A feminist constitution for a feminist peace?
In this blog Dr Jenna Sapiano examines the potential role of post-peace agreement constitutions in consolidating feminist gains in the aftermath of violent conflict. She argues that, as the political and legal document through which the peace settlement is realised, the development of a post-agreement constitution provides a ‘window of opportunity’ in working towards a more gender equal society. She thus argues that greater attention should be paid to the potential of feminist constitutions within post-conflict settlements.
Peace agreements can serve as a window of opportunity for advancing women’s rights and addressing gender inequality. Tracking the implementation of gender provisions in peace agreements is therefore a useful mechanism to assess their effectiveness and identify whether they lead to a more gender-equal society. The participation of women in peace processes is also a useful measure of the durability and quality of peace.
It is not unusual for peace agreements to either come in the form of a new constitution or require the drafting of a constitution. A constitution – broadly defined as “the values, principles, rules and institutions that structure government and its relationship with the people” legalises and entrenches the terms of the peace when drafted as part of a peace settlement. Such a constitution – a post-conflict constitution – can be defined as one “enacted as part of efforts to end a violent intra-state conflict and prevent its recurrence. The post-conflict constitution becomes the political and legal document through which the peace settlement is realised and has “an independent effect on the maintenance of peace”.
So, it is the post-conflict constitution, rather than the peace agreement, that can serve as the window of opportunity. It is in the interpretation and implementation of the post-conflict constitution that women’s rights after war can be fulfilled, opening a space for the possibility of a gender-equal society and the realisation of a feminist peace. Starting from this premise, this brief commentary reflects on whether a feminist peace requires a feminist constitution.
Activists in Chile demonstrate in support of a replacing the current Pinochet era constitution.
A feminist constitution?
Constitutions have been labelled socialist, authoritarian, and democratic but have never been called feminist. Like feminist peace, there are no clear criteria for a feminist constitution. However, as Shreya Atrey argues, it is the continuing contestation around both feminism and constitutions that defines the potential of a feminist constitution. As a broader normative project, feminist constitutionalism “proposes to rethink constitutional law in a manner that addresses and reflects feminist thought and experience”. Feminist constitutionalism, like feminist peace, disrupts and challenges; it allows for change and contestation.
“A post-conflict constitution that entrenches women’s rights and gender equality can provide ways to contest patriarchal structures and institutions.”
In the same way that the state is gendered, many feminists describe constitutions as gendered in their design and operation. A feminist constitution may enshrine gender equality and protect the fundamental rights of women; however, the text of the constitution is only one aspect of constitutionalism. Indeed, as Anna Dziedzic and Dinesha Samararatne recognise, when focusing on constitutional text there may too easily be an assumption that constitutional language can redress women’s marginalisation and inequality. Rather, whilst feminist constitutions are not a guarantee of women’s emancipation, constitutions can “carry important weight for the realisation of women’s rights”. Thus, a post-conflict constitution that entrenches women’s rights and gender equality can provide ways to contest patriarchal structures and institutions.
The Concept of Feminist Peace
Feminist peace, as a concept, is “not without its frictions and discomforts” since, as Chandra T. Mohanty, Minnie Bruce Pratt and Robin L. Riley note, “there is no monolithic ‘feminism’ or even a shared set of philosophical, ethical, cultural or political interests among all women.” At a minimum, feminist peace is attentive to the gendered foundations of conflict that are regularly left aside or dismissed in peace processes and settlements. Kate Paarlberg-Kvam is more precise when she argues that a feminist peace “address[es] the foundations, not simply the expressions, of conflict”, challenging up-front the structures that enabled the violence, in contrast to traditional “masculinist peacemaking” that focuses entirely on the “pacification of violence”, relegating those underlying concerns to a less urgent issue to be addressed later. As Cynthia Enloe so aptly argued: “Later is a patriarchal time zone”.
As a contested terrain, the concept of feminist peace opens space for solutions for ending war “that are complex, comprehensive and interested not only in silencing guns, but in dismantling wider systems of oppression”. Feminist peace is not a promise of peace “if we just ‘add’ women” but a movement to contest and change long-standing structures that perpetuate harm and violence in many and various forms. In this context, as part of the larger peace settlement, the post-conflict constitution becomes a mechanism that can establish conditions for peace, as much as it can become a mechanism for reinforcing institutions that marginalise and discriminate.
From a feminist constitution to a feminist peace?
More space needs to be given to the constitution in studying the tenacity of peace, just as more time needs to be dedicated to thinking of feminist solutions to address the gendered foundations of violence. In imagining the possibility of a feminist peace, feminist constitutionalism is one more potential tool towards its realization.
Contestation is embedded in feminism, constitutionalism and peace. Feminism holds a diversity of viewpoints, a diversity that is reflected in feminist peace as an embodied experience that is “plural, multi-sited and contested”. The same diversity of viewpoints defines constitutional law and interpretation, which is what allows for a constitution to be challenged and amended – to be a living thing. And while the constitution is gendered, having historically been written by men to protect their interests, feminist constitutions can challenge this tradition in their ideals and provisions. So, to fulfil the potential of feminist peace, a post-conflict constitution must, in the words of Beverley Baines and Ruth Rubio-Marin, address and reflect “feminist thought and experience” to allow for the possibility of a more gender-equal society and sustainable peace.
Jenna Sapiano is a Visiting Fellow at the Kroc Institute for International Peace Studies at the University of Notre Dame. Her research focuses on mediation; the women, peace and security agenda; and post-conflict constitutions. She is currently working on a monograph on women’s rights in post-conflict constitutions.