The interdependence of peace and constitutional review processes, together with many of the difficulties that arise, are illustrated by the cases of Nepal, Fiji and Somalia. All three cases involve intra-state conflict to which constitutional revision is seen as part of the solution. While the nature of the conflict is different, in all three conflicts the process of constitutional revision has raised acute problems about inclusion that are relevant to sustainable peace. There has also been substantial international involvement in all three cases, not only in geopolitical pressures placed on the states concerned, but also in the design and operation of the constitutional revision processes themselves.
So far the process of constitutional revision followed in each of these states has been flawed, raising concerns about legitimacy and the potential implications for peace. But each case shows progress, too, providing grounds for measured optimism about the future – depending on how things are handled.
In Nepal, the first Constituent Assembly failed to produce a constitution, leading to widespread disillusionment and the installation of an interim government by questionable legal means. On the other hand, the militia have been absorbed into the institutions of the state and the conflict parties are pursuing their goals through a continuation of the constitutional revision process rather than through further armed conflict.
An election was held for a new Constituent Assembly in November 2013, from which a constitution will be expected to emerge with at least broad majority support. If this occurs, the process is likely to be seen to have been broadly inclusive, however unusual, moving the focus of attention to the implementation phase. This will be challenging if, as seems likely, the constitution makes provision for both federalism and semi-presidentialism, each of which is completely new to Nepal.
The reasons for the failure of the first Constituent Assembly are complex, making lessons difficult to draw – apart from a somewhat negative conclusion that an apparently inclusive process will not deliver results if the real bases of power do not engage with it. If nothing else, however, the Nepali example illustrates the point that initial failure of a process is not necessarily fatal, either to constitutional revision or to peace.
In Fiji, a new constitution was made by military decree in September 2013 and the government asserted it would be final by the end of the year. The process was seriously flawed and continues to be contested, but evaluation of the outcome is more complex. The new constitution provides permanent immunity for the coup leaders and will be difficult, if not impossible, to amend in the future. And it is weak in its express protection of civil and political rights.
On the other hand, it is (almost) racially neutral in its application for the first time in modern Fijian history, thus striking at the source of the original conflict. At this point, the political elite, civil society and the people of Fiji face a difficult choice between adopting strategies to make the best of this constitution during the implementation phase or rejecting its legitimacy altogether.
It therefore remains to be seen whether the new constitution of Fiji can initiate a process of transitional constitutionalism, providing a more satisfactory framework for government over time for a stable, non-discriminatory Fiji, or whether the degree of mistrust engendered by the constitution-making process and its outcome are too great. The case of Fiji illustrates the challenges of constitutional revision while military rule is ongoing, suggesting the need for more nuanced procedures that take realistic account of the circumstances on the ground and accept the possibility of phased transition.
In Somalia, a new provisional constitution in 2012 makes elaborate provision for the adoption of a final constitution at the end of the current parliament. Already, however, the process to date has been complex, multi-staged, opaque and protracted. It can be criticised on a variety of fronts: the degree of external involvement; the self-interest of political actors; the marginalisation of minorities; and continuing division over institutional arrangements, including the form of federalism.
But there are also signs of incremental progress. A president has been elected in accordance with the terms of the constitution and the task of constitutional revision has required negotiation between the clans. There are lessons to be learnt from the case of Somalia about the limited effectiveness of external actors in devising and imposing workable constitutional institutions and processes. Nevertheless, while much remains to be done to consolidate peace in Somalia there is now a constitutional platform on which local capacity can be built to develop local solutions that fit the local context.