Yemen’s political landscape and the need for a new constitution
Although it included a parliament and elections as the constitutional means for attaining power, Yemen’s political system had been marred by corruption, authoritarianism, and a concentration of power in the hands of elites before the current conflict.Footnote 1 Despite the presence of so-called democratic processes, power was not truly shared among Yemen’s diverse political, tribal, and regional groups. This exclusionary system, combined with the failure to establish a robust, inclusive constitution, left the country vulnerable to conflict and fragmentation. The attempt to have a national dialogue between 2013 and 2014, resulting in a draft constitution in 2015, was tainted with accusations of elitism and exclusion, and was eventually used by the Houthi religious minority and ousted president Ali Abdullah Saleh as an excuse for a rebellion that led the country into nearly a decade of instability and civil war.Footnote 2
However, regardless of how long it takes, Yemen will emerge from this civil war, and the need for a new constitution that reflects the aspirations of its people and addresses the challenges posed by powerful armed groups will be more urgent than ever. The previous attempt at constitutional reform, in particular the 2015 draft federal constitution, failed due to its inability to address the diverse and often conflicting interests of Yemen’s key political actors, most notably the Houthi movement and the Southern Transitional Council.Footnote 3 A new constitutional process must learn from these failures, crafting a social contract that balances the interests of various groups, ensures inclusivity, and reflects the current realities of conflict dynamics.
Yemen’s conflict dynamics and the future constitution
The Houthi movement, officially known as Ansar Allah, has been a dominant actor in Yemen’s civil war. Originating as a religious and political movement in Yemen’s northern highlands, the Houthis now control much of northern Yemen, including the capital, Sanaa. Their ideological commitment to Zaydi Shiʿi Islam, coupled with their opposition to external influences from Saudi Arabia and the United States, has shaped their resistance to past peace processes.Footnote 4 In constitutional negotiations, the Houthis have consistently rejected any federalist framework that diminishes their control in northern Yemen. They view the 2015 draft federal constitution, which proposed dividing Yemen into six regions, as an attempt to weaken their influence by fragmenting the north.
Future constitutional processes must carefully navigate the Houthis’ demand for autonomy and control in northern Yemen, while also addressing the needs of other regions and political actors. Research in other contexts indicates that post-conflict constitutions must provide clear guidance and remain flexible enough to adapt to unforeseen challenges.Footnote 5 They need to balance immediate stability with long-term adaptability. In Yemen, this means crafting a constitution that is somewhat generic in nature, proposing a foundation of governing principles and national values and creating provisions for independent entities recognized at the highest levels to address reconciliation and transitional justice grievances, all within the changing political, social, and economic conditions and without undermining the constitution’s core principles. The Houthis’ governance style, marked by centralized control, militarized rule, and alliances with Iran, poses challenges to any inclusive constitutional framework. Their continued presence as a powerful actor in Yemen means that any future constitution must either accommodate their interests or risk further conflict. A potential approach may involve a more decentralized or asymmetrical federal system, in which regions with strong autonomous aspirations—such as the Houthi-controlled north—are granted more control over local governance, while still preserving the unity of the state.
The other key player in Yemen’s current politics is the Southern Transitional Council (STC), which has become a formidable political and military force in southern Yemen. The STC, which seeks the restoration of South Yemen as an independent state, controls large portions of southern Yemen, including the strategic city of Aden. The STC’s demands for secession stem from long-standing grievances, including economic marginalization, political exclusion, and cultural differences between the north and the south.Footnote 6
Similar to the Houthis, the issue of southern separatism must be a central consideration in any future constitutional process. A future Yemeni constitution must address the possibility of a federal or decentralized system that gives the south significant autonomy, or it must confront the reality of a potential split. The failure of the previous transitional process to gain the trust of southern actors contributed to the current fragmentation. Therefore, to prevent the risk of renewed violence, any future efforts must involve the STC and other southern actors in a transparent and inclusive manner. The constitution also must include provisions for managing the relationship between the central government and autonomous or semiautonomous regions, such as the south. Mechanisms for conflict resolution between regional governments and the central authority, as well as guarantees for equitable distribution of resources (particularly oil and gas revenues), will be crucial in maintaining national unity and preventing further secessionist movements.
This flexibility encourages buy-in by all stakeholders, especially the citizens, who are needed for the legitimization of the constitutional reforms through a referendum. Inclusion and accommodation of all social groups are essential to the peace process and specifically in the resulting binding documents that guide the transition to a stable government. Transitional justice and reconciliation will be central to the new Yemeni constitution, and responding to these issues effectively will preserve peace in the country and prevent it from relapsing into conflict.
Social contracts or regime tools?
One key perspective is the concept of constitutions as social contracts, which posits that constitutions should reflect the collective will of the people and establish the fundamental principles of governance. Another perspective presents the idea of the constitution as a tool for regime maintenance, which suggests that constitutions can be manipulated by those in power to entrench their authority.Footnote 7 Reflecting on constitutions in the Middle East reveals a dichotomy: although they are intended to function as social contracts, they are frequently manipulated by regimes to maintain power.Footnote 8 This misuse undermines the very purpose of a constitution, which is to reflect the collective will and safeguard the rights of all citizens. “Arab constitutionalism is far more likely to emerge from institutional balancing and elite bargains than it is from any authentic form of popular sovereignty.”Footnote 9
In Yemen, it is imperative to create a constitution that genuinely represents the aspirations of its people and is resilient against authoritarian exploitation. In her analysis of Yemen’s attempt to create a federal constitution in 2015, Mujais has emphasized the importance of the constitutional drafting process, which should include measures for public participation and community engagement to avoid being perceived as a political tool to endorse those in power.Footnote 10 In fact, she claims that the rushed and untransparent processing of the 2015 constitution, especially as related to the federal system, was the main trigger for the violence that ensued. “Yemen is a perfect example of how a lack of consensus over this important issue can lead to conflict.”Footnote 11
There are ample examples from the Arab world in which constitutions were manipulated to serve those in power. In Egypt, for example, the constitution has been amended multiple times to extend presidential terms and concentrate power in the executive branch. Similarly, in Syria, the constitution was used to legitimize the Assad regime’s grip on power.Footnote 12 These examples underscore the importance of designing a constitution for Yemen that includes strong checks and balances, independent institutions, and mechanisms for public participation and accountability.
Moreover, the constitution should delineate the conditions under which emergency powers can be invoked and set strict limits on their duration and scope. It also should establish oversight mechanisms, such as parliamentary approval and judicial review, to prevent the abuse of emergency powers. For example, the South African constitution includes detailed provisions on states of emergency, requiring regular parliamentary review and protecting non-derogable human rights even during emergencies.Footnote 13 To ensure accountability, the constitution should mandate transparency in the declaration and management of emergencies, especially during times of transition. Public access to information and the involvement of civil society in monitoring the use of emergency powers are requisite for maintaining trust and preventing the erosion of democratic norms.
Constitutional adaptability and generational needs
Modern day constitutions are characterized as stable and sometimes rigid governing documents that are considered concrete references for laws and by extension the basic principles of social coexistence.Footnote 14 However, the dynamics of political events in the last century and the rapid changes in state structures require revisiting this notion. Not only is this a political requirement, there is evidence that constitutional entrenchment negatively impacts economic growth.Footnote 15 A case in point is the Iranian constitutional experience, which illustrates how rigidity in constitutional design, particularly unchangeable principles, can lead to crises.Footnote 16
To remain relevant, constitutions must adapt to changing societal needs and generational shifts. This adaptability can be institutionalized through periodic reviews and amendments. In Yemen, establishing a clear process for constitutional revisions will ensure that the document evolves alongside the nation, addressing new challenges and reflecting the changing aspirations of its people. It is important, however, that constitutional changes are not made without checks and balances, because experience has shown—for example, in Turkey—that amendments to the constitution can strengthen ruling powers and lead to democratic backsliding.Footnote 17
This can be achieved through the establishment of a constitutional review commission that periodically assesses the effectiveness of the constitution and proposes necessary amendments. Public participation in the review process is crucial to ensure that the constitution remains a living document that responds to the needs of all citizens, without compromising the need for a stable reference that governs the country as a social contract between its citizens. This flexibility allows absorption of grievances of social and political groups without pushing them into armed conflicts. The Southern Movement’s demand for secession and the authoritarian militarized regime of the Southern Transitional Council that rules the areas of southern Yemen it controls could have been avoided if political movements trusted the constitutional process and its responsiveness to the changing political environment in the country.
Equally important, engaging youth in constitution-making and revision processes is vital to ensuring that the document reflects the perspectives and aspirations of future generations. The experiences of countries like Kenya, where youth played a significant role in the 2010 constitutional reform, demonstrate the positive impact of involving young people in these processes.Footnote 18
Conclusion
In times of significant political and social upheaval, constitutions play a crucial role in shaping the future trajectory of a nation. Yemen, having endured prolonged conflict and fragmentation, stands at a critical juncture, at which the design and implementation of a new constitution may either facilitate a path to peace and stability or exacerbate existing divisions. The country’s complex history of political instability, compounded by recent conflicts, necessitates a constitutional framework that goes beyond merely distributing power among current factions. Instead, it must incorporate broad-based participation, particularly from marginalized groups and youth, to foster a sense of ownership and legitimacy.
