Many constitutions of the world contain special provisions for indigenous communities, granting them particular rights and regulating their traditional political institutions and customary law. Building on rational theories of constitution-making, we employ a demand and supply framework to explain the constitutionalization of such provisions. To test our hypotheses, we code the presence of indigenous provisions in the current constitutions of 193 United Nations member states. We find full democracy and previous conflict to stimulate the inclusion of indigenous group rights but not of customary law and traditional institutions. Customary law and traditional institutions are more likely constitutionalized in countries with high ethnic fractionalization. Low levels of modernity affect particularly the constitutionalization of traditional political institutions, while low levels of development correlate with provisions on customary law. Former British colonies are more likely to constitutionalize customary law.

Traditional political systems (TPS) are an important part of the political landscape in Africa. They govern subnational communities and differ from nation states, both in their institutional set-up as well as in their legitimacy. Yet, we have little comparative knowledge on these political systems and, in particular, whether they can be described as democratic. In this article, we analyse the democraticness of TPS based on a new expert survey. Using confirmatory factor analysis (CFA), we show that the more than 140 ethnic groups we analyse vary meaningfully in their democraticness. Measures of public preference input and of political process control contribute particularly to a latent measure of democraticness. Furthermore, we find some indication for regionally interdependent institutions, with slightly more democratic systems in Southern Africa and less democratic systems in West Africa. Yet, no such interdependence exists between the state and the group level. Finally, we find that more hierarchically organized political systems, kings, and chiefs, as well as those organized in segments, are on average less democratic, while the presence of elders is associated with higher levels of democraticness.

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