Constitutional commotion (22 October 2005)

Published in Labour Left Briefing (Novermber 2005)

Iraq's constitutional process has been flawed from beginning to end, argues Glen Rangwala

Iraq's referendum on its proposed constitution that took place on 15 October was conducted amidst the confusion and brinkmanship that has characterised Iraqi political life since the invasion. The process to draft the constitution had already been the subject of intense controversy. The constitutional committee started its work only in late May, four months after the January elections to a national assembly, even though the main task of this assembly was to select the body that would draft the constitution. The delay occurred because all the political factions knew that whoever won the position of chairing this ad hoc committee would be able to shape the constitution in his or her own image.

Under US auspices, all the main Shi'a political parties had formed a united front to contest the January elections on a joint slate – the last thing the Americans had wanted then was for the Shi'a parties to compete against each other, knowing how those groups playing the anti-occupation card would win out. As a result, there was no way of knowing which of the parties were the most popular, other than by a wide range of opinion polls of dubious merit, and so no mechanism for settling who should take on the role of the committee's chairman. In the end, through a mixture of coercion and backroom deal-making, the Supreme Council for the Islamic Revolution in Iraq (SCIRI) won out, and installed one of its leading clerics, Humam al-Hammudi, as the committee's chairman.

What followed was a process that largely escaped international media attention. Although the committee was made up of 55 members of the national assembly, and later incorporated 17 more Sunni Arabs, the actual process of constitution-writing was performed by the chairman's office. It arranged the subcommittees, brought in external 'experts' and set the timetables for writing specific parts of the constitution. As a result, as one official closely involved in the constitutional process told me, the people who actually sat down to write the constitution were "100% SCIRI".

The most controversial parts of the constitution were steamrollered through on that basis. Thus, regions from which oil is extracted will be able to keep the revenues for themselves to the detriment of non-oil producing regions. Almost all internal responsibilities, including the maintenance of 'internal security forces', will be devolved to Iraq's regions: given that such forces are heavily armed in Iraq, this means that each region will in effect have its own army. The Supreme Federal Court, the highest judicial authority, will be made up of 'experts in Islamic law', whose duty it is to make sure that no law is passed that conflicts with Islamic law. All these provisions are very much in the interests of SCIRI, whose heartland is the oil-rich south, who have committed themselves to maintaining their militia – the Badr brigades – as their main mechanism of control there, and whose ideological force comes from their clerical leadership. SCIRI then used the state-run media to promote the constitution aggressively, and gave no space on it to critics of the constitution.

The constitution's text therefore was already decided upon before being presented to the Sunni Arab delegates to the committee, who were then cast as spoilers for rejecting a fait accompli. The draft of the constitution was circulated from 28 August, for the vote six weeks hence. Nevertheless, in the face of united Sunni Arab opposition to the constitution, a last-minute face saving device was adopted: four days before the vote, a number of minor changes were inserted into the constitution, which the Iraqi Islamic Party (IIP), made up of Sunni Arabs, could then embrace. The most significant of those changes was for a review of the constitution to take place after the December assembly elections; but as any changes to the constitution would require a new referendum, it is almost impossible to see this review as leading to revisions being made to the constitution. This episode was more a way for the IIP to guarantee its leaders a place in any new Iraqi government, after it lost almost its entire support base due to its participation in the US-appointed Governing Council that acted as the cheerleaders for the occupation. Despite campaigning for support in local elections in its former heartland province of al-Anbar in January, it only managed to obtain 2,700 votes out of population of 1.2 million. For the US, needing to get away from the Arab-wide perception of having alienated the entire Sunni Arab population of Iraq, the willingness of the IIP to accept the constitution in return for the crumbs of a future government was a godsend. It also meant that hardly anybody who voted in the referendum on 15 October had actually seen the final text that they were voting on.

With these antecedents, it was little surprise that the vote itself has been controversial. For the constitution to pass, no more than two-thirds in any three provinces must vote against it. Two provinces, in which Sunni Arabs are the overwhelming majority, are likely to be almost unanimously against it – al-Anbar and Salahuddin. Two other provinces – Ninawa and Diyala – are likely to be much more divided, and here the prospects for the referendum rest, and attention has focused. The national assembly, dominated by the Shi'a parties and the Kurds, had tried to change these rules weeks before the referendum was held, but international criticism prevented this. However, that attempt reinforced the perception that the Iraqi authorities would use any means available to them to force the constitution through. So when the election officials in Mosul, the main city in Ninawa province, announced to the international media just after polling booths had closed, and well before the results were actually counted, that the population had voted 'yes' to the referendum, it demonstrated the scale of the commitment of pro-government forces to adopting the constitution regardless of popular opinion and fears.

The result of the constitution, if it does pass, will not be to divide a previously unified Iraq: Iraq is already a highly divided place, with local militias running towns and cities according to their own dictates, and espousing a virulent sectarianism previously unknown in Iraq to justify their rule. However, the constitution does entrench and legitimise those divisions, turning the local warlords into the official makers of Iraq's new order. To potential for Iraq to stabilise, with a national government able to deliver basic services to its beleaguered population, is more distant now than ever.

Author: Glen Rangwala

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