Contemporary constitutions are complex documents, often the products of participatory processes involving ethnic communities, religious groups, professional associations, women, youth, the disabled, and indigenous peoples, and covering what is often a wide range of policy issues. Consequently there are likely to be many divisive issues that may derail the constitution- making process. These issues may not be easily resolved by the formal procedures for decision- making. Some processes include special procedures to resolve divisive issues. Sometimes measures outside the scheme of the process may be used to resolve these issues. A particular difficulty in resolving differences is the transparent nature of many contemporary processes (a result of the high degree of public participation), which makes it hard to negotiate and compromise. The very dual nature of participatory and transparent processes makes handling divisive issues difficult.
What is a divisive issue?
Divisive issues should be distinguished from mere differences of opinion, which are inevitable when so many decisions need to be made when a constitution is drafted. These differences would be discussed and negotiated in the constitution-making body, failing which the matter would often be settled by a vote. Normally the losing party could live with the outcome.
But a divisive issue is a source of tension or even conflict among the people or the negotiating parties. One of the most common (and intractable) issues involves differences about the place of minorities and the role of diversity in state and society. In the constitution-making process in Spain after Franco, the critical issue was the conception of Spain: whether it was to be a centralized state of a unified people, or a state of autonomous regions based on ethnic diversity. With variations this has been an issue in the constitution-making process in many countries—for example, Bolivia, Fiji, Iraq, Nepal, Papua New Guinea, South Africa, and Sri Lanka. Countries have been divided over questions of political, economic, and social policy (as with differences between Maoists and other political parties in Nepal). Other divisive issues have been internal territorial boundaries, allocation of natural resources, secularism versus state religion, official languages, and systems of government. (Often that choice is between parliamentary and presidential systems.) Clearly what is considered divisive varies with the context.
What divisive issues have in common is that they relate to matters of considerable importance to the material advantages of groups, often couched in emotional terms, based on historical claims, and involving narratives of past discrimination or exploitation, or entitlements to human or group rights. Conflicting interpretations of rights or prior understandings can complicate a settlement. Divisive issues cannot be resolved in the same way as other differences, for example by a vote. There is a considerable emphasis placed on consensus in current notions of constitution-making processes, in part because many constitutions are now made in conflict or postconflict situations, where majority decisions would merely aggravate tensions instead of removing them. Divisive issues can neither be willed away nor handled in any easy way.
A divisive issue may be described as one whose nonresolution can cause fundamental problems, but that should not be resolved by majority vote, which would endanger the legitimacy of the constitution. A different dimension of divisiveness in that without its resolution, no constitution can come into being when it concerns a matter central to the constitution, such as the system of government. For example, if a two-thirds vote is necessary for a decision, and opinion is deeply divided, then a positive decision cannot be made. Sometimes an issue may be regarded as divisive in this sense, even if it is not central—if the vote of one group can lead to the rejection of the draft constitution (as can happen in a referendum). In Kenya , fundamentalist Christian groups threatened to reject the draft if references to Kadhi courts were not deleted.
Some issues divide whole countries; some may be relevant to a particular interest. The former issues include disagreements about the system of government; the latter involve the application of personal laws or the availability of religious courts. They pose different threats, and different strategies may be needed to address them.
Divisive issues can arise at different stages of the process. Sometimes the very question of whether constitutional reform is necessary is divisive. In some tragic circumstances (as in Kenya and the Philippines) the matter has been “resolved” only by battles in the streets. Sometimes it may be hard to get agreement on the main objective of review. In Fiji it took six months to reach a compromise, one side demanding that the primacy of indigenous Fijians should be recognized, the other side championing Fiji’s multiethnic character.
A divisive issue can emerge during the process, for example, because of changed political circumstances. (In Kenya the change of government halfway through the process brought about a fundamental shift in the support of a key group from a parliamentary to a presidential system of government.) And spoilers may generate a contentious issue out of a proposal on which for a long time consensus may have existed.
Some divisive issues may need to be resolved quickly; they will fester if they are not. Others are best put aside for future resolution. And ways of addressing divisive issues may depend on the body charged with making decisions on the constitution. Thus different approaches are needed depending on whether the decision-making body is an expert commission, a parliament, or a broadly representative constituent assembly, and altogether different considerations apply when there is a referendum.
We now turn to some specific strategies and techniques that have been used to resolve divisive issues.
- Some issues can be resolved by formal and symbolic recognition. Groups that have been marginalized or oppressed are often in great need of the recognition of past suffering and of their place in the new political order. Delicate negotiations may be required for the formulation to find the appropriate balance (as the example of Spain shows). Such recognition may facilitate the resolution of other issues geared more to substantive matters.
- Deadlocks over an important issue can sometimes be resolved by a referendum. Greece and Italy resolved the contentious issue of the future of the monarchy by referendum (an option canvassed in Nepal in 2006, but effectively vetoed by the Maoists). The vexed question of the division of the Swiss canton of Bern to allow the French-speaking inhabitants of the canton a space of their own was resolved through a series of referendums soliciting the approval of interested parties (leading to the establishment of the canton of Jura). The Canadian Supreme Court has sanctioned referendum as a way to resolve the issue of Quebec’s secession. Of particular interest is the referendum in the Maldives on the choice between a presidential and a parliamentary system, the divisive potential of which emerged during the course of the proceedings of the constituent assembly. When negotiations failed, the assembly decided to refer the question to the people, and resumed its work only after the matter was settled in this way. Civil society in Kenya, where a similar issue was deeply divisive, advocated that the referendum should offer the choice between a parliament-based constitution and a president- based constitution. In both Uganda  and Kenya , legislation on the constitution- making process provided for referral to the people of issues that were contentious (i.e., ones that could not be resolved by a two-thirds vote). Unlike Kenya, Uganda used this provision for the question of whether to have a single or a multiparty system.
- A referendum will yield a result, and perhaps some legitimacy for it, but it can also deepen polarity. And if the vote is close, divisions in society and politics will continue, and they will affect adversely the implementation of the constitution. In any case it is best to avoid a referendum until a serious attempt is first made to resolve the issue through negotiations.
- It may be possible to resolve the issue by reference to public opinion. This is a likely option if the process has been participatory, people have been widely consulted, and a careful analysis of views and recommendations has been made. It has similarities to a referendum, but there are important differences: public views can be taken into account at different stages, and balances struck. Both the Ugandan and Kenyan constitutional commissions used public opinion to resolve differences. But with this method there is a considerable danger of manipulating the analysis of public opinion (which can be fragmented, and indeed may be the cause of divisions). There is also a considerable degree of subjectivity among decision-makers.
- Some divisive issues can be negotiated by the expedient of a time limit (a “sunset clause”). The group wanting a particular provision, such as protection for some special right, can be satisfied by being given the right for a specified period. Those opposed to that protection may be reassured by the limited duration of that right. This approach was adopted at the independence of Rhodesia-Zimbabwe, where the protection of special rights for European settlers with regard to land and political representation was limited to ten years. The entire Fiji 1990 constitution was accepted by the Indo-Fijian and other minorities only on the basis that it would be reviewed within seven years of its inception (and indeed, that review led to large-scale changes). To some extent, sunset clauses have the character of transitional provisions, facilitating bargains and providing time for psychological and material adjustments.
- Another device used to help address divisive issues is the opposite of the sunset clause— postponing the issue for resolution in the future. This may be done because the issue is extremely controversial and has the potential to break what otherwise is an overall consensus (as with the decision in Iraq to postpone the settlement of the issue of Kirkuk, a territory disputed among ethnic groups and with a troubled history of migrations and expulsions and the presence of valuable petroleum deposits). Occasionally an issue may be postponed because the members realize that information and public views are not available to make informed, practical decisions, and would not be available in time for the conclusion of the process. Usually the postponement is subject to understandings about what principle or procedure would be applied to address it.
- Examples of postponement include the decision on whether Uganda should be a one-party (nonparty) state or a multiparty state. Iraq postponed some critical decisions on federalism because the issues were raised late in the day, and the request by the chair of the constitutional commission for an extension was rejected under pressure from the United States. In constitutional discussions on the secession and independence of Bougainville, New Caledonia, and South Sudan, the parties agreed to postpone a definitive decision by instituting a system of autonomy for a prescribed period (e.g., six or ten years), to allow time to see if autonomy met most of the concerns of the “seceding unit” (underwritten by guarantees that it would then be able to express its preference through a referendum, as an act of “self-determination”). In the case of New Caledonia (part of overseas France) and South Sudan, the referendum decision is binding, but in Bougainville it is merely advisory, triggering off a fresh round of negotiations between Bougainville and Papua New Guinea.
- Partway between those two devices is the decision to acknowledge principles in the constitution for the ultimate resolution of the issue and leave the details and implementation for later. Often the controversy is about the details. The detailed issues may be determined with the help of expert opinion or a formal enquiry, or through a referendum (as in Spain).
- Raising the divisive issue in the future. Closely connected with that approach is the possibility of raising the issue, whether unresolved during the process or new, in the future. The advantage of this approach is that there is no sense of closure or exclusion; the possibility that groups with specific claims may raise them in the future reconciles them to the constitution.
- There are variations on this approach. The Spanish constitution recognizes the principle of autonomy, but the precise entitlements of regions are left to further negotiation and referendum. In Canada the opportunity to reopen an issue is largely implicit. Significantly, this approach has been made constitutional by the Supreme Court in Canada, in the decision on whether Quebec has the right to secede. A framework was devised within which the wishes of a part of the country to secede must be negotiated. Whether because of this decision or some other reason, the tension between Quebec and the rest of the provinces eased after this decision.
- Leaving the divisive issue to other processes. A specific technique, consistent with some of the approaches mentioned above, is to leave the divisive issue to parallel or later processes, such as joint or special commissions, or the recommendations of expert group. When making its independence constitution , Papua New Guinea set up a special committee, including outside experts, to recommend steps to be followed in order to set up the provincial government for extensive devolution. This approach was common in the process of decolonization, which involved specialist commissions on the electoral commission, regional or constituency boundaries, rights of minorities, and the scheme of devolution. Sometimes a matter was “resolved” by an assurance from the departing colonial authorities or the incoming government that the interests of a particular group would be addressed later. This is not a satisfactory approach in the absence of secure guarantees—there are several instances of failure to honor the undertaking.
- Resolving the issue in the future through ordinary legislation or the judiciary. Sometimes an agreement may be reached to leave the issue to be resolved in the future, not through a constitutional process but in the ordinary working of the parliament, through legislation. Or it may be left to be resolved by the judiciary (for issues such as capital punishment, same-sex marriage, or abortion). But it is unlikely that seriously divisive issues can be resolved in this way. This may have more to do with the strategy of a drafting body, anticipating controversy in the deliberating body.
- Using constructive ambiguity. It may be more common to reach an agreement with both (or more) sides read as supporting their position—what we call constructive ambiguity. Courts, which may be called upon to interpret the relevant provisions, may find themselves in an unenviable position; it puts unnecessary strain on them.
- Anticipating difficulties on some issues, those who design the process may provide special procedures to resolve them. (We have already mentioned the use of referendums for this purpose.) This may be connected to the methods of voting, a specific negotiating process, or both. South Africans used the concept of “sufficient consensus,” whereby if the two major protagonists agreed on an issue, the smaller parties had to accept it. Sometimes, often informally, differences between two sides may be resolved by reference to the top leaders, who stay out of detailed negotiations among the parties. This happened in South Africa, where the buck stopped with Mandela and De Klerk, and later in Fiji. The Nepal interim constitution provides an interesting example. When an issue cannot be resolved by the constituent assembly through consensus, the matter is referred to the leaders of all parties for resolution. They have fourteen days to form a consensus, to be put to a vote in the assembly. If there is still no unanimity, another vote is taken for which the support of at least two-thirds of the members is necessary. Such a procedure leaves open the possibility that no decision will in fact be made.
- Another example of a specific procedure is the Kenyan process . In one sense, the whole process was about “contentious issues” (essentially among political parties), which had prevented the adoption of a constitution since 2004. An elaborate process was devised, including an independent committee of experts (appointed by the parliament) interacting with both the people and the parliamentary committee on the constitution. It was for the committee of experts to determine what were contentious issues by comparing, in particular, three previous drafts. Its proposals, finalized after consulting the parliament, were to be submitted to a referendum. Implicit in this law, prepared through agreement among political parties, was the undertaking that the people would accept the legislative scheme.
- Getting the help of third parties. Increasingly, divisive issues are resolved outside the formal framework for the constitution-making process, often with the help of third parties. We have indicated some local means for doing this. In many instances, third-party intervention is provided for by international or bilateral communities. This is particularly the case in conflict and postconflict constitution-making processes: Norway in Sri Lanka; the European Union and the United States in Sudan; eminent Africans and the African Union in Kenya; the United States and the United Nations in Iraq; the United States in Northern Ireland; the United States and the European Union in the Balkans; the United Nations in Afghanistan, Cambodia, Namibia, and Timor-Leste; and Australia and New Zealand in the Papua New Guinea/Bougainville negotiations. Sometimes the role is formal (as in Sudan, and often with the United Nations, and mostly based on United Nations Security Council resolutions). A typical form for intervention is the office of the special representative for the resolution of conflict. Such interventions often result in the marginalization of local communities and generally are contrary to the spirit and letter of the legal framework for constitution-making processes—particularly as in Iraq .