Outcome and Participation-Based Characteristics of Legitimisation

In the following, the theory of legitimate peace negotiations is outlined regarding its major characteristics based on outcomes and participation. Notably, the theory addresses a process of legitimisation rather than the legitimacy of authority or a political system. In a first part, the two characteristics are detailed, before in a second section outlining the differences and overlaps to other theories of legitimacy.

6.1.1 Two Characteristics of Legitimate Peace Negotiations

The research of this dissertation started on the premise of two heuristic features of the legitimisation process, later amended to three features. These are collective concerns, transparent communication and subjective representation, and were heuristically used to trace the major components of the legitimisation process. If we consider these components in their totality, two major characteristics can be surmised:

The components that constitute the legitimisation process are either based on outcomes or on participation.

On the one hand, the three components of ending violence/return to stability, civilian counterbalance and ensuring implementation all speak to certain outcomes. According to the perception of the beneficiaries of legitimacy, the process becomes legitimised, because violence has come to an end, there

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was a civilian counterbalance during the talks and in the final agreement and efforts were made towards ensuring implementation. The nature and explanations for the components changes slightly across cases, but the focus of legitimisation still remains on a certain outcome. Ending violence was conceptualised more broadly in terms of a positive peace in the Liberian case (i.e. ending violence and schools reopening) or with regards to economic stability in Kenya. In other words, the process becomes legitimised because of the satisfaction invoked by the ending of violence, in its expansive interpretation as was shown in the case studies. The causal process-tracing regarding the civilian counterbalance shows that both a direct seat at the table for civil society in Liberia as well as the expert reports and monitoring from civil society actors who were not part of the negotiations in Kenya were effective in enabling the component. The exact ways the legitimisation process will unfold will differ, but the key take-away for the beneficiaries of legitimisation is what happens during and after the negotiations related to the role taken on by the civil society actors (and other actors, see below). The relationship between the features, components and characteristics of legitimisation is summarised in Figure 6.1 below.

Figure 6.1: Features, Components and Characteristics of Legitimisation

Collective Concerns

Transparent Communication

Subjective Representation

Ending Violence

Civilian Counterbalance

Ensuring Implementation

Feeling Involved

Feeling Represented

Recognised Guarantors of Legitimacy

Outcome-Based Legitimisation

Participation-Based Legitimisation

COMPONENTS CHARACTERISTICS

FEATURES

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On the other hand, the three components of feeling involved, feeling represented and recognised guarantors of legitimacy all speak to participation. Beneficiaries of legitimacy regard the process to have become legitimised because they are participating in the process themselves, through feeling represented, having identified guarantors of legitimacy and notably feeling involved. Again, the details of this are likely to differ for individuals and cases, but the emphasis is on the fact that the beneficiaries of legitimacy are somehow involved. Though feeling represented is one element, he or she is not merely

‘represented’ at the peace negotiations, arguably a rather passive role, but can also be more actively participating. This is done through reflecting on the process in a variety of ways, including through photos, short stories and other outlets like in Kenya. In addition, the beneficiary can play a role in deciding whom they recognise as a guarantor of legitimacy. This can be based on characteristics of motherhood, like in the Liberian case, or the ‘prisoner of peace’ Kofi Annan like in Kenya.

The theory does not presuppose a dichotomous measurement of legitimacy, as in yes there was legitimacy or there was not, but rather shows that more or less legitimacy is possible in a process of legitimisation made up of outcome and participation based-characteristics. Despite differences between the cases, the overall legitimisation of a process may still be similar. The two case studies of Liberia and Kenya differ on the scale and type of violence. Yet, with regards to the outcome-based characteristics of legitimisation, the interpretation was strikingly similar. Even though the violence in Kenya was less severe and much shorter than in Liberia (albeit with deep-set conflict roots), ending violence was overwhelmingly identified as a legitimising component in both cases. In addition, one negotiations process was highly militarised (Kenya) and the other politicised (Liberia), nevertheless in both instances a civilian counterbalance was traced to be a constitutive component.

For the participation-based characteristics, there was more variation. The civil society actors did not play a direct role in the Kenyan case, which overall seemed to detrimentally affect the component of feeling represented. In contrast to Liberia however, there was broader possibilities of engaging with the negotiations, sharing grievances and reflections, resulting in stronger participative communication and because of this, the component of feeling involved. The existing infrastructure enhances the possibility of engagement through forms of communicative participation. When this is absent, like in Liberia, the lack of knowledge and participation was obvious.

Lastly, because the Kenyan negotiations followed on from flawed elections, the potential set-up of participation through representation is entirely different to the Liberian one. In theory, elected politicians are of course representative, and because some of these also took part in the negotiations process, feeling represented is ensured. Due to the nature of the elections however, perceived as flawed by many Kenyans, the legitimacy of elected politicians can be questioned. Even more poignantly, at the time of the peace negotiations, the elected politicians acted in their own self-interest in order to access power and thus are not representative of the people at this moment in time. This is despite the fact some of the

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population may have supported the stakes they were claiming. The difference and overlaps of the theory of legitimacy compared to those of other scholars is discussed in the next section.

6.1.2 Overlaps and Differences to Previous Theories on Legitimacy

The policy-orientated study of Conciliation Resources defines legitimate negotiations as the extent of popular support for both the process itself and the outcome, arguing for participation, inclusion and representation (Ramsbotham and Wennmann 2014, 6–7). This clearly overlaps with the outcome and participation-based characteristics of legitimisation processes. The theory introduced here however is a theoretical argument based on a detailed empirical study that goes far beyond the study done by Conciliation Resources. In addition, the theory also more generally accentuates other pre-existing theories of legitimacy. This is because the theory of legitimate peace negotiations addresses a process of legitimisation rather than the legitimacy of authority or a political system, marking its differentiation to previous theories on the topic of legitimacy.

At first glance, the two characteristics of legitimisation show overlaps to precedent notions of legitimacy in addition to the definition from Conciliation Resources. After all, the literature on the role of civil society in peace negotiations speaks of legitimacy in terms of a ‘public agenda’ (an outcome) and

‘broader participation’ (Barnes 2002, 12; Belloni 2008, 199; McKeon 2004). In addition, the system analytical view on legitimacy speaks of inputs and outputs (Easton 1965; Scharpf 1997, 2009). Regarding the civil society literature however, the meaning of participation goes beyond the presumed inclusion/representation definition. For sure, Track II and parallel public forums are discussed in some of the literature (e.g. Paffenholz 2014a; Ron 2010), but for the most part they consider forums with civil society actors, and not necessarily broader elements of the population. Furthermore, a circular argument is made for the public agenda, with a public agenda creating a legitimate process, and a legitimate process contributing to the public agenda. The process nature of legitimisation is upheld by the theory proposed here, but the outcome-based characteristics are more expansive than a ‘public agenda’ as an output, rather speaking to how such a public agenda may be created. This is also why it is not simply a results-based output, versus a representation-results-based input of the characteristics results-based on participation.

The system analytical view on legitimacy also does not sufficiently translate what is meant with the outcome and participation-based characteristic. There are three reasons for this. Firstly, the outcome-based characteristic concerns more than just an output or ‘achieving the goals ... citizens collectively care about’ (Scharpf 1997, 19). Most notably the component of the civilian counterbalance, by its very definition, considers the civilian counterbalance during the negotiations as well as in the final agreement.

Put differently, in parts the process of negotiations was legitimised because civil society actors involved in negotiations in Accra were taking a position directly in contrast to the other self-interested parties to the negotiations. As the civil society representative Nohn Kidau argued, when she wanted to get a seat at

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the table, “the political parties have their policy interests to fight for; the warring parties are interested in getting what they can for themselves. Who is going to be there for the rest of the people?” The outcome-based characteristic for this element is not so much what came out as a result of her participation (which is another element) but rather the civilian counterbalance at this moment in time.

Secondly, the participation-based characteristics of legitimisation are based on the same ideas of inclusivity and representation as the input side of a system analytical view, but it further develops this.

As was argued for the amended heuristic model on legitimate peace negotiations in Chapter 4, participation has thus far been inadequately conceptualised. Expanding on the idea of participation, opens up ideas of communication and transparency that are more fairly thought of as throughput than an input (e.g. Schmidt 2013). In the Kenyan case, the different types of participation were further developed, in light of what I termed “participative communication”. Self-expression and reflections on the negotiations, in artistic forms or otherwise, contributed to the legitimisation process. Such forms of participative communication take place mostly after a peace agreement has been signed, yet retrospectively legitimise the process; and thus are neither an input nor an output. This brings me to the third reason why the system analytical view does not wholly reflect the theory of legitimate peace negotiations proposed.

Peace negotiations and the legitimisation process thereof, are conceptualised as an ad-hoc, dynamic and non-institutionalised process of peace negotiations. This stands in contrast to ideas on procedural legitimacy or system analytical legitimacy, which presuppose a long-standing and institutionalised process or procedure (Easton 1965; Luhmann 1983; Scharpf 1997, 2009). Because of the type of process, the theory on legitimate peace negotiations does not focus on how to institutionalise participation. Nor does it make assumptions on the procedural nature of the negotiations regarding how specific elements resulting in the outcome should be addressed. By its very definition the theory on legitimate peace negotiations leaves the ways of reaching an outcome and ways of participation open. It may suggest two broad characteristics, and even the components that constitute the legitimisation process, but acknowledges that the contextual nature will always change the details of the ways this happens, in different cases just as much for different individuals. This reiterates the idea of ‘grounded legitimacy’

previously introduced, which aims to avoid universal normatively but accepts that contextual values and ideas will affect the legitimisation process in question.

The literature with the most overlaps to the theory of legitimate peace negotiations comes from the Habermasian public sphere and deliberative democracy, which argues that something can become legitimised if it is deliberated upon, deciding on the common good, by a group of people who represent the free and fair participation of all. In fact, Habermas addressed discourse and communication throughout his work, beyond the initial foundations in the public sphere (e.g. 1991, 1993, 1996, 1997).

For example, when discussing the foundations of law, Habermas proposes that ‘only those laws count as

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legitimate to which all members of the legal community can assent in a discursive process’ (1996, 110).

Whilst Habermas assumes a formal decision-making body, it nevertheless presumes ‘deliberation and discourse … open to input from civil society’ (Finlayson 2005, 116). The deliberative element of discourse as well as communication informs both the features of collective concerns and transparent communication, and as a result has repercussions for the outcome and participation-based characteristics of legitimisation.

In contrast to Habermas however, the outcome-based characteristic of legitimisation places less emphasis on the discourse itself than on the ‘rational common good’ result of the act of deliberation.

Habermas thoughts on the public sphere and deliberative democracy moreover serve much more as an ideal, with little empirical embedding (on a similar note see Finlayson 2005, 118). Steven Crowell argues that the Habermasian public sphere is a ‘counterfactual ideal whose normative force derives not from social reality but from communicative practices’ (2012, 148). This is why he prefers to focus on a less

‘rationalistic version of his [Habermas] legitimation strategy - one that links argumentation processes of meaning constitution’ (Crowell 2012, 148). This holds more potential for this research, but the focus of this research is not so much on the way of discourse than it is on the results of this. In the practical application of peace negotiations, the discourse argument itself just informs the type of discussion had (with civilian actors) and the results during the talks and afterwards with regards to for example a civilian counterbalance.

Habermas places little emphasis on who actually carries out the rational discourse (beyond the fact that these persons are theoretically free and fair representatives), focusing on the way the discourse is carried out, what repercussions this has and how this interacts with other discourses, i.e. the ‘weak public’ of civil society, versus the ‘strong public’ of formal politics. Whilst the latter point is relevant for the civil actors and the type of role they have, the legitimisation process itself does not change because the civil society have a potentially ‘weaker’ role. As was shown in both cases, despite power imbalances and the very setting of negotiations favouring one set of actors over others, civil society actors were influential in addressing collective concerns, which affected the legitimisation process with regards to the outcome-based legitimisation. What remains, is the lack of emphasis that Habermas places on the actors carrying out the discourse. In the theory of legitimate peace negotiations, actors, too, play a crucial role, albeit a non-exclusive one. This is discussed next.