Case Studies

Last Updated: December 19, 2008

Bosnia and Herzegovina: International involvement in constitution making

The constitutional process in the case of Bosnia and Herzegovina (BiH) compounds two interrelated issues: (1) the role of the international community in constitutional engineering, and (2) the conflation of peace processes with constitution building.

In BiH, the international community played a significant role in post-conflict reconstruction. Internationalization of peace processes has its proponents, who note its ability to prevent further violence, and its opponents, who mostly note its ad hoc and rushed behavior in empirical examples. The case of BiH is no different. Christophe Solioz notes, “To some commentators and politicians, the international administration in Bosnia and Herzegovina seems to have created a relationship of dependency rather than develop a democratic self-government.”1 Sofia Sebastiàn writes, “The system was wrapped up in the figure of the High Representative (HR), an international institution that was granted executive powers to implement the civil aspects of the agreement.”2

Some claim that, while the international response may not have been ideal, it was the best option given the corrupt and violent environment in which it was operating. Sumantra Bose, for example, argues, “If the international community in post-1995 BiH has perceived and presented itself as the upholders of law, order, reason and morality in a manner reminiscent of ‘liberal’ imperialist powers of a previous era it is because of this context, where local political elites have frequently been no better than gangsters and local publics have emerged severely traumatized and shell-shocked from the bloody implosions of the regime and society they knew.”3

Dayton, though typically referenced as a peace agreement, incorporated a constitution as a component of its mandate, enacting a power-sharing confederation that divided positions in legislature along ethnic lines. According to Sebastiàn, “The Dayton Peace Agreement provided Bosnia with both a regional solution to end the conflict and a constitutional framework to regulate ethnic relations in a highly decentralised state. Dayton signatories established a loose confederation comprised of two already existing entities, namely Republika Srspka and the Federation of BiH, and introduced a detailed system of ethnic protections and power-sharing mechanisms to guarantee Serbs, Croats and Bosniacs a say in virtually every decision taken at the state level.”4

Power-sharing mechanisms, Sebastiàn argues, “have impaired the quality of Bosnian democracy in three important respects. First, institutions represent citizens only as members of one of the three constituent peoples, placing ethnic representation before general interest and making ‘nations rather than citizens the bearers of all rights.’ Second, some provisions remain in violation of the European Charter of Human Rights, since people are forced to identify themselves with one of the three ethnic groups and the interests and rights of those ‘not belonging to the three constituent peoples risk being neglected.’ Finally, the system provides incentives for parties to cultivate popular support along ethnic lines, usually on rather extreme nationalist platforms.”5

Solioz posits, “If the constitution gave the appearance of community power sharing, in fact the provisions of the actual constitution institutionalize a community based partition of the state by establishing community qualifications for membership in key institutions and ethnicized processes of decision-making within them. The Bosnian constitution favors the segmentation of the state and disfavors intercommunity cooperation.”6

The peace process should have been kept distinct from the constitution, as the peace process is meant to assuage immediate violence and constitutions are intended to fortify long-term stability. The rapid enactment of this constitution with the signing of Dayton entrenched the polarized ethnic identification that had been present during the war.7 Jamal Benomar suggests, “Coming after three years of bitter fighting and ethnic cleansing, the exclusively elite-based Dayton talks of 1995 focused on satisfying the interest and demands of the best armed and most warlike. The emphasis was on stopping the shooting war, not on getting the contending parties to agree on a common future in a single state. The result was a constitution that entrenched rather than resolved disagreements and fortified existing power relations among Serbs, Croats, and Muslims. As a result, the constitution does not have the capacity to preserve the current political system, which relies heavily on outside forces to hold it together.”8

This continues to be at issue today. Attempts at constitutional amendments have been thwarted by the divisive ethnic politics still at work and entrenched by the constitutional framework constructed at Dayton. According to the Centre for European Integration Strategies, “The ‘Dayton constitution’ represented a compromise between the parties to the conflict; it has ever since served to secure advantages to ethnically-defined political parties and to perpetuate ethnic divisions in the country.”9 Adaptations by political elites are requisite to facilitate change, in particular as far as equal protections of all are concerned. “If it is to survive as a multi-ethnic society, Bosnia needs new, innovative concepts of decentralization and protection of those who are not a plurality.” the center suggests.10 Yet, supporters of the power-sharing arrangement constructed through the constitutional process at Dayton argue that this set-up was the best possible alternative, and that though it did encourage divisive ethnic loyalties, it was the only realistic option.11

In addition, as a result of this rapid process, “the Constitution was stripped of democratic legitimacy as it was adopted without citizens’ consent and was not voted on in the Parliament.”12

Most practitioners and scholars on this subject concur that, for better or worse, BiH quickly reached the limits of the Dayton structure and that the resulting constitutional skeleton is a serious obstacle to the country’s future development and its integration into European structures.13 As such, constitutional reform has become a vital and hotly contested issue, which continues to be challenged around themes of ethnicity and power.14 Bosnians themselves want to be “the engine of constitutional reform, without much help from the international community, and that they should try to build up compromise through dialogue and ownership. Bosnians must take responsibility: without responsibility there is no responsible state.”15

Other practitioners note that despite the constitution’s limits and illegitimacy, the pull of accession into the European Union is incentivizing Bosnian political parties to negotiate and compromise.16 Conditions for accession require constitutional amendments that eliminate divisions along ethnic lines and measures that strengthen the federal government and national institutions. These practitioners and scholars note that while the BiH constitution encourages ethnic solidification, external factors can encourage domestically driven reforms.

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For more information:

Documents
Association Bosnia and Herzegovina. “Conference Report: International Conference for Bosnia and Herzegovina.” Conference paper for “1995–2005, Bosnia and Herzegovina: Ten Years of Dayton and Beyond,” Geneva, Switzerland, October 20–21, 2005.

Bose, Sumantra. “The Bosnian State a Decade after Dayton.” International Peacekeeping 12, no. 3 (2005): 322–35.

Centre for European Integration Strategies (CEIS). Overcoming the War in the Heads: Renewing Bosnia’s Constitutional Debate. Geneva: CEIS, May 2006.
http://www.ceis-eu.org/publications/policy_briefs/pb.htm

Juncos, Ana E. “The EU’s Post-Conflict Intervention in Bosnia and Herzegovina: (Re)Integrating the Balkans and/or (Re)Inventing the EU?” Southeast European Politics 5, no. 2 (2005): 88–­108.
www.seep.ceu.hu/archives/issue62/juncos.pdf

Laják, Miroslav. “European Momentum Is More Powerful than Obstructionist Forces.” Office of the High Representative and EU Special Representative, BiH, Press Release, August 10, 2008.
http://www.ohr.int/ohr-dept/presso/pressr/default.asp?content_id=42378

Sebastiàn, Sofia. Leaving Dayton Behind: Constitutional Reform in Bosnia and Herzegovina. Madrid: Fundación para las Relaciones Internacionales y el Diálogo Exterior, November 2007.
http://www.fride.org/publication/291/leaving-dayton-behind-constitutional-reform-in-bosnia-and-herzegovina

Solioz, Christophe. Prospects for Balkan Stability: Ownership, Transitional Process and Regional Integration in Bosnia and Herzegovina. Geneva: Graduate Institute Program for the Study of International Organizations, August 2001.

Websites
Center for European Integration Strategies
http://www.ceis-eu.org/

Fundación para las Relaciones Internacionales y el Diálogo Exterior (FRIDE): Democratisation, “Eastern Dimension and the Balkans”
http://www.fride.org/section/29/eastern-dimension-and-the-balkans

National Democratic Institute, Bosnia and Herzegovina
http://www.ndi.org/worldwide/cee/bosnia/bosnia.asp

United Nations Development Programme, Bosnia and Herzegovina
http://www.undp.ba/

United Nations Mission in Bosnia and Herzegovina
http://www.usip.org/balkans/index.html

Cambodia: Rapid constitution making

The Cambodian case demonstrates the risks of international involvement, failure to encourage participatory constitutional engineering processes, and inappropriate time and construction of modalities.

In 1991, the Paris Agreement on Ending the War and Restoring Peace in Vietnam mandated the formation of a Constituent Assembly; however little specification was given as to content. It “provided that an election would be held to form a Constituent Assembly of 120 members to draft and adopt a new constitution within a three-month time period and then transform itself into a legislative body."17 The time allowed to accomplish the transition and for constitution building could not have been shorter. According to Jeremy Armon, Laura Gibbons, and Dylan Hendrickson, “The degree and complexity of change needed to ‘institutionalize’ peace was not sufficiently recognized in the Paris agreements. The emphasis on a short transition period increased the stakes and, ironically, exacerbated rather than mitigated the ‘winner-take-all’ approach which has long characterized the struggle between Cambodia’s factions.”18  Regardless, the process was done in this hasty manner.

Michele Brandt posits, “Although the National United Front for an Independent, Neutral, Peaceful and Cooperative Cambodia (FUNCINPEC) won, the Cambodian People’s Party (CPP) retained dominant military power, was firmly entrenched at ever level of government in much of Cambodia and was not willing to accept the results of the elections.”19  It forced a power-sharing agreement in which the CPP and FUNCINPEC shared a nearly equal number of seats in the Constituent Assembly.20  It is worth noting that “the Constituent Assembly did not have mechanisms for representation or input from a broader set of stakeholders in society, such as youth, women, and minorities, and hence was not inclusive in that sense.”21  Also, a key faction in the conflict, the Khmer Rouge, which continued to control a portion of the territory, was not involved in drafting the constitution as it had refused to participate in the elections.

From the Constituent Assembly, a drafting committee was selected. According to Brandt, “From the outset, the process was highly secretive. Rules of procedure were introduced to the Constituent Assembly and they were voted on in secret with no debate and no public tally of the vote on the rules. These rules provided for the appointment of a twelve-member Drafting Committee. . . . The Drafting Committee largely conducted its work in secret. Not only were drafts of the constitution not shared with the public but also they were also not shared with the full Constituent Assembly.”22  It consequently provided even less room for participation and no time for civic education, despite the protest of civil society.

Brandt argues, “The political elite’s lack of will to consider the views of the public or even other members of the Constituent Assembly and the closed door debates on the constitution established an antidemocratic precedent; Cambodia’s National Assembly, currently has little or no contact with its constituency; genuine deliberations on legislation do not occur and there is little transparency in government.”23

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For more information:

Documents
Armon, Jeremy, Laura Gibbons, and Dylan Hendrickson. “Introduction: Cambodia’s Constitutional Challenge.” In Safeguarding Peace: Cambodia’s Constitutional Challenge, edited by Dylan Hendrickson. Durban: African Centre for the Constructive Resolution of Disputes, 1998.
http://www.c-r.org/our-work/accord/cambodia/introduction.php

Brandt, Michele. Constitutional Assistance in Post-Conflict Countries: The UN Experience: Cambodia, East Timor and Afghanistan. New York: United Nations, 2005.

Websites
Center for Peace and Development, Cambodia
http://www.cdri.org.kh/

United Nations in Cambodia
http://www.un.org.kh/

Democratic Republic of the Congo: Ethnicity-based notions of citizenship

The issue of enacting citizenship legislation in the Democratic Republic of the Congo (DRC) constitution has been an important factor in the pervading conflict in the East. North and South Kivu, as well as Ituri, have shared a permeable border with Rwanda, Uganda, and Burundi since they were delineated under Belgian colonial rule. The porous nature of this border region and the influx of pastoralists, refugees, and warlords have promulgated tensions over definitions of local versus non-local and Congolese versus non-Congolese.24 

The nature of this tenuous relationship, combined with the permeability of the border, has given rise to issues of identifying Congolese citizens. A number of attempts at addressing this issue have been made by incorporating citizenship laws (namely, the 1972 Citizenship Decree, the 1981 Citizenship Law, and the 1991 Sovereign National Conference Resolution on Citizenship). These laws largely divided eastern Congolese society further along ethnic lines.

In the late 1960s to early 1970s, “faced with growing refugee influx, the local population began to see themselves as an imperiled ‘indigenous’ majority. This, in turn, made the position of the Kinyarwanda-speaking minority even more insecure. . . . This was the context in which the Mobutu regime extended citizenship to those who had come as refugees from Rwanda in 1959-63.”25 Mahmood Mamdani notes, “To many in the Kivu Province, the 1972 Citizenship Decree came to symbolize not simply an inclusive citizenship policy but one so undiscriminating that, if followed in practice, it would surely turn Kivu into an open sanctuary for the surplus population from Rwanda and Burundi.”26

A decade later, according to Mamdani, the 1981 Citizenship Law “stipulated that only those persons who could demonstrate an ancestral connection to the population residing in 1885 in the territory then demarcated as Congo would qualify as citizens of Congo. It was one thing to pass the law, quite another to implement it. . . . In this context, the ‘indigenous’ majority improvised a solution: the Kinyarwanda-speaking population may vote in the elections, but none of its members may run for office. The solution seemed to compound the problem; for the first time, all Kinyarwanda speakers were lumped together in a single group, regardless of how long different sections had been on Congolese soil. The response of the Kinyarwanda-speaking minority, particularly the Tutsi, was to smash ballot boxes. As a result, no provincial assemblies were elected in North or South Kivu.”27

The role of neighboring states and Congolese politicians has inflamed matters and heightened the tense relationship between ‘locals’ and ‘foreigners,’ Hutu and Tutsi, which has perpetuated violence and war in the country. Technically at peace, the inter-Congolese Dialogue promoted a constitution that gave citizenship to all who could trace lineage to Congo at the time of independence. In its Article 14, it “affirm[ed] the principle of the Lusaka Agreement by which ‘all the ethnic groups and nationalities whose individual members as well as territory constituted what became the Congo (currently Democratic Republic of the Congo) at the time of independence, must enjoy equal rights and protection in terms of the law, as citizens.’”28  Rogier Emeric notes, “Yet, it [left] it to a future nationality act to spell out the conditions under which Congolese nationality is to be recognised, acquired, lost or recovered. In this matter, the constitution proves specific only in precluding double nationality, a provision that may alienate Rwandan Hutu and Tutsi minorities in the DRC. In the same vein, the transitional constitution does not contain any indication concerning the future constitutional order and level of decentralisation in the DRC.”29 

Exacerbating perceptions that Tutsi were being persecuted, this constitutional arrangement provided a strong excuse for continued violence. Most local warlords have been using the question of ethnicity as rhetoric to justify secessionist movements and the pursuit of violence, including repeated massacres, rapes, and destruction of villages on a large scale throughout the region. The populations are kept in constant fear by leaders who claim to protect “their community” and tend to “ethnicise” every single conflict.30 

The case of DRC exemplifies how the failure to institute appropriately ideas of citizenship in the constitutional framework can lead to a failure of the peace process and a continuation of conflict.

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For more information:

Documents
Emeric, Rogier. “The Inter-Congolese Dialogue: A Critical Overview.” In Challenges of Peace Implementation: The UN Mission in the Democratic Republic of the Congo, edited by Mark Malan and João Gomes Porto, 25–42. Johannesburg: Institute for Security Studies, 2003.

Human Rights Watch. Ituri: “Covered in Blood”: Ethnically Targeted Violence in Northeastern DR Congo. New York: Human Rights Watch, July 2003. http://www.hrw.org/reports/2003/ituri0703/

Inter-Congolese Dialogue (ICD). Inter-Congolese Political Negotiations: The Final Act. Signatories of the ICD, April 2003.
http://www.iss.co.za/AF/profiles/DRCongo/icd/finalact.pdf

Mamdani, Mahmood.  When Victims Become Killers: Colonialism, Nativism, and the Genocide in Rwanda. Princeton, NJ: Princeton University Press, 2001.

”Trouble in the East: The New Electoral Law Angers the Former Rebels and Could Set the Eastern provinces Ablaze.” Africa Confidential 47, no. 5 (2007).

Websites
Electoral Institute of Southern Africa
http://www.eisa.org.za/

Great Lakes Echoes
http://www.eurac-network.org/

Human Rights Watch, Democratic Republic of Congo
http://hrw.org/doc/?t=africa&c=congo

International Alert, Project on the Democratic Republic of Congo
http://www.international-alert.org/our_work/regional/great_lakes/drc.php

Institute for Security Studies, Civil Society and Democracy Programme
http://www.iss.co.za/index.php?link_id=21&link_type=12&tmpl_id=2

Institute for Security Studies: Publication of the Inter-Congolese Dialogue
http://www.iss.co.za/AF/profiles/DRCongo/icd/index.htm

United Nations Organization Mission in the Democratic Republic of Congo
http://www.monuc.org/

Iraq and Afghanistan: Failed constitutional processes

Both Afghanistan and Iraq represent the complexity of constitutional engineering and have exemplified failed constitutional processes. This outcome is a consequence of an array of factors, including an inability to institute properly participatory processes, an intense international presence and pressure, and, last but not least, the continuation of violence.

This is particularly true in Iraq. Claiming that the process had been co-opted by international actors, Sunni Arabs largely boycotted the January 2005 elections for Assembly. According to Jonathan Morrow, “The Sunni Arabs’ January 2005 election boycott and the simultaneous campaign of intimidation of Sunni Arab voters by the insurgency resulted in only seventeen Sunni Arabs’ election to the 275-member Assembly—a very low number compared to the proportion of Sunni Arabs in Iraq, conventionally estimated at 15 to 20 percent. By contrast, the Kurdistan Coalition List won seventy-five seats and the predominantly Shia United Iraqi Alliance won 140—an absolute majority that in theory, if not in fact, gave the Alliance the ability to write a constitution without the involvement of any other political grouping.”31 

Sunnis rejected many features created by this body, including “the regional federalist model for Iraq and, in particular, the prospect of a southern, predominantly Shia, federal region. In many cases, there was a specific rejection of regional control of petroleum production, a demand for a stronger statement of an Arab identity for Iraq, and an objection to provisions in the draft condemning Ba’athism.”32 

Referring back to debates on federalism, the construction of the Iraqi federation goes against the recommendation of creating a large number of small units that split up ethnic groups and encourage cross-cutting cleavages. As Jamal Benomar argues, “Above all, Iraq needs a constitutional framework that can help to accommodate the country’s serious internal tensions and contradictions. Some observers worry that democracy understood as sheer majoritarianism will allow the Shi’ite Arabs—who may form as much as 60 percent of the population—to dominate. Many Sunni Arabs and Kurds will want to curb or will even flatly oppose a majority-rule system. Other difficult questions are those of federalism, the status and integration of the Kurdish areas in the national polity, and the relation between religion and the state. How such questions are addressed in the short term (when easing the process is the main goal) will influence how they are resolved in the long term.”33

Further, the Coalition placed pressure on the Assembly to meet the August 15 deadline. According to Morrow, “After August 8, constitutional negotiations took place in a series of private, ad hoc meetings between Kurdish and Shia party leaders. . . . These meetings took place at irregular intervals at a number of private residences and compounds in the International Zone. These were meetings at which the Sunni Committee member had no right of attendance, to which they frequently requested attendance, but were often not invited. The expectation was quite clear: the Shia and Kurdish parties would agree to a constitutional text, which would then be presented as a fait accompli to the Sunni Arabs, who would be asked to take it or leave it.”34

Observers note that because of the fragmented nature of the Iraqi state, the international community and the Coalition should recognize the absolute necessity of a thorough, unrushed, and consultative constitution-making process that takes account of (but is not wedded to) lessons learned in other countries.35  So far, such points have been largely ignored or left out of the process of constitutional engineering in Iraq.  

In Afghanistan, meanwhile, timing, process, and participation have also been highly contentious points. The Bonn Agreement, attempting to give some flexibility and adjust to changes in the political and security climate, provided little guidance on constitutional engineering. According to Brandt, “The legal framework was skeletal. It did not provide for the mandate of the constitutional organs, the mode of appointments/elections to them, and the role of the public or basic rules of procedure.”36  As a result, the nine-member drafting committee for the constitution was appointed by the president. Brandt notes, “It did not have a legal mandate and the Committee largely conducted its work behind closed doors and held few consultations with experts or civil society. The Committee presented its draft of the constitution, which largely followed the 1964 Afghan Constitution, to the President in March of 2003.”37  For some observers, “the uncertainly and confusion about the drafting process needlessly undermine[d] the legitimacy of that process by creating the impression that factions in power can manipulate the process to their own ends.”38

By the time the draft was presented to the president, six months of the 18-month timeframe for the process had passed. Consequently, little time or capacity was given to encouraging civic education and participatory practices. Brandt points out, “The Commission, with the support of the Secretariat had only one month, from early May to early June, to educate the public about constitutional issues and the process and encourage the public to participate.”39  Questionnaires were sent out to get the population’s feedback. Brandt continues, “Approximately 100,000 questionnaires were analyzed and a report was prepared explaining the results of the views of the public. The views of the public did indicate the concerns of the average citizen about security, a fair distribution of resources, access to education, and underscored that in general the Afghan population was respectful of the right to freedom of religion.”40

To those who criticized the limits of that consultation, “staff of the UNAMA [United Nations Assistance Mission in Afghanistan] Constitutional Support Unit have stressed that the constitution-making exercise is ‘not a referendum,’ that the goal of consultation is ‘quality’, not quantity, and that ‘people in rural Afghanistan don’t have the ability to distinguish the facts and issues.’”41  “However, it was ultimately left to President Karzai and influential members of his Cabinet to decide the content of the final draft of the constitution and the final considerations were largely based upon their political agenda. The views of the public were not given much weight in this final consideration,” writes Brandt.42 

The composition of the Constitutional Loya Jirga (CLJ, a 500-member body) was also left up to President Hamid Karzai. However, the presidential decree “ensured that women, minorities and marginalized groups, such as internally displaced persons, all had a seat at the table.”43  For some observers, “the representative nature of the CLJ is in part, what allows most Afghans to view the final constitution as a positive step toward democratic governance despite flaws in the participatory process.”44  For others, “a flawed and opaque constitutional process that leaves most Afghans feeling excluded cannot be a sound foundation for the growth of accountable and respected political institutions capable of containing and channelling political conflict. Without such institutions, the violent factional conflict that has marred Afghanistan for decades will probably continue. Political groups that do not gain power in the first elections will have no incentive to accept the result if they cannot trust in the state institutions to contain and cycle power.”45

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For more information on Iraq:

Documents
Morrow, Jonathan. Weak Viability: The Iraqi Federal State and the Constitution Amendment Process. Washington, DC: United States Institute of Peace, July 2006. http://www.usip.org/pubs/specialreports/sr168.html

Benomar, Jamal. “Constitution-Making After Conflict: Lessons for Iraq.” Journal of Democracy 15, no. 2 (2004): 81–95.

Websites
International Crisis Group, Iraq
http://www.crisisgroup.org/home/index.cfm?id=2436&l=1

National Democratic Institute, Iraq
http://www.ndi.org/worldwide/mena/iraq/iraq.asp

United Nations Assistance Mission for Iraq
http://www.uniraq.org/

United States Institute of Peace, Iraq
http://www.usip.org/iraq/index.html


For more information on Afghanistan:

Documents
International Crisis Group (ICG). Afghanistan’s Flawed Constitutional Process. Brussels: ICG, June 2003.
http://www.crisisgroup.org/home/index.cfm?id=1639&l=1

Brandt, Michele. Constitutional Assistance in Post-Conflict Countries: The UN Experience: Cambodia, East Timor and Afghanistan. New York: United Nations, 2005.

Suhrke, Astri. The Democratisation of a Dependent State: The Case of Afghanistan. Madrid: Fundación para las Relaciones Internacionales y el Diálogo Exterior, January 2008.
http://www.fride.org/publication/340/the-democratisation-of-a-dependent-state-the-case-of-afghanistan

Websites
Afghanistan Reconstruction Project, Center on International Cooperation, New York University: Constitution Resource Page
http://www.cic.nyu.edu/afghanistan/constitution.html

International Crisis Group, Afghanistan
http://www.crisisgroup.org/home/index.cfm?id=1266&l=1

National Democratic Institute, Afghanistan
http://www.ndi.org/worldwide/asia/afghanistan/afghanistan.asp

United Nations Assistance Mission in Afghanistan
http://www.unama-afg.org/

Nigeria: Federalism in the first and second republics

The transformation of the Nigerian federation between the first and second republics is often referenced as a case in which federalism was successfully re-rendered for peacebuilding.

The first Nigerian Republic, establishing upon independence in 1960,46  compromised three states, each dominated by a large ethnic majority.47  The Northern Region, controlled by the Hausa, constituted a core ethnic region within Nigeria. Scholar Henry Hale notes, “Established upon attaining independence in 1960, Nigeria’s First Republic was divided up into three (and later four) provinces, one for the Igbo tribe, one for the Yoruba, and another for the Hausa, whose ‘Northern’ region made up about 55 percent of the population and thus clearly constituted a core ethnic region.”48 

Two factors fuelled Nigeria’s state collapse in this condition. First, a secessionist movement grew in Biafra, as the representatives of the region felt neglected because of the dominance of the Northern Region. Second, within the Northern Region, minority groups perceived themselves as largely excluded from politics, which were dominated by the Hausa majority.49

In order to reconstruct a unified Nigeria, unionists reconfigured the federal units. Between 1967 and 1976, the republic was re-divided a number of times, until it comprised 19 federal states that divided the three dominant ethnic groups among the newly constructed units. According to Donald Horowitz, “To counter the Biafran charge that Nigeria was dominated by the large Northern Region, to secure the loyalty of Northern minorities strongly represented in the army, and to wean the Eastern minorities away from Biafra, the regions were carved into twelve states in 1967. The three main groups were relegated to seven states. . . . The new fluidity was enhanced by the creation of seven more states in 1976, before the return to civilian rule. Now the Hausa were spread among half a dozen states, the Yoruba among five, and the Ibo between two. The proliferation of states produced a lively state politics and a more complex—and therefore less tense—politics at the center.”50 

This proliferation of heterogeneous units in the second Nigerian Republic was beneficial for stability. It empowered minority groups and allowed for their representation in state and federal legislature.51  Further, it encouraged groups that had been dominant in the first republic and were now divided to reach across regions and ethnic divides to build necessary coalitions to obtain power in federal government.52

Hence, the division of the previous state into a larger number (37 to date)53  of small, ethnically heterogeneous units, fostering cross-cutting cleavages, allowed for the reformation of the Nigerian state.54

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For more information:

Documents
Citizens’ Forum for Constitutional Reform. “Memorandum submitted on 30th March 2001.” Lagos, Nigeria, 2001.

Hale, Henry E. “Divided We Stand: Institutional Sources of Ethnofederal State Survival and Collapse.” World Politics 56, no. 2 (2004): 165–93.

Horowitz, Donald. Ethnic Groups in Conflict. Berkeley, CA: University of California Press, 1985.

Websites
Citizens’ Forum for Constitutional Reform
http://www.cdd.org.uk/cfcr/memorandum.htm

National Democracy Institute, Nigeria
http://www.ndi.org/worldwide/cewa/nigeria/nigeria.asp

South Africa: Power sharing in the interim constitution

South Africa’s post-apartheid constitutional process, which culminated in the 1996 constitution, has been used as a template for other constitutional negotiations in divided societies. According to experts Kirsti Samuels and Vanessa Hawkins Wyeth, “Eschewing formal power-sharing arrangements and quotas, and instead relying on broad participation, inclusion of all parties in an interim national unity government, and sunset clauses with predetermined expiration dates, the South African model is universally hailed as one of the world’s most progressive and successful post conflict constitutions.”55

Further, the interim constitution utilized principles to provide leeway to those engaging in the agreement, even including a clause allowing for national self-determination,56  which has been seen as instrumental to the peaceful transition process. As Andrew Reynolds demonstrates, “Use of a plurality system in the 1994 elections for the South African National Assembly would have had a number of negative consequences. The immediate result would have been a denial of parliamentary representation to minority interests. Despite their geographic pockets of electoral support, the Freedom Front (which won 9 seats in the actual election), Democratic Party (7 seats), Pan-Africanist Congress (5 seats), and African Christian Democratic Party (2 seats) would have failed to win a single parliamentary seat. Although all these parties together constitute only 6 percent of the new South African National Assembly, they have an importance within the structures of government that is disproportionate to their numerical strength. General Constand Viljoen’s Freedom Front represents a highly volatile Afrikaner-heartland constituency that could easily have fallen into the hands of white-supremacist demagogues such as Eugene Terre’blanche had its representatives been shut out of the political process. Similarly, the predominantly Xhosa Pan-Africanist Congress of Azania (PAC) is a party torn between the ballot box and the AK-47. Had the PAC been denied parliamentary representation, its armed terrorist wing might have gained the upper hand, posing a severe threat to stability in South Africa in the immediate postelection period.”57

The process of building a constitution in South Africa was also highly respected for its participatory nature and hailed for its thorough use of public education and consultation, deliberation in drafting, and legitimization of that draft. According to Louise Olivier, “South Africa followed a constitution-making process with four key pillars, viz: public education, public consultation, drafting of the Constitution, and legitimising the draft Constitution. All of these stages required commitment from the government, adequate resources, and time. Civic education is essential to inform the citizenry of the process and of contentious issues that the constitution may contain. Consultation provides for the sharing of information on the content and soliciting people’s views and needs. The drafting process only begins once public consultations have ensured maximum participation and the drafters consider and include the public’s submissions. The model constitution is then presented for further public debate. The final phase is the legitimisation of the draft constitution. South Africa chose to adopt its Constitution through a broadly representative constituent assembly. This adoption process provided for divergent perspectives to be taken into account and created the space for ownership of both the process and the content. The final Constitution was also certified by the highly respected and representative Constitutional Court, an important component of the legitimising process.”58 

The nature of the interim constitution, as well as other features (such as the Truth and Reconciliation Commission), allowed for a sufficient and comprehensive process that culminated in the final draft of the constitution, enacted in 1996. The inclusive manner in which this constitution was rendered, and its highly participatory nature, allowed South Africa to transition away from the consociational proportional representation model used in the interim to a more majoritarian system.59 

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For more information:

Documents
Olivier, Louise. Constitutional Review and Reform and the Adherence to Democratic Principles in Constitutions in Southern African Countries. Johannesburg: Open Society Initiative for Southern Africa, 2007.
http://www.osisa.org/node/10322

Reynolds, Andrew. “Constitutional Engineering in Southern Africa.” Journal of Democracy 6, no. 2 (1995): 86–99.

South African Government Information, Constitution of the Republic of South Africa Act 200 of 1993.
http://www.info.gov.za/documents/constitution/93cons.htm

South African Government Information, “Constitution of the Republic of South Africa, 1996.
http://www.info.gov.za/documents/constitution/index.htm

Websites
Civil Society and Democracy Programme, Institute for Security Studies
http://www.iss.co.za/index.php?link_id=21&link_type=12&tmpl_id=2

Institute for Democracy in South Africa
http://www.idasa.org.za/

Electoral Institute of Southern Africa
http://www.eisa.org.za/

Open Society Initiative for Southern Africa
http://www.osisa.org/


1. Christophe Solioz, Prospects for Balkan Stability: Ownership, Transitional Process and Regional Integration in Bosnia and Herzegovina (Geneva: Graduate Institute Program for the Study of International Organizations, August 2001), 7.
2. Sofia Sebastiàn, Leaving Dayton Behind: Constitutional Reform in Bosnia and Herzegovina (Madrid: Fundación para las Relaciones Internacionales y el Diálogo Exterior, November 2007), 1–2. 157. Sumantra Bose, “The Bosnian State a Decade after Dayton,” International Peacekeeping 12, no. 3 (2005): 330.
3.  Sumantra Bose, “The Bosnian State a Decade after Dayton,” International Peacekeeping 12, no. 3 (2005): 330.
4. Sebastiàn, Leaving Dayton Behind, 1–2.
5. Ibid., 2.
6. Solioz, Prospects for Balkan Stability, 16.
7. Ibid.
8. Benomar, “Constitution-Making after Conflict,” 83.
9. Centre for European Integration Strategies (CEIS), Overcoming the War in the Heads: Renewing Bosnia’s Constitutional Debate (Geneva: CEIS, May 2006), 2.
10. Ibid., 5.
11. Bose, “The Bosnian State a Decade after Dayton,” 328.
12. Sebastiàn, Leaving Dayton Behind, 1–2.
13. Association Bosnia and Herzegovina, “Conference Report: International Conference for Bosnia and Herzegovina” (conference paper for “1995–2005, Bosnia and Herzegovina: Ten Years of Dayton and Beyond,” Geneva, Switzerland, October 20–21, 2005), 3.
14. CEIS, Overcoming the War in the Heads.
15. Association Bosnia and Herzegovina, “Conference Report,” 4.
16. Miroslav Lajcák, “European Momentum Is More Powerful than Obstructionist Forces,” Office of the High Representative and European Union Special Representative, Bosnia and Herzegovina, Press Release, August 10, 2008.; Anna E. Juncos, “The EU’s Post-Conflict Intervention in Bosnia and Herzegovina: (Re)Integrating the Balkans and/or (Re)Inventing the EU?” Southeast European Politics 6, no. 2 (2005): 88–108.
17. Brandt, Constitutional Assistance in Post-Conflict Countries, 7.
18. Jeremy Armon, Laura Gibbons, and Dylan Hendrickson, “Introduction: Cambodia’s Constitutional Challenge,” in Safeguarding Peace: Cambodia’s Constitutional Challenge, ed. Dylan Hendrickson (Durban: African Centre for the Constructive Resolution of Disputes, 1998).
19. Brandt, Constitutional Assistance in Post-Conflict Countries, 11.
20. Ibid., 11; Armon, Gibbons, and Hendrickson, “Introduction.” 
21. Brandt, Constitutional Assistance in Post-Conflict Countries, 11.
22. Ibid., 11–12.
23. Ibid., 12.
24. Human Rights Watch, Ituri: “Covered in Blood”: Ethnically Targeted Violence in Northeastern DR Congo (New York: Human Rights Watch, 2003), 21.
25. Mahmood Mamdani, When Victims Become Killers: Colonialism, Nativism, and the Genocide in Rwanda (Princeton, NJ: Princeton University Press, 2002), 243.
26. Ibid., 244.
27. Ibid., 244–45.
28. Inter-Congolese Dialogue, “Inter-Congolese Political Negotiations: The Final Act,” Signatories of the ICD (April 2003).
29. Rogier Emeric, “The Inter-Congolese Dialogue: A Critical Overview,” in Challenges of Peace Implementation: The UN Mission in the Democratic Republic of the Congo, ed. Mark Malan and João Gomes Porto. Johannesburg: Institute for Security Studies, 2003), 38.
30. “Trouble in the East: The New Electoral Law Angers the Former Rebels and Could Set the Eastern Provinces Ablaze,” Africa Confidential 47, no. 5 (2007).
31. Jonathan Morrow, Iraq’s Constitutional Process II: An Opportunity Lost (Washington, DC: United States Institute of Peace, 2005), 6.
32. Ibid., 8.
33. Benomar, “Constitution-Making after Conflict,” 91.
34. Morrow, Iraq’s Constitutional Process II, 9.
35. Ibid., 95.
36. Brandt, Constitutional Assistance in Post-Conflict Countries, 10.
37. Ibid., 18.
38. International Crisis Group (ICG), Afghanistan’s Flawed Constitutional Process (Brussels: ICG, 2003), 12.
39. Brandt, Constitutional Assistance in Post-Conflict Countries, 19.
40. Ibid., 20.
41. ICG, Afghanistan’s Flawed Constitutional Process, 19.
42. Brandt, Constitutional Assistance in Post-Conflict Countries, 20.
43. Ibid.
44. Ibid., 21.
45. ICG, Afghanistan’s Flawed Constitutional Process, 27.
46. Hale, “Divided We Stand,” 188.
47. Horowitz, Ethnic Groups in Conflict, 603.
48. Hale, “Divided We Stand,” 188.
49. Ibid.
50. Horowitz, Ethnic Groups in Conflict, 604.
51. Ibid., 606.
52. Ibid., 612.
53. Hale, “Divided We Stand,” 188.
54. Ibid., 189.
55. Samuels and Wyeth, State-Building and Constitutional Design after Conflict, 2.
56. South African Government Information, “Constitution of the Republic of South Africa Act 200 of 1993,” Government of South Africa, Constitutional Principle XXXIV.
57. Andrew Reynolds, “Constitutional Engineering in Southern Africa,” Journal of Democracy 6, no. 2 (1995): 89.
58. Olivier, Constitutional Review and Reform, 23–24.
59. Samuels and Wyeth, State-Building and Constitutional Design after Conflict, 2.







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