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Iraq's constitution on the edge

About the author

Sami Zubaida is emeritus professor of politics and sociology at Birkbeck College, London. He is the author of Beyond Islam: A New Understanding of the Middle East (IB Tauris, 2011)

His earlier books include Islam, the People and the State: Political Ideas and Movements in the Middle East (IB Tauris, 1993); A Taste of Thyme: Culinary Cultures of the Middle East (IB Tauris, 2001); and Law and Power in the Islamic World (IB Tauris, 2005)

The Iraqi constitutional talks are proving intractable, the conflicts of principle at stake fundamental. The negotiations between the parties, under American pressure for speedy agreement, are unlikely to achieve more than gloss and a postponement of hard decisions.

This itself reveals a basic truth. Political solutions through compromise are often reached between parties sharing a critical mass of mutual interests that give them incentives to resolve their differences. This is not the case in Iraq, whose shattered economy and devastated society have isolated communities and regions, leaving few bonds of mutual dependence and benefits in common benefits.

The most important source of wealth in Iraq – oil – divides rather than unites. Saddam Hussein and his clique controlled the country through the monopoly over access to that vital resource, and now the rival parties are haggling over the division, with the threat of depriving Saddam’s former constituency of Sunni Arabs from its benefits.

The two main issues of conflict – federalism and religion – are closely linked to this resource question.

Also in openDemocracy:

Zaid Al-Ali, “Iraq: a constitution or an epitaph?” (16 August 2005)

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Federalism: solution or curse?

A secure federal region in their northern redoubts has been the cornerstone of Kurdish demands. From 1991, following the war that ejected Saddam’s forces from Kuwait, the Kurdish region had an autonomous government and a kind of standing army, under western guarantee. A federal solution for Iraq as a whole would thus be a constitutional ratification of the prevailing situation.

Iraqi and Arab nationalists, both Sunni and Shi’a, have never been keen on the federal idea; each would prefer a strong central government under its control. However, agreement on the principle of federalism became a necessary condition for the ruling coalition of Shi’a and Kurdish parties which emerged after the January 2005 elections to be able to operate. The main line of disagreement and negotiation then became not federalism as such but the boundaries of the Kurdish region – and, crucially, the status of the disputed oil-rich city of Kirkuk.

At a late stage of the negotiations over the constitution, one of the major Shi’a parties, the Supreme Council for the Islamic Revolution in Iraq (Sciri), adopted the demand for a Shi’a federal region in the south, to include the rich oilfields near Basra. Negotiations and disagreements also centred on the division of the oil revenues between the oil-producing regions and the centre.

An oil-rich federal Shi’a region in the south alongside the Kurdish region in the north, both with claims on oil wealth, is an explosive issue for Sunni Arabs in particular. This group, the main regional and communal constituency for the Saddam regime, were accustomed to the power and benefits accruing to their control of the government in Baghdad.

For Sunni Arabs, Kurdish federalism was already a bitter pill to swallow, but a Shi’a state in the south would leave them destitute: Kurds and Shi’a in control of the oil resources and Sunni Arabs in the poor, landlocked central provinces. Such a formula would appear to guarantee continued insurgency and civil war. It should be noted that other Shi’a parties, notably that of the prime minister Ibrahim al-Jaafari as well as the radical followers of Muqtada al-Sadr have not supported Sciri’s demand for a federal entity in the south.

Behind the demand for a Shi’a federal region is the realisation that the Shi’a parties cannot hope to control a central government on which to impose their ideologies and interests. To have their own considerable chunk of resource-rich Iraq is the next best thing.

Kirkuk is one of the most contentious and potentially explosive issues (see Omar A Omar, “Kirkuk: microcosm of Iraq”, March 2005). All reliable accounts suggest that the numerical majority of its population at present time are Kurds. This is translated into Kurdish majorities on elected bodies and Kurdish personnel in the key positions of municipality and police.

Kurdish dominance is strongly resented and challenged by the Turcoman population who claim the city as their own, and have an inflated idea of their numbers. Historically, Kirkuk has been closely associated with the Turcoman minority, and remains the main Turcoman centre in Iraq. Turkey has always asserted its right to protect this population, sharing the inflated idea of their numbers. It has used its concern for the Turcoman as a pretext for intervening in Kurdish affairs, and this could constitute a reason for war in future.

In addition, Kirkuk has a large Arab population, many of them settled as part of the Saddam regime’s effort to Arabise the city after expelling Kurds. Now these Kurds have moved back to the city, many housed in shanties, waiting to repossess their old homes; the city’s Arab inhabitants naturally resent and resist this.

Thus, the Kurdish claim of Kirkuk as part of their federal region has been a major obstacle in the constitutional negotiations. If granted, the claim will constitute a recipe for perpetual strife within the city and the rest of Iraq. It would be wise of the Kurds to reach agreement on some kind of joint control and sharing of resources, which may set an example for the rest of the country.

Islam, the state and law

The example and influence of neighbouring Iran and its Islamic government on Iraqi developments is ever-present and pertinent. The leading Shi’a cleric Ayatollah Ali al-Sistani and the Shi’a religious establishment have explicitly rejected the Khomeinist principle of velayat-e faqih which enshrines clerical rule.

Although al-Sistani and the religious establishment have declared themselves formally committed to separating clerics from government, they have always insisted on the embodiment of elements of Islamic law and religion in the state, and on the recognition of their own status and authority in these matters.

In particular, personal status law governing family matters and the status of women should in their eyes be not just sharia law, but one under the control of clerics, not parliament or government. Moreover, the religious authorities of each “community”, including Christians, are to formulate and implement their own laws.

This indeed was the thrust of a resolution (number 173) passed by Iraq’s Interim Governing Council in December 2003. This abolished the unitary state law on personal status prevailing in Iraq since 1959, substituting for it communal religious laws controlled by the religious leaders of each community. The upsurge of protests from women’s organisations and secular voices forced its withdrawal.

As I anticipated then in an openDemocracy article, the proposal resurfaced in the negotiations over the constitution. It is strongly advanced by Shi’a religious parties and opposed primarily by the Kurds, but also by women’s groups which staged a demonstration in Baghdad on 9 August. The idea of a federal Shi’a state in the south may resolve this disagreement by agreeing different legal regimes for the federal units. This is a harbinger of clerical authority and religious authoritarianism, and another signal of the potential for endemic conflict.

Also by Sami Zubaida in openDemocracy:

“The rise and fall of civil society in Iraq” (February 2003)

“The next Iraqi state: secular or religious?” (February 2004)

“Understanding the insurgencies in Iraq” (April 2004)

“The London bombs: Iraq or the ‘rage of Islam’” (August 2004)

Among Sami Zubaida’s books is Law and Power in the Islamic World (IB Tauris, 2003)

The example of Iran stimulates diverse clerics and their networks to ambitions for power and wealth. Despite al-Sistani’s disavowal of clerical rule, many clerics seek the advantage of control of institutions and resources, like their Iranian counterparts. The demand for a Shi’a federal entity in the south is related to the quest for clerical power.

Sciri was formed and nurtured in revolutionary Iran and retains close links to its clerical establishment and the pasdaran (revolutionary guards) who trained its “Badr brigades” militia. It is led by the clerical family of al-Hakim, and is now the primary advocate of the Shi’a federal region.

Religious authoritarianism and violence are already prevalent in the Shi’a south and parts of Baghdad, not to speak of the Sunni region of insurgency governed by Salafi forces. Militias and vigilantes associated with Muqtada al-Sadr and other radical Shi’a have been active in Basra, Baghdad and many urban centres; they intimidate and assault women not “correctly” dressed, shoot up liquor shops, attack music stores and entertainment venues, and (most bizarrely) assassinate hairdressers.

These groups represent a coalition between radical clerics and poor youth, mostly of rural origins, angry and resentful at city life. They are imposing a reign of terror over urban populations in the name of Islamic morality. In many southern regions, they are strongly represented on local councils and dominant over local politics.

Their victims are women and urbanites, especially the educated and the middle classes, who, though a numerical minority, constitute the backbone of civil society, now subordinated if not defunct. In this respect, it is important to emphasise that the Shi’a parties do not represent the Shi’a population in general. This is a diverse and varied population with many secular elements, especially among the urban middle classes, which mostly oppose the religious sectarianism of the political parties.

The suppression of politics in Ba’athist Iraq deprived these sectors of organisation or representation. Now, some Shi’a secular politicians are only too ready to jump on the clerical gravy-train. What remains of secular Iraq, prominent throughout the country’s 20th century history, is now represented by the minority (Sunni) party of Iyad Allawi and the rump of the Iraqi Communist Party; both are excluded from power and largely marginalised. In these circumstances, the Kurdish parties remain the major advocates of secularism.

Baghdad tinderbox

A final issue, almost wholly absent from discussion, is the place of Baghdad in a federal Iraq. The capital contains at least one-third of Iraq’s total population, representing all communities and regions. Its localities are already divided by communal boundaries, some under the control of rival militias. It is the focus of the insurgency. The problems and conflicts of the whole country are likely to be amplified in the capital.

The clock is ticking, the deadlines passing, the problems – agreement or no – are formidable.


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