Why the link Between Federalism and Transitional Justice Matters for Post-Conflict Peacebuilding
Summarising a recent piece from 50 Shades of Federalism, Jamie M. Thomas and Liam Whittington argue that federalism and transitional justice are too often treated as separate components of post-conflict peacebuilding, despite their shared concern with power, accountability, representation, and redress. Drawing on the cases of South Africa and Nepal, they show how weak integration between governance design and justice mechanisms can undermine legitimacy, leave grievances unresolved, and threaten the durability of peace. The article therefore makes the case for a more joined-up approach in which multilevel governance and transitional justice are designed together to support more cohesive and sustainable post-conflict settlements.
Violent conflict continues to be a defining feature of the international environment and deeply impacts both local populations and global stability. There is a pressing need to better understand peacebuilding dynamics, how violent conflicts can be ended, and how peace can be built and sustained. Federalism is often used to manage divisions through power‑sharing, while transitional justice (TJ) aims to address accountability and provide restitution after conflict. Although usually treated separately, evidence from Nepal and South Africa, where (quasi)federal governance structures provided the foundation for a settlement between former adversaries, shows that integrating governance and justice throughout transition processes could lead to more durable peace.
The evidence from these cases suggests five key concepts that can enhance understanding of the interactions between federalism and TJ in post-conflict settings.
1. Federalism and Transitional Justice: Connected but Distinct
In post-conflict contexts, federalism and TJ are both intended to address issues such as the distribution of resources, the access to and exercise of power and autonomy, and the development of accountable governance institutions. Additionally, trust and trust building are crucial components in both creating and sustaining peace in post-conflict governance settlements. While federalism and TJ can both help rebuild trust, poorly designed or implemented processes can erode it and undermine fragile peacebuilding efforts.
Despite their overlap, governance and justice questions were largely treated as separate issues in South Africa and Nepal. In South Africa, constitutional negotiations gave significant attention to both issues, but they were addressed by separate committees comprised of different experts. Similarly, Nepal’s 2006 Comprehensive Peace Agreement treated constitution-building and TJ as distinct components. This separation was reflected in the 2015 constitution, where federal design features intended to redistribute power were weakened and explicit links to TJ were absent. These cases suggest that separating governance and justice during key transitional moments may result in missed opportunities for more connected and cohesive state-building processes.
A more integrated approach may support social cohesion and can reduce the risk that governance and justice institutions fail to complement one another and effectively fulfil their functions. There may be valid reasons for treating governance development and TJ processes as distinct, particularly early in a transition process. However, the failure to address or consider questions of governance and justice concurrently may increase the likelihood of citizens perceiving that the deep-seated grievances which drove conflict have not been sufficiently addressed.
2. Timing Matters
What is required to secure peace in the short term is not always what is needed to sustain it in the long term. Interests, incentives, and pressures shift over time, and decisions made early in a transition can have lasting downstream consequences. Short-term compromises on justice, such as integrating perpetrators into governance structures, may stabilise a fragile peace but risk undermining accountability and trust in the long run. A settlement that produces a (quasi)federal structure which does not adequately implement aspects of TJ to the satisfaction of those who hold grievance may fail to properly address issues that have the potential to re-emerge and drive instability. South Africa’s amnesty provisions illustrate this tension: while they facilitated a peaceful transition, the TJ mechanisms did not tackle a range of justice-related grievances (particularly concerning economic issues) which have continued to fester over the subsequent decades.
Many of the current justice-related grievances in both South Africa and Nepal are inextricably linked to the architecture of the state, and issues that were not adequately addressed during transition. This raises the challenge of designing federal and TJ arrangements that are flexible enough to accommodate evolving expectations and balance short- and long-term peacebuilding goals.
3. Process and Trade-offs in Negotiations
The process by which conflicting parities reach a peace settlement shapes the relationship between federalism and TJ because both governance and justice arrangements are negotiated compromises between former adversaries. These trade-offs influence how well (quasi)federal systems function and how far justice is perceived to have been served.
Negotiated (quasi)federal governance and TJ both aim to address conflict‑driving grievances by promoting redress and empowerment, particularly through mechanisms like power‑sharing, territorial autonomy, and economic redistribution. These measures additionally aim to provide a means to tackle perceived injustices felt by minority and victim groups in a post-conflict context. This includes historic marginalisation and unequal access to power and resources - issues that are fundamentally matters of state governance. However, despite their overlap, peace negotiations in South Africa and Nepal showed little substantive integration between federalisation efforts and TJ mechanisms.
The consequence of treating justice and governance arrangements separately in South Africa and Nepal has had repercussions on the way that people view both the (quasi)federal governance system, and the ability of state institutions to make good on promises to provide justice and accountability. When promises related to TJ are not fulfilled, confidence in the broader governance system is weakened.
4. The Function of the State
Post-conflict transitions prompt fundamental questions about the role and responsibilities of the state. In South Africa and Nepal, (quasi)federal structures were adopted to provide a governance model that could accommodate the interests of formerly conflicting parties. In both cases, the architecture of the state aimed to empower groups along territorial lines in order to address grievances related to issues of access to power, resources, autonomy, accountability, self-determination, and freedom.
However, while TJ mechanisms such as truth and reconciliation commissions were established or promised under these new state architectures, the practical delivery of justice depended largely on the effectiveness of state institutions. Where federal or subnational institutions failed to deliver services, autonomy, or accountability, citizens perceived justice as inadequate. Such perceptions increase the risk that unresolved grievances may fuel renewed instability. This speaks to the interrelationship that exists between governance and justice in post-conflict (quasi) federal contexts. It is particularly important when the subnational level is unable to provide the services and level of self-determination expected by constituents.
5. The Nature of Justice
The form of justice pursued during transitions raises further questions about how best to support long-term peace. In both South Africa and Nepal, retributive justice was limited by pragmatic considerations, as punitive approaches might have undermined incentives to reach a settlement. In South Africa for example, the process of reconciliation required an open dialogue about the crimes of apartheid, which would have been made more difficult with retributive TJ mechanisms.
Delivering justice through newly established state institutions can help legitimize a new (quasi)federal system and support reconciliation. Conversely, stalled or blocked TJ processes can undermine both legitimacy and social cohesion. In Nepal, elite resistance to fully implementing TJ reflects how state-building and justice processes are often elite-driven and concentrated at the national level. While sometimes necessary, this dynamic marginalises subnational actors and can limit opportunities for more inclusive justice processes. Moreover, this is exacerbated when the subnational level has neither the power nor the resources/capacity to implement TJ.
Implications for Peacebuilding
The experiences of South Africa and Nepal demonstrate that federalism and TJ interact in addressing the fundamental causes of conflict. Treating them separately has limited the ability of the post-conflict state to fulfill its intended functions and resolve grievances effectively. Issues such as resource allocation, accountability, and representation are simultaneously questions of governance and justice, and addressing them in isolation has undermined the attempts to address these questions.
For peacebuilding stakeholders considering federal or multilevel governance arrangements, integrating TJ with governance design may help produce more legitimate and durable settlements. While no peace process offers guarantees, closer alignment between justice and governance can increase the likelihood of meeting citizen expectations and sustaining long-term peace in post-conflict societies.
On a practical level, what might this alignment look like? There are several options that could be considered to better connect the two. The formation of integrated working groups or committees (comprised of experts addressing governance and those addressing justice) could support better outcomes in constitutional design and TJ provisions. Providing newly established institutions with clear legal and constitutional mandates to deliver TJ functions may further assist in enhancing whole of society understandings of their role and responsibilities in this area. And finally, deliberative democracy mechanisms such as citizens forums and civic assemblies can help to ensure citizens’ views on both justice and governance issues are heard by all levels of government throughout the (post)settlement process. This can help support the development of accountable institutions and policy informed by expectations of citizens in a post-conflict context.
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Jamie M. Thomas is a Program Manager at the Forum of Federations and an Affiliated Researcher at the Centre on Governance at the University of Ottawa.
Liam Whittington is Senior Program Manager at the Forum of Federations and a Research Fellow at the Centre for Federal Studies at the University of Kent.
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Note: This article represents the views of the authors, and not those of Regional & Federal Studies, the Centre on Constitutional Change, or the University of Edinburgh. It summarises this piece from the 50 Shades of Federalism project.
Image credit: Soman via Wikimedia Commons, CC BY SA 2.5