Abstract
In recent decades, the vast majority of violent mass conflicts have been between groups within a country, rather than between different countries. As such, conflict resolution efforts invariably have involved some re-allocation of access to public power and resources and thus often have required reform or replacement of the constitution. While much has been written on the effects of the design of a federal constitution on the resolution or recurrence of conflict in divided societies, much less has been examined on how the same conflict dynamics inform the design of the constitutional reform process that is meant to lead to the new federal arrangement. Especially in contexts of ‘holding together’ federalism, the questions of who writes the constitution and how and when sub-national boundaries are delineated can be highly contentious and may undermine the constitutional project before it begins. Current cases where such debates are, or have recently been, taking place include Libya, Myanmar, Nepal, Solomon Islands, Philippines, Somalia, South Sudan, Sri Lanka and Yemen.
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Notes
- 1.
Y. Ghai, “Ethnicity and Autonomy: A Framework for Analysis,” in Y. Ghai (ed.), Autonomy and Ethnicity: Negotiating Competing Claims in Multi-Ethnic States, Cambridge, 2000, p. 1.
- 2.
D.J. Elazar, Exploring Federalism, University of Alabama, 1987.
- 3.
A.C. Stepan, “Federalism and Democracy: Beyond the US Model,” Journal of Democracy, Vol. 10, No. 4 (1999), pp. 19–34.
- 4.
See, for example, Ghai, “Ethnicity and Autonomy”; supra; D. Horowitz, “The Many Uses of Federalism,” Drake Law Review, Vol. 55 (2007), pp. 953–966; U.M. Amoretti and N. Bermeo (eds), Federalism and Territorial Cleavages, Johns Hopkins University, 2004; J. McGarry and B. O’Leary, “Federalism as a Method of Ethnic Conflict Regulation,” in Sid Noel (ed.), From Power Sharing to Democracy: Post-conflict Institutions in Ethnically Divided Societies, Montreal: McGill-Queen’s University Pres, 2005, pp. 263–296; and S. Choudhry (ed.), Constitutional Design for Divided Societies, OUP, 2012.
- 5.
V. Hart, “Constitution Making and the Transformation of Conflict,” Peace and Change, Vol. 26, No. 2 (2001), pp. 153–176; C. Bell and K. Zulueta-Fuelsher, Sequencing Peace Agreements and Constitutions in the Political Settlement Process, International IDEA, 2015; J. Widner, “Constitution Writing in Post-Conflict Settings: An Overview 2008,” William and Mary Law Review, Vol. 49, No. 4 (2008), pp. 1513–1541; and J. Wheatley and F. Mendez, Patterns of Constitutional Design: The Role of Citizens and Elites in Constitution-Making, Routledge, 2007.
- 6.
One recent example is Cheryl Saunders, “Processes of Constitutional Transitions in the Face of Territorial Cleavages,” in G. Anderson and S. Choudhry (eds), Territory and Power in Constitutional Transitions, Oxford University Press 2009, noting “Questions of process … may include, for example, bases for the initial selection of negotiating partners, the manner in which the agenda for transition is set, the potential of an interim Constitution or other instrument to buy time for consideration of more lasting arrangements, the choice of institution for deliberation on a new Constitution, the rules for decision-making at key points in the process, the timing of elections, the utility of referendum, the plan for constitution implementation.”
- 7.
I. Jennings, An Approach to Self-Government, Cambridge University Press, 1956, p. 56.
- 8.
The case of Rhode Island, which was the only state not to send delegates to the Constitutional Convention in Philadelphia and only held a state ratification convention under duress, illustrates that sometimes circumstances limit what is formally a free choice.
- 9.
Bell and Zulueta-Fuelsher, “Sequencing Peace Agreements and Constitutions in the Political Settlement Process.”
- 10.
Agreement on the implementation mechanism for the transition process in Yemen in accordance with the initiative of the Gulf Cooperation Council. Paragraph 20 (2011).
- 11.
Final Report of the Technical Committee to Prepare for the Comprehensive National Dialogue Conference, at p. 16. See also, “Representation,” National Dialogue Conference, available at http://www.ndc.ye/page.aspx?show=68
- 12.
A full discussion of the challenges that confronted the NDC are beyond the scope of the chapter, but the size of the NDC and tight timelines under which it operated made consensus-building (especially on more politically difficult issues, such as federalism) exceptionally difficult. In addition, the Consensus Committee, which was a mechanism of the NDC intended to act as a tiebreaker when working groups were deadlocked, failed to function as intended and left many deadlocked issues unresolved. Of the 1800 NDC outcomes, there was very little on the nature and character of the would-be federal state beyond broad principles. See, Erica Gaston, “Lessons Learned in Yemen’s National Dialogue,” US Institute of Peace, February 2014.
- 13.
Final Report of the Technical Committee to Prepare for the Comprehensive National Dialogue Conference, at p. 24.
- 14.
Agreement on the implementation mechanism for the transition process in Yemen in accordance with the initiative of the Gulf Cooperation Council, 2011, paragraph 20.
- 15.
Final Report of the Technical Committee, p. 16. Southern representatives to the NDC did not include southern separatists who, favouring secession to a federal arrangement, boycotted the NDC. As previously noted, the notion of who could or should legitimately represent the south was itself a contentious issue.
- 16.
E. Gaston, “Process Lessons Learned in Yemen’s National Dialogue,” United States Institute of Peace Special Report No. 342, February 2014, pp. 3–4.
- 17.
Ibid., pp. 3–4.
- 18.
Houthis are a political/military group, which generally refers to itself as Ansar Allah. The Houthis draw heavily but not exclusively from the Yemeni Zaidi community. Zaidis constitute around 30% of the Yemeni population, though Houthis represent a much smaller proportion.
- 19.
Had they secured a favourable outcome in the Working Group, the Houthis would have encountered a similar challenge in plenary, where decisions had to be made first by 90% agreement, and if no agreement was reached sent to the Consensus Committee and then referred back for a 75% threshold.
- 20.
Jason Gluck, “Constitution Making in a Political Vacuum,” Annual Review of Constitution-Building Processes: 2014, International Institute for Democracy and Electoral Assistance, 2015.
- 21.
Author’s interview with Zaid Al-Ali, 27 April 2018.
- 22.
P. Salisbury, “Greed, Brutality, and an Unravelling Coup in Yemen,” Vice News, 11 February 2015.
- 23.
Gluck, “Constitution-building in a Political Vacuum,” p. 50.
- 24.
Author’s interview with Zaid Al-Ali, 27 April 2018.
- 25.
Gluck, “Constitution-building in a Political Vacuum,” pp. 52–53. It is important to note that while the proposed federal map of Yemen was both a redline for Houthis and a conflict trigger, it was not the only issue that contributed to conflict and hostility in the North. Efforts at security sector reform, which were handled outside the NDC and included removing Zaidis (then in an alliance with former President Ali Abdullah Saleh) from key military posts, threatened Zaidi’s traditional dominance of the military and key patronage networks and led to aggression from northern Zaidi military elites prior to the constitutional review.
- 26.
Salisbury, “Greed, Brutality, and an Unravelling Coup in Yemen.”
- 27.
See “Oxford Public International Law,” 2018, available at http://opil.ouplaw.com
- 28.
Jan Amilcar Schmidt, “What can Still be Achieved in the Somali Peace- and State-Building Process?” Constitutionnet.org, October 2015, available at http://www.constitutionnet.org/news/vision-2016-autumn-2015-what-can-still-be-achieved-somali-peace-and-state-building-process
- 29.
2012 Provisional Constitution of Somalia, Articles 132–134.
- 30.
Jan Amilcar Schmidt, “Somali Constitutional Review Process: Taking Stock,” Constitutionnet.org, 8 March 2017, available at http://www.constitutionnet.org/news/somali-constitutional-review-process-taking-stock
- 31.
2012 Provisional Constitution of Somalia, Articles 132–134. However, the referendum is unlikely to take place due to security concerns and the refusal of Somaliland to participate.
- 32.
While members of the upper house are constitutionally mandated to represent the states, the fluidity of Somali politics have created an environment where the executive heads of the states require a hand-picked representative to negotiate the federal arrangements. Author’s interview with Jan Schmidt, 27 April 2018.
- 33.
See “Somalia Postpones Constitutional Review Meeting after Boycott,” 2017, available at https://www.garoweonline.com/en/news/somalia/somalia-national-constitutional-review-meeting-postponed
- 34.
Federalization Negotiation Technical Committee Terms of Reference.
- 35.
Ibid.
- 36.
While the composition of the National Security Council is loosely defined and has evolved since its inception in 2016, its principals include the President and Prime Minister of the Federal Government of Somalia (FGS), the Presidents of the five Federal Member States (FMS) and the Governor of the remaining interim regional administration. It is considered the apex forum for political negotiation in Somalia.
- 37.
W. Underwood, et al., “Interactions between Elections and Constitution Building Processes in Fragile and Conflict-Affected States,” International IDEA, 2018.
- 38.
Constitution of Iraq, Article 142(4).
- 39.
Whilst there were many drivers for violent conflict at that time in Iraq, it is noteworthy that incidences of ethno-sectarian deaths in Iraq rose precipitously after the constitution came into effect, perhaps underscoring absence of buy-in from the Sunni population in the political compact. See “Measuring Stability and Security in Iraq,” Report to Congress, March 2009, p. 23.
- 40.
Article 138, Interim Constitution of Nepal, 2007.
- 41.
S. Bisarya, “Forces and Mechanisms in Pluri-national Constitution Building in South Asia,” in S. Bisarya (ed.), Annual Review of Constitution Building: 2015, International IDEA, 2016.
- 42.
Gluck, “Constitution-making in a Political Vacuum.”
- 43.
Constitution of Somalia, Article 49.
- 44.
D. Thapa, “Mapping Federalism in Nepal,” in D. Thapa and A. Ramsbotham (eds), Accord: 26 Two Steps Forward, One Step Back. The Nepal Peace Process, Conciliation Resources, 2017.
- 45.
Ibid.
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Gluck, J., Bisarya, S. (2020). Federal Constitution-Making Processes and the Stable Cessation of Conflict. In: Griffiths, A., Chattopadhyay, R., Light, J., Stieren, C. (eds) The Forum of Federations Handbook of Federal Countries 2020. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-42088-8_28
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