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25 years after Dayton, Bosnia and Herzegovina discusses the discriminatory nature of its constitution and its possible reform, but also possible alternatives for a change in the country's institutional system. We talked about it with Nenad Stojanović

14/01/2021 -  Alfredo Sasso

The possibility of a reform of the Dayton constitution has been often raised in recent weeks in commemorations and debates on the anniversary of the agreements. Is this a realistic possibility?

I think that the likelihood of a reform – not just cosmetic, but one that makes substantive changes – is very low. Even if the elites that currently hold power did take the initiative, it would only be for a reform that further strengthens their power. The only possibility for change is that the initiative comes from the outside or from below – that is, from citizens.

If the push only comes from below, we could have a scenario like in 2014, when there were demonstrations in different cities, the so-called “plenum” movement... On that occasion, some ministers resigned and some cantonal governments fell, but then everything stopped there, and after a few months the movement weakened. From below, a popular rebellion could take place if all social problems continue: corruption, inequality, deterioration of public services and particularly healthcare, pollution. A bottom-up reaction is possible, but it is not enough if it is not combined with an external pressure.

The international community, provided it has the will, certainly has the strength to promote change. But no one hopes that foreign forces alone will democratise the country. So it is important that the input comes both from outside and from below.

Some analysts argue for the inalienable need for a broad constitutional reform; others support instead an incremental logic with gradual, small-scale changes as the only pragmatic and feasible option. What do you think?

I think two levels must be distinguished. One is that of the experts of institutional systems who can formulate their own ideal solutions according to their parameters and knowledge. The other is that of realpolitik. And realpolitik is what it is. We need to find a win-win solution that is supported by a majority in all parts of Bosnia and all the main constituent peoples that make up the country.

So we have to ask ourselves which model of reform can satisfy everyone. Like it or not, the three constituent peoples and the actors who represent them have veto rights over "vital interests", they split the seats in the House of Peoples, in the Presidency, in the Council of Ministers... Any hope of reform that does not want to open conflicts – not necessarily armed, I mean – must find a broad consensus among them.

But how does this come about? I think it is better not to seek major reforms, such as changing the structure of entities or cantons. I would support more concrete solutions, for example the reform of the electoral system, which is at a lower, albeit delicate level of action. Or you can go even lower, think about how to give citizens more rights in this country.

Speaking of which, you are an expert in the instruments of direct democracy and the author of several proposals in this regard. How could these be useful and feasible in the context of today's Bosnia and Herzegovina?

Direct democracy could be introduced, for example, with referenda at the local level, in the municipalities. They should become the instrument of expression of the citizens' will and potential dissent towards the choices of local institutions, for example on urban planning and green areas. Referenda should not have a merely consultative function but should be binding, so as to grant the population a sort of veto right. This reform could find consent among the citizens of Banja Luka as well as those of Sarajevo or Široki Brijeg.

We know that most municipalities, unfortunately, are now ethnically homogeneous: with a few exceptions, we know which ethno-national group is the majority and which is the minority. For this very reason, the problem with a local referendum would not so much concern an ethnic group imposing its decision on minorities, but rather democratic governance at the local level. This approach may be more interesting than talking about world systems and major reforms, which may be just and desirable in principle but risk being impractical and time-consuming.

Another solution could be to organise citizens’ assemblies whose members are drawn by lot. These are the so-called mini-publics, which can be implemented at any level: state, regional, municipal, neighbourhood. The sortition will bring together a representative group of the population: it will then deliberate on a given topic for a few days and expresses an opinion – if possible with a consensus, or in any case with a large majority. Thus, politicians can see an issue through the eyes of ordinary citizens without prejudices, specific interests, or lobby ties. It is about using "collective intelligence", a concept that has existed since Aristotle's time: many people put together are smarter than one person, because they listen to different opinions, discuss, put themselves in each other's shoes. One cannot think only of one's own interests, but has an incentive to think of the common good.

Have there been direct democracy initiatives in Bosnia and Herzegovina or in the post-Yugoslav region recently?

As I have described them, no. There have been consultative initiatives, but not binding ones. It is interesting to note that in the constitution of the Republika Srpska there are some articles that would open to direct democracy. But the devil is in the details. There are obstacles or too high signature thresholds that make the instrument, in fact, unfeasible. After all, this happens in many countries. The other question is how the legislative and executive branches can interfere. If they can cancel the referendum, or turn it into a consultative, non-binding one, the instrument becomes a red herring.

In the context of Bosnia and Herzegovina, the use of referenda can recall territorial or identity claims, considering the historical precedents of the 1990s, but also the most recent events. What should be done to avoid this drift?

These are examples of what in several studies I call "plebiscitary referendum", in which those in power decide to hold a referendum only to further strengthen their power, because they know the answer in advance. That is not a model of direct democracy I have in mind.

The referendum can be one of the instruments, as long as it remains at the local level. Citizens’ assemblies formed via sortition, on the other hand, could also be used in a wider context, to discuss issues that politicians are unable to resolve: for example, how to reform the composition and the electoral rules of the presidency of Bosnia and Herzegovina.

Take the case of Ireland: for decades the political elite failed to make certain civil rights reforms, because they were considered sensitive and taboo issues in a very Catholic country. So, a few years ago, an Assembly of citizens was created, with a majority of members drawn by lot, to discuss these and other controversial issues. And they came to formulate proposals, then submitted to referendum. Only in this way were they able to discuss an abortion law, which had been blocked for years by Parliament.

Now let's go back to the existing institutional system. In a recent article, you support the thesis that the model of national consociationalism – based on representation quotas, autonomy, and veto rights of ethnic groups, and which inspired the Bosnian constitution – is necessarily transitory: over time either it becomes liberal democracy or it inevitably tends to fall into ethnocracy, incompatible with a fully democratic system. Can you tell us about it?

In that article I argue that the consociational model is inherently unstable and necessarily leads in one of two directions. In the first, it develops in such a way that in the end consociationalism is no longer needed and is extinguished, because the country is transformed into a stable democracy, in particular thanks to the creation of a demos, a common political identity that ensures that there is no longer a need to guarantee group representation.

I often use the example of the Catholics of Switzerland, who for a long time had a permanent presence in the Federal Council. It was not a formal but an informal rule: 2 seats out of 7 seats were reserved to the Catholic minority. The Swiss Federal Council is an executive body, but its composition resembles the Bosnian collective presidency. The system of protecting Catholics lasted for decades, until the religious question lost its relevance and then disappeared, simply because it no longer mattered how many Catholics or Protestants there were in the Council. In fact, for many years I have supported the thesis that Switzerland is no longer a consociational model in the strict sense, while retaining some of its elements.

If consociativism goes in the other direction, that is, by introducing or maintaining rigid ethnic quotas, it turns into an ethnocracy, that is, into a government of ethnic groups which at that point is not a true democracy. This is Bosnia and Herzegovina of today, but also Lebanon, Northern Ireland. The very idea of consociational democracy does not function at the conceptual as well as the empirical level: this insistence on a society divided into segments, in which every group has its own institutions and guaranteed seats in joint institutions, is not compatible with full democracy.

Arend Lijphart, the leading theorist of consociationalism, in one of his early writings called it "voluntary apartheid". Later on, he realised that it was not a good expression and changed it. Yet it is true: if you look at today's Bosnia and Herzegovina, with its model of school segregation and other drifts, it is a kind of de facto apartheid. And no one can convince me that this matches an ideal of democracy.

So, how can today's Bosnia and Herzegovina come to develop a common political identity, turning itself from an ethnocracy into an accomplished democracy?

It can try to evolve into a demoi-cracy, because at least for now there is no single demos, a common political identity, but several demoi. However, we should at least make sure that these are demoi and not ethnoi, trying to democratise individual ethnic groups as much as possible, and in the meantime to build a minimum common denominator, a sense of belonging that overcomes divisions.

More concretely, we should recognise that one of the concerns of ordinary citizens, beyond the rhetoric, is to live in a country where they can find a job, feed their family, have a home: in short, live in a normal country. Think of a young person who has just finished their studies, who was born years after the end of the war, who lives in a country chained to a past that they have not lived. This person worked hard, finished school, earned a degree. Then, when there are job openings in the public administration or the private sector, all of a sudden they realise that in order to get that position they need the right ethnic affiliation, the right political party, the right connections. None of these three elements is sufficient on its own. This is all enormously discouraging. It is no coincidence that so many people emigrate.

One possible solution would be to introduce so-called anonymous CVs. In France this system has existed for some years, other countries are introducing it or thinking of it. There is a literature in this regard that demonstrates how the anonymous system allows to overcome prejudices and offer opportunities to people, as there are no elements that allow us to trace the ethnic group, party, or gender – at least in the initial screening phase, before the interview. Such a system, obviously as long as it is not circumvented, can restore people's trust, making it clear that it is not about affiliation, but personal qualities and skills.

What does this have to do with the demos, with a common political identity? Well, a sense of belonging also develops like this. If Bosnia and Herzegovina introduced this system of anonymous CVs and the system worked, thus curbing the massive emigration of young people while neighbouring countries did not, after ten years the young citizens of all ethnic groups would be proud to live in a state which offers more opportunities than neighbouring countries do. It would therefore be a question of fostering state belonging, not of creating a Bosnian nation by erasing the identities of ethnic groups.

A short time ago the European Court of Human Rights issued a new ruling condemning discrimination in the electoral system in Bosnia and Herzegovina – the Pudarić ruling, the fifth of its kind in eleven years (the first was the Sejdić-Finci in 2009). However, the issue of denied citizenship rights and electoral reform now seems off the agenda of politics and the media in BiH. Could the initiative be relaunched?

It is difficult to make predictions. Unfortunately, it must be admitted that this is an issue that has never raised street protests. There have been initiatives in urban and intellectual circles, in which I too participated. However, it did not arouse reactions at the level of the protests that concerned civic issues, such as the so-called bebolucija ("children's revolution") or Pravda za Davida in 2018, or the Pride in 2019, which had great public participation. But the exclusion of citizens not belonging to the three constituent peoples remains a central problem, because we have a state that discriminates against its own citizens. Change will only be possible if there is pressure from the international community, and particularly from the EU in the process of accession.

My concern is that a cosmetic, non-substantial solution will be found. On the other hand, this problem also exists in some parts of the EU, like Alto Adige or South Tyrol, as recalled by Alexander Langer, who fought against that system. Then in Alto Adige the issue was "solved" by replacing the term “membership” with "affiliation". The principle is always that if you declare yourself outside the recognised groups, or refuse to declare yourself, you have no right to apply. But if you decide to declare yourself "affiliated" to the groups, then you can participate. In theory even in Bosnia Herzegovina it would be like this: it would be enough for a Jew, a Roma, an Albanian etc. to affiliate with one of the three constituent peoples. But it would not be fair.

What solution could be proposed for the electoral system?

In a book written with Edin Hodžić, I proposed a model in which, for the collective state presidency of Bosnia and Herzegovina, we would no longer have a Serb representative, a Bosniak, and a Croat – as it is now – but a representative for Republika Srpska, one for five cantons of the Federation, and one for the remaining five cantons. Any citizen of any part of Bosnia and Herzegovina would be free to vote for the candidate they want in any of the three constituencies, unlike now: currently the Serb representative can only be voted by residents of RS, and Croatian and Bosniak ones only by residents of FBiH.

However, we had introduced a "geometric mean" – a coefficient giving the vote of residents of a given territory (the RS, or the one or another group of five cantons of FBiH) more weight for the election of “their” representative. In Switzerland, this model applies in the Canton of Bern for the Jura Francophone minority.

The idea is to extend the democratic aspect, giving all citizens the possibility to vote for any candidate in the country, the so-called cross-ethnic vote. But this principle would balance with the collective-territorial one: the votes for the representative of an ethnic group, in the territory where they form a majority, would count a little more, but such votes not have the exclusive right to determine the final outcome of the election.

In 2010, we proposed this solution to some Bosnian politicians from various parties and ethnic groups. In other words, constructive solutions of this kind existed at the time and would exist today. Contrary to the maximalist solutions that each party proposes, ours was based on the principle that everyone must give something up and everyone must get something. With this proposal, for example, Milorad Dodik and the parties of Republika Srpska would lose the exclusive right they have now: it is as if they said "we elect our representative and don't care about the rest". In our opinion, this is not fair: any citizen in Bosnia and Herzegovina should also have the possibility to vote for candidates from Republika Srpska.

At the same time, the vote of RS residents for RS candidates would have more weight than that from non-RS residents. Furthermore, perhaps some RS politicians, for example, may welcome the fact that a certain number of Croats or Bosniaks living in RS could choose to cast their vote to candidates from FBiH rather than to influence the vote of the Serb representative – probably against Dodik, as has happened in recent years. For all these reasons I presented this as a win-win-win solution: everyone gives something up and gets something in return. This proposal was intended as a starting point, but for now it has remained a dead letter.

Nenad Stojanović is a professor at the Department of Political Science and International Relations of the University of Geneva. Born in Sarajevo in 1976 and residing in Switzerland since 1992, he deals, among other research topics, with political theories and systems, quotas and the concept of representation, electoral systems and federalism in plural societies, direct democracy. Many of his academic publications are devoted to the political and institutional system of Bosnia and Herzegovina. In Italian he published the books Dialogo sulle quote. Rappresentanza, eguaglianza e discriminazioni nelle democrazie multiculturali (Il Mulino, 2014) and C'era una volta una città. Racconti di Sarajevo (Fontana Edizioni, 2007).

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