Unfinished constitutions, unfinished inclusion: Women and contested constitutional deliberation in Tanzania and South Sudan

Abstract This article examines women’s participation in constitution-making within the broader phenomenon of unfinished constitutionalism in Africa. It argues that constitution-making in multinational and conflict-affected states channels contestation through formally participatory processes while insulating constitutional authority within elite-controlled political and militarised structures. Conceptualising this as gendered unfinished constitutionalism, it shows that women are formally included in deliberative processes yet lack equal, independently secured authority over foundational outcomes. That formal inclusion is insufficient is not a novel claim; scholarship on peace processes and power-sharing has long distinguished presence from influence. The contribution is juridical: a normative legal framework, grounded in international and regional human rights law and comparative jurisprudence, specifying four conditions under which participation may convert into constitutional authority: legal recognition, institutional design, allocation of constitutional authority and constitutional uptake. Applying it to Tanzania’s aborted constitutional review process and to South Sudan’s peace-process constitutionalism, the article locates a decisive source of exclusion in the anterior bargaining that fixes the terms of consultation: in Tanzania, negotiation between the executive and political parties over the framework law; in South Sudan, negotiation between armed and political parties over the distribution of office, despite subsequent civil society influence on process design. Meaningful participation therefore requires the redistribution of constitutional authority along with procedural inclusion.