Global Cooperation Research Papers 18, Duisburg 2017
Keywords: Constitution making, Rule of Law, South Sudan, Somaliland
In order to examine the implications different forms and degrees of internationalised constitution making have on ideas of statehood and the legitimacy of a constitution, the study compares two cases—South Sudan and Somaliland—to explore contrasting patterns of international involvement in constitution making. South Sudan is the one 'extreme' case with strong international intervention, with Somaliland at the other 'extreme'. This paper demonstrates that the actual process matters and once again reinforces scepticism about the ways in which internationalised constitution making is conducted in war-torn settings. In Somaliland the societal consensus production, which included negotiating a governmental structure, was in the hands of the local elites for the constitution making period, which lasted a decade. In South Sudan the consensus production has so far been framed and guided by powerful international actors who had a seat at the local negotiating table. Not only does path dependence seem to prevent the production of a broader consensus on the mode of statehood, but the local translations of international 'models' also seem to be contrary to intended Rule of Law ideas. The study indicates that even though a locally driven and owned process supports the production of a legitimate constitution, international support is not generally denied. Inherent tensions between 'local ownership' and 'external intervention' may open space for re-negotiations on different normative perceptions and may support a redefinition of exclusion/inclusion dynamics. Nevertheless, to avoid these tensions becoming un-negotiable as a result of the imposition of international assistance which may lead to international 'models' simply being rejected or manipulated in line with internal power relations, constitution making needs to be conducted in an open manner by the local actors themselves.
Katrin Seidel is a post-doctoral research fellow at the Law & Anthropology Department of the Max Planck Institute for Social Anthropology, Halle, Germany, and was a fellow at Käte Hamburger Kolleg / Centre for Global Cooperation Research (2015/16). Based on her interdisciplinary background (Law and African/Asian Studies), her research is situated at the intersection between legal pluralism, heterogeneous statehood and governance. Katrin Seidel's studies are concerned with the interdependent relationships between plural normative and judicial orders at different levels of regulation and with the interactions between the social actors involved. Her current research focuses on 'South Sudan's and Somaliland's Constitutional Geneses: A Comparative Analysis of Post-conflict Constitution-Making Processes in Context'.