The crafting of democracy in a fragile and divided state, often ripped apart by internal conflict or buffeted by international and regional storms, is one of the most difficult and important tasks that international politicians face. The ever-spiraling conflicts in Iraq and Afghanistan have been driven in large part by mistakes of institutional design in the immediate post-conflict period. Implementing a well-crafted constitution tailored to the peculiarities of a divided nation state, is not the solution to ethnic conflict. However, there has never been an enduring peace settlement in which a well-designed, multi-ethnic government was not central. Designing a suitable democracy is a necessary, if not sufficient, prerequisite for stability in a divided society.

A democracy is an interconnected web of political institutions chosen by and beholden to the voters who fall under its laws and regulations. But that web must be tethered to the distinct cultural, historical, and social threads that bind a state together. A post-conflict constitution needs to reflect traditional ways of making decisions, dominant power centers in villages and cities, and the scope of ethnic divisions—in both their intensity and root causes.

A constitution stipulates the ground rules of the democratic game. Thus I shall use the terms “constitutional design” and “democratic design” interchangeably, although a constitution necessarily speaks to issues beyond the scope and derivation of institutions of governance. A good constitution is a pillar of inter-ethnic harmony, but it is only one pillar. Even when constitutional designers are successful, the new state can be thrown back into violence and chaos by regional conflict or meddling neighbors.

But when it comes to building stability and managing ethnic conflict, well-crafted political structures are the best way of dealing with communal conflicts existing within nation states. A credible and well-developed constitution assuages minority fears and feelings of alienation. In a divided society there are two elements of building ethnic stability. First, each significant ethnic group must feel included and acknowledged in the running of the state. Second, weaker groups and individuals must be protected. It is quite possible for a state to include a minority group in government while not protecting the rights of that group. Alternatively, a state can protect but not acknowledge the minority voice when making decisions of governance. A state can have one without the other, but true ethnic accommodation requires both. Protection is ultimately legal, yet inclusion is a crucial characteristic of good—and workable—politics. Thus I will focus here on the constitutional elements which can manifest inclusion.

Democratic Design in Afghanistan and Iraq

With such burgeoning instability in both Afghanistan and Iraq, one might pose the question: How central is domestic constitutional design to the future of Afghanistan and Iraq? It certainly could be argued that defeating the insurgencies, eliminating corruption, and rebuilding each country’s socio-economic infrastructure are more pressing problems than imperfect elections and legislative maneuvers. But in fact, the emergence of workable democratic political structures has been central to both states’ survival since the US-led occupation, and without attention to institutional design, democratic slippage may doom both countries to increasing fragmentation and violence. A vacuum of legitimate political power, if allowed, will set the stage for insurgency and instability.

The situation in Afghanistan remains a highly complex mosaic of age-old ethnic enmities, power plays, and struggles over religion, nationhood, and wealth. These tensions permeate the state’s political discourse and particularly come to a head in debates over how democracy in Afghanistan should be crafted, who will receive power, how leaders will be chosen, and how their power, once bequeathed, will be restrained.

In Iraq, a political and security vacuum marked the first two years of the US-led occupation. The quick establishment of a legitimate government might have constrained the anti-government, sectarian violence that has now spiraled out of control. Today’s multi-ethnic Iraqi government has gained some legitimacy, but its emergence was not quick or comprehensive enough to forestall the slide into anarchy, and its leaders continue to play both public and private paramilitary games.

In addition to the substance of new constitutions, the processes through which new institutions are chosen can be equally powerful in reducing or exaggerating ethnic polarization. In Afghanistan, both interim and permanent political arrangements were determined by behind-the-scenes horse trading of unsavory elites. The Loya Jirga, the traditional Afghan meeting that selected Hamid Karzai as interim president in 2002, was chaotic and unfocused, with power ceded to strongmen who had been co-opted into the Karzai-US camp. Southern and eastern Pashtuns felt left out of a process that they saw as essentially driven by Tajiks, Uzbeks, and the Northern Alliance. The Constitutional Loya Jirga of 2004 had a more representative membership, but delegates only received a copy of the draft constitution upon their arrival in Kabul and were precluded from making any significant alterations to it.

The process of democratic design in Iraq following the 2003 war was characterized by a series of missteps, misreadings, and errors of judgment on the part of the occupying Coalition Provisional Authority (CPA). The first members of the Iraqi Governing Council chosen by the CPA proved to be ineffective and unrepresentative of Iraqi opinion. US advisors resisted Ayatollah Sistani’s early calls for national elections and wasted fruitless months trying to engineer a parliament that would be selected by elite caucuses in major towns. The vacuum of legitimate leadership widened over the next three years, while political violence grew. And despite the technical handover of sovereignty to Prime Minister Allawi in June 2004, the election of a Transitional Assembly in January 2005 (which was virtually devoid of Sunni representatives) and the election of a permanent Assembly in December 2005, the situation has continued to deteriorate. While it is technically true that an elected assembly drafted Iraq’s constitution and that the document was approved in a national referendum, Sunnis were effectively shut out of both processes. Furthermore, the document’s vagueness on the details of power distribution leaves a troubling potential for future power grabs by the Shia majority.

Even if most analysts agree that the implementation of democracy in Iraq and Afghanistan was flawed, there remains enough room in both cases to allow for democratic evolution and institutional reform. With that in mind, it becomes necessary to determine the available instruments in the constitutional designer’s toolbox. There are a variety of ways in which power can be apportioned and wielded in a divided state, but three areas dominate prospects for inter-ethnic accommodation: first, power sharing versus winner-take-all government, second, centralized versus decentralized power, and third, electoral design.