionary struggle. Elections: a question of timing While few people challenge the need for elections, the key question in post-conflict is timing: when is the right time to hold elections? And how can transition prepare for legitimate elections Rushed elections may give a head start to traditional power-holders and less opportunities for participation for those who have been traditionally marginalised (including women). There is less exposure, less time to organize collectively, less deliberative participation, less opportunities to affect the political process. Even a bad quality census or electoral roll due to haste, or difficulties derived from the existence of IDPs can have such negative impact. On the other hand, the more delayed the elections are, the stronger the voices challenging the interim governance structures. It is therefore in the interest of all actors to strengthen the interim government with as much legitimacy as possible. Additional forms of legitimacy In parallel to elections there are additional sources of legitimisation: Charismatic legitimacy. Leaders in wartime and signatories to the peace agreements sometimes attain great prestige. Power-sharing arrangements rest heavily on this. It can be an important source of legitimacy providing stability and credibility, but it can also lead to entrenched power politics, polarized and personalistic fighting, corruption, etc. Also, the loss of charismatic leadership can put the process at risk (e.g. South Sudan s J. Garang death). 3
Power-sharing arrangements must be carefully balanced and complemented with fair and wider participation. Inclusion: broad political dialogue. Implementing a peace agreement requires a new process of even more complex and comprehensive dialogue: it is not any more any issue of only two parties across the negotiating table, but a number of additional stakeholders who need the be and feel they are part of generating genuine consensus around agreed goals and change. An armed conflict between two parties may have concealed the existence of many other grievances like local inter and intra clan conflicts (Lara and Champain 2009). As Southern Sudan shows, reconciling with only one enemy does not make it unnecessary to reconcile with others. (Baltrop 2010). There is therefore a need for a sustained Political Dialogue through multiple parallel formal and informal processes. This raises the subsidiary question of what role the rebel party to the negotiations is to play amongst a diversity of stakeholders? Traditional legitimacy. Depending on context, traditional decision-making institutions and individuals (religious leaders, elders) can strengthen the transitional governance arrangements (as long as they don t undermine the role of traditionally excluded groups (including women). Performance. Expectations after the signing of a peace agreement are high. There will be a need to provide short-term peace dividends for a conflict-torn society that needs to perceive a change for the better in their everyday life in order to believe in the peace agreement. The World Bank 2011 Development Report identifies three key areas that need priority attention in order to achieve real change in approaches that restore confidence and prevent the risk of violence recurrence: o o o Security. Establishing and maintaining a negative peace provides a good deal of respect for the government. Arms control, law enforcement, preventing transnational terrorist links and essentially reducing people s fear. In the absence of a trustworthy security force community-based initiatives can play a key role. Justice. An interim regime must address current challenges derived from uncertainty and patronage politics, using the law for the public interest. In some context this entails respect, co-existence and promotion of customary and religious rules and procedures. In a post-conflict context there is an additional challenge of addressing past injustices as root causes of conflict, or abuses committed by all sides throughout the confrontation. Again, each society needs to find its own formula for transitional justice and balance universal standards with locally prevailing customs and beliefs. Jobs. Collier argues that economic development (jobs, basic social services, and clean government) must come before elections, since development produces inclusion instead of winners and losers. Reconstruction through local, quick-impact projects is a possible strategy. While providing short-term deliverables, the interim government also needs to prove developments in more complex fields, including: A functional civil service. Formalization of governance structures, establishment of the Rule of Law. Developing infrastructure and attracting investments. Drafting a new basic law or amending the constitution. Demilitarization and security sector reform. Building a democracy-supporting environment with political and civic rights for all. Counter-balance powerful political actors that can dominate the electoral process. Preparing the electoral process: timing, arrangements (Electoral Commissions, census, electoral law, education, security ). 4
International examples Legitimating initiatives Civil Society participation: Assembly of the Civil Society (Guatemala); Civic Forum (Northern Ireland). Multi-party talks (South Africa, Northern Ireland). Quotas for proportional representation: women, ethnic groups, peasants, persons with disabilities (Nepal). Participation of the regional Gov t in National governance structures (Sudan). Cross-community consent (South Africa, Northern Ireland). Human Rights Commission (Northern Ireland). Truth and Reconciliation Commission (South Africa). Independent Assessment and Evaluation Commission (South Sudan) Extractive Industries Transparency Initiative (Timor Leste). Public destruction of weapons (Aceh). Traditional governance bodies and procedures (Loya Jirga in Afghanistan; culture of consensus-building rather than voting in Somaliland). Interim Constitution after 6 months (South Sudan). Consultative interim administration (El Salvador, South Africa). Facts undermining legitimacy Weak civil society (Angola, Liberia, Timor-Leste). Parties who weren t part of the negotiations resented the Agreement. (South Sudan, Guatemala). Limited intra-community dialogue (South Sudan). Former members of the fighting group are favoured in gov t and civil service (Eritrea). Women s exclusion or marginalisation from decision-making (Burundi, Sierra Leone, Kosovo, Sudan) Clampdowns on press freedom (Somaliland). Corruption (South Sudan, Timor Leste). Proliferation of guns (El Salvador). Delay in elections (Ivory Coast, Nepal). Tensions between new and old institutions and their staff (South Sudan). No mutual recognition and working links between government and customary governance mechanisms (Timor Leste). Lack of democratic accountability (Somaliland). Elections brought to an end previous agreements (Cambodia, Guatemala). Lessons Timing. Transforming political institutions takes time. It is important to develop a realistic time-frame for the different objectives and prevent too high expectations. Early elections are a risk; so is a delay in elections. Prioritization. There is a limit to the amount of change societies can absorb at any one time, and in fragile situations, many reforms need a build-up of trust and capacity before they can be successfully implemented. Inclusion. Power-holders will be blamed for unmet expectations. The more inclusive a transitional government, the more legitimate and probably also the more sustainable. Traditional authorities, charismatic leaders and derived power-sharing arrangements grant interim governments with sustained legitimacy. Institutions matter. Informal avenues for dialogue, conflict management and governance need to strengthen formal institutions. Peace dividends are crucial to strengthen support for transitional processes. Political dialogue is a continuous process. It should continue after agreement has been reached to ensure implementation of results and to enable new issues being addressed or to adapt to changing circumstances. 5
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