Constitution Making Processes and the Durability of Peace

Research Paper (postgraduate), 2009

16 Pages, Grade: 1,0



The multidimensional peacekeeping missions of today are often enfolded in opaque mechanisms of microphysical power operating in everyday social practices that remain invisible to the naked eye. Many seek to reorder war-shattered countries strategically according to best Western practices (Merlingen & Ostrautkaite 2006: 48). One such strategy is to redraft the constitution which will then form the legal basis of a country for decades to come. The underlying postulate is that in order to solve the problems caused by armed conflict, structures must be put in place to re-legitimise state power and make the peaceful management of conflicts possible (Bächler 2004: 7). Above all, it has been recognised that the process of drafting a constitution, whether it be an elite roundtable, a participatory process or national conference, is as important as the content of the final document (Hart 2003: 1). However, the outcomes of recent constitution making attempts have varied considerably. At best, new democratic provisions are sidelined through para-constitutionalism1 and patrimonialism2. At worst, the country reverts to autocratic tendencies and civil strife.

Yet the literature on post-war constitution making remains sparse (Samuels 2009: 174). It is for this reason that the present study aims to investigate the link between the type of constitution building process and the durability of peace. Particularly, it asks the following research question: Why do some constitution building processes lead to durable peace while others do not? The paper furthermore aims to touch upon the dilemmas faced by policymakers when seeking to reform the constitutions of conflict-ridden countries3. To this end, the paper is structured as follows. The first part gives an overview of the literature that has dealt with constitution making and introduces the theoretical framework employed for this study. The second part lays out the research design and introduces the cases under investigation. In the third part the cases are analysed in order to identify and explain the independent and dependent variables. The forth section analyses these cases in view of the theories. The paper concludes with a summary of findings and recommendations for future research.


Previous research has established the influence of powersharing, joint commissions, ceasefires, regime change, third-party security guarantees, mediation and so forth on the durability of peace (Fortna 2004; Walter 2002). The impact of the political regime on peace has also been examined in detail. Gleditsch, Hegre and Strand (2009), for example, have found that presidential systems are more violent than parliamentary ones, and that majoritarian systems experience more violence than those with proportional representation, although the latter may have longer wars. The research that has so far dealt with the type of constitution building process has only been able to make tentative claims about the link between process, democratisation and peace. Samuels (2007), for example, carried out an analysis of twelve countries and found that the more representative and more inclusive the constitution making processes are, the more likely they lead to high-quality democracies. “The failure to adopt or implement a constitution built through a participatory process can result in increased dissatisfaction and societal tensions, and even a return to conflict” (Samuels 2007: 4). However, the participatory processes Samuels studied did not have a divisive effect on the durability of peace. Furthermore, Hart (2003), in an analysis of global practices of constitution building, provided evidence for the emergence of an international norm recognising the right to public participation in changing or creating a constitution. In sum, previous research has not yet establilshed a clear link between the type of constitution building process and the durability of peace.

While the empirical findings are thus still sketchy, a host of theoretical literature on constitution building has emerged. In this body of literature there is a general consensus that participatory constitution making is best able to ensure peace and legitimacy (Samuels 2006; Samuels 2009; Hart 2003; Arato 1995; Bächler 2004; Benomar 2004).

Indeed such a process has many advantages. It can support the transformative process from conflict to one that resorts to political means to resolve conflict; put in place mechanisms and institutions through which future conflict can be handled without resorting to violence; give people the opportunity to negotiate solutions to the divisive or contested problems that led to the conflict; contribute to the democratic education, empowerment, healing and reconciliation of the population; and forge a new consensus vision of the future of the state (Samuels 2006: 2-5; Samuels 2007: 5; Hart 2003: 1; Benomar 2004: 82). By contrast, an exclusive constitution building process can undermine the durability of peace; intensify fault lines, divisions and tensions in society; entrench conflict-generating electoral or governance models; provide the basis for contesting the government; and harm the prospects for stable democracy (Samuels 2006: 9; Benomar 2004: 82). Nonetheless, elites arguably “possess the moderation, technical expertise, negotiating skills, ability to maintain confidentiality and above all rational incentives to compromise so as to maintain power that make for effective constitution making” (Hart 2003: 3). Yet for the sake of legitimacy and ownership, “the age-old figure of the ‘law giver’, the non-participant architect of constitutions, can no longer be plausibly revived” (Arato 1995: 191). In other words, non-democratic constitution making processes cannot be justified today.

Accordingly, what are the criteria for a successful participatory constitution building process? In this regard, there is no clear consensus among the scholarly literature, but there are several overlapping principles.

A. P ublicity. Under the principle of publicity come civic education and media campaigns. In countries with low literacy rates, citizens can be addressed through songs, poems, plays, radio and mobile theatres (Hart 2003: 2-7). This allows underrepresented points of view to be expressed and given a serious hearing (Arato 1995: 225).
B. Participation. Participation refers to the involvement of the broader public into the process. It can be achieved by setting up and guaranteeing channels of communication, right down to local discussion forums, such as public debates, town and village meetings (Hart 2003: 2-11; Bächler 2004: 8; Benomar 2004: 89).
C. Representation. Representativeness means that all major interests and stakeholders of society are included in the process (Samuels 2007: 8; Bächler 2004: 8; Benomar 2004: 84).
D. Plurality of democracies. This refers to the ratification procedure, in other words, a new constitution ought to be approved by a combination of representative forums, courts and referenda (Hart 2003: 2). This allows for more public discussion and inclusion (Arato 1995: 227).


1 Para-constitutionalism, or what Max Weber called sham constitutionalism, refers to the practice where institutions are changed to such extent that it would actually require a constitutional amendment. However, such changes can be sidelined, for example, by way of creating parallel agencies or portraying the changes to be affecting the organisation of executive power, as was the case in Russia (Sakwa 2007: 45; 131).

2 This refers to a situation where the ruler treats all political administration as his personal affair and exploits his possession of political power as a useful adjunct of his private property. A patrimonial leader empowers certain officials from case to case and grants them certain privileges, often making them for life dependent upon the wealth of the ruler (Bendix and Turner 1999: 345-346)

3 I use the term conflict-ridden to denote that the constitution building process is often initiated in a situation where conflict is still ongoing.

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Constitution Making Processes and the Durability of Peace
Uppsala University  (Department for Peace and Conflict Research)
Peace, War and Democratisation
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ISBN (eBook)
ISBN (Book)
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constitution making, durability of peace, Nicaragua, Peru, representation, Sandinista, Fujimori
Quote paper
Ingeborg Friedl (Author), 2009, Constitution Making Processes and the Durability of Peace, Munich, GRIN Verlag,


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