Conciliatory institutions and constitutional processes in post-conflict states.

• Author: Horowitz, Donald L.

There are two important questions in post-conflict constitution making, and at present neither of them has a definitive or uniformly accepted answer. (1) The first relates to the best configuration of institutions to adopt in order to ameliorate the problem of intergroup conflict. The second concerns the process most apt to produce the best configuration of institutions, whatever it might be. The first question is unanswered because there is a dispute among scholars and practitioners between two opposing views of appropriate institutions to mitigate conflict. (2) Constitutional processes have not generally been geared to yield coherent exemplars of either configuration in a sufficient number of conflict-prone countries (3) to provide a convincing demonstration of the superiority of one approach or the other. The second question is unanswered because in many cases constitutional processes are chosen in a haphazard fashion, without regard to the aptness of the process for the problems to be addressed. Meanwhile, advocates have been arguing for a single, highly structured, uniform process that may be apt for some classes of problems but is not necessarily appropriate for the full range of problems constitution makers confront in coping with divided societies. (4) Hence the questions of what and how are both subject to debate.

This Article takes up both questions. It surveys the main contending prescriptions for constitutional designs to cope with serious ethnic conflict, and it enumerates some of the main objections to each. It then reviews some of the available evidence on the efficacy of the contending prescriptions before turning to the question of adoptability. The Article notes that there are many obstacles to the adoption of a coherent set of political institutions to mitigate conflict, which derive mainly from processes of constitution making. For this reason, the Article evaluates some of the main suggestions in the recent literature on constitutional process and thereafter devotes considerable attention to the difficult question of designing a process for constitution making that is geared to the specific problems faced by constitutional designers.

1. INSTITUTIONS: THE DEBATE

   Suppose a society contains two ascriptive (birth-derived) groups: the As, with 60 percent of the population, and the Bs, with 40 percent. The groups have the same age structures and rates of natural increase; their proportions are not vulnerable to change through immigration; they vote at the same rates; and they vote exclusively for ascriptively defined political parties, the A party and the B party. Under virtually every form of fair majoritarian political arrangement and every electoral system, the As will dominate government and the Bs will be in opposition in perpetuity. Of course, no society approximates all of these conditions, but many resemble this situation, with ascriptive cleavages (hereafter called ethnic cleavages) based on race, color and appearance, language, religion, regional origin, or some other criterion of group difference. In many societies, there are ethnically based parties, ethnic voting at very high rates, and electoral outcomes that foster a sense of group inclusion and exclusion that exacerbates whatever preexisting conflicts are present between the groups. Not surprisingly, a great many violent conflicts follow electoral exclusion of this kind, whether anticipated or accomplished. (5)

   In some cases, conflicts are not bipolar, as the A-B conflict is, but tripolar or multipolar. Even where the conflict is bipolar, as it is for the most part in, for example, Northern Ireland, Fiji, Cyprus, Rwanda, and Burundi, there are subgroup differences--that is, within the A and B groups--that mitigate the overall polarization. Whatever the complexity of intergroup and intragroup relations in such societies, however, polarization and exclusion can follow from ascriptive differences, compounded by the history, advantages and disadvantages, and divergent views of the identity of the state that are all associated with these differences.

   There are three principal ways to think about avoiding exclusion and polarization in such a society. One way, which comes naturally to Anglo-American democrats, is to think of majority rule with strong minority rights. But it is instantly obvious that for the 60-40 A-B problem--and, in considerable measure, for all of its more complex and more common variants--the prospect of perennial exclusion from governmental power makes this an unsatisfying course, both practically and theoretically. It is practically unsatisfying because without a minority share of power, or at least the threat of a share of power, minority rights are likely to wither. It is theoretically unsatisfying because democratic theory sees electoral politics as a matter of choice, rather than birth, and does not conceive ascriptive majority rule to be what is meant by majority rule at all. (6) When elections are wholly governed by birth, the term election is scarcely appropriate. That leaves two other possibilities contemplated by the literature on divided societies.

   The first, which goes by the name consociational democracy, seeks to elide the problem of majority rule altogether by requiring the inclusion of all groups in government. (7) The consociational approach is essentially a regime of guarantees. It postulates that all major groups will be represented in governing grand coalitions in proportion to their numbers, as determined by election results; that, to facilitate proportional inclusion in cabinets, elections will be conducted by a proportional electoral system; that major decisions will be made in cabinet by consensus; that financial allocations and civil service representation will be proportional to group membership; and that matters of concern to only one group will be left to that group to deal with autonomously. (8) So, the underlying principles are proportional inclusion, mutual group vetoes on major issues, and group cultural autonomy.

   The grand coalition implies that the model of government and opposition is rejected. Consensual democracy replaces majoritarian democracy, and opposition is necessarily located inside government. Group vetoes on ethnically divisive issues mean that much government action is precluded or accomplished only when veto players can be compensated. The policy process becomes complex. Moreover, the inclusive assumptions of the model prefer, if they do not foreclose, certain constitutional design decisions; for example, cabinet government is necessarily parliamentary rather than presidential. (9) Inclusion also means that cabinets are not formed on the basis of ideological affinity. The assumption, almost always correct, is that parties in severely divided societies are based on ethnic identification, and ethnic extremists are to be represented proportionately along with moderates.

   It is precisely on this last point that a competing model diverges. This model suggests that, in a severely divided society, it is paramount to encourage compromise and accommodation, which moderates are more likely to achieve than are those with completely opposite programs. (10) The alternative approach aims, therefore, to support moderates against extremists. This approach does not abandon majoritarian democracy, but it aims at majorities that are cross-ethnic and at governments formed by moderate interethnic coalitions.

   Because it seeks to support the moderate middle, this perspective is frequently referred to as the centripetal approach; its principal tool is not a regime of ethnic guarantees but the provision of incentives, usually electoral incentives, that accord an advantage to ethnically based parties that are willing to appeal, at the margin and usually through coalition partners of other ethnic groups, to voters other than their own. (11) The underlying mechanism is that, to appeal to voters other than one's own and to form interethnic coalitions in a conflict-prone society, ethnically based parties must demonstrate that they are moderate and willing to compromise on ethnic issues. The particular electoral systems employed to encourage moderation vary with the circumstances. In some cases, the alternative vote, a preferential system that facilitates the interethnic exchange of second and subsequent preferences, has been used. (12) In other cases, where territory is a proxy for ethnicity, territorial distribution of the vote, in addition to a plurality of votes, has been required for electoral victory. (13) This is particularly helpful in presidential elections, in order to induce candidates to become pan-ethnic in their orientation. In other cases, multimember constituencies with ethnically reserved seats but common-roll elections, have facilitated the emergence of mixed tickets of ethnic moderates. (14) The centripetal approach does not generally favor list-system proportional representation, which it sees as producing results that reflect, or even exacerbate, existing ethnic cleavages. (15)

   Besides electoral incentives for moderation, the centripetal approach has a number of other tools it employs. Like consociationalists, centripetalists favor federalism in multiethnic countries, but for different reasons. (16) Consociationalists see federalism as a device to foster group autonomy in homogeneous regions or provinces. Centripetalists prefer it as a way to blunt the effect of stark opposition among solidary ethnic groups at the center by allowing subethnic differences, which might otherwise be latent, to emerge within homogeneous units of a federation, where federalism encourages subgroup competition for power in those units. (17) In heterogeneous provinces, on the other hand, federalism can foster intergroup cooperation between politicians as a form of political socialization to norms of cooperation before they arrive at the center. (18) Federalism can also serve as a form of...