This chapter examines four cases of collapsed states from the Middle East and North Africa – Lebanon, Libya, Somalia, and Yemen. State collapse was marked by the breakdown of national institutions and the effective loss of a functioning central government. Different governance arrangements appeared across the territory of the country. This chapter discusses the nature of state collapse and its bearing on constitution-making processes and constitutional design. International actors may be drawn in as partisans of different factions or as potential mediators and facilitators of conflict resolution and state reconstruction. Peace-making requires the main factions to accept that the costs of fighting outweigh any benefits and to agree on structured negotiations. Sustainable peace requires agreements on governance, including potentially interim power-sharing, a constitution-making process, transitional security arrangements, and some guiding principles for a reconstructed state. While a federal or devolved governance arrangement may seem logical, the factional elites may prefer power-sharing at the center. If they do opt for a federal or devolved structure, they face vexing issues in defining the constituent units, the allocation of powers, and the nature of central institutions, which may result in an extended period of muddled governance and power politics with no constitutional clarity.

This chapter discusses the place of conflict in transitional justice. Building on a range of historical real-life examples, it argues that conflict is an important rather than incidental part of many, if not all, transitional justice processes. The chapter initially focuses on value conflicts and then turns to conflicts of interests (political power, offices, money, etc.). Drawing on recent realist work in political theory, the chapter argues that it is time to give politics its due and idealisation a rest in transitional justice. This is not an argument against ideals, but against an approach that is idealistic in the wrong sense, in such a way as to suppress, erase from view, real experiences of conflict. Towards the end, the chapter explores recent attempts in the transitional justice literature to take conflict more seriously, particularly Christine Bell’s account of transitional justice as bargaining.

In August of 2000, after the intervention of international mediators, the government of Burundi and seventeen political parties signed the Arusha Peace and Reconciliation Agreement for Burundi with a constitution finally being signed in 2005. Burundi’s iterative cycles of ethnic violence and the underlying mistrust between the minority Tutsi, which controlled the military, and the majority Hutu are the backdrop on which the constitutional process was set. The entire process, based on the Peace of Arusha, was plagued by anxiety and insecurity, and the country to this day has not managed to find stable footing. From the debates over parliamentary apportionment to more recent struggles of the CNDD-FDD party to erase or rewrite the agreements made at Arusha, questions remain over the constitution’s initial intentions as well as its future.

When the constitutional bargain process is non-inclusive and nonparticipatory, and when civil society fails to operate as a democratizing force, the constitutional outcome is not likely to resolve the political and societal ills of authoritarianism. Chapter 6 addressed several of these constitutional design issues. It first examines cases where constitutions failed to limit the arbitrary powers of the monarchs (Morocco and Jordan) or presidents (Egypt and Algeria) by utilizing a constitutional design that lacked textual clarity, adopting contradictory provisions, and creating parallel institutions. Next, the chapter examines “non-consensual” constitutional designs in deeply divided societies. First, in countries where an ethnoreligious minority ruled against the majority’s will (Bahrain and Syria), new constitutions failed to institutionalize power-sharing. Second, where regional cleavages, rivalries, and grievances were prominent issues, as in Yemen and Libya, federalist and region-based power-sharing constitutional arrangements failed to prevent conflict. Lastly, where a country was deeply divided across ideological and identity lines (as was Egypt in 2012), winner-take-all approach to constitutional drafting alienated half of the population, leading to the failure of the constitution and the democratic transitional process.

This chapter begins by surveying the current literature on constitutional design constitutions for divided societies and constitutional approaches to power sharing. It pays particular attention to the view that constitutions are best understood not as contracts, but rather as coordination devices. An implication of this view for constitutional design is that, in deeply divided societies, successful coordination (and thus successful constitution-writing) may be easier to achieve if the constitution deliberately leaves certain divisive constitutional questions unresolved, with the understanding that those questions will be resolved incrementally over time. Against this theoretical background, the chapter uses the history and constitutional history of Afghanistan to illuminate the challenges of developing a constitution that can coordinate politics in a deeply divided society, and it evaluates the pros and cons of different approaches to constitutional design in such contexts.

Nearly all contemporary conflicts are driven in part by political marginalization. This political marginalization amplifies the consequences of economic and cultural marginalization. To craft a durable peace, the parties to peace negotiations often spend considerable time and effort crafting power-sharing arrangements that balance the pull of some parties for greater diffusion and devolution of political power with the pull of other parties to maintain a degree of political centralization, for the sake of efficiency and effectiveness, and to preserve their prior political privileges. This chapter explores the puzzle of whether and how to create a vertical power-sharing arrangement that leads to a durable peace. It reviews the peace processes related to conflicts in Bosnia, Colombia, Indonesia/Aceh, Iraq, Macedonia, Nepal, the Philippines/Mindanao, South Africa, Sudan, and Yemen to understand how parties have grappled with the thorny set of conundrums, including the choice of state structure; the allocation of legislative and executive powers among the levels of government; the degree of political, administrative, and/or fiscal decision-making authority to be devolved; and the timeline for implementing any agreed plan for decentralization.

The chapter examines the afterlife of peace agreements aimed at ending civil wars in the post-Cold War era. Assessing the ‘success’ or otherwise of these agreements is not possible without an appreciation of the context – historical, political, cultural and normative – within which they have been negotiated, concluded and implemented. While context is thus all-important, the history and fate of peace accords have also been shaped by the content of individual agreements, as well as by the manner of their implementation. The record shows that poorly designed and inadequately supported peace agreements can entrench pre-war patterns of conflict, exacerbate intra-elite competition, and accentuate socio-economic and political grievances within war-torn societies. By contrast, agreements that are properly designed, adequately resourced, and underpinned by constructive political support from parties, regional actors and international sponsors, can strengthen the political forces and dynamics favouring long-term stability and societal transformation towards self-sustaining peace. Peace agreements after civil wars are often best approached as living documents whose flexible and politically informed interpretation can help parties and mediators chart political avenues out of protracted violence.

Exploitation of natural resources has become one of the principal means for parties to an armed conflict to finance their armed struggle. In response to this reality, several international approaches have been developed to curtail – what can be referred to as – ‘illegal’ exploitation of natural resources. The current chapter examines how ‘illegality’ is construed in this context and compares this to understandings of illegality within (domestic) peace settlements and the international legal framework for the governance of natural resources. The purpose of this inquiry is to understand how and to what extent international interventions support arrangements for the management of natural resources as set out in peace agreements. The chapter concludes that the international legal framework, international interventions and arrangements in domestic peace settlements are, for the most part, mutually supportive. At the same time, peace settlements tend to take a more expansionist approach of illegality compared to international interventions, including in their definition mismanagement of natural resources or their revenues by governments. Based on these precedents in domestic peace settlements, the chapter argues in favour of recalibrating conceptions of illegality in international approaches.

Self-determination conflicts have, for a very long time, been considered intractable. Given the apparent zero-sum game character to such conflicts, the only outcomes appear to be victory for either side or interminable conflict. While the post-Cold war era has brought about a further round of self-determination conflicts marked by very high levels of violence and civilian casualties, this period has also led to a significant number of self-determination settlements. In the main, these have been autonomy settlements or examples of federalisation; and are often combined with complex power-sharing arrangements. This practice has contributed considerable wealth to the tool-kit available to construct bespoke, internal settlement options in relation to the numerous secessionist conflicts or controversies around the globe. This chapter considers this settlement practice in light of international legal doctrine on self-determination, and in terms of the constitutional processes and transformations required to craft the particular autonomy, federal, transitional and secessionist solutions, which may be necessary to rejuvenate popular consent for the conflict-affected state going forward.

In this chapter we develop our theory of the relationship between power-sharing institutions and democracy as “the art of the possible” in post-conflict states. Noting the challenging environment that actors confront following civil war, we evaluate the potential for establishing minimalist democracy in post-conflict states as well as the obstacles that inhibit the creation of democracy in its liberal or participatory forms. Power-sharing institutions help make the emergence of minimalist democracy possible, we argue, by providing former belligerents with the assurances necessary to play by the electoral rules of the game. We further identify two mechanisms via which power sharing helps foster minimalist democracy. The first, which facilitates democracy from above by constraining governments’ ability to abuse their citizens, centers on power sharing’s role in establishing the foundations for an effective system of rule of law. In terms of the second mechanism, power sharing facilitates democracy from below by providing for a more equal distribution of rights and freedoms across social groups.

Bosnia-Herzegovina experienced a traumatic war that led to the death of over 100,000 citizens and the displacement of half the population. The Dayton Peace Accords have regulated post-war reconstruction and politics since 1995, resulting in a complex power-sharing system that relied heavily on extensive international intervention in the first post-war decade. Subsequent international disengagement and the persistence of nationalist and clientalist political parties has led to stagnation characterized by high levels of political polarization and limited progress in terms of economic development or Euro-Atlantic integration. The narratives of the war remain present and mutually exclusive.

This chapter argues that ethnicity is a universal human characteristic; it is an identity whose moral economy of mutual social relations causes internal dispute more continuously than external contexts cause interethnic competition. Ethnicities are mixed, shared, and subject to constant change in their own self-awareness and their inter-relations with others. The last two centuries of Kenya’s history illustrate this point. In the stateless, precolonial, past, different ways of taming the varied regional environment were the greatest influence on the nature of “ecological ethnicities” that shared ideas, took in each others’ economic migrants, and engaged in little “inter-tribal war”. Under colonial rule, access to scriptural literacy and arguments about how best to resist subjection caused much a sharper, patriotic, ethnic self-awareness. Regional inequalities in development, especially the triumph of agriculture over pastoralism, made ethnicity more competitive – a condition greatly emphasised when independence gave some Africans a centralised coercive power over others. Kenya has only recently adopted a devolved constitution that may defuse this often lethal competition but it is as yet too early to say.

This chapter accounts for the violence that occurred during the 2011 elections in Nigeria, despite their apparently being conducted relatively fairly. It points to long run structural horizontal inequalities, together with leaders’ short-term political ambitions as the basic explanations. The chapter points to seven different types of cleavages in Nigeria, the most important being between North and South, among the three main ethnic groups and majority versus minority groups. Major horizontal inequalities are recorded in every dimension. These inequalities are used by politicians to mobilise support. While institutional mechanisms were designed to moderate these inequalities in Nigeria – particularly in relation to political power and bureaucratic appointments - Jonathan Goodluck’s abandonment of zoning arrangements, which had brought him to power, and his use of patronage to garner support, led to violent protests in many places. Although evidence shows that the institutional arrangements to ensure power-sharing have tended to rigidify ethnic differences, the chapter concludes that they are nonetheless important mechanisms for integrating the country and avoiding large-scale violence. The 2011 violence illustrates what can happen when some power-sharing rules are abandoned.