The elephant in the room - Bosnia and Herzegovina's unmentionable Constitutional disability

The elephant in the room – Bosnia and Herzegovina’s unmentionable Constitutional disability

Considering the experience of post-war Bosnia and Herzegovina over 18 years, it is time to seriously question whether it will ever be possible for the best executed, most well-intended socio-economic projects, donations, investments and interventions to take lasting and sustainable root in the current constitutional and political structure.

 Suggested Reading Collaborate Analysis

By Dr. Valery Perry

2014 – A year of growing calls for change

Over the past year, Bosnia and Herzegovina [BiH] has seen a number of events that would have been difficult to predict.  From the JMBG “babylution” on identity cards and passports last summer to the occasionally violent February protests and subsequent plenums, the fundamental flaws in BiH’s post-war peace have become harder and harder to ignore.  The daily headlines are supported by consistent public opinion polling showing dissatisfaction among citizens in every corner of the country. One might think that this is the time for a real and widespread discussion on new ideas; for internal and external support to citizens who in fact have proposals for change in their communities and beyond; and for a meaningful debate on why this country fundamentally does not work nearly two decades after the end of the war.

Instead, it is nearly the opposite. The most common refrain heard in the past months is, “This is not the time to talk about constitutional reform.” Such was the immediate response of most domestic party leaders in the wake of the February protests. Similar language was adopted by many in the international community, particularly during and since the devastating floods in May. It has been more striking, however, to hear this mantra repeated by various elements within civil society, ranging from the ad hoc plenums themselves to long-established NGOs and academics.

Don’t change the Constitution – just change everything else…….

Individuals – whether ordinary citizens, activists or international community representatives – will earnestly note that constitutional reform is “too political.” They will then, however, often go on to note a laundry list of “non-political” reforms they want to see: social justice, enhanced economic development, better pensions, modernized education, stronger local self-government, less corruption, better health care, more parks…. the list goes on.

An observer unfamiliar with BiH might think that it is time to focus on these basic socio-economic concerns. However, for 18 years there have been multiple and repeated efforts in each and every one of these areas.  Even in the past few years, the focus has never been solely on constitutional amendments to implement the 2009 European Court of Human Rights judgment on the Sejdic-Finci case. There have been countless efforts in many sectors, with donors and supporters ranging from the multilateral (the EU, Council of Europe, OSCE), to the bilateral (embassies, development and aid organizations).

It is not difficult to get a sense of how many such “interventions” in the socio-economic realm are ongoing at any one time. One can look at the web sites of many of these donors to see the work they are doing (or attempting) today; one can scratch a bit deeper to get a sense of their work and focus over the past 18 years. An occasional glance at the English-language Bosnia Daily provides an even easier starting point, as the target audience (the international community) is very often highlighted, with news blurbs on ambassadorial visits to local leaders, the opening or closing of new projects, or humanitarian donations.  These stories very often note the amount of money pledged, the local implementing partner(s) and the local government bodies that have signed on to accept the assistance.

An admittedly non-scientific review of articles in the Bosnia Daily from January 2013 to March 2014 reveals an impressive number of initiatives and activities, and although the figures that follow are not precise, they are certainly indicative. They include over two dozen efforts on the topic of the police and security sector; some 25 centering on health and social welfare; more than 40 in the field of education; over 30 in business development; at least 25 in government and parliamentary support; over 20 in infrastructure development (this was pre-flood); nearly 40 in justice and the rule of law. The list goes on. Such initiatives can include everything from a multi-million euro project at the state or lower level of government, to an academic conference or workshop, to a donation of a few thousand euros to rebuild a rural school. However, it is difficult to argue that the country is suffering from a lack of international interest in such activities, although, of course, the numbers were much higher in the post-war period from 1997 – 2006, when the international community had a much more ambitious agenda and heavier footprint.

In light of this, one must ask why there has been so little demonstrable progress since the war and so much escalating popular dissatisfaction in these same socio-economic areas that have been the objects of nearly 20 years of developmental efforts and investments? Is it possible that, while these projects have had a positive micro-level impact on a narrow and targeted set of beneficiaries, they have been unable to stimulate or leverage any lasting and sustainable macro-level changes?

It is reasonable to point out that the political system in 2014 is just as dysfunctional in its essentials as it has been since the immediate post-Dayton years.  In human terms, on the other hand, whether focusing on domestic or international elites and systems, it is vastly more troubling. Again, this is in spite of many successful efforts from 1997 to 2006 to stabilize and consolidate the peace and to provide a foundation for democratic governance, the rule of law and economic growth.  What causes this dysfunction? Is it possible that such ailments are simply part of the historical and human DNA of this particular post-war, Balkan country? Or is it possible that something structural is at fault, something that is both preventing and precluding peace and progress from either taking root or flowering?

Just replace “Constitutional reform” with “coordination”

Some will point out that they agree with this premise, and agree that there is a need for more macro-level reforms. However, in 2014 there is a much greater chance that one will hear the word “coordination” rather than the word “constitution” in this context.  Accordingly, the new wisdom counsels:  “If only the country – in its current structure – had effective coordination mechanisms to ensure more cooperation and synergy in the important socio-economic areas, then it would be able to get back on track.”

At first glance, this seems to be a reasonable proposition.

However, while this preference for “coordination” is equally pervasive among and congenial to both long-suffering domestic and foreign actors there is much evidence that – in the current constitutional and political structure – coordination does not and likely will not work. There are coordination mechanisms for education.  These failed to ensure timely acceptance of the country into the EU’s Erasmus student exchange program for university students, and have wholly failed to improve education substantially at any level. There are, likewise, coordination mechanisms for the police.  They too have failed to ensure effective day-to-day coordination or response to civic disturbances.  A coordination agreement related to health care mobility was signed among the cantons and entities (and Brcko) in 2002.  Yet few professionals even know this exists, and it is still often easier to send patients abroad for specialized treatment than to seek effective care within BiH.  Even desperate, last-minute coordination efforts in the agricultural sector failed to ensure BiH was ready for the impact of Croatia’s entry into the EU.  On top of that, BiH lacked any mechanisms to receive EU IPARD funds. There are other examples.

When coordination fails – as it consistently does — citizens have no recourse. There is sufficient ambiguity among the various levels of government to allow for a game of responsibility ping-pong.  (Even in the very centralized Republika Srpska good and responsive governance remains elusive as evidenced by research and opinion polling, if not by big street protests due to the general climate of fear.) There are neither enforcement mechanisms nor budgets to ensure that obligations undertaken or laws passed are properly and systematically adopted by any sub-state level of government. And as many of these issues have no specific grounding in the state constitution, potential litigation ends at the level of the entity.

The hijacking of “Constitutional reform”

While the constitutional reforms needed to implement the European Court of Human Rights Sejdic-Finci judgment were never the sole focus of the international community, media and political attention on this core political issue have succeeded in ensuring that the words “constitutional reform” have been effectively hijacked by parties and players who have little to no interest in seeing any changes to the current system. The term now immediately conjures up predominantly negative and/or frightening images: Sejdic-Finci chaos; a third entity; an independent RS; the triumph of one national group over another; partition; and the specter of renewed violent conflict. Ensuring that the words cannot be said is a perfect way to keep the core questions about why the country does not and cannot work off the agenda.

Rather than “constitutional reform” being the reform that cannot be named, in a democratic country constitutional reform should be demystified in theory and normalized in practice. The sky will not fall if there are modest or even more ambitious amendments to the constitution. (The 2009 amendment related to Brcko proved this.) In fact, virtually every recent EU accession state has had to amend its constitution multiple times to prepare for membership.  The only exceptions were Cyprus (rarely pointed out as a role model for BiH) and Poland (which had already and extensively reformed its constitution in 1997).  Slovenia and Croatia each made many amendments to their constitutions; why would (or should) BiH be any different?

Rather than associating constitutional reform with instability, a new narrative of constitutional reform for effective governance and accountability could help citizens to begin to bridge the gap that exists between their day to day realities and this core foundation of the country. Targeted, sector-based constitutional reforms aimed to remedy the dysfunction at every level by tackling problems at their roots could help to shift this debate. Some activists are beginning to do this; for example, there is an active movement aimed at ensuring state competencies in agriculture and rural development to enhance and speed the economic potential in this sector that have been lacking for years. Similar efforts targeting other failed sectors – for a single economic space, for improved higher education mobility, for meaningful and consistent decentralization – could provide concrete platforms to help citizens re-claim and re-empower these words, and perhaps to begin playing a significant role in determining how they want to be governed.

Building a structure from the ground up

It is true that a constitution in itself cannot immediately solve all of any country’s problems.  However, at a minimum it should provide a framework within which the basic elements of governance can function, and in which human rights are respected. The Venice Commission, the Council of Europe’s advisory body on constitutional and legal issues, sent precisely this message in 2005, noting that BiH would not make much progress towards the EU within its Dayton constitutional structure, and pointing out that its very origins as part of a peace process – and without any citizen engagement of any kind – limited its democratic legitimacy.

The Venice Commission identified those inherent limits of the country’s constitutional structure and legitimacy nine years ago. Considering the experience of post-war BiH over 18 years, it is time to seriously question whether it will ever be possible for the best executed, most well-intended socio-economic projects, donations, investments and interventions to take lasting and sustainable root in the current constitutional and political structure. To date, the evidence suggests that continuing on the same path will result in the same absence of tangible results. Whether that approach will either serve or satisfy an increasingly frustrated and dissatisfied population remains to be seen.

Dr. Valery Perry has worked for organizations including the NATO Stabilization Force (SFOR), the European Center for Minority Issues (ECMI) and several NGOs. She worked at the OSCE Mission to Bosnia and Herzegovina in Sarajevo from 2004 – 2011, as Deputy Director of the Education Department, and Deputy Director of the Human Dimension Department. She recently served as Chief of Party for the Public International Law and Policy Group (PILPG) in Sarajevo, implementing a project to increase civil society engagement in constitutional reform processes in Bosnia and Herzegovina. All opinions are her own.

If you are interested in writing for TransConflict, please do not hesitate to contact us with your ideas and suggestions!

What are the principles of conflict transformation?



90 Responses

  1. Pingback : Does BiH Really Need a New Constitution? | chicagoinitiativeforbosnia

  2. Pingback : The elephant in the room – Bosnia and Her...

  3. julian harston

    Excellent analysis………..and a devastating critque of international US and E U led policy. The internationally led and sanctioned ethnic re-ordering of Bosnia was doomed from the start……
    When Admiral Smith refused to stop the Serb and Bosniac destruction of Serb Sarajevo, and gave Bosnia what became effectively a mono ethnic capital, muttering about Mission creep and quagmiresas he watched a part of the city burn, he doomed the future state.

  4. Gunnar

    It is time to let all the BaH nations go their own way, as they obviously don’t want to live together and respect each other. They have had enough time to prove the opposite, which didn’t materialize. The Muslim, Croat and Serb entities shouldn’t be forced to live together by any foreign powers.

  5. Pingback : TransConflictJuly 2014 Review - TransConflict

  6. Pingback : More muddling through in Bosnia and Herzegovina? - TransConflict

  7. Pingback : Build Bridge Game Elephant | Playacuare

Leave a Reply to gcct_tc Cancel Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Show Buttons
Hide Buttons