1.4.8 Deadlock-breaking mechanisms

It is possible that at some stages of the process described above, there may be a falling-out, and serious disagreements may appear. A disagreement can be procedural or it can involve principles or substance. For a procedural question, one possible solution is to seek a ruling from the courts. (The Kenya process [2005] stimulated numerous legal challenges to the authority of the commission and the constitutional conference, including one that questioned the validity of the whole process because there was no provision for a referendum; the court supported that challenge and thereby killed the process, even though a draft had already been successfully adopted by the conference, the equivalent of the constituent assembly.) The other kind of disagreement is less legal than political, and may make it difficult to arrive at a substantial agreement, running the danger of a stalemate and deep social divisions. Here the courts may be less helpful; they may aggravate the problem by finding for one party when what is needed is a compromise. To avoid legal involvement when it merely sharpens differences, other mechanisms can be adopted. These include referring the disagreement to party leaders (as in Nepal); postponing the contentious issue for future resolution (as in Uganda and Iraq); coming to a resolution by a subsequent vote with a smaller majority; and engaging in mediation by a group of “elders.” These mechanisms are not always institutionalized—there is something to be said for informal, ad hoc arrangements. For a discussion of dealing with divisive issues, see part 2.5.2.