Reimagining a feminist social contract in fragile and conflict setting

This essay focuses on social contracts in fragile and conflict settings. First, it briefly reviews the definitions of the concepts of ‘social contract’, fragility and feminist social contract. It then discusses social contracts in fragile settings to determine what these mean for various categories of people living in these contexts. Next, the essay redefines social contracts in fragile and conflict settings. Lastly, it makes proposals for re-establishing feminist social contracts in such settings. In addition to a review of literature on the subject matter, the essay also draws on discussions during ‘Reimagining Feminist and Anti-racist Social Contracts: a feminist convening’, organised by Christian Aid in May 2022, and discussions held with Christian Aid colleagues working in South Sudan and Palestine.

In their 2014 ground-breaking book Social Contracts Revisited: the promise of human rights, Gita Sen and Marina Durano define a social contract as a collective agreement that is built on and infused with power and acknowledged that social contract are embedded in the political economy of power and inequality which is multifaceted, diverse and fluid in situations of instability. ^[1] They recognise that social contracts could be fractured, and called for a feminist analysis to better understand the dynamics of gender relations and how they are shaped by political economy, ecology, militarisation and conflict, as well as other systems and processes. They suggest that it would be productive to use social justice and human rights as analytical tools to examine what is and what ought to be.

Various authors have presented different perspectives of a social contract as an analytical tool^[2] to assess agreement between state and society on their mutual roles and responsibilities, ^[3] and a process by which everyone in a political community consents to state authority^[4] and to complying with the state’s laws, rules and practices in pursuit of broader common goals, such as security, protection and basic services. The human rights and justice perspectives provide a more adequate framework to discuss social contracts in fragile settings as they enable the use ^[2] of intersectionality and justice for citizens, with the recognition that citizens are not a homogenous group and these rights are located in both the private and public spheres.

Fragility has been defined as a situation characterised by the weak capacity of the state to carry out the basic function of governing its citizens, low trust between the state and citizens, and limited political will. ^[5] The factors that determine fragility include weak governance, limited administrative capacity, persistent humanitarian crises, enduring social tensions, and violence or a legacy of armed conflict and civil war. In recent decades, countries such as South Sudan, the Democratic Republic of Congo and Afghanistan have been characterised by these factors. This does not mean that developed countries do not experience fragility; they do, depending on which of the factors apply at a time, particularly if we expand the definition of weak governance or if we view social contracts from the ability of the state to protect its citizens’ basic human rights. If the issue of basic human rights is used for analysis, most developed countries could be described as fragile. However, for the purpose of this essay, fragility will be used to describe places recovering from active conflicts with weak governance, limited or no administrative capacity, and existing humanitarian crises.

In situations of fragility and conflict, human rights violations occur in the form of violence perpetuated against civilians and a lack of respect for their social, economic and political rights. These violations happen with impunity due to a lack of rule of law. In whatever situation, the central role of the state is to ensure that the human rights of its citizens are protected. In this way, the state has obligations as a duty-bearer towards rights holders. To ensure the protection of civilians in fragile and conflict settings the UN in 2005 brought into force the ‘responsibility to protect’ principle. Its three pillars are:

1. the responsibility of each state to protect its population,
2. the responsibility of the international community to assist states in protecting their population, and
3. the responsibility of the international community to protect when a state is manifestly failing to protect its population. ^[6]

These principles guarantee the rights of citizens in fragile and conflict settings, however, the extent to which they have been applied is questionable, particularly for states in fragility.

Earlier notions of social contract agree that before living in a society informed by laws and rules, human beings resided in a state of nature. The social contract marked the transition from ^[3] the state of nature to civil society. The definition of civil society, its legitimacy, and the lack of recognition of how the individual and freedom were conceived within society is the challenge for feminists. Feminist critique argues that social contracts are a means for men to subjugate women legitimately, based on class relations and promote the dichotomy between the private and the public. The definitions described earlier assume that everyone has access to public systems and services, when in fact the private is assigned to women and the public is dominated by men. For example, Carole Pateman in The Sexual Contract^[7] asserts that there has been an implied contract among men to enforce patriarchy. While the ‘social contract is a story of freedom,’ the sexual contract that accompanies it ‘is a story of subjugation’. According to Pateman, the sexual contract is submerged in modern (patriarchal) civil society through the marriage contract.

In addition to the issue of patriarchy, feminists level criticism on the social contract for its assumptions around individualism. The liberal individual is assumed to be universal, raceless, classless and sexless; in a way, the individual becomes an abstract concept. Feminists argue that beneath the language of ‘free and equal’ individuals in a state of nature are very unequal beings who are not universal or natural but rather situated in particular social relationships in a particular historical paradigm. Feminists advance that since social contract theorists ignore the issue of gender among others, they do not provide a theory of legitimacy but rather a legitimisation of male domination in society. The lack of recognition of the multi-layered, intersectional nature of individuals – particularly women – in defining social contracts is a major gap that feminism seeks to correct. In situations of fragility, where states cease to exist, the idea of a social contract is set to change or cease to exist as well. It is this context that I turn to in the discussion. 

The dilemma of discussing social contracts in fragile settings is that research and literature on citizens' perceptions of social contracts are not well developed. Most has focused more on the intersection between fragility, development and social contracts. The question would be, do social contracts exist in fragile and conflict settings and if so, are they between the state and citizens, between humanitarian actors and citizens, or between citizens and local institutions? During Christian Aid’s online global conference ‘Reimagining Feminist and Anti-racist Social Contracts’, it was generally agreed that most citizens living in fragility do not fully understand ^[4] the roles and responsibilities of the state. In fragile settings when states are in the recovery phase most of the development focus on securing their borders, strengthening military power, establishing rule of law, and installing legitimate governments through elections. Citizens are usually not consulted on their priorities, thus in such scenarios, the root causes of the conflict are usually not addressed in the post-conflict reconstruction process. Despite support from the international community, states in fragility marginalise the needs of the population and focus on their own needs of power sharing and legitimising the state. Within such practices, the gender perspective is lost. States usually define and locate women in the private sphere and do not consult or take into account their specific needs. Thus in fragile settings states reinforce inequality, unequal power relations, and patterns of exclusion and discrimination against women due to the lack of intersectional approaches to rebuilding.

The nature of conflict determines how unequal power relations and violence, and patterns of exclusion, impact different categories of women. These patterns operate at different levels of society in the private and public spheres and are usually rooted in pre-existing social norms. In situations of occupation, the social contract would be the responsibility of the state and the occupier depending on the location of citizens and the dynamics at a specific time. For instance, Israel, the occupier of the occupied Palestinian territory, has the legal obligation to protect women there, however, this has not been the case. On the other hand, the Palestinian Authority which administrates areas A and B of the West Bank has the responsibility to protect Palestinian citizens within the Palestinian State, but this has not been possible due to the occupation and fragmentation between the West Bank and Gaza. Women living in the occupied Palestinian territory are diverse and suffer multiple layers of human rights violations. ^[8] In addition, most laws are not favourable to women, further weakening their ability to demand a social contract from the state. In Gaza, women’s rights encountered significant impediments with Hamas: their basic rights are systematically denied. Women face widespread discrimination in the economic and social sectors. In the absence of necessary laws, violence against women continues at an alarming rate.^[9] With such levels of marginalisation and discrimination, it is practically impossible for women and girls in such settings to articulate or demand a social contract with the state.

A similar situation is playing out in Afghanistan, where women have been deprived of the right to education. ^[10] Although some schools have been allowed to open again and in some regions girls attend, the numbers are still very low. It is difficult to demand some of these services and 5 rights from a state – any attempt by women's rights activists to protest such violations has been met with resistance from the state.

The extent of the impact of violence resulting from conflicts, such as in displacement and refugee settings, also signifies the nature and level of exclusion women experience. In internally displaced person’s (IDP) camps where citizens, particularly women, live under the protection of the state, the nature of social contracts is fluid and flawed. In many instances, states have failed to protect people’s lives or women from sexual and gender-based violence, while failing to provide adequate social services for people to live in dignity. In northern Uganda, South Sudan, Sudan, Mali, Nigeria and the Central African Republic, several cases of attacks on IDPs and lack of access to health services and water have been reported.^[11][12] Most services such as medical care, water, education, shelter and protection are provided by humanitarian actors, mostly through international development agencies. ^[13] On the other hand, it is important to note that communities hosting IDPs equally suffer from similar deprivation, particularly in post-conflict settings, yet very little is done by humanitarian actors to provide social services for these host communities who have also lost basic social needs. ^[14] In both IDP camps and their host communities the concept of a social contract with the government is undermined, non-existent or not known by the populations

In refugee settings, the concept of a social contract is not known by the refugees and there is no framework for accountability. There is usually the expectation that humanitarian actors will provide protection and basic needs for refugees to survive. Since in most cases, the international community is obliged to provide protection and by extension humanitarian support based on the ‘responsibility to protect’ principle, it is often viewed and perceived as the main holder of the social contract in such settings. To some extent this is correct. One of the challenges with the humanitarian approach in fragile contexts is the lack of participation of IDPs, refugees and citizens in deciding the nature of humanitarian assistance. In most cases this has led to humanitarian responses that are not sensitive to the needs of refugees, particularly considering that they are not homogenous.

Based on this, it seems that social contracts do exist in fragile settings, particularly in IDP camps, refugee settings and situations of occupation. These settings are thronged with uncertainties and complexities together with limited or no state intervention due to the deprioritisation of the human security of citizens living in fragility. The challenge is knowing 6 who is responsible for social contracts in these settings. The lack of prioritisation of the basic needs and rights of citizens is based on the assumption that international development actors who provide support will normally also provide basic needs and rights for the population. This approach is detrimental to women and marginalised groups. Recalling the definition of a social contract as a public sphere where women are usually marginalised, it becomes difficult to see the multiple vulnerabilities that women and girls are exposed to in such settings, particularly around the provision of their specific basic needs and protection. I can conclude that in situations where there is no protection for people, it is particularly women’s and girls’ social contracts that are broken. There are layers of vulnerabilities that citizens living in fragile settings do not have control over and cannot hold the state accountable for because there are no social accountability mechanisms. Accountability of the state to its citizens does not exist because of the disconnect between the state and citizens not only in fragile settings but generally in Africa: citizens are unaware of the role of the state and its responsibility to provide public goods. This lack of understanding is due to how the state was established right from independence. Post-colonial states were predicated on the quest for democracy through elections; however electoral processes in most of these countries remain the preoccupation of elites who exploit the population in favour of the quest to acquire political leadership. The same approach is applicable in post-conflict settings, where democratic elections are based on power-sharing principles with no interaction between the politicians and the citizens to renegotiate citizens’ expectations from the political class. Until the state-citizen relationship is redefined, the achievement of social contracts will remain a mirage.

In fragile settings such as those described above, it has also been observed that non-state actors such as religious institutions, cultural groups and local non-governmental organisations (NGOs) take up the role of providing social services and therefore establish social contracts with citizens. Religious institutions have well-developed frameworks and plans for humanitarian response and for development interventions in fragile and conflict settings. Such interventions expand beyond their membership, and in some cases are used to recruit and co-opt non-members, who then see the support provided as legitimate and deserved. In some cases, user groups are formed to monitor the implementation of social contracts and accountability may be demanded. Many religious groups, women’s groups and other civil society groups often conduct outreach activities for IDPs in refugee camps, starting by identifying needs and raising funds to address these needs. As such, an accountability mechanism is developed between the service provider and the target population on the one hand and between these two and the 7 funder(s) on the other. In many fragile countries such as South Sudan, some communities establish social contracts with these institutions and actually expect them to play the role of the government as the presence of government may not be felt. Such social contracts exist in many fragile and conflict settings and seem to take over the responsibility of the state. What may be lacking is that the providers of social contracts do not have the capability to prevent violence or ensure the protection of the rights of citizens, as these are usually outside their mandate.

Based on the understanding of the lack of interaction between citizens and the state in fragile and conflict settings, there is a need to redefine social contracts to enable the process of genuine state–citizen relations that would address social needs and guarantee the protection of all citizens. What then should social contracts in fragile settings look like and how will they be developed?

The definition of a social contract that enables the interrogation of the power dynamics (including gender power relations) between the state and the society/citizens and between individuals within the state provides an opportunity for an inclusive process. Such a process would take into account the various needs and aspirations of different groups of citizens including marginalised people, ensuring that policies and their outcomes reflect these.

In ceding power to the state, citizens must first understand the full scale of the implications of such powers and how they should be used by the state, thus the need to agree on an accountability mechanism becomes paramount in the process of redefining social contracts. The first level in the renegotiation is to ensure that citizens, particularly the usually marginalised population, understand the roles and responsibilities of the state as right holders and their own roles as recipients of these rights. However, in fragile settings, it would seem that there is limited opportunity to renegotiate the social contract, as states have disordered political arrangements, weak legitimacy and limited capacity to deliver services. Hence states and societies are not bound in mutually reinforcing ways. Opportunities are provided for redress in such settings through peacebuilding processes, such as during the development of peace agreements and post-conflict reconstruction plans and policies.

Peace processes must adopt a bottom-up approach that enables the redefinition of the social contract with citizens’ input for the type of social contract they desire. This process must take 8 place before they cede power to leaders. Such a process must consciously ensure the inclusion of different categories of women, men, girls and boys among IDPs, refugees, persons with disabilities, older people, young people and the population directly impacted by the conflict and fragility. The humanitarian response should equally adopt such an inclusive approach to gather the information that will inform the needs of the population needing support. While it is important on moral grounds for humanitarian actors to respond during a crisis, there must be an understanding that the state has the sole responsibility to guarantee the social contract, and that the intervention of humanitarian actors is on a temporary basis. This is to avoid the population believing that humanitarian actors are responsible for ensuring the social contract instead of the state. On the other hand, in fragile and conflict settings communities do have informal structures that take leadership in the absence of the state; although not legalised these could act as a framework to redefine a social contract between citizens and the state.

In situations where people are displaced and live as refugees, the idea of a social contract becomes more complicated: their expectations of the newly acquired state of refuge are protection and the provision of basic needs. In most cases, such states do provide the space and to some extent security but not the infrastructures needed, such as housing, water and health services. Social services are normally provided by humanitarian actors who are usually external. In fact, some fragile and conflict-affected states require humanitarian actors to share their work plans and budgets, which are usually approved only if they focus on providing social services. In such cases, the state strategically adjudicates its responsibility to humanitarian actors and NGOs as we have seen in South Sudan. This is not sustainable as such interventions are only temporary as states begin the process of rebuilding. This approach is detrimental to fragile communities who are unaware of the time frame for fragility, particularly marginalised members of these societies.

Considering the complex nature of the relationship between the state and citizens in fragile and conflict settings, it is important to ensure a rights and justice approach, as suggested by Sen and Durano, is given due consideration. The following suggestions are put forward as feminist proposals for re-establishing social contracts in fragile and conflict settings:

1. Recognise the differences among people and within specific groups. Address how these differences intersect with other factors to prevent the full realisation of rights and justice.
2. Address the power relations between the state and citizens and women and men and between different groups to enable a more inclusive social contract that addresses the different needs of the society. This could be done through continuous interrogation of power relationships at different levels and providing level playing platforms to enable genuine conversation on the needs and expectations of different categories of people, including women, men, women with disabilities, women living with HIV, gender nonconforming people, women and girl refugees, displaced women and women survivors of conflict-related sexual violence.
3. In the absence of strong governments, identify and use religious and traditional structures within communities that could serve as alternatives while taking care to avoid marginalisation and discrimination. Such structures have been found effective during conflicts and in fragile settings and could be the body that convenes citizens to develop social contracts which could be built on once the government becomes functional.
4. Adopt a human rights approach that guarantees the rights of all citizens. This will also provide an avenue for accountability as the state is responsible for guaranteeing the rights of people.
5. Ensure that peacebuilding and rebuilding processes define and locate women in the private sphere, consult them and take into account their specific needs. In gathering the needs care must be taken to avoid reinforcing inequality, unequal power relations, and patterns of exclusion and discrimination against women. It is also important to ensure that the different layers of inequalities are identified by adopting intersectional approaches to rebuilding.
6. Create awareness among the general population of the roles and responsibilities of the government, and ensure differentiation is made between the roles of government and development partners to address wrong expectations. Such a programme should 10 develop a monitoring and accountability mechanism for tracking the government's provision of goods and services, and its protection of citizens.
7. The international community must ensure that responses are developed with the perspectives of people affected by conflict or living in fragility. Such a bottom-up approach, working with local communities, will enable the development of interventions that address the needs of the population.

To reimagine a feminist and anti-racist social contract in fragile and conflict settings, it is important to redefine the social contract taking into account the historical violations of rights and how colonialisation defined systems of governance that created discrimination and marginalisation. It is also prudent to enable the interrogation of the power relationships between citizens and the state and among citizens who are also differentiated based on sex, class, ethnicity and capabilities. The interrogation of power relationships will enable open discussions on what should constitute a social contract, and whose responsibility is it to deliver on such expectations. Such a process will strengthen the understanding of citizens on the role of the state as right holders and their own role in demanding such rights and holding the state accountable. Without such understanding, states will remain elusive in delivering social contracts. A feminist social contract, therefore, calls for intersectional approaches that will address marginalisation, discrimination and the violation of the human rights of all categories of the population.

[1] Summary of the Remaking of Social Contracts: Feminist in a Fierce New World, Gita Sen and Marina Durano (eds), 2014.

[2] Social Contracts for Development: Bargaining, Contention, and Social Inclusion in Sub-Saharan Africa, Mathieu Cloutier, Bernard Harborne, Deborah Isser et al, Africa Development Forum. Washington, DC: World Bank, 2021, p2, doi:10.1596/978-1-4648-1662-8.

[3] Ibid.

[4] Engaged Societies, Responsive States: The Social Contract in Situations of Conflict and Fragility, UNDP and Norwegian Peacebuilding Resource Centre, 2016, 11 www.undp.org/sites/g/files/zskgke326/files/publications/Social_Contract_in_Situations_of_Conflict_and_Fragil ity.pdf

[5] Special Report: Perspectives on Capacity Development in Fragile Situations, Heather Baser, OECD, 2011, www.oecd.org/dac/conflict-fragility-resilience/governance/docs/48311487.pdf

[6] Responsibility to protect (About page), UN Office on Genocide Prevention and the Responsibility to Protect, 2005, www.un.org/en/genocideprevention/about-responsibility-to-protect.shtml

[7] The sexual contract, Carole Pateman, Stanford: Stanford University Press, 1988.

[8] The misogynist representation of women in Palestinian oral tradition: a socio-political study, Bilal Tawfiq Hamamra, Journal of Gender Studies, 2020, 29(2), DOI: 10.1080/09589236.2019.1604328.

[9] ‘The Status of Women in Gaza’, Israel Defence Forces, www.idf.il/en/mini-sites/hamas/the-status-of-women-in-gaza

[10] ‘Responding to Taliban Attacks on Women’s Rights, Heather Barr, Human Rights Watch’, 30 March 2022, www.hrw.org/news/2022/03/30/responding-taliban-attacks-womens-rights

[11] ‘Sexual Abuse Thrives in Nigeria’s IDP Camps with No Recourse for Victims’, Jannifer Ugwa, Women’s Media Center, 28 May 2021, https://womensmediacenter.com/women-under-siege/sexual-abuse-thrives-in-nigerias-idp-camps-with-no-recourse-for-victims

[12] ‘Mali sees highest levels of displacement in its recent history due to a dangerous combination of conflict and climate change’, Reliefweb, 4 November 2021, https://reliefweb.int/report/mali/mali-sees-highest-levels-displacement-its-recent-history-due-dangerous-combination

[13] Emergency Response: Ethiopia, Alight, https://wearealight.org/emergency-response-crisis-in-sudan

[14] ‘Why communities hosting internally displaced persons in the Sahel need stronger and more effective legal protection’, International Review of the Red Cross, 2022, https://international-review.icrc.org/articles/whycommunities-hosting-idps-in-sahel-need-more-effective-legal-protection-91