3.2.1 Parties to peace processes

Peace processes intended to end violent conflict often have close links to constitution-making processes, especially when the cause of conflict has been access to state power. Such links can make the parties to a peace process significant, even dominant, actors in the constitution-making process. These parties can have interests and modes of operation different from those of parties involved in the more specialized bodies and processes that usually have the main roles in constitution-making processes.

There can be risks and opportunities in linking conflict resolution and constitution-making. Among the major risks are dangers that, in a situation of violence and insecurity, communities may draw inward, resulting in increased sectarianism, pursuing short-term solutions that protect sectarian interests or that constitutionalize and perpetuate divisions (as, for example, in Burundi). Further, there can be a strong tendency to try to exclude noncombatants. (Some specific dangers involved in that situation are discussed below.)

On the other hand, getting parties to a violent conflict to consider constitutional issues may present opportunities. Where conflict has resulted from perceptions of exclusion, putting the possibility of constitutional change on the table may be one of the few ways to get serious consideration for the idea of ending violence. It does so by creating space for political discussion that may open up possibilities for better understanding of opposing positions and of the possibilities for compromise. Constitutional debate can help opposing parties redefine their concerns. For example, the 2005 Comprehensive Peace Agreement in Sudan redefined the issues from a violently contested demand for Southern independence to how best to meet opposing concerns through constitutional arrangements for autonomy and a deferred referendum on independence. If it is possible to involve leaders of opposing armed groups in discussions with other groups and interests as part of constitution writing (though, as discussed below, this does not always occur), this can expose those leaders to a broader range of needs and concerns, and help moderate polarized positions.

Formal statements of the links between a peace process and a constitution-making process are usually found in the peace agreements made as part of conflict-resolution efforts. The extent to which peace processes have links with constitution-making varies greatly. A peace agreement may set out a road map for the peace process, which often includes the road map for making a new constitution and may not go any further (e.g., toward determining the contents of the constitution). Some peace agreements do deal extensively with constitutional content, in a variety of ways. Some set out guiding or immutable principles upon which the proposed new constitution should be based. Others state quite detailed proposals either for changes to the existing constitution or for a new constitution, usually leaving it to some other body or process to enact the proposals. In a few cases the peace agreement is in fact a constitution, as was the case with the interim constitution of South Africa of 1993. Alternatively, a completely new draft national constitution may be attached to the peace agreement, as with the constitution for Bosnia-Herzegovina attached to the Dayton Accords of December 1995.

Peace agreements are usually intended to be binding on the parties, and so often contain sequencing and other arrangements intended to encourage implementation by the parties (including implementation of provisions on constitutional process or content). In addition, international community actors are often involved in the development and signing of peace agreements (as mediators, facilitators, parties, or witnesses). Such roles may subsequently involve them in encouraging or even actively supporting implementation of the constitutional aspects of the agreements.

The links among conflict-resolution processes and constitution-making in any particular case vary greatly, depending on the nature of the conflict and the goals of the main parties. Such variations can have significant effects on demands about the constitution-making process and the roles parties seek to play in it. Examples of peace processes where key parties may seek to define changes to the constitution but not seek major roles in important aspects of constitution- making include efforts to end secessionist conflicts in which neither the national government nor the secessionist rebels have won a clear victory. In such cases the secessionists may be interested mainly in seeking agreement on the details of constitutional change needed to provide autonomy for the secessionist region, and in a few cases also a deferred right to a referendum on independence, as with New Caledonia in relation to France in 1998, Bougainville in relation to Papua New Guinea in 2001, and South Sudan in relation to Sudan in 2005. In those cases, the peace agreement defined agreed-upon constitutional changes, and left the process for making those changes to the existing national legislature.

The situation can be quite different in cases of conflict involving attempts by a party expressing grievances about previous marginalization and so seeking to capture control of the state. The rebels may be less interested in providing for the content of the final constitution in the peace agreement, and more concerned with obtaining both a commitment to complete replacement of the constitution and a guarantee of a significant, even dominant, role for the rebels in the process of making the final constitution. Where an interim constitution is involved, the rebels can also be expected to have a strong interest in determining its contents. Thus in Nepal (in the case of the Maoists) and South Africa (in the case of the African National Congress), the peace agreements provided for interim constitutions (in South Africa providing guiding principles for the final constitution), which guaranteed the Maoists and the African National Congress significant control of or influence over the interim governments and the processes for making final constitutions.

The different interests and modes of operation that parties to a peace process may have in relation to constitution-making when compared to groups operating within more specialized constitution- making bodies can have significant effects on a constitution-making process arising from the peace process. Several interrelated potential issues (some of which have already been touched upon) require brief discussion, including possible responses to problems that may arise.

First, issues of sectarianism, short-term thinking, and resistance to compromise in situations of violent conflict and insecurity have been mentioned already. The closely related difficulty of limiting participation in the constitution-making process to combatant groups can be a particularly strong tendency when negotiations occur in a situation of ongoing conflict. In such circumstances the parties to the peace process may concur that a lasting agreement will be more likely if confidentiality and secrecy are maintained and the process is controlled by and restricted to the leaders of the warring groups. Further, there could sometimes be risks that opening a negotiating process at an early stage could empower groups and interests without real power or status, and could contribute to substantial elaboration of the agendas of issues. While these may be real dangers that do contribute to the difficulty of the decision-making process, there are usually other important issues involved. In particular, injustices can be done to significant groups that are excluded, something that may exacerbate social divisions. (An example of this is Sri Lanka, where the exclusion of Muslim and Indian Tamil communities from successive peace processes where constitutional issues were a significant part of the process has had ongoing divisive effects.) Limiting those involved in constitution-making decisions to combatants has other dangers. They may lack legitimacy in the eyes of the wider community. The success of any new constitutional arrangements may rely too much on the commitment of the narrow group of negotiating parties, and may fail to respond to broader social needs. The new constitution may then lack the social foundations needed to gain the widespread support it requires to be sustainable.

A second, related set of problems arises because in a constitution-making process linked to conflict resolution, the issue of who has seats at the table will be seen as determining access to power in the long term, through decisions on the constitution. So access to seats in the process becomes critical. The result can be splits in fighting groups, or even the emergence of new groups. Alternatively, because so much is at stake, leaving out any faction can result in the emergence of spoilers.

Problems of both these kinds are sometimes handled in a two-stage process, the first involving mainly the warring parties, which is intended to build confidence and establish order, and the second, more participatory stage, in which the “final” constitution is made. The access of parties to the first stage (usually involving negotiations of peace process matters and short-term constitutional arrangements) can be flexible. Thus in South Africa, the interim constitution (inclusive of guiding principles) was negotiated mainly among the key parties, with some parties joining quite late in the process. The constituent assembly process that developed the final constitution was more participatory. Another approach could involve provision for a mandatory review, within a specified period, of a constitution negotiated between limited parties.

Third, problems can arise from the privileged roles of combatants as parties to the peace process contributing to demands for constitutional provisions that maintain their privileged status under the new constitution. For example, the army or security forces of the state may seek provisions that give them special constitutional roles or protections. Rebel groups may seek incorporation into the state’s armed forces. Another danger concerns a narrowing of the range of constitutional issues that may be considered as part of a constitution-making exercise based on a peace process. There may be a tendency to limit them to issues of major concern to the parties to the peace process, contributing to a lack of balance in the constitution and undermining its wider legitimacy.

Fourth, parties to a peace process can usually be expected to understand well the political context they face, it being that which usually drives them to demand particular constitutional concessions. There is often a tendency to focus mainly on issues about access to political power under a new constitution, and a lack of proper attention to other vital issues. Further, parties may have limited interest in, or even understanding of, the longer-term legal implications of their constitutional demands. Combatant parties to peace processes (especially, though not only, rebel groups) sometimes have limited constitution-making expertise. They may have limited ability to express their grievances and concerns in terms of constitutional issues. Further, they may see constitution-making as just one of many possible strategies for achieving their goals, and keep open the possibility of a return to violence.

As a result, there can be special needs for helping parties to peace processes better understand what is involved in constitution-making. Legal advisers to parties in peace processes may need to be involved early in order to help the parties frame their concerns as constitutional issues, something that can often help redefine issues and transform conflict. (This has occurred in many peace processes, including Bougainville, New Caledonia, South Africa, and South Sudan.) Facilitators of peace processes should give special attention to the need to encourage continued commitment to the constitution-making aspects of the peace process.

A fifth set of issues arises because increasingly, even in peace processes responding to conflicts internal to a particular country, third-party mediators and international actors play significant roles. Often it is their timetable concerns and other agendas that tend to dominate the process. Such actors may be concentrated on resolving the violent conflict, and have a limited understanding of constitution-making processes or issues. These difficulties suggest a need for improved understanding of and training about constitution-making on the part of international actors involved in the many peace processes that are associated with constitution-making.