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Bosnia and its Constitution. Thoughts on reform and governance

Alberto Arenaza
8 min readNov 10, 2017

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Bosnia and Herzegovina can be considered a successful case of constitution making following armed conflict, given it has promoted peace following civil war in the 1990s.

However, many challenges have surfaced in these decades that have threatened its rule of law and constitutional order. I will try to propose an amendment to the constitutional text that could tackle Bosnia’s most pressing issues through the promotion of structural constitutional reform, thus leading to better governance that could advance the country’s damaged rule of law.

Bosnia and Herzegovina

Bosnia and Herzegovina underwent an armed conflict between 1992 and 1995, caused by ethnic divisions, as noted by Lampe (2017): Bosniaks (Muslim), Serbs (Orthodox Christians) and Croats (Catholic Christians). Serbs and Croats were supported by Serbia and Croatia respectively, though the latter sided with the Bosniaks in the last years of the conflict, while Bosniaks counted with the support of NATO following the discovery of Serb war crimes (Morrison, 1996).

Distribution of major ethnic groups in Bosnia and neighboring nations., with Serbs in the East, Croats in the west and Bosniaks in the center during conflict. Oktobox(2017)

The Dayton Peace Accords of 1995 put an end to the conflicting by providing a constitutional text for a divided country, and was signed by all sides. According to Bruce Hitchner, one of its main authors, the main goal was to “rebuild ethnic relations in the country” (Transconflict, 2010), and secure peace at all costs.

The Constitution

The 1995 Constitution designed an innovative and complex political structure, based on the idea of consocialism (Morrison, 1996) through two highly independent Entities making up the state of Bosnia and Herzegovina: The Federation (mostly Bosniak and Croat) and the Republic of Srpska (mostly Serb).

The complex Bosnian mixed political system: a tripartite presidential system, ethnic parliamentary representation and two Entities making up the State (NATO, 2001)

While the main goal of attaining peace was achieved through these constitutional efforts, significant issues surfaced in the political, economic and social arena.

The constitutional text could not possibly address these issues at the time, given there was no State or institutions to channel these efforts through (as a de facto failed state). Thus, the Constitution was left as a “work in progress” (Transconflict, 2010), or “transitional document” (Morrison, 1996), that required further work to tackle these issues once peace was attained and the state apparatus was robust. Analysts today converge on the idea that Constitutional reform is a fundamental requirement for further political and economic development in Bosnia (International Crisis Group, 2012; Humans Right Watch, 2016), in order to address these issues that constrain Bosnia’s prosperity and threaten its constitutional order.

The issues that Bosnia is facing today can be categorized as economic, political and social.

Challenges faced by Bosnia today.

Firstly, Bosnia’s unemployment has stifled the country’s economy. According to World Bank Data (2017), total national unemployment has remained around 27% for the last decade, with a staggering 62% youth unemployment rate in 2015. These symptoms appear to be structural pain points: as Goldstein, Davis and Fengler (2015) note, the lack of economic policy has kept Bosnia from strategically developing export industries, reforming its deteriorated public sector or developing transport infrastructure (the poorest infrastructure network in Europe).

Goldstein, Davis and Fengler (2015) analysis on Bosnia’s unbalanced economy

The second problem is a political one. Bosnia’s complex and ethnic-based political system, criticized by the European Court on Human Rights in 2003 (Mansfield, 2003), has led to a fragile peace, as there is little interethnic parliamentary collaboration and rising tensions between its two Entities, as evidenced by the Republic of Srpska’s recent push for unilateral independence and proposed annexation to Serbia (International Crisis Group, 2012).

Administrative divisions & Ethnic representation in Bosnia. Politheor (2014)

Lastly, the social issues are centered around the “brain drain” to other European nations and overseas. WEF(2017) ranked Bosnia 135th in the world in retaining talent in the country (out of 138 countries), given youth are looking for opportunities abroad. This leads to a series of demographic and social cohesion challenges in the mid-to-long run.

These issues have combined to create political and economic stagnation, as well as increased tensions between ethnic groups: as a result, Bosnia’s constitutional order is severely threatened.

Constitutional Amendments

Given these challenges and its national context, I think reform is a necessary step in the right direction. One potential Constitutional amendment could be applied to the fourth part of Article III, titled “Responsibilities of and Relations Between the Institutions of Bosnia and Herzegovina and the Entities” (Constitutional Court of Bosnia and Herzegovina, 2015).

4. Coordination: The Presidency may decide to facilitate inter-Entity coordination on matters not within the responsibilities of Bosnia and Herzegovina as provided in this Constitution, unless an Entity objects in any particular case.

My amendment would include an additional clause:

“The Presidency must facilitate inter-Entity negotiations on Constitutional Reform through the mediation of international organizations ten years after the initial signing of the 1995 constitution. Negotiations will continue to be held every year until structural amendments to the 1995 Constitution are completed. “

The goal of this amendment would be to facilitate structural constitutional reform after ten years of its initial signing, which would give it an urgent nature today. There are three reasons why this constitutional reform is needed.

  1. Lack of internal political incentives to reform the Constitution

Politicians from all sides have been reluctant to reform the Constitution, and it should not come as a surprise. Politicians greatly benefit from the status quo, through their high salaries (the highest in Europe when compared to the national average salary, per Jukic (2014)) and their tenure in power (which would be threatened with reform). The highly established corrupt practices and benefits among the political establishment undermine any reform effort, as suggested by Transparency International (2014).

2. International mediation has proven successful for Bosnia

International mediation represents a solution to the lack of internal reform initiative, and is a form of cooperation that has proven successful in the past. The only successful case of reform talks in Bosnia came in 2005 through the mediation of nonprofit organizations and later the United States (Transconflict, 2010). While talks fell apart after a year, the initiative is the only case of successful discussion around reform in Bosnia. Giving the European Union a greater role in mediation further represents an opportunity to strengthen ties with the union, while eyeing potential membership in the medium term (Bosnia has already submitted their candidacy for EU membership status).

3. Representative democracy can lead to better governance in Bosnia

The current constitutional order has led to peace, but the challenges listed remain untouched. I believe these challenges, partially caused by its constitutional design, have severely damaged the quality of Bosnia’s democracy, institutions and rule of law. Hitchner notes that:

“As with any modern state, there must be a continuous political dialogue in Bosnia about how to keep the country moving forward. This dialogue, of necessity, involves not only matters of politics, economy, foreign affairs, etc. but also debate over common institutions, values, and ideals”.

A new model of representative democracy could tackle some of these issues by giving the executive and legislative powers the strength they currently lack. Furthermore, ethnic priorities at the regional level could be addressed through a federalist model that introduces additional checks and balances to the political powers, while maintaining a more streamlined power structure. This solution was already discussed in the 2005 talks between Bosnian ethnic parties (Transconflict, 2010).

Summing up, and as Hitchner suggests, constitutional reform in Bosnia is a necessary step towards better governance (Transconflict, 2010). The legitimacy of the Bosnian constitution, as other failed states building new institutions from the ground up, depends on its ability to involve stakeholders and lead to better democratic functioning. This legitimacy, as well as the respect for the rule of law, have been under great stress in recent years, as evidenced by the lack of local elections in Mostar (Latal, 2016), the ECHR ruling against the Constitution (Mansfield, 2003), alleged prosecution of media outlets and nonprofits (Transparency International, 2008) and the mentioned cases of corruption. The proposed solution could address these challenges, in an attempt to improve the social cohesion, prosperity and inclusion of the country, which should advance its damaged rule of law.

Bibliography

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Bosnia
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Alberto Arenaza

Written by Alberto Arenaza

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tech & econ development | Transcend Network | Minerva Schools ’19 | More @ albertoarenaza.com

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