Unfinished constitutionalism in multinational states

Constitutionalism in postcolonial states is often imagined as a project of closure: the adoption of a constitution is expected to stabilise political authority, define collective identity, guarantee equality and institutionalise democratic governance.Footnote ¹⁴ In multinational states, constitutional processes rarely achieve closure. They remain sites of persistent contestation over identity, sovereignty and belonging,Footnote ¹⁵ typically channelled through consultations, commissions and negotiated reform frameworks and perpetually renegotiated or suspended by unresolved foundational conflicts. In Africa, unfinished constitutionalism is closely linked to the phenomenon of multinationalism.Footnote ¹⁶ States such as Tanzania and South Sudan are constituted by diverse political communities with distinct historical trajectories and competing claims to autonomy,Footnote ¹⁷ so that constitutional dialogue is at once a technical exercise in legal reform and an existential negotiation over the nature of the state. The demos is not given; it is constructed through constitutional struggle.

Much of the scholarship on multinational constitutionalism gives limited attention to the gendered dimensions of that struggle.Footnote ¹⁸ Constitutional processes are often approached as neutral legal or political arenas, although they are structured by power relations privileging male-dominated elites and militarised actors.Footnote ¹⁹ That assumption has been displaced within scholarship on peace processes and constitution-making in conflict-affected states, where the gendered character of negotiation, representation and settlement design is well documented;Footnote ²⁰ extending that insight into constitutional doctrine requires asking what legal conditions must obtain for participation to generate constitutional authority. Women’s inclusion in constitutional dialogues has frequently taken the form of quotas and consultative forums,Footnote ²¹ which reflect important normative commitments but do not necessarily translate into influence over constitutional design. Their marginalisation is structural rather than incidental: constitutional negotiations in multinational states are often organised around identity-based power struggles among dominant groups, within which gender equality is treated as secondary to unity, sovereignty and territorial integrity,Footnote ²² and women’s demands are correspondingly deferred, diluted or traded in the name of political compromise.Footnote ²³

Two modalities of constitutional contestation: Statutory review and peace-process constitution-making

Constitutional contestation is processed through institutionally distinct routes. Much of the comparative literature classifies constitution-making processes along a continuum of openness, by the extent of public consultation, the representativeness of drafting and adopting bodies and the use of referendums.Footnote ²⁴ That framing is valuable, but it can obscure a difference in kind that is decisive for gender analysis: the source of the authority under which the process operates.

In the first modality, statutory review constitutionalism, contestation is processed through legislation enacted by a parliament within a subsisting constitutional order. Tanzania’s process under the Constitutional Review Act is of this kind, as, in different forms, were Kenya’s process under the Constitution of Kenya Review Act 2008 and the Icelandic and Irish processes often cited as participatory models.Footnote ²⁵ Their outcomes diverged. Kenya’s process culminated in the Constitution of 2010, approved at referendum; the Irish Constitutional Convention and Citizens’ Assembly produced recommendations that led to constitutional amendment by referendum; and Iceland’s draft, although endorsed in an advisory referendum, was not adopted by the Althingi. The Tanzanian case illustrates one mechanism by which such a process may stall: participatory provisions framed as duties of consideration rather than fixed requirements, substantial appointment and procedural powers held by the executive and an incumbent-dominated legislature, and a failure to translate statutory referendum duties into completion. The relevant weakness is the practical effectiveness of compliance and remedies, rather than the absence of legal obligations or a demonstrated absence of all judicial jurisdiction.

In the second, peace-process constitutionalism, contestation is processed through a negotiated settlement between parties to an armed conflict, domesticated through transitional instruments and implementing legislation. South Sudan’s process under ARCSS and R-ARCSS is of this kind, as are the constitutional dimensions of settlements in Northern Ireland, Bosnia and Herzegovina, Nepal and Sudan. The constitutional process is not autonomous but an implementing mechanism for a prior bargain whose foundational distribution of office was negotiated elsewhere, although stakeholders may influence subsequent process legislation and its participatory guarantees.Footnote ²⁶ This has three consequences. Eligibility precedes participation: standing in the foundational power-sharing bargain derives principally from party or command status, and because armed formations are overwhelmingly male-led, the pool from which decisive constitutional actors are drawn is gendered before any quota operates.Footnote ²⁷ Stabilisation reorders constitutional priorities: where constitutional instruments are valued for holding a settlement together, provisions redistributing authority to non-signatory constituencies become potential threats to its cohesion and are deferred to implementing legislation, to a future permanent constitution, or to an elected government.Footnote ²⁸ The gendered character of conflict is carried into the constitutional process: armed conflict distributes harm along gendered lines and produces gendered political authority, and constitutional processes emerging from conflict inherit both.Footnote ²⁹ The distinction is one of mechanism, not of the presence or absence of exclusion, as the Tanzanian case shows. Important terms were fixed in an earlier negotiation between the executive and political parties. The bargainers were parliamentary parties rather than armed formations, and the exclusion was correspondingly less violent but not less structural. What differs between the modalities is where in the constitutional architecture exclusion operates, and a framework capable of assessing meaningful participation must be able to locate it in both.

The legal foundation of participatory constitution-making

The legal foundation for participatory constitution-making lies in the rights to self-determination and to participate in public affairs. Article 1(1) of the ICCPR affirms that all peoples freely determine their political status,Footnote ³⁰ and constitution-making is the most direct expression of that right. Article 25 guarantees every citizen the right and opportunity to take part in the conduct of public affairs; although it does not mention constitution-making expressly, in Marshall and Others v Canada the Human Rights Committee accepted that constitutional conferences constituted the ‘conduct of public affairs’ within Article 25(a), while holding that the Article does not entitle every citizen or group to determine the modalities of participation.Footnote ³¹ Regionally, Article 13(1) of the African Charter guarantees the right to participate freely in government.Footnote ³² Article 7 of CEDAW obliges states to ensure women’s right to participate in the formulation of government policy and the performance of public functions at all levels,Footnote ³³ and Article 9(1)(c) of the Maputo Protocol requires positive action to ensure women are equal partners in policy development.Footnote ³⁴ Women’s exclusion from constitution-making, the highest form of public policy formulation, therefore engages participatory as well as equality guarantees: their participation is not discretionary but normatively required.Footnote ³⁵

The temporal application of these instruments must be distinguished from their use as normative standards. South Sudan acceded to CEDAW on 30 April 2015, with entry into force on 30 May 2015, and to the ICCPR on 5 February 2024, with entry into force on 5 May 2024. The African Union’s treaty-status list records ratification of the Maputo Protocol on 24 February 2023 and deposit on 7 June 2023.Footnote ³⁶ The analysis therefore does not retrospectively treat those instruments as binding South Sudan during the 2011 drafting process. Earlier conduct is assessed against the proposed normative framework and the domestic and peace-agreement provisions then applicable; treaty obligations are invoked as binding only for their applicable periods.

Comparative jurisprudence reinforces this while disclosing its limits. In Native Women’s Association of Canada v Canada, the Supreme Court of Canada declined to constitutionalise a general right to sit at the negotiating table, but the case exposed the tension between symbolic representation and substantive constitutional voice that recurs throughout this analysis.Footnote ³⁷ In the Reference re Secession of Quebec, the same Court identified federalism, democracy, constitutionalism and the rule of law and the protection of minorities as underlying constitutional principles.Footnote ³⁸ Read together, those principles presuppose constitutional change responsive to diverse voices rather than reflective of elite bargains. Torres Villarrubia’s critique of franchise-centred constitutionalism makes a cognate point: formal political membership does not exhaust constitutional inclusion.Footnote ³⁹ South African jurisprudence goes furthest: Doctors for Life International v Speaker of the National Assembly established a duty to facilitate public involvement in legislative processes, and in Matatiele Municipality v President of the Republic the Constitutional Court invalidated a constitutional amendment insofar as it applied to the municipality because the provincial legislature had failed to facilitate adequate public participation.Footnote ⁴⁰ In South Africa, participation is therefore not aspirational: its absence can invalidate legislative and constitutional-amendment processes.

Four legal conditions of meaningful participation

While international and regional instruments affirm participation as a legal right, they do not exhaustively define what meaningful participation entails.Footnote ⁴¹ Drawing on the ICCPR, CEDAW, the Maputo Protocol, the African Charter and comparative jurisprudence, four interrelated conditions can be specified. The framework is normative. It distinguishes obligations that the instruments already impose, such as the duty to ensure women’s equal participation in the formulation of government policy; interpretations of those obligations proposed here, such as their application to the allocation of constitutional authority; and reforms recommended in Section ‘Transforming contestation into constitutional authority: Legal implications’.Footnote ⁴²

First, legal recognition. Constitution-making frameworks must recognise participation, including women’s participation, as a right rather than a discretionary privilege.Footnote ⁴³ The relevant doctrinal question is whether participatory and gender provisions impose fixed requirements or duties of consideration, whether they attach to all constitution-making bodies or only to some, and whether an enforcement mechanism exists. Second, institutional design. Constitutional processes must establish clear, accessible and non-discriminatory modalities for participation, supported by civic education, access to information and inclusive consultation mechanisms.Footnote ⁴⁴ The question is not only whether forums exist but whether their composition, selection procedures and rules of proceeding are capable of carrying participation into deliberation. Third, allocation of constitutional authority. Decision-making power must not be insulated within elite-controlled forums but must remain responsive to participatory inputs from women and other marginalised groups. This condition asks where in the constitutional architecture the authority to determine outcomes actually sits, how standing within that locus is acquired and whether participatory bodies possess any power that is not revocable by the actors who hold decisive authority.Footnote ⁴⁵ Fourth, constitutional uptake. Women’s contributions must be capable of affecting constitutional outcomes, including substantive equality provisions, institutional safeguards and enforceable mechanisms of inclusion. Uptake does not require that every demand be adopted: meaningful consideration, and reasons for rejection, can satisfy the condition where a proposal is not accepted.Footnote ⁴⁶ A constitution-making process that satisfies formal participation requirements but insulates decisive authority from participatory forums, or gives women’s contributions no demonstrable consideration in outcomes, therefore falls short of meaningful participation on this framework. The framework also operationalises the fourth of the special issue’s constitutional conditions for reconciling multinational legitimacy with democratic coherence, the active protection of human dignity through participation, and demonstrates that formal inclusion does not satisfy it where deliberative engagement remains disconnected from decision-making power.

Referendum authorisation and the absence of a ratification threshold

The special issue’s framework engages the role of identity-based referendums (IBRs) in structuring democratic coherence and constitutional legitimacy. Neither Tanzania nor South Sudan has culminated in popular authorisation of a constitutional outcome, but their relation to that threshold differs, and the difference is doctrinally valuable.

In Tanzania, popular ratification was part of the legal architecture. Section 4(1) of the Referendum Act requires the President, in consultation with the President of Zanzibar, to direct a referendum by a Gazette order within fourteen days of receiving the Proposed Constitution; section 4(2) requires the order to specify the campaign and referendum periods. Sections 4(3) and 5(1) impose further deadlines on the Commission for the question and notice, while section 6(3) protects its independence in conducting the referendum.Footnote ⁴⁷ A referendum on the Proposed Constitution was scheduled for 30 April 2015; the participatory process had been completed and the text adopted by the Constituent Assembly. In April 2015, the National Electoral Commission postponed the referendum, stating that voter registration had not been completed,Footnote ⁴⁸ and it was not subsequently reconvened. Thus, the statutory route did not result in a completed referendum. Tanzania therefore represents the interruption of a conversion mechanism.

South Sudan’s constitution-making framework contains no referendum. Neither the Constitution Making Process Act 2022 nor R-ARCSS provides for the submission of the permanent constitution to popular ratification; adoption is to occur through the constitution-making and adopting bodies constituted under the settlement.Footnote ⁴⁹ The IBR threshold is therefore not deferred, unmet or postponed in South Sudan. It is absent by design. The choice was deliberated: a ratification referendum was considered during the negotiation of the Act and set aside, with practical and security concerns contributing, on the reasoning that a broadly inclusive National Constitutional Conference would represent the people.Footnote ⁵⁰ A referendum is neither universally required nor invariably inclusive, and representative adoption can confer legitimacy. The deficiency lies elsewhere: the composition of the adopting bodies derives from the agreement between the Parties, and no stage exists at which the population could authorise or reject the outcome.

This absence is not a failing peculiar to a state emerging from prolonged armed conflict but an instance of the third condition operating at the highest level of the constitutional architecture. Where the allocation of constitutional authority is settled by an elite bargain, the question whether a ratification mechanism exists is itself answered by that bargain, and the constituencies with most to gain from popular authorisation are those with least capacity to secure it. Tanzania shows a conversion mechanism suspended; South Sudan shows one never constituted. In neither has contestation been constitutionally resolved.

The framework law: Participation in the making of the rules

The CRA and the Referendum Act determined the architecture within which all subsequent participation occurred: who would be appointed and by whom, which institutions would exist, what powers they would hold and how the process would terminate. That architecture was contested by political parties. When the Constitutional Review Bill was introduced in 2011, opposition members challenged it directly. Tundu Lissu, then an opposition member of parliament for Chama cha Demokrasia na Maendeleo (CHADEMA), tabled an alternative Bill and objections centred on the concentration of appointment and procedural powers in the presidency; CHADEMA and NCCR-Mageuzi ultimately walked out of the parliamentary debate.Footnote ⁵⁴ The contestation did not end with enactment. Political parties and other organised actors continued to negotiate, and the Act was amended: sections 6(6) and 6(7) now require the President to invite registered political parties, religious organisations, civil society organisations, associations and other organised groups to submit names of potential commissioners, although the President retains discretion to appoint persons outside those lists.Footnote ⁵⁵ When further amendments were introduced in 2013, opposition parties again contested presidential appointment powers, the composition of the Constituent Assembly, Zanzibar’s involvement, party representation and the prospect of single-party dominance of the adopting body; CHADEMA, CUF and NCCR-Mageuzi took the disagreement outside Parliament, held joint public meetings and negotiated directly with President Kikwete.Footnote ⁵⁶

The published accounts of the parliamentary contest over the Bill and of the extra-parliamentary bargaining over its amendments describe negotiations between the presidency and political parties, and identify no role for women’s organisations as an independent constituency.Footnote ⁵⁷ The gender provisions that entered the Act took the form of duties to have regard to gender balance and gender parity, without a fixed minimum. This is the point at which the Tanzanian case most closely resembles the South Sudanese one. In both, women’s organisationsfell short of equal, independently secured authority in the foundational bargains that framed later participation; the difference lies in the identity of the bargainers – parliamentary parties negotiating over presidential power, armed signatories negotiating over the distribution of office.

Legal recognition

The CRAFootnote ⁵⁸ framed participation in broad and formally inclusive terms, and its gender provisions extend to more than one institution. Section 6(3) requires the President, in appointing members of the Constitutional Review Commission (CRC), to ‘have regard to’ considerations including gender.Footnote ⁵⁹ Following the 2013 amendments, section 22(3)(b) requires nomination lists for the Constituent Assembly to take gender parity into consideration, and section 22(4)(b) requires the President to have regard to gender parity in appointing its stakeholder members.Footnote ⁶⁰ Section 6(6) provides a route through which civil society organisations and other organised groups may nominate candidates for the CRC, although section 6(7) permits appointments outside their lists. Section 9(2) additionally requires the CRC to observe equality before the law and respect for human rights in preparing the proposed constitution. The drafting is significant for the first condition. These are mandatory duties of consideration, not guarantees of a numerical outcome: no fixed minimum is prescribed for any body, and the Act contains no enforcement procedure for those gender duties. Tanzania therefore satisfies the first condition in a qualified sense: participation was recognised as a right, and gender as a mandatory consideration in the principal appointment and nomination decisions, but not as a threshold.

Institutional design

Ten of the thirty commissioners were women, one-third of the Commission. The four principal leadership positions, Chairperson, Vice-Chairperson, Secretary and Deputy Secretary, were all occupied by men.Footnote ⁶¹

In response, the Wanawake na Katiba (Women and the Constitution) Coalition, convened by Women Fund Tanzania and comprising approximately sixty-five women’s-rights organisations, mobilised for women’s inclusion.Footnote ⁶² Section 22(4)(b) required the President to have regard to gender parity in appointing the 201 stakeholder members of the Constituent Assembly but fixed no minimum, and the Coalition lobbied President Jakaya Kikwete for equal representation among them. Women were appointed to 100 of those stakeholder seats, and women held 256 of the Assembly’s 620 seats, approximately 41 per cent.Footnote ⁶³ Near-parity among presidential appointees was a substantial achievement, but its extent depended on presidential discretion exercised under a duty of consideration rather than on an enforceable minimum.

Women’s participation within broader public consultation processes also remained uneven. For the public forums convened to inform the first and second drafts, Maoulidi reports that 26 per cent of women and 78 per cent of men gave views to the CRC. These are presented as participation rates within the respective groups, not as women’s and men’s shares of all contributors; the article does not specify the underlying sample or calculation, so the figures should be treated as an attributed indication of disparity rather than an independently validated participation dataset.Footnote ⁶⁴ Retrospective survey evidence collected in 2017 points in the same direction: only 18 per cent of respondents reported having participated in the CRC’s consultation in any way, 25 per cent of men against 10 per cent of women.Footnote ⁶⁵ The gap between an organised and effective coalition and the mass of women it sought to represent is therefore substantial, and it bears on the second condition directly: an institutional design may create genuine deliberative openings and still reach only a small and unrepresentative fraction of those it addresses. The integrity of the constitutional fora was also contested. Although the process was formally presented as democratic and transparent, the selection of forum participants at village, street and ward levels was reportedly affected by violence, political interference, tribal affiliation and religious influence, while the screening of participants by Ward Development Committees, many dominated by councillors affiliated with the ruling party, Chama Cha Mapinduzi, generated perceptions that the fora were politically managed.Footnote ⁶⁶

Allocation of constitutional authority

Women secured visible representation within the CRC, the fora and the Constituent Assembly, and exercised real influence over drafting and over decisions within the Assembly. That influence did not extend to control over ratification, timing or implementation. The concentration of leadership positions within male-dominated structures, the absence of fixed numerical thresholds, and the dependence of referendum completion on executive and electoral-administrative action despite statutory duties meant that significant influence over the text did not secure its enactment. A further distinction is required between women office-holders, whose positions depended on party or presidential nomination, and autonomous women’s organisations, whose influence was exercised principally through advocacy and through members they had helped to nominate.

The Wanawake na Katiba Coalition advanced twelve demands, which can be grouped in four clusters: constitutional status and non-discrimination; equal political representation and access to national resources; protection and services, including reproductive health, the age of the child and the rights of women with disabilities; and enforcement through a gender-equality commission and family court.Footnote ⁶⁷ So grouped, the demands show that the Coalition sought not only rights language but also authority, resources and institutions capable of enforcement.

Published accounts record contestation over political representation and the omission from later drafts of reproductive-health language that had appeared earlier.Footnote ⁶⁸ Those disputes resonated with forms of resistance identified in the comparative literature: treating gender claims as matters for ordinary legislation, characterising them as culturally external, or subordinating them to a supposedly prior question of national unity.Footnote ⁶⁹ The Tanzanian sources cited here document the disputes, not which of these arguments particular officials advanced. The gap between women’s numerical presence and their substantive influence accordingly remained significant: women participated within constitutional platforms and deliberative forums, but their voices did not carry equal institutional weight within the processes through which constitutional outcomes were negotiated and controlled. The decisive locus of authority lay not in the CRC or the fora but in the Constituent Assembly’s political blocs and, ultimately, in the executive and electoral authorities’ implementation of the legally prescribed route to popular authorisation.

Constitutional uptake

Uptake at the level of the text was substantial. An evaluation commissioned by UN Women, which refers to the women’s coalition as the Women’s Coalition on the Constitutional Review (WCCR), reports that eleven of its twelve gender-equality principles were reflected in the Proposed Constitution, including the principle of equal representation between women and men in Parliament.Footnote ⁷⁰ The Proposed Constitution adopted by the Constituent Assembly carried guarantees on dignity, non-discrimination, protection from harmful practices, equal pay and reproductive health, alongside the Coalition’s political-participation demands.Footnote ⁷¹ Measured by the fourth condition alone, Tanzania is close to a success. The evaluation measures uptake rather than undiluted adoption of every demand, but the substantial translation of an organised constituency’s demands into constitutional language was halted not at the point of drafting but at the point of authorisation, a stage the law required but the process did not complete.

Nevertheless, the depth of these gains remained contested, including among women’s organisations, some of which argued that the gender provisions of the 2014 Proposed Constitution were insufficiently robust to secure substantive equality within broader governance structures.Footnote ⁷² Concerns centred on political representation. The Proposed Constitution sought to abolish the parliamentary quota known as women’s Special Seats, introduced in 1985 under the 1977 Constitution,Footnote ⁷³ replacing it with a principle of equal representation in Parliament. The shift moved from corrective quota-based inclusion towards parity, but the absence of implementation modalities raised concerns about enforceability and the erosion of gains previously secured; the provision applied to parliamentary composition alone and did not extend to other decision-making organs.

The ultimate fate of these constitutional gains further exposed the structural limits of participatory constitutionalism in Tanzania. Although the constitutional review process generated a Proposed Constitution incorporating several progressive gender provisions, the broader political environment, characterised by contestation over the Union structure, elite political bargaining and disputes within the Constituent Assembly, prevented the adoption of the new constitution. In April 2014, opposition members from CHADEMA, CUF, NLD and NCCR-Mageuzi, acting as the Umoja wa Katiba ya Wananchi (UKAWA) coalition, withdrew from the Constituent Assembly citing procedural and substantive grievances concerning the constitutional process. Although the Proposed Constitution was eventually passed by the Constituent Assembly, the referendum scheduled for 30 April 2015 was indefinitely postponed. The National Electoral Commission postponed it, stating that voter registration had not been completed, and it was not rescheduled before the general elections of October 2015. The subsequent transition from President Kikwete’s administration to that of President John Magufuli altered the trajectory decisively. President Magufuli stated that a new constitution had not been among his campaign promises and that its finalisation was not among his priorities, and his administration accordingly did not proceed with the referendum.Footnote ⁷⁴ By the end of the period examined, the referendum remained unheld and its textual gains had not become an authorised replacement constitution.

Revival, deferral and reconciliation, 2021–2026

The Tanzanian case would, until recently, have concluded at suspension. Since 2021, constitutional reform has returned to the political agenda, but political revival must be distinguished from formal legal reopening. After President Magufuli’s death in 2021, President Samia Suluhu Hassan revived the new constitution discussion through a multiparty-democracy task force. The Government subsequently prioritised civic education before reform, while the ruling party’s 2025–2030 manifesto committed it to completing the process and the President later included constitutional reform among her first-hundred-days priorities.Footnote ⁷⁵

The events of 29 October 2025 gave the constitution-making agenda a renewed urgency. The commission chaired by retired Chief Justice Mohamed Chande Othman reported on the resulting deaths and injuriesFootnote ⁷⁶ and recommended a new Constitution by 2028, before the 2029 local and 2030 general elections, through an Experts Committee, public input and a referendum.Footnote ⁷⁷ A separate criminal inquiry commission chaired by Justice Shaban Ally Lila was then constituted. An undated official account also records then Vice-President Emmanuel Nchimbi reiterating the Government’s commitment to a new Constitution, and asked Tanzanians to push for the new Constitution.Footnote ⁷⁸ On 30 July 2026, the President met leaders of eighteen political parties and announced a reconciliation commission to advance constitutional reform under existing laws and procedures.Footnote ⁷⁹

The legal question is whether the announced inquiry, reconciliation and reform steps are connected by an enforceable process, rather than whether political commitments alone establish such a sequence. The manifesto, commission recommendation and presidential statements remain political commitments; the CRA remains the operative law, including its section 6(3) and section 22 duties of consideration.Footnote ⁸⁰ No legislation establishing the proposed Experts Committee, or binding timetable connecting reconciliation, expert review, drafting, adoption and referendum, was identified in the public record by 2 October 2026. The opposition parties continue to demand for such a timetable;Footnote ⁸¹ the public record did not show that this demand had been met.

As to institutional design, the July presidential meeting publicly identified registered political parties as interlocutors, without establishing equivalent constitutional decision-making standing for women’s organisations in that announcement.Footnote ⁸² As to allocation of authority, the July roadmap placed the proposed calendar and bodies under executive leadership in consultation with party leaders; subsequent demands for broader dialogue do not themselves establish shared legal authority.Footnote ⁸³ No new Union constitutional draft was identified in the public record by 2 October 2026. The present risk is not a formally declared sequential deferral but that an unlegislated, reconciliation-led process will again allow the framework to be settled before women’s organisations acquire standing within it.

The later public dialogue was broader than the July presidential party meeting. At the Tanzania Democracy Forum in late August 2026, organised by civil-society and professional bodies including the Tanganyika Law Society, Twaweza and the Legal and Human Rights Centre, Hon Judge Joseph Sinde Warioba, former Prime Minister and Attorney General, advocated transitional amendments addressing the electoral system, distribution of power, the Union and ethics. Participants questioned whether a new constitution could be completed before the next general election.Footnote ⁸⁴ Reporting on the Tanzania Centre for Democracy’s September 2026 stakeholder conference records demands to resume constitution-making and to include women, young people, persons with disabilities, farmers and other constituencies in national dialogue, alongside a mechanism to monitor implementation.Footnote ⁸⁵ These interventions demonstrate broader participation in reform advocacy; they do not themselves confer a statutory nomination, consent or co-decision entitlement in Union constitution-making.

Zanzibar also pursued a distinct reconciliation track. A joint CCM–ACT Wazalendo committee was launched on 14 September 2026 under the July reconciliation agreement. The underlying accord contemplated possible review of constitutional, electoral-management and other arrangements, but the committee’s terms of reference and detailed agenda were not publicly disclosed. It was given three months, subject to a possible limited extension, and was to submit implementation reports to President Mwinyi. Othman Masoud Othman was sworn in as Zanzibar’s First Vice-President on 22 September.Footnote ⁸⁶ Those developments concern Zanzibar’s political settlement and should not be treated as formal reopening or completion of the Union constitutional review. They nevertheless show that reconciliation initiatives need not be confined to the Union executive’s July roadmap.

Tanzania therefore exemplifies gendered unfinished constitutionalism in a statutory-review setting: women exercised genuine constitutional agency and secured substantial textual gains, but statutory duties did not secure authorisation of those gains, and the announced revival had not demonstrably secured women’s independent authority over its design. Participation happened, but constitutional authority remained elsewhere.

Legal recognition

Measured against the first legal condition, South Sudan’s constitutional framework appears formally robust, and indeed more robust than Tanzania’s. The TCRSS, together with ARCSS and R-ARCSS, commits the state to inclusive governance and gender equality. Article 16 of the TCRSS guarantees women’s rights, including equal dignity, equal pay for equal work, property and inheritance rights and protection from harmful practices. Article 16(4)(a) introduced a 25 per cent affirmative action quota for women’s representation in public life, later expanded to 35 per cent under R-ARCSS.Footnote ⁹⁰ R-ARCSS further specifies women’s representation in key executive and financial institutions, requiring, inter alia, that one of the four vice presidents, at least twelve members of the Council of Ministers, and at least three members of the nine-member Board of the Bank of South Sudan be women. The Constitution Making Process Act 2022 governs the permanent constitution process. It requires gender diversity in the 57-member R-NCRC and opposite-sex Chairperson and Deputy Chairperson. When the National Elections Commission, Political Parties Council and National Constitutional Review Commission were reconstituted on 3 November 2023, the Secretary-General recorded that ‘only the Council met the 35 per cent quota for women members’.Footnote ⁹¹ The constitution-making commission was therefore constituted below the applicable gender threshold, and no enforcement action was identified. On the first condition, South Sudan performs better than Tanzania: its instruments create fixed numerical thresholds where Tanzania’s create duties of consideration, and they attach across a wider range of constitution-making and governance bodies. A framework that measured meaningful participation by legal recognition alone would rank South Sudan the stronger case. That it is not the stronger case is the point of the analysis that follows: it is where recognition and numerical presence are most developed that the disjunction between presence and constitutional authority is most clearly visible.

Institutional design

Women played a significant role in shaping both the 2011 TCRSS and the subsequent negotiations under ARCSS and R-ARCSS, yet their standing within those negotiations remained limited, as explained below.Footnote ⁹²

Participation occurred through consultative conferences, constitutional dialogues, grassroots mobilisation and lobbying within transitional institutions. Before the adoption of the Transitional Constitution, coalitions of women’s organisations convened conferences in Juba to articulate constitutional demands, women leaders within the pre-independence government lobbied for gender-responsive amendments during parliamentary deliberations, and women’s unions across the ten states mobilised communities and advocated protections against discriminatory practices including the denial of inheritance rights. These interventions contributed to the gender provisions of the Transitional Constitution, including the 25 per cent quota; subsequent mobilisation contributed to its expansion to 35 per cent in later instruments.Footnote ⁹³ The Constitution Making Process Act 2022 subsequently established the R-NCRC, the Constitutional Drafting Committee, the National Constitutional Conference, the Constituent Assembly and nationwide consultation and civic education, requiring that at least 35 per cent of the members of the R-NCRC, the Constitutional Drafting Committee and the Preparatory Sub-Committee be women, and recognising women’s organisations among the stakeholders entitled to nominate representatives.Footnote ⁹⁴ Women’s organisations have continued to mobilise through the South Sudan Women’s Charter.Footnote ⁹⁵

The distinction between foundational and subsequent bargaining is important. Underwood’s interview-based study records civil-society campaigning for a 35 per cent quota and its express application to the three bodies specified in the 2022 Act, supported by awareness-raising and dialogue with decision-makers.Footnote ⁹⁶ The Commission completed consultations across ten states and three administrative areas and held civic-education and consultation sessions in Juba in June 2026, but the cited report supplied no participation totals for those Commission sessions. This is conspicuous because the same United Nations reporting routinely provides sex-disaggregated counts for other activities, including constitution-related civic education conducted among refugees.Footnote ⁹⁷ No public sex-disaggregated record of the Commission’s consultations or women-only dialogues was identified in the reviewed sources through 2 October 2026. Without participation records or an account of how submissions were treated, the reviewed public evidence does not permit a reliable assessment of compliance with institutional-design requirements or influence on outcomes. Women-only dialogues can reduce barriers to speech, but they also risk procedural delinking. Unless their outputs must be transmitted to, considered by and answered within the drafting process, a separate forum can display targeted consultation while insulating the main process from its content.

Allocation of constitutional authority

The constitution-making bodies operate within a mandate and timetable derived from R-ARCSS and its implementing legislation, but their membership rules differ. Akech and Geng describe a 45 per cent stakeholder and 55 per cent government-and-party allocation for the Preparatory Sub-Committee, whose stakeholder categories include women’s, youth, faith, minority, civil-society, academic, professional and disability constituencies. Their account separately describes the fifty-seven-member R-NCRC and its nomination by parties and stakeholders, and a fifteen-member Constitutional Drafting Committee recruited competitively by the Commission. The 45/55 division should therefore not be generalised to every constitution-making body.Footnote ⁹⁸ The Parties do not control every nomination, and the technical drafting body is designed to be independent; nonetheless, executive appointments and party control of the underlying settlement give those actors substantial influence over sequencing. The government remained constituted through the settlement before the September 2026 caretaker changes discussed below.

It is noteworthy that standing in the central power-sharing allocation derives principally from status as a belligerent or as a political formation included in that allocation, so eligibility for decisive constitutional roles is determined by the antecedent structure of armed and party organisation rather than by the constitutional process. Elite bargains exclude along many axes – unarmed civilians, unaligned communities and constituencies without the organisational capacity to threaten the settlement. What is distinctive about the gendered form of that exclusion is that command hierarchies and party executives are, in this context, almost entirely male, so the criterion conferring constitutional standing operates in practice as a strongly gendered filter without referring to sex.

Women were not entirely absent from the CPA process. A small number participated within the SPLM/A delegation and technical or civil-society structures; contemporary accounts identify women who contributed to positions and feedback but were not principal negotiators, while no woman signed the CPA.Footnote ⁹⁹ Women’s presence improved to two signatories to ARCSS and seven of seventeen signatories to R-ARCSS.Footnote ¹⁰⁰ These gains occurred within a settlement structure whose principal standing derived from belligerency.

A quota operating within settlement-based institutions remains downstream of the prior allocation of authority. The government-and-party majority specified for the Preparatory Sub-Committee is one illustration; it is not a uniform composition rule for every body. Before the September 2026 caretaker changes, across the wider transitional government, the President and Parties exercised extensive appointment discretion, and most positions were appointed rather than elected.Footnote ¹⁰¹ Nomination can reward proximity to party power and make appointees accountable upward to the appointing party rather than outward to women as a constituency.Footnote ¹⁰² Hence, presence at the table has increased; standing within the bargain remains unequal.

On the stabilisation function, the constitutional instruments of the transition are valued by their parties principally for their capacity to hold the settlement together. Provisions redistributing authority to non-signatory constituencies are, in that logic, not merely lower priorities but potential sources of instability, and are deferred to implementing legislation, to the permanent constitution or to a future elected government. Gender equality commitments have repeatedly been subordinated, negotiations having prioritised ceasefires, territorial control and the distribution of offices among rival factions,Footnote ¹⁰³ and women’s rights having been treated as negotiable components of the settlement rather than foundational commitments. The interpretation advanced here is that women’s constitutional demands have been marginalised in part because of the stabilisation imperative rather than merely despite it; financing constraints, insecurity, limited administrative capacity and disagreement among the Parties have also contributed to delay.

On funding, internationalisation and constitutional ownership, Seidel’s account of internationalised constitution-making shows how transnational ‘rule-of-law translation’ can reshape constitutional authorship, sovereignty and local ownership.Footnote ¹⁰⁴ The dependence is also financial. In April 2024, the Secretary-General reported that the reconstituted institutions, including the NCRC, had yet to receive funding and were far from operational.Footnote ¹⁰⁵ The Commission’s later nationwide consultations depended on the Peacebuilding Fund and UNMISS; the Secretary-General’s July 2026 report recorded a pause in its activities for lack of sustained financing, while June consultations in Juba proceeded with United Nations support. The reported interruption is specific to that period; it does not show that every activity remained suspended thereafter.Footnote ¹⁰⁶

The electoral comparison is instructive. In the reporting period covered by the Secretary-General’s 31 July 2026 report, the National Elections Commission announced receipt from the Government of US$5 million for voter education and US$1 million for voter registration.Footnote ¹⁰⁷ Electoral financing nevertheless had its own documented shortfalls: in August 2024, the Commission’s Chairperson described a US$236 million requirement against a US$15 million allocation in the 2023/24 budget, with further funds needed for registration and other pre-election activities.Footnote ¹⁰⁸ On 8 September 2026, the Finance Minister presented a proposed 2026/27 budget earmarking approximately SSP184 billion for election-related activities; the report described a first reading awaiting parliamentary approval, not a disbursement.Footnote ¹⁰⁹ These figures concern different periods and distinguish requirements, allocations and receipts; they do not provide a single measure of the Commission’s current financing gap. The July comparison is more specific: identifiable government transfers supported electoral activities alongside a financing-related interruption of constitution-making. It supports an inference of selective resourcing, without establishing that electoral needs were fully funded.

International support has an ambivalent role. It enabled consultation and reinforced Women, Peace and Security commitments, but dependence on external resources weakened domestic ownership when state financing did not follow. Seidel’s analysis identifies a risk that externally associated norms may be portrayed as imposed; it does not establish that South Sudan’s gender provisions were donor products. Those provisions also reflect sustained mobilisation by South Sudanese women. External actors can support recognition and institutional design, but cannot substitute for domestic allocation of constitutional authority.

Reported implementation in 2024–2025 fell below the 35 per cent threshold. By late 2025, published reports recorded six women among thirty-five ministers and 167 women in the 550-member Transitional National Legislative Assembly; in 2024, women held twenty-six of the 100 seats in the Council of States.Footnote ¹¹⁰ Sub-national representation was lower: the cited sources reported no woman holding a state governorship, women held two of seventy-nine county-commissioner posts, and women legislators had in some instances been replaced by men.Footnote ¹¹¹ The legal significance of these figures is that a quota dependent on discretionary appointments lacks an effective compliance mechanism.

On disruption of the bargain, Riek Machar, then First Vice-President, was placed under house arrest in March 2025 and charged in September 2025 with offences including murder, treason and crimes against humanity, and reporting dated 2 October 2026 confirms that the trial of the former First Vice-President was continuing at the cut-off.Footnote ¹¹² His reported application for referral to the hybrid court contemplated by the 2018 agreement was refused; force integration is incomplete and the ceasefire has substantially deteriorated.Footnote ¹¹³ Where constitutional authority derives from a power-sharing pact, disruption of the pact destabilises the political foundation of the constitutional process, and women’s participatory guarantees, depending partly on that pact for enforcement, are vulnerable with it.

Constitutional uptake

In South Sudan, women’s mobilisation across constitutional conferences, peace negotiations, consultative forums and civil society advocacy contributed to the incorporation of several gender-related commitments within transitional constitutional and peace frameworks: Article 16 of the TCRSS and the 25 per cent quota; the expansion of that threshold to 35 per cent under R-ARCSS across key transitional governance and constitution-making institutions; and the representational requirements of the Constitution Making Process Act 2022. Uptake into transitional instruments has therefore occurred; uptake into a permanent constitutional settlement has not.

Deferral and institutional change through July–September 2026

On 1 July 2026, the Transitional National Legislative Assembly ratified amendments to the peace-agreement framework reported to defer the census and permanent constitution-making until after the elections scheduled for December 2026; presidential assent was reported on 22 July.Footnote ¹¹⁴ Their procedural validity is contested. Article 8.4 of R-ARCSS requires approval by two-thirds of the Council of Ministers, consent of two-thirds of RJMEC’s voting members and legislative ratification under the constitutional-amendment procedure. The bill proceeded without RJMEC consent: RJMEC maintained that consent was mandatory, whereas the Government and some commentators treated it as consultative.Footnote ¹¹⁵ On 22 June, the National Elections Commission had announced elections for 22 December 2026 while acknowledging outstanding legal and funding questions.Footnote ¹¹⁶ These July amendments must be distinguished from the subsequent September constitutional and electoral changes discussed below, and read against the failure of sustained financing. The Commission acquired a mandate and conducted some externally supported work, but its activities later paused while the electoral track received state resources. Three consequences follow. First, subject to the unresolved Article 8.4 dispute, practical non-completion was converted into a legislative choice: the permanent constitution need not precede the elected order. Unfinished constitutionalism was not merely tolerated but formally deferred. Second, the relationship between constitutional and electoral authority is inverted. If the elections scheduled for 22 December 2026 proceed on the reported amended basis, they will precede completion of the permanent constitution, and the elected authorities would exercise influence over its subsequent preparation. The precise institutional route depends on the applicable enacted provisions. The risk is that the constitution-making mandate becomes dependent on authorities elected before the permanent constitutional settlement. Because the 2022 framework contains no referendum, there is no separate direct popular-ratification stage; representative adoption may nevertheless be legitimate if its composition and powers secure meaningful participation.

Third, the deferral placed the constitution-making stages through which women’s constitutional claims were to be pressed – the work of the R-NCRC, the National Constitutional Conference, the Constituent Assembly and public consultation – behind the elections, without a co-decision entitlement for women’s organisations identified in the reviewed accounts of those amendments. The July financing-related pause and subsequent sequencing changes leave completion of the stages governed by the 35 per cent requirement prospective; this does not erase consultations already undertaken or establish that every activity remained suspended through the cut-off. Whether the amendments also alter the legal mandates of those bodies depends on their enacted text.

The September developments materially altered the position described by the July sources. ConstitutionNet reported presidential assent on 2 September 2026 to TCRSS, 2011 (Amendment No. 13) Act, 2026, decoupling the permanent constitution and population census from national elections.Footnote ¹¹⁷ On 22 September, Radio Tamazuj reported a presidential order dissolving the unity government, the Transitional National Legislative Assembly, the Council of States and the ten state governments and assemblies; removing the First Vice-President and all four Vice-Presidents; and appointing a caretaker administration. Its account identifies the National Elections Act 2012, as amended in 2026, as the statutory basis invoked for the order, states that Kiir would remain President during the electoral period, and records that independent commissions and other legally required institutions would continue functioning.Footnote ¹¹⁸ These are reported legal and institutional developments; they do not establish that R-ARCSS was validly repealed or that every constitution-making body and quota was abolished. The pre-September representation figures describe the displaced power-sharing institutions and cannot establish the composition of the caretaker administration.

The institutional reconfiguration engages the third condition directly. The reported invocation of an electoral statute to replace power-sharing institutions raises the question of who can alter the bodies through which women’s representation guarantees operate. The distinction between changing office-holders and extinguishing legal obligations is decisive: dissolution does not, without examination of the applicable legal instruments, establish that a quota has ceased to bind successor arrangements. The allocation-of-authority problem is therefore whether women’s constituencies possess enforceable means to contest institutional replacement and secure compliance with continuing guarantees, as well as seats within the institutions being replaced.

The contemporaneous responses illustrate the uncertainty over the transition’s governing framework. In its statement of 22 September, RJMEC reaffirmed the continuing role of R-ARCSS and called on the parties to complete outstanding commitments, including permanent constitution-making.Footnote ¹¹⁹ A report published the following day described a Former Detainees representative on CTSAMVM seeking clarification from IGAD about which provisions remained applicable, including those concerning the vice-presidency, elections and the Agreement’s supremacy.Footnote ¹²⁰ His intervention was a request for clarification, not an institutional ruling by CTSAMVM. Read together, these sources document disagreement and uncertainty over the practical and legal continuity of the settlement; they do not resolve the validity of the September measures.

Overall, legal recognition was strong and institutional design elaborate, but actors outside the participatory architecture controlled its timing. RJMEC resisted the amendments, yet the reviewed amendment accounts identify no equivalent consent requirement for women’s organisations. Whether or not the amendments ultimately survive the Article 8.4 dispute, the terms of inclusion remain dependent on institutions whose underlying power is gendered. South Sudan thus exposes the limits of quota-based inclusion in elite-driven transitions. Quotas improve descriptive representation but do not by themselves redistribute constitutional authority.Footnote ¹²¹ Patriarchal norms, unequal education, factionalism and rural–urban and generational divisions intensify the exclusion,Footnote ¹²² while women remain concentrated in social and reconciliation portfolios and underrepresented in political, military and security decision-making.Footnote ¹²³ Formal participation is therefore substantial, but the authority to determine whether and when the permanent constitutional process proceeds remains elsewhere.Footnote ¹²⁴

Statutory review constitutionalism: Participation in the framework law

Tanzania must move from consultation to enforceable participatory authority. Because exclusion began in negotiation of the framework law, reform should build on the nomination route already available under section 6(6): expressly extending it to women’s organisations, confining the presidential power to appoint outside nominated lists, and entitling nominating organisations to reasons for decisions affecting the process.Footnote ¹²⁵ The existing duties to have regard to gender balance and gender parity should be converted into fixed minimum thresholds across all constitution-making bodies, including any Experts Committee, and supplemented by sex-disaggregated participation records, reasons for rejecting submissions, and judicial or independent review of compliance.Footnote ¹²⁶ South African jurisprudence demonstrates that public participation can be a justiciable obligation whose breach invalidates the resulting law;Footnote ¹²⁷ a comparable principle, adapted to Tanzania’s constitutional order, could strengthen judicial scrutiny of compliance with constitutional-process obligations. For the process now under discussion, participatory architecture should receive legal form before a political settlement is struck: amended review and referendum legislation, mandatory thresholds, recognised nomination rights for women’s organisations, a published timetable and effective enforcement of the existing statutory route to popular authorisation, of the kind that framed Kenya’s process under the Constitution of Kenya Review Act 2008.Footnote ¹²⁸

Peace-process constitutionalism: Co-decision, resourcing and record

South Sudan requires secured co-decision in addition to consultation. Peace agreements, transitional instruments and constitution-making legislation should give women’s organisations defined authority in agenda-setting, drafting, review and approval, not merely seats in bodies whose timing remains controlled elsewhere.Footnote ¹²⁹

Participatory guarantees should survive disruption of the settlement, and changes to constitutional sequencing should require consultation with the R-NCRC and published reasons.Footnote ¹³⁰ Article 6.15 of R-ARCSS already obliges the Government to provide adequate budgetary funding for the constitution-making process;Footnote ¹³¹ the financing-related pause recorded in July 2026 shows that an obligation without a mechanism is insufficient, and implementing legislation should add a specific appropriation, disbursement deadlines, public reporting and a remedy for default. Constitution-making bodies should publish sex-disaggregated participation records and reasoned accounts of how submissions were treated.Footnote ¹³² These safeguards would not eliminate elite bargaining, but they would make recognition, financing and influence legally testable. Meaningful participation is therefore a legal architecture linking recognition, institutional design, authority and uptake. Unless constitutional law binds constitutional authority to participatory processes, and unless the design of those processes is itself open to the constituencies they address, women’s inclusion will remain procedurally visible and constitutionally marginal.