The Processes of Constitutional Transition in the Face of Territorial Cleavages

Abstract

This paper examines the relevance of territorial cleavages to the process of constitutional transitions. It does so by reference to a wide range of case studies, including Bolivia, Bosnia-Herzegovina, Cyprus, Ethiopia, India, Indonesia, Iraq, Kenya, Nepal, Nigeria, the Philippines, Scotland, South Africa, Spain, Sri Lanka, and the Ukraine. The paper begins by examining contextual factors that will have a bearing on the process for any constitutional transition, including the nature of the transition, the nature of the territorial cleavage, the challenges confronting statehood in the transitioning state, and the extent and nature of international involvement. Secondly, the paper examines the impact of territorial cleavages at each phase of a process of constitutional transition: during “agenda setting”, deliberation, ratification, and finally, in the implementation of new constitutional arrangements. It argues that it is desirable that at the outset, the territorial cleavage and relevant stakeholders are identified and acknowledged; that during deliberation and ratification, an acceptable balance between majoritarian voting and territorial representation is achieved; and that conditions of territorial cleavage should inform procedures for public participation and proposals to transplant institutions and practices, even if they have successfully been used elsewhere. Finally, the paper suggests that techniques of postponement, such as deferring contested constitutional questions to later legislation, should be used strategically, and with an awareness of the possibility that postponement may secure constitutional agreement at the cost of leaving unresolved issues of constitutional importance.