A/HRC/30/42
which the 2005 Constitution set in place, and on which peace in Burundi still
hinges. 38
64.
Truth commissions and peace agreements have advocated for introducing
mechanisms of inclusion into constitutional texts. The Guatemalan Peace Accord, for
example, emphasized the need to define the country as multi-ethnic, multicultural,
and multilingual at the constitutional level. The Guatemalan C ommission on
Historical Clarification elaborated recommendations on inclusion and the protection
of indigenous rights, calling for modes of governance that enable individual and
collective rights of the indigenous population and encourage their socia l and political
participation.
2.
Incorporating a bill of rights
65.
A good part of the effectiveness of bills of rights depends on the strength of
the courts that interpret them and on how deeply other State powers feel bound by
courts’ decisions. However, introducing a bill of rights that publically enumerates the
most fundamental rights a country seeks to safeguard is a powerful way of drawing a
line between an abusive past and a different future, especially in the aftermath of
mass violations. The design of a bill of rights and enshrining the basic principles of
governance signals to institutions and individuals where minimum standards of
acceptable behaviour lie. Bills of rights are a sort of a “pre-commitment” strategy
that works on the basis of publicity and takes some issues out of the give -and-take of
political expediency. 39
66.
In many countries with past mass violations, minorities were predominantly
targeted. Articulating clear and enforceable guarantees for minorities in bills of
rights may offer some protection and de-incentivize both attacks on them and the
taking by them of preemptive action in ways that are characteristic of “security
dilemmas”.
67.
Where Governments have a history of committing or condoning human rights
violations, a bill of rights enables courts to identify legislation and governmental
practices that have the potential to lead to recurrence of violations before they take
place.
3.
Security sector reform
68.
Crucial elements in the area of security sector reform aiming at the prevention
of violations in the future pertain to: (a) defining the different roles of the police, the
military and the intelligence services; (b) strengthening civilian control over the
armed forces; (c) the elimination of military “prerogatives”; and (d) the vetting of
the security forces. In the light of the complexity of these areas, the Special
Rapporteur has dedicated a separate report to these reform undertakings. 40
4.
Separation of powers
69.
Abuses of power by security forces and lack of judicial independence are
often manifestations of the same phenomenon, namely, a bloated and unrestrained
executive power uninterested in accountability. Following mass violations, some
38
39
40
16
See A/HRC/30/42/Add.1.
See Stephen Holmes, “Precommitment and the paradox of democracy”, in Constitutionalism and
Democracy (Cambridge University Press, 1993).
Report to be presented to the General Assembly at its seventieth session.
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