Introduction

In many contexts of armed intra-state conflict or social unrest calling for democratic transition, the core issues are of deep constitutional relevance, such as distribution of power and resources, and participation in – or transformation of – the political system. To address the constitutional issues in such conflict contexts, peace or transition processes often involve peace mediation and constitution making. Consequently, in recent years, most peace agreements have included provisions on constitutional and/or legislative reform, to be taken up by subsequent constitution-making processes (Nathan, 2019). In some other cases, constitution-making processes have been used directly to negotiate an end to hostilities.

Despite this clear connection, scholarship on the relationship between mediation and constitution making is largely absent. Handbooks, guides and references in both fields have hardly considered their relationship or mutual relevance (for example, see Moore, 2004; UNITAR and UNDPA, 2010; UNSG, 2012; Brandt et al, 2011; Gluck and Brandt, 2015; Georgakopoulos, 2017). Only recently, the connections between ‘political settlements’ and constitution making have been thoroughly investigated, such as on procedural issues of sequencing, inclusion, elections and so on (for example, see Bell and Zulueta-Fülscher, 2016; Bell et al, 2016; Sapiano et al, 2016), and the role of mediation in particular constitutional issues has been researched (for example, see Raffoul, 2019, regarding power sharing). The relationship between national dialogues and constitution making has also been deliberated upon (for example, see Berghof Foundation, 2017; Murray, 2017). The discourse on the peacemaking role of constitutions and constitution making has been limited to constitutional means of resolving conflict (negotiations, constitution writing/drafting), post-conflict reconstruction/statebuilding/peacebuilding/reconciliation, and ‘justice after war’ (for example, see Edrisinha, 1998; Grossman, 2002; Widner, 2005; Easterday, 2014; Turner and Houghton, 2015).

This chapter argues for rethinking and (re)assessing our understanding of how mediation is related conceptually and practically to constitution making, and how a mutual relationship may be forged to better contribute to the transformation of conflict for sustaining peace. Mediation and constitution making – as socio-political processes encompassing a broader scope in time and space than peace processes, political settlements and peace agreements – may intersect. Both have unique approaches and techniques that may be mutually resourceful.