CTN Blog: "On the nexus of peacemaking and constitution-making"

By Cheryl Saunders

This article was first published in the eight edition of "UN Constitutional", a newsletter published by the United Nations, featuring articles by constitutional experts, reports from the field, and a digest of recent constitutions-related publications.

Questions about the nexus between peacemaking and constitution making are likely to arise whenever there is conflict to which governance changes are part of the resolution. A Roundtable to explore this nexus met in New York on 21-22 May 2018, under the auspices of the Berghof Foundation and the UN’s Department of Political Affairs. The Roundtable was part of a longer project, which is ongoing. It offered some preliminary insights, however, which are outlined here.

Similarities & differences

Peace making and constitution making can be seen as phases in the resolution of a conflict, sharing the goal of achieving sustainable peace. While sequencing varies between conflicts, the two phases may be interdependent to some degree. They will overlap if, for example, during a mediation phase commitments are made about the substance of constitutional change; if interim arrangements are negotiated with features that are resistant to change in the course of constitution making; if undertakings are given about the process by which change will be negotiated and given effect, whether in the form of a road map or otherwise; or if decisions are made about parties or the ambit of the ‘people’ that will continue through negotiations over constitutional change.

Managing the interface between peacemaking and constitution making is complicated by at least three factors:

  • There are differences in the context of each case. These arise both from differences in the nature of the conflict and from local contextual factors.
  • Both mediation and constitution making practice have undergone change over recent decades, which increases the extent of their interdependence. The focus of mediation has moved from security to a ‘vision of society’ in some, if not all, cases. Similarly, the emergence of the idea of a ‘transformative’ Constitution, which not only changes governance but builds cohesive communities and provides a vehicle through which peace can be maintained has implications for constitution making.
  • There are unresolved questions about practice in both mediation and constitution making. Both struggle with the balance between elite agreement and inclusion. Both are uncertain about the significance of legal continuity. Both grapple with the legitimacy of some forms of international intervention. The realities of global experience over recent decades raise questions about whether stable political settlement is possible in many contexts, and whether attention needs to be paid to forms of ‘political unsettlement’. In any event, there are questions in constitution making about the respective merits of minor and major change; about whether and if so how major change can usefully be deferred or made subject to periodic review; and about the extent to which constitutions should be designed and expected to last.

There are some distinctive characteristics of peacemaking and constitution making, which will be explored further, through case studies, in later phases of the project. These differences in turn may affect the principles that govern both processes and that, superficially, are shared. These include the following:

  • Inclusion. Both peacemaking and constitution making emphasise the need for inclusion, but the nature of mediation to resolve conflict may limit what is feasible.
  • National (local) ownership is emphasised for the purposes of both peacemaking and constitution making. The imperatives for it may differ between the two, however, affecting understanding of what local ownership involves.
  • Compliance with international norms and standards. This principle also is emphasised in both phases. It may be, however, that a wider range of norms and standards are claimed to be relevant for the purpose of constitution making, than in mediation for the purposes of peacemaking.
  • Relevance of local context. Different aspects of local context may be relevant for the immediate purposes of resolution of conflict through mediation and for constitution making.
  • Implementation. Implementation is important for both peacemaking and constitution making. Both emphasise the need for quality of implementation. There is a question, nevertheless, about the extent to which concerns about implementation overlap. The immediate goals of conflict resolution may effectively be achieved once new constitutional arrangements are in place, or agreement is reached on what new arrangements require.

Challenges, needs & opportunities

The nexus between peacemaking and constitution making presents challenges, needs and opportunities for both communities. The challenges for mediators include the following:

  • To be conscious of the potential implications of any commitments about constitutional substance or constitution making process that are raised in the course of mediation.
  • To be aware of the potential for constitutional pre-commitment that is presented by development of an interim constitution, however useful interim arrangements otherwise may be.
  • To inform themselves about the implications of particular commitments of a constitutional kind, or to work with others who have knowledge of these issues.
  • To be conscious of the technical difficulties of giving effect to commitments that require constitutional change or that depend on decisions taken under an existing constitution.

The opportunities presented by the nexus between peacemaking and constitution making include the following:

  • Trust between parties developed in the course of mediation should also stand the constitution making process in good stead
  • Clarification of the goals/grievances/concerns of the parties in the course of mediation should inform subsequent decisions about constitutional arrangements
  • There is room for collaboration between mediators and constitution making actors in leveling the playing field of knowledge for the purposes of mediation, which also should benefit a later constitution making phase.
  • Collaboration between mediators and constitution making actors can assist the former to appreciate the wide range of constitutional options to achieve certain goals.

These insights suggest the following needs: (i) Mediators should be aware of the possibilities and pitfalls of the interface with constitution making and should have a capacity to draw on constitution making expertise where that is called for; (ii) constitution makers should be aware of the causes of the conflict that gave rise to peacemaking and should have access to the insights about problems, parties and context developed in the course of mediation (where that is consistent with mediation practice); and (iii) systems are needed to enable information flow and collaboration between mediators and constitution making advisers.