Substate Constitutions in Fragile and Conflict-affected Settings

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Key points:

• In order to understand whether (and how) substate constitution-building might help address the relationship between substate communities and the central state, it is important to examine the relationship of territory and identity to conflict. This relationship is shaped by the social diversity of the country as a whole, the territorial
concentration of ethnically homogeneous groups, its history of decentralization within central-state institutions, and claims for autonomy among one or more territorially concentrated groups.

• Once authorities at the central and substate levels decide to embark on substate constitution-building, it is key to understand that this process begins by defining the constitutional space, either in the central-state constitution or a peace agreement.

• When considering the drafting of substate constitutions, it is important to remember that the right to produce a substate constitution does not necessarily equate to more autonomy. The level of autonomy of substate entities will be defined in the centralstate constitution, or sometimes in peace agreements and/or transitional political arrangements.

• Defining the constitutional space, whether in the central-state constitution or in a peace agreement, often includes determining the process by which the substate constitution is drafted, adopted and certified. Stakeholders at both levels should put some thought into this, especially where the central-state constitution will be built anew or fundamentally amended.

• To give substate entities enhanced ownership over their constitutional dispensation, the central-state constitution should allow substate institutions to adopt/promulgate the substate constitution as much as possible, while developing a procedure for an independent body to ensure compliance with the central-state constitution.

• Referendums are often not advisable or feasible in the ratification of substate constitutions in fragile and conflict-affected states (of the cases examined here, only Chechnya had a referendum). This  heightens the need for robust and genuine public participation in the development of the substate constitution.

• The timing for drafting and adopting substate constitutions should be carefully considered. The context may demand more urgent constitution-building processes in some substate entities than in  others, and therefore different tracks might need to be applied for different substate entities. Where they are used, timelines should be
realistic.

• Substate constitutions are mostly easier to amend in practice than central-state constitutions. To enhance ownership at the substate level, a central role should be given to substate institutions and stakeholders in initiating and enacting substate constitutional amendments, while ensuring that proposed/enacted amendments are compliant with the central-state constitution.

• Substate constitutions should specifically protect minorities and their rights within the substate entity, whether or not the central-state constitution includes specific provisions to protect minorities throughout the state’s territory.

• The international community must seek the express agreement of the central government to engage in substate constitution-building processes.

Keywords: peace processes

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