Reviewing the Constitution: From Blueprint for Iraq's Dissolution to Genuine National Compact?
(An earlier version of this paper was presented at the Naumann-Bertelsmann conference "The New Iraq – A Partner for Europe?" in Brussels on 22 March 2006.)
Today Iraq faces a grave political crisis, with the possibility of full-blown civil war. It is unclear whether a worst-case scenario can still be avoided, but if efforts to prevent a low-intensity sectarian conflict from escalating into all-out fighting are to succeed, one of the key measures that will have to be taken is a review of the fundamental issues that divide Iraq's political parties and communities. These issues appear most definitively in the constitution that was ratified in a popular referendum in October 2005. The question is whether the constitution can still be revisited and changed, and if so, what are the changes that will be needed to help put the country back on the path towards reconciliation, stability and unity.[1]
A Rushed Process
When Iraq's constitutional process commenced, in May 2005, it was meant to be both inclusive and deliberative, and in that way play an important role in restabilising a country that had witnessed a growing insurgency and endemic lawlessness. Two obstacles to these objectives presented themselves at once.[2] First, the country's Sunni Arab community had failed to participate in the first parliamentary elections in January, either in protest over political conditions or fearing polling day violence. As a result, it was vastly underrepresented in the national assembly that emerged from the elections, and consequently also in the constitutional committee that was established in May. Second, the interim constitution, the Transitional Administrative Law (TAL), set an extremely tight timetable for Iraq's political transition, one that mandated a completion of the drafting process by August 15, with the possibility of a single extension of six months.[3]
In the event, the constitutional process was neither inclusive nor deliberative. Instead, at insistent U.S. urging, it was rushed so as to prevent insurgents from taking advantage of the political vacuum arising from an extended transition, and also – an unstated U.S. objective – to allow for a swift hand-over of power to Iraqis and subsequent U.S. troop withdrawal.[4]
In July, after the 55–member drafting committee had started its deliberations, fifteen unelected Sunni Arabs were added to protect their community's vital interests. Within a month, however, discussion of the knottiest issues was moved from the committee to an informal grouping of political party leaders, who tended to gather at party headquarters or leaders' homes, often without inviting Sunni Arab drafters. For all practical purposes, therefore, the latter were re-excluded from the drafting process from early August on. After about a month, they were presented with a document to which they had barely contributed, certainly its key provisions. They consequently decided to reject it as an unacceptable imposition likely to do irreparable harm to their community's fundamental interests, and threatened to boycott the popular referendum scheduled for October 15.
The process, moreover, was rushed by a U.S. government intent on completing the transition as per the TAL-mandated timetable, the end point of which were parliamentary elections on December 15. Although it became clear towards the end of July that the drafters, who had barely been at work for a month, were far from finished, and that there had been no time to seek public input, or even to brief the public about the proceedings and the difficult compromises that would have to be made, the national assembly decided not to avail itself of the option to extend the process by six months, a decision that, according to the TAL, would have had to be made by August 1. Exhortations by senior U.S. officials to get the job done deterred those who either realised they faced an impossible task or saw folly in rushing the drafting of a document so fundamental to the welfare of future Iraqi generations. Having passed up the opportunity to gain extra time, the assembly then faced the obligation to approve a complete draft by August 15.
This deadline proved unrealistic, and therefore was extended several times by default, in flagrant violation of the TAL. In the end, a draft was approved by the Shiite and Kurdish parliamentary blocs in mid-September, printed, published, and distributed throughout the country only two weeks ahead of the referendum. No significant public discussion of its contents took place. Political parties did make efforts to educate citizens but, more frequently, simply urged them to vote either yes or no.
Facing a Sunni Arab boycott of both the referendum and parliamentary elections, and fearing that this might bolster the insurgency, the U.S. brokered a last-minute compromise between the parties in early October. The principal result was the insertion into the constitution, which had already been printed and circulated, of a provision mandating the constitution's early review following the elections. In exchange, Sunni Arabs agreed to participate in the referendum.
The referendum on October 15 saw a significant turn-out, including and especially among Sunni Arabs. According to the TAL, the constitution would pass if approved by an absolute majority of voters nation-wide and if not rejected by a two-thirds majority in at least three governorates. In the event, it was overwhelmingly approved in predominantly Shiite and Kurdish areas and rejected in predominantly Sunni Arab areas. Yet Sunni Arabs managed to breach the two-thirds threshold in only two governorates, Anbar and Salahuddin, falling just 85,000 votes short of doing so in Ninewa. Sunni Arab leaders immediately cried foul, claiming that only fraud had kept them from defeating the constitution. The Independent Electoral Commission of Iraq (IECI) ruled differently, deeming the constitution ratified by public approval.
On balance, the constitutional process was a disaster. It deepened rifts where it was meant to heal them, fuelled the insurgency when it was supposed to have taken the wind out of its sails, encouraged ethnic and sectarian violence and yielded a text that in its ambiguity, internal contradictions, divisiveness, and numerous lacunae carries the seeds of future discord. Weak and lacking consensus, approved by only two out of Iraq's three principal communities, the document that was meant to be a national compact now threatens to be both the prescription and the blueprint for Iraq's dissolution.[5]
Southern Federalism
Of all its deficiencies – of which there are a disturbingly great number – its definition of Iraq's federal structure and distribution of powers is the most divisive. The constitution prescribes a system of federalism that (1) gives overly broad powers to regions, essentially gutting the central state, and (2) allows individual governorates to either turn into federal regions or join with other governorates to become such regions, setting (unlike the TAL) no limit on the number of governorates that can join together.
In Articles 115, 117 and 118, the constitution states: "The federal system in the Republic of Iraq is made up of a capital, regions and decentralised governorates, as well as local governments….The Council of Representatives shall enact, in a period not to exceed six months from the date of its first session, a law that defines the special executing procedures to form regions, by a simple majority of members present….One or more governorates shall have the right to organise into a region based on a request to be voted on in a referendum…"[6]
Regions and governorates will enjoy considerable autonomy, leaving only defence, foreign policy, and fiscal and customs policy to the central government's exclusive control. Other responsibilities, such as health, education, infrastructure, and the administration of customs are shared between the central government and the regions/governorates. The latter have full control over critical areas such as internal security, the preparation of annual regional budgets and, apparently, taxation, which is not explicitly mentioned anywhere.[7]
Implementation of the provision allowing governorates to form regions has raised the spectre of the emergence of a Shiite-run nine-governorate "super-region" in southern Iraq. The notion of "southern federalism" first arose in Basra in 2004 over the realisation that the cause of the region's backwardness despite its great oil wealth was not the Saddam Hussein regime but, as the post-war period showed, neglect at the hands of any central government, even one dominated by Shiite parties. In July 2005 the notion was seized upon by the Supreme Council for the Islamic Revolution in Iraq (SCIRI), apparently as a recruitment tool to shore up the party's relative unpopularity; the party was established in Iranian exile, fought on the Iranian side during the Iran-Iraq war, and since its arrival in Iraq in April 2003 has been widely seen as an Iranian proxy, despite its active attempts to shed its Iranian baggage and pose as a genuine Iraqi party. Although controversial even among Shiites, the southern federalism notion sailed through the rushed drafting process largely undebated and ended up, in all but name, as one of the text's cornerstones. In both the run-up and aftermath of the December elections, SCIRI leader Abd-al-Aziz al-Hakim repeatedly raised southern federalism as his party's battle cry.
There is no certainty, of course, that southern governorates will decide to conglomerate; rivalries and contradictory interests may militate against such an eventuality. However, even the prospect of three or four southern governments uniting into a single region would be extremely threatening to the Sunni Arab community, as such a region would likely control 70-80 percent of Iraq's proven oil reserves, leaving Sunni Arab governorates landlocked and deprived of natural resources. Given such wealth, a southern region would be much more powerful than the central government and could thus prevent an equitable distribution of royalties from oil and gas sales across Iraqi society regardless of any constitutionally-mandated and internationally guaranteed revenue-sharing formula.
If a constitutional review takes place as scheduled, it should seek to uncross Sunni Arab red lines without transgressing Kurdish or Shiite red lines. What Sunni Arab leaders say they want is a redefinition of federalism to mean decentralisation of state power along provincial boundaries (not including the Kurdish region). Significantly, they have come to accept the principle of federalism (they do not want to come under direct control of a strong Shiite-run central state), as well as the existence of the Kurdish region (within its 1992-2003 boundaries).
The question is whether they will be able to muster the simple majority they need to push the changes they seek. After all, why would a minority be able to overturn a constitution that was resoundingly ratified by the majority?
If there is a positive answer to this question, it may lie in the fact that southern federalism is a highly controversial notion even within the Shiite community. It enjoys support only in the Basra region and is endorsed explicitly only by SCIRI. Other parties with significant Basra constituencies, such as the Fadhila (Virtue) party of Nadim al-Jabiry, can also be expected to express support for it, but there could be significant defectors. Prime among them would the movement of Muqtada Sadr, whose mass base is in the slums of Baghdad.[8] Since the constitution deems Baghdad a federal region that is not permitted to join with other governorates or regions (Article 123), and since the Baghdad region has no significant natural resources of its own, its population has no inherent interest in a federal structure that would see other governorates and regions dominate the country's oil wealth.
Other members of the main Shiite list, the United Iraqi Alliance (UIA), might also defect. The breakdown of the UIA's 128 seats in the new national assembly is roughly as follows:
| SCIRI |
30 |
| Sadrists |
30 |
| Da'wa |
25 |
| Fadhila |
15 |
| Independents |
28 |
If one assumes, for the sake of argument, that only SCIRI, Fadhila and perhaps one-half of the UIA's other parliamentarians either fully embrace or condone Iraq's prescribed federal system, and that the Sadrists and the other half of the UIA's parliamentarians oppose it, this would translate into 56 "no" votes. To these should be added the two representatives of Risaliyoun (Messengers), a separate Sadrist party in Baghdad, as well as most, if not all, representatives of other Iraqi parties in the 275-seat national assembly, none of which has significant support in the south. These include, aside from the UIA (128) and Risaliyoun (2):
| Kurdistan Coalition |
53 |
| Iraqi Consensus Front |
44 |
| Iraqi National List |
25 |
| Iraqi Front for National Dialogue |
11 |
| Kurdistan Islamic Union |
5 |
| Reconciliation and Liberation Bloc |
3 |
| Mithal al-Alousi List for the Iraqi Nation |
1 |
| Iraqi Turkoman Front |
1 |
| Al-Rafidayn List |
1 |
| Yazidi Movement for Reform and Progress |
1 |
If one excludes for a moment the 58 Kurdish votes (the KC's 53 plus the KIU's 5), the opponents could muster 143 "no" votes, a slim majority (138 + 5). To be safe, and also to prevent a veto under the two-thirds-majority-in-three-governorates rule that will apply in a referendum following the amendments' approval in the national assembly, the opponents would additionally need the Kurdish votes. This would yield a total of 201 "no" votes, more than a two-thirds majority and therefore probably sufficient to defeat southern federalism.
Two questions present themselves: Is such a coalition possible? And: Why would the Kurds, in particular, join it? The answers remain unclear, and are contingent on rapidly unfolding political conditions. But assuming that a government is formed (preferably a government of national unity) and the constitutional review commences in the first half of 2006, such a coalition would come together over the issue of federalism only with the greatest difficulty. This is for two principal reasons. One, attempts to break up the Shiite alliance will be strongly resisted – over any issue. And two, there is no trust between key players in a putative new alliance, including Muqtada Sadr and INL leader Iyad Allawi, or between Sadr and the Kurds.
Yet concern over the unity of Iraq may drive these disparate actors into each other's arms, despite themselves. Moreover, Iran could play an important role: Having no interest in Iraq's break-up and sensing southern federalism's potential to bring about precisely that outcome, it might be persuaded to back efforts to redefine federalism so as to protect Iraq's unity and thereby its own principal strategic interest – a weak, friendly and united Iraq.
The Kurdish factor in this equation is more complicated. First of all, the Kurds are not committed to Iraq's unity, deeply distrust Muqtada Sadr, and have used the southern federalism issue in the constitutional process to vindicate their own demand for a federal Kurdish region with strong powers. They have no overriding interest in changing their stance – or, indeed, in contemplating any modification of a constitution they consider generally favourable to their fundamental concerns. Yet, opportunity lies in the fact that the Kurds, at the same time, have no great stake in southern federalism and could perhaps be persuaded to alter their stance in exchange for something more attractive.
To the Kurds, the only things that matter are (1) not to have changes in the constitution that would threaten the gains they made in its drafting, and (2) to obtain additional guarantees on the only issue they truly care about: the disposition of Kirkuk. To persuade the Kurds to back federalism's redefinition, Arab parties would have to agree to remove the Kirkuk issue from the equation[9] and provide additional guarantees that the situation in the governorate will be restored to the status quo ante of 1968, the year the Baath party seized power. To the Kurds' Arab partners in this tactical coalition this would surely be a veritable deal of the devil. Such a course may not be necessary, however, as it is unclear whether the Kurds are in a position to press their claim on Kirkuk (see below).
Sharing Iraq's Natural Resources
Some have suggested that Sunni Arabs should be able to live with the type of federalism described in the constitution and even welcome it: It would give them autonomy from potentially vengeful Shiites, while the prospect of major oil finds in their own region (predicted but not guaranteed) should allay their concern of becoming a poverty-stricken rump state. According to this view, all that Sunni Arabs need is a better formula for the distribution of oil and gas revenues, as well as iron-clad guarantees that such a formula will be implemented.
The current formula, as it appears in the constitution, is problematic from several perspectives. The language on oil and gas resources appears in the section of powers of the federal government. First (Article 110), the constitution states that "oil and gas are the property of all the Iraqi people in all the regions and governorates." Then, concerning the sharing of royalties, Article 111 states:
First: The federal government and the governments of the producing regions and governorates shall undertake the management of oil and gas extracted from current fields, provided that the distribution of its revenues occurs fairly, commensurate with the population distribution in all parts of the country, with a fixed allotment for a set period of time for the damaged regions that were unjustly deprived by the former regime as well as the regions that were damaged later on, and in a way that ensures balanced development in different pasts of the country. This is to be regulated by law. [Emphasis added.]
Second: The federal government and the governments of the producing regions and governorates shall together formulate the necessary strategic policies to develop the oil and gas wealth in a way that achieves the highest benefit for the Iraqi people, relying on the most advanced techniques of market principles and investment promotion.
In other words, the federal government must distribute income from exploitation of current oil and gas fields equitably throughout Iraq, with some provisions made temporarily for areas that suffered disproportionately under the past regime. The federal government must additionally work with oil-producing regions to develop the country's natural wealth. But the explicit reference to "current fields" and the omission of any reference to future fields in the section on the powers of the federal government seems to suggest that the latter has no role in the management of fields yet to be developed, nor in the distribution of income deriving from their exploitation.[10] This, at least, is how the Kurds, and possibly others, are likely to interpret this provision.[11]
To Sunni Arabs, this was a red flag. Joined with the structure of the federal system, this provision threatens to cut them out from Iraq's expected additional oil and gas wealth, allotting them a share of royalties from current fields, in addition to any income from fields yet to be found, developed and exploited in their own region. It is well-known, however, that Iraq's current fields are poorly maintained (even mistreated), rely on outdated technology for extraction (vertical versus horizontal drilling), and are gradually depleting. Prospects of finding major oil and gas reserves in Anbar and other Sunni Arab areas are significant, but the question is which international corporations would be willing to invest in exploring and developing oil fields in an unruly region in which insurgents roam, including of the al-Qaeda brand. Moreover, Sunni Arabs believe that Iraq's new Shiite and Kurdish rulers will consider their own regions as disadvantaged under the previous regime and the Sunni Arab areas to have been its principal beneficiaries, and will want to rectify this. Evidence to the contrary will be irrelevant: the constitution does not provide for an independent arbiter.
Shiites, too, are dissatisfied with this formula. Hussain al-Shahristani, the national assembly's deputy speaker in 2005 and a prominent independent UIA member, has denounced the formula's ambiguity and warned that no oil company would invest resources in Iraq as long as this article is not amended during the review process.[12] The UIA reportedly wants production in "future fields" also to be included under the federal government's powers.[13] Given its majority and a possible tactical alliance with Sunni Arabs against he Kurds on this issue, the UIA might well succeed in pushing through an alternative formula in the review committee, although it would then still need to overcome a Kurdish veto of the overall package in a popular referendum.
A better formula for wealth management and distribution would contain three key elements: (1) transparency, to reassure all sides that no party is cheating, and to reassure the public that the government and extracting companies are not siphoning off a share of the proceeds; (2) federal government control over natural resources management (of both current and yet-to-be-developed fields) and income distribution, but with appropriate checks and balances to prevent abuse and the return of an all- powerful and repressive central state; and (3) mechanisms for independent oversight and auditing. Such an arrangement has the potential of benefiting all Iraqis equally.
Even if adopted, however, it alone is unlikely to appease Sunni Arabs – or to preserve Iraq's unity. After all, there is no guarantee that a fairer arrangement will be implemented if southern governorates join to form a large region covering most of Iraq's oil and gas resources. Under the terms of this constitution, the central state is going to be weak in any event. In such a scenario, however, it would certainly be much weaker than that wealthy region's government. This is why Sunni Arabs will not content themselves with only a new revenue-sharing formula but will also insist on a new definition of federalism, one that would decentralise state power strictly along provincial boundaries.
Status of Kirkuk
One question that has complicated the political process and is likely to bedevil it further is the matter of Kirkuk. The constitution recognises the existing Kurdish region and sets a timetable for resolving the status of Kirkuk and other "disputed" territories, most of which are areas to which the Kurds lay exclusive claim. (There are some disputed provincial boundaries in southern governorates as well.)
First of all, the constitution retains Article 58 of the TAL, which provided for a reversal of Arabisation in Kirkuk and other disputed territories. It also considers legislation enacted in Kurdistan since 1992 as remaining in force. Then, it states in Article 140(2):
The responsibility placed upon the executive branch of the Transitional Government stipulated in Article 58 of the Law of Administration for the State of Iraq for the Transitional Period shall be extended and conferred upon the executive authority elected in accordance with this constitution, provided that it completes normalisation, a census, and a referendum in Kirkuk and other disputed territories to determine the will of their citizens before 31 December 2007.
"Normalisation" to the Kurds signifies a return to a situation similar to that before the Baath regime's major Arabisation campaigns, and comprises the following measures: repatriation of displaced persons (mainly Kurds), monetary incentives and logistical assistance for Arabs settled in these territories to leave, and a return to Kirkuk's previous provincial boundaries, i.e., including majority-Kurdish districts that the Baath regime attached to neighbouring governorates.
This strategy is actively resisted by Kirkuk's other main population groups – Arabs and Turkomans – who have expressed their refusal to be incorporated into the Kurdish region, via a future referendum or otherwise. It is also opposed by a broad sector of Arab opinion in Iraq. This same sentiment exists in other territories claimed by the Kurds that have mixed populations.
Since their strong showing in the January 2005 elections, the Kurds have become kingmakers in Iraqi politics – ironically, given their deep desire to separate from Iraq. What the Kurds have been trying to do, in politics and in constitutional negotiations, is to maximise the possibility of their future peaceful secession by extending their region's boundaries and enhancing its powers and access to resources. This has caused a good deal of resentment towards them, and this, in turn, has only led them to redouble their efforts to seize Kirkuk and other territories through political pressure in Baghdad, as well as by a policy of creeping political and military take-over in these territories themselves.
The Kurds' adamant opposition to the UIA's election of Ibrahim Ja'fari as its candidate for prime minister illustrated both the Kurds' power and the importance of especially the Kirkuk issue. The principal reason why the Kurds opposed Ja'fari was that he not only failed to facilitate "normalisation" during his tenure as prime minister in 2005, despite an explicit commitment made in the governing accord signed by the Shiite and Kurdish lists in April 2005,[14] but also that he has become beholden to Muqtada Sadr, owing to the latter's support in the internal UIA election, which proved decisive. Of all Iraqi leaders, Sadr is the only one to have actively sought to organise Kirkuk's Shiite Arab population, the very same people who were settled there by the Baath regime and whom the Kurds want out. In other words, the Kurds face the prospect of having a government (potentially for four years) that not only will try to slow their efforts at restoring the status quo ante in Kirkuk, but may actively resist these by supporting that segment of the governorate's population whose numbers will complicate the Kurds' ambition to incorporate Kirkuk into the Kurdish region via a referendum in 2007.
The Kurds hope that their strategy will succeed nevertheless. They have the funds and the capability to settle a great number of displaced Kirkuki Kurds in the Kirkuk countryside, with the help of foreign governments that have supported village rehabilitation. In fact, the constitution's explicit time table for the resolution of Kirkuk's status encourages mischief in the form of demographic manipulation ahead of a popular referendum. The absence of an independent oversight mechanism to determine who is and who is not a legitimate resident of Kirkuk and who was or was not expelled illegally in eras past allows Kirkuk's Arabs and Turkomans to claim that the Kurds are settling people in Kirkuk who do not originate there.
With additional numbers, Kurdish leaders believe they can win the 2007 referendum based on a simple-majority vote.[15] To the Kurds, Kirkuk with its oil wealth is their ticket to independence. They argue, persuasively, that they cannot be forces to stay inside Iraq. At the same time, however, the Kurdish leadership seems to recognise that, due to regional conditions, independence is not currently a realistic option. "Normalisation" should therefore be seen as a process designed with an eye to the distant future and may not be the simple mechanism by which Kirkuk will fall into the Kurds' lap by referendum.
Moreover, Kurdish leaders also know that Kirkuk's Turkomans and Arabs (both indigenous Sunni Arabs and Shiite Arab settlers) are likely to boycott a referendum they consider unfair, or reject its results, and they may actively seek to sabotage any Kurdish attempt to incorporate Kirkuk into the Kurdish region. They also realise that the Kirkuk oil field is old, over-exploited and rapidly depleting. Even with a rich oil field, a Kurdish entity would remain dependent economically on Arab Iraq as well as neighbours such as Turkey. After all, Kirkuk crude must for now be piped to the refinery in Baji in Sunni Arab Iraq and then exported via Turkey's Mediterranean port of Ceyhan. All of these factors should make the Kurds think twice about seizing Kirkuk, and thereby render a negotiated settlement possible. The threat of Turkish intervention only reinforces such a scenario.
For now, the best option would be to appoint an international mediator to broker a postponement of Kirkuk's final disposition. During an interim period, displaced Kirkukis should be permitted to return, the governorate should enjoy special federal status, much like Baghdad, and its government should be shared between its principal communities. Effectively, however, given current realities, the governorate will increasingly fall under Kurdish influence. The same may be true for other territories claimed by the Kurds.
To enable such an option, the constitution should be changed accordingly during the review. Needless to say, this would entail difficult negotiations, as the Kirkuk question has constituted a Kurdish red line until now over which they could exercise a veto during a popular referendum following the review. The Kurds may have to reconsider their position on this, as the alternative to a negotiated settlement could well be civil war in Kirkuk and foreign military intervention.
To Review or Not to Review
If the constitutional review takes place as scheduled, the only way in which it will succeed is if Shiite and Kurdish leaders agree to significant compromises that un-cross Sunni Arab red lines without harming their own fundamental interests. Given Shiite buoyancy over their electoral victories in January and December 2005, however, and their belief that demands for compromise aim to cheat them out of their historic opportunity to rule an Arab state, the Shiites are unlikely to concede much, if anything. Shiite politicians have already suggested that the UIA will have little appetite for constitutional negotiations as long as violence continues – a warning to Sunni Arab politicians to stop hiding behind insurgents (in other words, to stop using insurgent violence as a political lever) and to insurgents to stop hiding behind foreign jihadis such as Abu Mus'ab al-Zarqawi who have declared all-out war on the Shiites.[16] The Kurds may be more malleable, given their more vulnerable position as a minority and their region's isolation.
Yet, the kinds of compromises that are required, and the need to present them as a single package to the electorate, militate against an early resolution of the constitutional question. Moreover, in the current polarised, winner-take-all climate, chances appear slim that Sunni Arabs will be able to change the constitution on their key red-line concern: the structure of federalism. Consequently, they may desert the political process, reinvigorate the insurgency, and ignite further cycles of sectarian violence.
To prevent such an eventuality, there has been much talk of postponing the constitutional review, perhaps even for four years, in exchange for an equal delay in the implementation of the constitution's key provisions, especially concerning federalism and Kirkuk. This proposal's main advantage is that it will kick inflammatory issues down the road. It is unclear, however, whether Iraq's political leaders will accept such a delay. It is also unclear how it could be done legally, as the constitution clearly mandates a four-month review after the newly elected national assembly begins its work.
The compromise solution that is being discussed involves proceeding with the review but limiting it to lesser but nonetheless very important issues, such as oil-revenue sharing, the division of powers between federal government and regions, the division of power between the three branches of government, the structure of the Federation Council, de-Baathification, and so on. Federalism and the Kirkuk question would be postponed.[17] Even then, one could ask how matters of such gravity and complexity could be resolved in a mere four months; last year's experience shows that at the end of a rushed process waits disaster. Perhaps an amendment could be adopted at the outset of the review process to extend the timeline from four to ten or even twelve months.
In conclusion, more things are needed than an overhaul of the constitution to re-stabilise Iraq: establishment of a national unity government; building security forces in an inclusive, non-sectarian manner; enhancing understanding and trust among Iraq's neighbours about each other's fundamental interests, perceptions and intentions, and so on. Most importantly, the new government, if it is truly one of national unity, should take advantage of an improved security situation (if insurgents decide to at least tolerate the political process and marginalise anti-Shiite Salafist jihadis of Zarqawi's ilk) to press ahead with policies that matter most to most Iraqis, who remain deeply sceptical of their elected leaders (many of them former exiles). Key issues include: reducing lawlessness, tackling unemployment, and reversing power and gasoline shortages.
Only with full public support and mutual trust can the leaders of Iraq's diverse communities proceed with the difficult task of forging a genuine national compact to replace the current dreadfully inadequate and dangerously divisive constitution.
April 2006
[1] This paper is based on interviews with Iraqis and others in Baghdad, Amman and elsewhere in the period May 2005 – March 2006.
[2] For background, see International Crisis Group, Iraq’s Constitutional Challenge, November 2003, at: http://www.crisisgroup.org/home/index.cfm?id=2369&l=1; and International Crisis Group, Iraq: Don’t Rush the Constitution, June 2005, at: http://www.crisisgroup.org/home/index.cfm?id=3506&l=1.
[3] The TAL can be found at: http://www.cpa-iraq.org/government/TAL.html.
[4] See International Crisis Group, Unmaking Iraq: A Constitutional Process Gone Awry, September 2005, at: http://www.crisisgroup.org/home/index.cfm?id=3703&l=1.
[5] For a similar analysis, see Jonathan Morrow, Iraq's Constitutional Process II: An Opportunity Lost, U.S. Institute of Peace, December 2005, at: http://www.usip.org/pubs/specialreports/sr155.html.
[6] Because of numerous late changes to the constitution, different drafts have circulated that have served to confuse. The draft submitted to popular referendum on 15 October 2005 can be found at: http://www.ieciraq.org/final%20cand/Draft%20Constitution_2005%5B1%5D.09.20_En.pdf. However, this version does not include the last-minute changes concerning the constitution's early review, and therefore has incorrect numbering.
[7] In Article 114, it states that "all powers not stipulated as the federal government's exclusive powers shall be considered powers of the regions and non-amalgamated governorates." Moreover, it stipulates (Article 120) that a regional government can amend any federal law it deems inconsistent with its own legislation if it concerns a matter not within the central government's exclusive remit. Should a dispute arise over shared responsibilities, the region's law will trump the central government's.
[8] The Sadr movement opposed southern federalism until the bombing of the important Shiite Al-Askariya shrine in Samarra on 22 February 2006. It then declared its support, but this position is likely to be temporary, informed by public outrage rather than a modified strategic vision.
[9] They could take Kirkuk out of this equation by reasserting the constitutional provision that any governorate can join a region and applying it exceptionally to Kirkuk governorate. See below.
[10] See Article 114, cited in footnote 7 above.
[11] See International Crisis Group, Unmaking Iraq, p. 7.
[12] Interview, Brussels, 23 March 2006.
[13] See International Crisis Group, Unmaking Iraq, p. 7.
[14] The text of the agreement between the United Iraqi Alliance and the Kurdistan Coalition List, “Foundations and Principles Agreed by the UIA and KLC Concerning the Operation of the Interim Government”, posted on 13 April 2005, is available in Arabic from the website http://www.iraq4allnews.dk/.
[15] Article130 of the constitution states: “Every referendum mentioned in this constitution will succeed if approved by a majority of the voters, unless otherwise stipulated.”
[16] Interviews with Jaber Habib Jaber and Hussain al-Sharistani, both independent UIA members, Brussels, 22-23 March 2006.
[17] In any event, regions will not be formed for some time. The mechanism for doing so is yet to be defined through legislation, and this is unlikely to occur before the review process has been completed and the amendments have been ratified in a popular referendum.