Captured Constitutionalism: Post-Conflict Constitution-Making Between Inclusive Legitimacy and Elite Control

Captured constitutionalism is advanced as an analytical lens for understanding how constitution-making processes can perform inclusion while simultaneously entrenching elite bargains. Rather than presenting a descriptive case study, the manuscript situates the politics of constitutional design in post-conflict transitions—between inclusive legitimacy and elite capture—within broader debates on African political order, state formation, and institutional design. Anchored in South Sudan, with comparative reference to Nepal and Myanmar, the study addresses three interrelated questions: how post-conflict constitutional processes that formally incorporate civil society and customary authorities nonetheless produce outcomes reflecting the preferences of armed elites and international mediators; how constitutional design choices—such as presidentialism versus parliamentarism, proportional representation, and federalism—relate to patterns of conflict recurrence in sub-Saharan Africa; and how external constitutional actors (including the UN, AU, IGAD, and bilateral donors) shape outcomes and with what degree of accountability to affected populations. Methodologically, the study combines comparative constitutional text analysis using the Comparative Constitutions Project, process tracing of South Sudan's transitional constitutional moments (2005, 2011, 2015), interviews with constitutional commission members and civil society participants, and structured comparison with Nepal and Myanmar. The central analytical contribution lies not only in explaining the South Sudanese and comparative cases, but in clarifying the conditions under which formal constitutional language obscures deeper struggles over coercion, distribution, and recognition (Bell & Zulueta-Fulscher 2016; Brandt et al.