Courting peace : peace constitutions and jurisprudence

Abstract

The aims of this thesis are, first, to consider peace and violence in the constitution drafting and implementation processes, and to return to constitutional theory, proposing that peace constitutions are distinctive in their source; and second, to show that courts, in reviewing peace constitutions, are in fact navigating between an elite pact and a more open constitutional way of doing business, where both remain important to any emergent constitutionalism. To do so, the intention of this thesis is to assess the peace constitution in both the short and long-term, by addressing two sets of questions: (1) what is the process of constitution-making as part of the political settlement and what type of constitutional arrangement result; and (2) how have courts interpreted peace constitutions and in what way (if any) are they engaging with the peace process? This thesis approaches these questions through a critical review of the legal and political literature. The research design is principally in comparative constitutional law, which as a specialised legal field has adopted its own methodological framework. The project is adopting the functional methodological approach, as defined in the comparative law literature. The two questions under consideration in this thesis have dedicated chapters, using separate illustrative cases. There are twenty-three possible cases identified by International IDEA as classifying as ‘peace constitutions' since 1990. In the chapter on the distinctiveness of peace constitutions, I focus on three of these cases: the DRC, Nepal and Burundi. The chapter on the role of court looks at Colombia, Northern Ireland and Bosnia-Herzegovina. The reason for having, in effect, two-sets of case studies is dictated by an acknowledgement that locating generalizable cases is unlikely, as each case is context specific; nonetheless, it is possible to locate common themes and dilemmas that are present in the political settlement processes across time and place. Further, the influences, language and practices impacting these processes are always changing, so that processes that were completed before certain watershed points will present different learning outcomes.