Understanding the Dilemma of Constitutional Advice in Transitional Societies: A Comparative Analysis of Ghana and Colombia

Abstract

AbstractConstitutionalism in transitional societies entail a range of issues, including how to address past human rights violations, amend repressive laws and reform State institutions. A traditional constitutional approach which departs from the specific needs of a transitional society can portend either positive or negative implications on a society’s long-term recovery from conflict and authoritarian rule. This chapter undertakes a comparative analysis of constitutional advice in two transitional societies: Ghana and Colombia. It analyses the scope and effects of constitutional advice in these contexts and examines how their different approaches have impacted their modern polities and shaped their transitional processes. In the case of Ghana, the 1992 Constitution’s adoption occurred after a constitution-making process that was primarily dominated by the then ruling government of the Provisional National Defence Council. While an amnesty was granted for members of the past military regimes, the Constitution did not provide for the establishment of other transitional justice mechanisms. For its part, the adoption of the 1991 Colombian Constitution implied a progressive shift towards human rights safeguards, and provided a framework for the attempted and ongoing transitional justice processes. The Legal Framework for Peace (2012), recognising a new criminal prosecutorial model, and the 2016 Peace Agreement with FARC, leading to the creation of an integral system of transitional justice comprised of institutions such as the Special Jurisdiction for Peace, were granted constitutional status as constitutional amendments. The chapter argues that coordination of transitional justice mechanisms with constitutional advice-giving in both the Colombian and Ghanaian contexts would have shaped their constitutional norms and transitional justice mechanisms to achieve their perceived goals.KeywordsColombiaConstitutional AdviceConstitution-MakingGhanaJudicial ReviewTransitional Justice