Introduction
Constitutionalism during the transition from conflict or authoritarian rule can cover a range of issues, featuring questions related to how to address past human rights violations, change repressive laws, recognise fundamental rights and reform State institutions.
The nature and outcome of constitutionalism can, therefore, intricately shape and have significant implications on transitional justice mechanisms that are utilised by societies recovering from gross human rights violations perpetrated during conflict or dictatorial rule. Similarly, transitional justice processes may play a role in the formation of constitutional norms, procedures and related judicial review, impacting the legal core of transitional societies, their institutional foundations and political values.The task of constitution-making is normally assigned to domestic actors such as institutions with a constitutional mandate, given either by previous constitutions or constituted after political settlements and agreements. However, other actors might provide constitutional advice, leaving an imprint of their interests and agendas in the constitutional documents. Constitution-making processes in transitional justice contexts often acquire an additional layer of complexity, as they interact with a new variety of actors that are provided with a seat to participate in the process. Transitional justice contexts may also imply that mechanisms and processes might take place parallelly to those of constitution-making. While research has been carried out with regard to the benefits and assets that different actors can bring to the constitutionmaking process, such as non-domestic actors,[422] the constitutional advice that is given de facto by transitional justice processes and mechanisms seems to be largely ignored in formal terms. Even though these transitional justice processes involve different actors, with both constitutional and diverse mandates, they also have the capacity to mould and provide constitutional advice.
In a transitional society, a traditional constitutional approach which departs from the specific needs of the society can portend either positive or negative implications on the society’s long-term recovery from conflict and authoritarian rule. This chapter, therefore, undertakes a comparative analysis of the connections between constitutional advice and transitional justice, as well as the related adjudication, in Ghana and Colombia, as countries which have set in place transitional justice mechanisms. In doing so, the chapter critically analyses the scope and effects of constitutional advice in these transitional contexts and examines how their different approaches to transitional justice have impacted their modern polities and are shaping their constitutional and transitional processes.
The chapter opines that, as separate processes with common goals, proper synchronisation of transitional justice mechanisms with the provision of constitutional advice in transitional societies can, in some instances, shape both constitutional law and transitional justice mechanisms in the right direction to achieve their perceived goals. First, it addresses constitutional advice in transitional justice contexts, delving into their connections in such societies. Second, it examines the constitutional advice processes that occurred during Ghana’s transition to democracy and how it affected the transitional justice process, which included amnesty for members of past military regimes and a truth commission. Third, the Colombian experience is assessed, in relation to the transitional justice processes that were implemented as constitutional amendments, the interactions with the 1991 Constitution and how constitutional adjudication has also played a role in this regard. Lastly, this chapter offers useful insight into the need for coordination and recognition of non-formal constitutional advisers in transitional societies to ensure harmonisation of constitutional advice and transitional justice processes.
7.2