Many of the problems that afflict Iraqis today are rooted in the rushed and undemocratic constitution of 2005, says Zaid Al-Ali.
Ten years after the 2003 war, the Iraqi government credits itself with a number of achievements. All foreign soldiers have left the country, the 2005 constitution was approved by 80% of the population, several rounds of elections have taken place in the absence of credible accusations of massive fraud, and the annual state budget has reached unheard of proportions. And yet, the country has millions of poor who live in slums without access to any government services to speak of, and millions of others have left the country never to return. The government is once again rearming. Women’s rights have regressed. Political tensions, fueled by corruption, violence and sectarianism, appear to be worsening.
Was this downwards spiral inevitable? Western and an increasing number of Iraqi analysts eagerly refer to ethno-sectarian divisions, and suggest that Iraq is a hopeless case as a result. But there are countries whose divisions are far more pronounced; fueled by differences in language, skin colour, religion, by a history of imperialism, colonisation and even slavery, many countries in Africa and Latin America have emerged as modern democracies in recent years. These countries not only had the benefit of good leadership, but also established clear rules according to which their countries were to be governed. In comparison, Iraq is a shameful affair: despite the incredible resources at its disposal, the country is clearly heading in the wrong direction.
There are many causes for this state of affairs, too many to address in any single analysis. This article focuses on the rules that are designed to govern the political process, namely the 2005 constitution. The constitution was rushed, is undemocratic, and is rigged to encourage political tensions, instability and crisis. This is not "post-hindsight" analysis: in the summer of 2005, a few weeks before the referendum that was organised to approve the constitution, two of the world’s leading legal scholars travelled to Baghdad and studied the then draft constitution. They wrote an analysis which was circulated to key officials, but was not published at the time. Their conclusion was that, if applied, the constitution posed a “grave risk to state and society”. Their prophetic prognosis went unheeded and we are still paying the consequences today.
A rushed and undemocratic constitution
In today’s world, constitutions are not drafted by bureaucrats behind closed doors. They are written through multiparty negotiations, which are long and complicated processes. This is particularly the case when a constitution is written in a country emerging from despotic rule. New political parties have to get to grips with issues that they had never considered, have to decide what their positions are, and have to learn to negotiate with their counterparts in other parties. In South Africa, the process took, all in all, seven years.
In Iraq, only six months were allocated to write our constitution. To make matters worse, the Iraqis completely underestimated the task ahead and only started working months into that six-month period. Then, when work did start, the drafters were constantly distracted by the stress of living in a war zone. In the end, they worked for just a few weeks altogether. The result is that Iraq's constitution is full of holes that sometimes frustrate politicians and that are at other times deliberately exploited by elites. Some of these problems are detailed below.
Apart from the issue of the time given, the 2005 constitution is a deeply undemocratic document. This may surprise many readers: after all, an election was organised in January 2005 to choose the individuals who would draft the new constitution. Also, a referendum was organised in which 80% of the voting public approved the text. The problem is that the people’s representatives did not draft most of the constitution’s most important features: those sections were drafted behind closed doors by a small group of extremists (with the support of the United States embassy) whose views on many issues (namely federalism) are far outside the Iraqi mainstream. In addition, the constitution’s final draft was never circulated to the people prior to the referendum. The people were therefore approving a text that they had never seen, and that they would not have agreed with had they seen it.
The combination of these factors has created a broken system that is part of the reason why Iraq has not become a functioning democracy.
Iraq’s federal system of government
Iraq's system of government was conceived at a time of worsening violence. The constitution’s system of government was constructed as a possible means to resolve the conflict: it envisages transforming each province into its own fortress and provides those provinces with the opportunity to group together and to form larger fortresses. The idea was modeled on the Kurdistan region and the fact that the latter's internal security forces had managed to keep the violence that was raging in the rest of the country at bay. Therefore, instead of being an exception, the constitution sought to apply Kurdistan’s experience throughout the country.
If the only consequence would have been to reduce violence then that would have been fine, but that was not what was on offer. The constitution imposed the very special relationship that the Kurdistan region had developed with the central government on the rest on the country, in all respects. Kurdistan was virtually its own independent country; it had its own foreign policy, its own government, its own audit institutions, court system. It did not recognise and was antagonistic to Baghdad’s authority. Had that relationship been uniformised throughout the country, it would have meant splitting up the country into a small number of statelets that were inherently hostile to each other, and that would inevitably go to war over access to resources.
Thankfully, those sections in the constitution were never applied. The problem is that we were left with no alternative roadmap to follow. Instead, the political class improvised a system as they went along, which means that the system of government was at the mercy of politicians’ prejudices and lack of knowledge. Their instinct was to be in favour of the same level of centralisation that had been imposed by the Ba'athists and by virtually every other despotic regime in the Arab region. As a result, local elections are today worse than useless: local politicians are not given any power to speak of, which means that the elections’ only impact is to frustrate voters and to convince them of democracy’s pointlessness.
To make matters worse, it turns out that the new batch of political parties that are currently governing Iraq are terrible administrators and cannot even get their own system right. It has led to terrible inefficiencies and inequities throughout the country: by any measure, Basra should be amongst the wealthiest cities in the world, and yet its streets are riven with garbage and its children are malnourished.
Controlling the prime minister’s excesses?
Many Iraqis have complained of prime minister Nouri al-Maliki’s excesses, particularly his control over the armed forces and his influence over the courts. In fact, his actions are not strictly speaking in violation of the constitution in both respects, because of the many gaps that exist in the text that was drafted in 2005.
On the military, many have complained that the prime minister has abused his position by circumventing the official chain of command, and giving instructions to military units by calling commanders directly on their cell phones. Al-Maliki’s detractors have argued that these practices are illegal; their difficulty however is that the constitution is virtually silent on this issue. All it says is that the prime minister is “officer in chief of the armed forces” without providing any explanation or guidance as to what that means. In comparison, other constitutions provide for the establishment of defence councils and contain specific rules as to how those councils are to be composed and should function. They are also very clear on how the armed forces are to function, and what their reporting lines are. Our constitution, which was written in just a few weeks, says nothing of all that and those gaps are being exploited today.
Complaints have been made that the courts have become completely subservient to the government. What does the constitution say on the matter? It provides that judges and courts are independent, but does not elaborate in any way, shape or form on how that independence is to be protected. All it says is that the matter is “to be regulated by law”. And who, according to the constitution, controls the legislative process? The government, which is the only body that is authorised by the constitution to submit legislative bills that can be voted on. Once again, in comparison, modern constitutions in countries including Ecuador, Kenya, South Africa, Germany, contain pages and pages of details of how judges’ independence is to be protected. Our constitution is silent on all this and we are paying for the consequence today.
What solutions exist?
There was an opportunity in 2005 to get all these issues right. That opportunity was missed because the process was rushed and because it was undemocratic. Looking ahead, there are clear solutions to the problems that we have been facing: our system of government has to be redesigned, the armed forces have to be properly regulated, the courts need to be protected, amongst other things. There are many options that exist and many countries offer significant lessons of the types of mechanisms that work and those that do not. Why then have none of these solution been adopted?
To put it simply: it would be folly to expect the same group of people who have been leading the country to ruin to suddenly reach a point of enlightenment and agree to a new constitution. Their priority is not to provide assistance to the poor, to protect women from oppression, to reconcile the country, but to find a way to monopolise power. The real solution then is not to press for judicial reform, or for a specific law to be passed, but to find a way to peacefully transfer power to a different group of elites who are more capable of administering the country and of servicing the interests of the poor than those who have been in power since 2003.