Constitutions : Constitutions & Peacebuilding Processes

In peacebuilding, constitutions provide the general structure around which various institutions of democratic peace are formed. In the wake of conflict or in attempts to forestall violence, reforming or drafting a new constitution may be imperative to (re)establishing the basis of state legitimacy. This process is needed to develop and build a political community, premised on the drawing up of rules for the allocation, accountability, and exercise of power. Given the nature of popular sovereignty, the legitimacy of the state may necessitate this process of enacting a new constitution, which reflects a bottom-up approach to statehood. This process may have been neglected or eroded in wartime. These key functions explain why many negotiations surrounding the settlement of armed conflict apply to the modifications envisioned for the change of regime and constitution. Attention to these issues is equally important as a preventive measure.

Establishing the basis of state legitimacy

In international relations, a sovereign state is traditionally conceived of as the sole actor to legitimately use coercive violence within its territory. This is a key reason why state-building processes have attracted so much attention in post-conflict peacebuilding.1 Constitution building is a process used to assert the groundwork capacitating the state to be this actor.2 It does so by laying the traditional founding principles upon which a democratic society rests, creating a number of institutions thought to be central to consolidating democracy.3 The establishment of such legal structures is essential to state legitimacy—it dictates that use of coercion is not arbitrary but permissible under certain circumstances and subject to legal checks.4 It “proclaims the desirability of the rule of law as opposed to rule by the arbitrary judgment or mere fiat of public officials.”5

These elements are particularly crucial in shaping what constitutes public order and security by determining when they are disturbed, and so on.6 They promise every citizen physical and emotional security by state monopolization of the use of violence for legitimate purposes.7

In addition, as a consequence of the Second World War, the international community has validated the concept of national self-determination as a cause for independent state formation, and a more modern notion of state sovereignty. Premised on the notion of popular sovereignty, which asserts that the sovereignty of a state resides with the people and that government should be representative of the people, national self-determination asserts that “nations” also have the right to determine their own sovereignty.8

This has implications for constitutional processes, as well. While the formulation of constitutions was originally a task done by elites, in a private manner, currently the accepted paradigm is to increase the deliberative and participatory nature of constitution building. This follows as logically necessary given the nature of state legitimacy not only entailing legitimate use of coercive tactics but also being a decision made “for the people, by the people.” As such, many scholars and practitioners alike emphasize the need for constitutions to be highly representative through a process of participation and deliberation, as constitutions must represent the sovereign will of the population at large, as well as the nuanced needs of those “nations” that continue to live within the same state.

Amalgamation of these notions gives a picture of constitutions necessitating an appreciation of the traditional (top-down) and the modern, popular (bottom-up) notions of sovereignty. Scholar Vivien Hart explains, “This constitution-making process necessarily features ‘something old, something new,’ as the saying goes. An understanding that constitutions are about power and its exercise with predictability and without arbitrary decision-making and that citizenship involves material as well as symbolic recognition, comes from ‘old constitutionalism.’ ‘New constitutionalism’ sees a process not an event, focuses on groups and identities as well as individuals and rights, on participation as well as rule, and on indeterminate ends that may be partial and do deny the desirability of closure.”9
Go to Justice & Rule of Law: Introduction
and Security & Public Order: Introduction

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Establishing and reinforcing the political community

In a post-conflict environment, some states experience movements calling for secession, partition, or return to fragmentation and violence. Such instances are often marked by a lack of trust between groups and of the state. Given the basis of state legitimacy, states must build the trust of populations in order to hold legitimacy over coercion (top-down sovereignty) and represent popular interests (bottom-up sovereignty).

Trust, or a sense of political community, implies that “the diverse groups that constitute the population of the country have agreed to live together.”10 This is a crucial component of any peace process. In most cases, this willingness (or lack thereof) is at the heart of the violent conflict and/or has been considerably affected by the violence and its impact on the common values that are so essential to any political community. A constitution is ultimately a document that (re)affirms those values, instituting rights and providing reforms of state apparatuses in order to build trust, with the aim of building a political community and thus entrenching a basis for state legitimacy.

In peacebuilding, the purpose of constitution making is largely to lay out a new framework, as well as to (re)establish the political community in order to foster state legitimacy. Fundamental to this process is determining both membership of the political community and what guarantees and obligations that membership entails. Hence, constitutions also play a central role in determining citizenship, rights, and responsibilities. In many instances, failure to include a broad sense of citizenship or the tendency to favor one group’s rights over another, has perpetuated or incited conflict.

In post-conflict reconstruction, most concur that, first and foremost, a constitution should promise every citizen the same treatment and the same security—something that is clearly often lacking in post-war situations. This is intimately linked to the question of identities, or the relationship between citizenship and identities, which is also at the heart of many conflicts. Modern pre- and post-conflict situations often contain a multiplicity of ethnic, social, cultural, and religious divergences. Cleavages between groups are interwoven into conflict itself. Particularly in states with oppressive characteristics based on such qualities and/or where claims are made for ethno-national self-determination, the issue of citizenship becomes a paramount concern. Where such states are created or maintained with plural bases, the constitution must subsequently determine what defines citizens, and citizenship, for the state. This is true of tense heterogeneous states opting to remain unified, in recently constructed states born from secession or partition, and in post-colonial states.

International legal frameworks attempt to address this issue, proclaiming the right to nationality as an intrinsic human right.11 In practice, however, this presents a much more complex issue in states with porous borders, divisive ethnic groupings, and fragmentation along these lines.12 It seems particularly challenging for post-colonial states dealing with externally delineated boundaries and parameters that have been left open to various nomadic groups over time.13 As a result, constitutions determine legality around issues of citizenship, which may inherently divide a society.

For instance, in the case of Nigeria, according to John Gaventa, “What is today the formal state of Nigeria, was in fact cobbled together by colonial fiat, linking in very diverse tribal, religious and cultural groupings under the same somewhat artificial construction of ‘Nigerian’ citizenship. Whereas the national Constitution under the new democracy in Nigeria proclaims that ‘every citizen shall have equality of rights, obligations, and opportunities before the law’, in fact such rights are mediated through other forms of identity, which may often be exclusionary and competing. People who ‘belong’ with one identity, whether based on location, religion, gender or ethnicity, are considered ‘foreigners’ with another.”14

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Establishing or reforming the rules for the allocation, exercise, and accountability of power

Equally important in the settlement of an internal conflict is the reform or establishment of new rules for the allocation and exercise of power.15 This is a determination in which constitutions play a crucial role. It encapsulates different elements that are just as vital as one another but that may need to be incorporated in different ways according to the local context. These include:
  • Agreeing on the ways in which and the institutions through which state power is to be exercised;
  • Providing for the participation of citizens in affairs of the state, particularly through elections, and other forms of social action;
  • Protecting rights (empowering citizens, as well as limiting state action);
  • Establishing rules for peaceful changes in government;
  • Ensuring the predictability of state action;
  • Ensuring judicial independence, establishing procedures for dispute settlement, and ensuring the security of private transactions through the legal system (Go to Judicial & Legal Reform/Re(construction));
  • Providing clear and consensual procedures for changes in these fundamental arrangements.16
A significantly challenging hurdle in post-conflict contexts is that constitutionalism requires on the part of the winners of the war or those political actors who are in a position of force the will to create “a basic law that restricts the capacity of the majority to exercise its political will.”17 This is not necessarily something that such parties are willing to undertake. Further, these parties may have difficulty envisioning, at that time, the mechanisms that need to be put in place for a time beyond when they are the ruling party.

This basic law is instrumental in establishing “rule of law” in a given state. To begin, rule of law is a complex concept with difficult and varying meanings. For the purposes of this section, it is most useful to understand the rule of law as a framework for the legal function of a given society. While there are differing approaches to assessing this notion, for all practical considerations a constitution helps to enact this structure of law, laying the groundwork around upon legislature can determine legal policy and protocol.

Often, in post-conflict contexts, this framework has been significantly eroded. As such, new mechanisms, or reformed old systems, are required to build a structure of accountability. While rule of law is an important concept for constitutions, it encompasses legislative decision making, as well. For the purposes of constitution building, to establish a legal basis for the state, accountability refers to:
  • Separation of powers;
  • The formulation of a constitutional commission to support constitutional canon; and
  • Mechanisms to ensure judicial independence and oversight
One of the principal functions and layouts of a constitution is the separation of powers between the executive, the legislature, and the judiciary. The constitution balances roles and responsibilities across this triad so as to check branches of government if they attempt to dominate the political landscape.

In most modern instances, states have enacted a constitutional commission (either a court or a chamber)18 meant to uphold law instituted by the constitution. The powers of this structure “can be divided into three main categories: (i) interpretative powers; (ii) powers related to the constitutionality of norms; and (iii) powers related to the distribution of powers among public authorities.”19

In addition, the constitution and constitutional commissions must uphold (and embody) judicial independence and oversight. Several mechanisms are available to ensure this, including:
  • “Organizational and administrative autonomy
  • Budgetary autonomy
  • Professional and ethical membership requirements
  • Transparent, objective appointment and discipline
  • Security of tenure
  • Independent, binding decision-making powers
  • Judicial immunity
  • Conflict of interest rules and high stand
  • Public access to information.”20
Go to Justice & Rule of Law: Judicial & Legal Reform/Re(construction)

Hence, in peacebuilding, constitutions are often tasked with the development of new rules and, in some instances, reformulation of previous regulations so that they are better tailored to the post-conflict environment. Powers should be accorded in constitutions to uphold and build a framework for legality, supported by the separation of powers, building of constitutional commissions and the development of modes for oversight and judicial independence.

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Constitutional processes necessary, but insufficient, for peacebuilding

Constitutional processes have been identified as vital to instituting peace in deeply divided pre- and post-conflict states. However, authors and actors observe the importance of highlighting that this process is necessary and central but insufficient alone to actuate peace. Indeed, despite frequent support for participation, a number of large-N quantitative studies have found little or no correlation between participation and post-ratification levels of violence.21 This reality suggests an important concern, exemplifying that, inherently, “it is devilishly difficult to show, empirically, that procedures made the difference.”22 The direct effects of constitutional processes and constitutional assistance are difficult to quantify.

Although, clearly, methodology plays an important role in such processes, these ambiguities are indicative of an important caveat: that constitutional issues are “part of a wider and more complex process which involves the restoration of peace and stability, bringing armed groups and militias under control, rebuilding the infrastructure, and dealing with the oppression of the past. These matters have to be handled correctly for the constitution to have a chance to root itself.”23 What this essentially draws attention to is that even the strongest constitutions cannot be effective without the mechanisms necessary to uphold them. Scholar Kirsti Samuel observes, “If the constitution is in essence the plan for the house, implementation is the building of the house. Without implementation, a constitution is only a symbolic piece of paper and it will have minimal positive impact on peacebuilding or democracy building in the state, and may in fact risk disappointment and disillusionment of the population.”24

Some analysts go even further in their questioning. Scholar Pippa Norris, for example, argues, “The broader lessons for domestic policymakers and for the international community is that focusing upon encouraging the underlying conditions conductive for the development of human capital and economic growth, for example by investing in schools, basic health care, fair trade, and debt relief in divided societies in Africa, Asia, and the Middle East, is probably a more reliable route towards good governance, rather than placing too much faith in constitutional engineering alone.”25

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1. Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (Cambridge: Massachusetts Institute of Technology Press, 1985), 15.
2. Samuel Issacharoff, “Constitutionalizing Democracy in Fractured Societies,” Texas Law Review 82, no. 7 (2004), 1862.
3. Ghai and Galli, Constitution Building Processes, 7–8.
4. Olivier, Constitutional Review and Reform, 6.
5. Ibid. Emphasis added.
6. Schmitt, Political Theology, 15.
7. Ghai and Galli, Constitution Building Processes, 8.
8. Kalevi J. Holsti, The State, War, and the State of War (Cambridge: Cambridge University Press, 1996).
9. Vivien Hart, “Constitution-Making and the Transformation of Conflict,” Peace and Change 26, no. 2 (2001): 169.
10. Ghai and Galli, Constitution Building Processes, 7–8.
11. Article 15 of United Nations (UN), Universal Declaration of Human Rights.
12. John Gaventa, Introduction: Exploring Citizenship, Participation and Accountability (Brighton: Institute of Development Studies, 2002), 5.
13. Ibid., 7, 9.
14. Ibid., 9.
15. Ghai and Galli, Constitution Building Processes, 8.
16 Ibid., 8.
17 Issacharoff, “Constitutionalizing Democracy in Fractured Societies,” 1862.
18. Violaine Autheman, Global Lessons Learned: Constitutional Courts, Judicial Independence and the Rule of Law (Washington, DC: International Foundation for Electoral Systems, 2004), 4.
19. Ibid., 8.
20. Ibid., 13.
21. See, for example, Jennifer Widner, “Constitution Writing and Conflict Resolution,” United Nations University World Institute for Development Economics Research Paper 51, 2005).
22. Jennifer Widner, “Constitution Writing in Post-Conflict Settings: An Overview,” William and Mary Law Review 49 (2008): 1514.
23. Ghai and Galli, Constitution Building Processes, 17.
24. Samuels, “Stable Democracy and Good Governance in Divided Societies: Do Power-Sharing Institutions Work?” (Cambridge, MA: Harvard University Kennedy School of Government, February 2005), 20.
25. Pippa Norris, “Stable Democracy and Good Governance in Divided Societies: Do Power-Sharing Institutions Work?” (Cambridge, MA: Harvard University Kennedy School of Government, February 2005), 20.

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