Iraq: On the road to democracy?


The Iraqi National Assembly election on 30 January had aspects that were very familiar to those of us who live in Northern Ireland.  It was largely communal: the Kurds voted as a solid bloc, motivated by a determination to hold on to, and if possible extend, their autonomous Kurdistan; inspired by Ayatollah Sistani, the Shias demonstrated that they are the power in the land; only the Sunni Arabs didn’t take the opportunity to demonstrate communal solidarity.


Turnout varied widely: 89% in the Kurdish governorate of Dohuk; 2% in the Sunni Arab governorate of Ambar; overall 58%.  The total number of votes cast was 8.4 million.


The electoral system was ideal for communal politics - a proportional list system with a single countrywide constituency (like in Israel), with Assembly seats shared out in proportion to the national vote.  It took about 30,000 votes to win one of the 275 seats in the Assembly.


The Kurdish List

The Kurds used the system particularly well putting up a single list - the Democratic Patriotic Alliance of Kurdistan - for which every Kurd in Iraq (and some outside) could vote.   The two main Kurdish parties, the Kurdish Democratic Party and the Patriotic Union of Kurdistan, and half a dozen minor Kurdish parties joined together to form this list, in order to maximise Kurdish voting strength.  The leading names on this list were the leaders of the two main Kurdish parties, Massoud Barzani and Jalal Talabani.


Given that only 15-20% of Iraqis are reckoned to be Kurdish, the fact that the Kurdish list got over 2 million votes, that is, nearly 26% of the votes cast, is remarkable, even allowing for the fact that most Sunni Arabs didn’t vote.  They now have 75 seats in the Assembly.


The Shia List

With the Ayatollah’s blessing, a Shia list – the United Iraqi Alliance (UIA) - was put together.  Like the Kurdish list, this was also a coalition of existing parties – the Supreme Council for the Islamic Revolution in Iraq (SCIRI) led by Abdul Aziz al-Hakim, al-Dawa led by Ibrahim al-Jaafari (who is now the UIA’s nominee for Prime Minister) and Ahmed Chalabi’s Iraqi National Congress, plus about 20 others.


Before the election, it was reasonable to expect that with Sistani’s support this list would get over 60% of the vote, since 60-65% of Iraqis are thought to be Shias.  In the event, although it topped the poll by a mile, with over 4 million votes, it got just over 48% of the votes cast.  This has given it 140 seats in the Assembly, that is, just over 50%.


Other lists

A considerable number of Shias must have voted for The Iraqi list, led by Ayad Allawi, the US-appointed Interim Prime Minister, and his Iraqi National Accord.  This list got over a million votes – nearly 14% of the votes cast – and 40 seats in the Assembly.


The only Sunni Arab list that made any impact at all was The Iraqis, led by Ghazi al-Yawar, the Interim President, but it got less than 2%.


Other small ethic/religious groups also had their lists, for example, Turkmen (Iraqi Turkmen Front, 1.1%) and Assyrian Christian and Chaldeans (National Rafidain List, 0.4%)


The National Independent Cadres and Elites list, which is said to be associated with Muqtada al-Sadr, got 0.8%, as did the Iraqi Communist Party (the People’s Union list)


Of the 111 different lists which offered themselves for election, only 3 got over 10% and only 5 over 1%.


About 250, 000 votes, about 3% of the total, were cast in 14 countries abroad, by far the largest number in Iran.


A full list of the results is available on Wikipedia.


The Assembly’s role

Now that the Assembly has been elected, what is supposed to happen?  The Assembly has a dual role: to act

(a)      as a constitutional convention, with the job of drawing up a permanent  constitution for Iraq, and

(b)      as a legislative body out of which a Transitional Government is formed.


The latter will replace the Interim Government appointed by the US last June.  It is scheduled to last until a permanent government is formed under the new constitution.  The detailed timetable is as follows:

(a)     the Assembly draws up a draft constitution, approved by a simple majority, before 15 August 2005

(b)     assuming the Assembly manages to do so, the Iraqi people are invited to approve the draft constitution in a referendum held before 15 October 2005

(c)     assuming the constitution is approved, elections under it are held before 15 December 2005, and

(d)      a permanent government is formed before 31 December 2005.


If the Assembly fails to agree a draft constitution, or if the draft constitution isn’t ratified by the Iraqi people, then elections to a new Assembly may be called, which means that the process could go on for a long time, but the plan is to have it complete by the end of this year.


The Transitional Administrative Law

This schedule is laid down in the Law of Administration for the State of Iraq for the Transitional Period, aka the Transitional Administrative Law.  As its name implies, the Transitional Administrative Law also sets out the rules under which the Assembly is supposed to operate during the transitional period, including how the Transitional Government is to be formed from the Assembly. 


However, in addition, it lays down basic constitutional principles, which, it is strongly implied, should form the basis of the permanent constitution to be drawn up by the Assembly.  For example, Article 4 says that “the system of government in Iraq shall be republican, federal, democratic, and pluralistic, and powers shall be shared between the federal government and the regional governments, governorates, municipalities, and local administrations” and Article 7(A) says that Islam is the official religion of the State and is to be considered a source of legislation”.  The fact that Islam was stated to be “a”, rather than “the”, source of legislation was regarded as a victory for the opponents of an Islamic state, when the Law was published in March last year.


Sistani objects

It is by no means certain that the Assembly will operate in accordance with the letter of the Transitional Law, let alone incorporate the basic constitutional principles within it into the permanent constitution.  This is because the Law was drawn up by the Coalition Provisional Authority and its appointees in the Iraqi Governing Council, and Ayatollah Sistani has always objected to it on the reasonable grounds that an elected Assembly should not be bound by a Law drawn up by entities that weren’t elected by the Iraqi people.


In a letter dated 19 March 2004 to Lakhdar Brahimi, who was then Kofi Annan’s Special Advisor on Iraq, Sistani complained that:


“The future National Assembly will be shackled by many restrictions that will prevent it from undertaking what it sees as congruent with the interests of the Iraqi people. A non-elected council – the Interim Governing Council – in coordination with the occupying authority foisted upon the future National Assembly a ‘strange’ law to administer the country during the transitional phase. It also dictated – and this is most dangerous – specific principles, rules and mechanisms with regard to the writing of a permanent constitution and organising a referendum.” (quoted in Iraq's Transition: On a Knife Edge by the International Crisis Group).


Kurdish veto

The latter is a reference to Article 61(C), which says:


“The general referendum will be successful and the draft constitution ratified if a majority of the voters in Iraq approve and if two-thirds of the voters in three or more governorates do not reject it.”


This gives the Kurds a veto over the constitution, since they should have no difficulty getting two-thirds against a constitution not to their liking in the three Kurdish governorates, which are part of Kurdistan.  The same, it should be said, applies to the Sunni Arabs.


So, there is no guarantee that the National Assembly will operate in accordance with the Transitional Administrative Law: it could ignore the Law in whole or in part, or it could operate within it, possibly with amendments.  The latter are permissible under Article 3 of the Law itself, but they are difficult to effect, since they require unanimity in the three-man presidency (of which more later) and a three-fourths majority in the Assembly.


(This means that the Kurds will be able to veto any amendment to the Law because (a) one of the three-man presidency will be a Kurd, and (b) with 75 seats in the Assembly they hold more than a quarter of the seats in the Assembly.  Critically, therefore, the Kurds are in position to resist any attempt to amend Article 61(C), which gives them a veto over any constitution.)


The executive

Let us assume for the purposes of discussion that the National Assembly will operate in accordance with the Transitional Administrative Law.


Chapter 5 (Articles 35–42) of the Law specifies the executive bodies in this transitional period.  Article 35 says:


The executive authority during the transitional period shall consist of the Presidency Council, the Council of Ministers, and its presiding Prime Minister.”


The Presidency Council consists of a State President and two Deputies, elected by the Assembly in a single proposition, requiring a two-thirds majority (Article 36 (1)).  It takes its decisions by unanimity (Article 36(5)).  It is responsible for appointing the Prime Minister, and the members of the Council of Ministers upon the recommendation of the Prime Minister.  The Prime Minister and Council of Ministers has then to obtain a vote of confidence by simple majority from the Assembly (Article 38).  On the face of it, the Presidency Council is a powerful body – in theory, for example, it can block legislation passed by the Assembly (Article 37), but that will never happen since it has to act by unanimity.


In the present Assembly, the UIA and the Kurds have over 78% of the seats, and are therefore in a position to determine the makeup of the Presidency Council and the Government.  At the time of writing, negotiations are going on between them about this.


Kurdish interest well served

The most important issue for Kurds is their demand that Kurdistan be expanded to include the city of Kirkuk and its surrounding oilfields, with Kirkuk becoming their capital.  In the short term, they are understandably determined to hold on to the autonomy they have.


As written, the Transitional Law serves the Kurdish interest well, since it

(a)                 allows them to retain their autonomy (and their militias) in Kurdistan in the interim until a new constitution is drawn up and a permanent government elected under it (which might be a long time),

(b)                 accords them a veto over a new constitution, which might change those arrangements,

(c)                 provides for the reversal of Arabisation of formerly Kurdish areas,

(d)                 and subsequent to the latter, allows for the possibility that the existing autonomous Kurdistan be expanded to include Kirkuk and its environs.


Article 53 of the Law maintains the existing Kurdish autonomy:


“The Kurdistan Regional Government is recognized as the official government of the territories that were administered by that government on 19 March 2003 in the governorates of Dohuk, Arbil, Sulaimaniya, Kirkuk, Diyala and Neneveh.  The term “Kurdistan Regional Government” shall refer to the Kurdistan National Assembly, the Kurdistan Council of Ministers, and the regional judicial authority in the Kurdistan region.”


Article 54 says that, broadly speaking, the Kurdistan Regional Government “shall continue to perform its current functions throughout the transitional period” and will have the right “to impose taxes and fees within the Kurdistan region”.  The Kurdistan National Assembly will have some freedom to amend the application of federal law within the Kurdistan region.


Article 27(B) says:


“Armed forces and militias not under the command structure of the Iraqi Transitional Government are prohibited, except as provided by federal law.”


But an exception is made for the Kurds in Article 54, where it says that the Kurdistan Regional Government “shall retain regional control over police forces and internal security”.  Uniquely, therefore, the Kurds are allowed to maintain their own militias.


This maintenance of Kurdish autonomy highlights a key question about the future structure of government in Iraq: is it to be a federation of regions defined by ethnic group or religious confession?  Article 4 answers that question in the negative, saying:


“The federal system shall be based upon geographic and historical realities and the separation of powers, and not upon origin, race, ethnicity, nationality, or confession.”


But only one region is defined, and it is based on Kurdish ethnicity – which flies in the face of Article 4.  Apart from that, there is provision, in Article 53(C), that up to three governorates outside Kurdistan (but not Baghdad or Kirkuk) may form a region.


Reversing Arabisation

Linked to this demand for a larger Kurdistan is a demand that the Arabisation of certain areas in Northern Iraq, particularly around Kirkuk, allegedly carried out by Saddam Hussein, be reversed.  In other words, that Kurds who were expelled be given their property back and Arabs who were given their property be expelled.  Article 58(A) of the Transitional Law provides for the reversal of Arabisation:


“The Iraqi Transitional Government, and especially the Iraqi Property Claims Commission and other relevant bodies, shall act expeditiously to take measures to remedy the injustice caused by the previous regime’s practices in altering the demographic character of certain regions, including Kirkuk, by deporting and expelling individuals from their places of residence, forcing migration in and out of the region, settling individuals alien to the region, depriving the inhabitants of work, and correcting nationality.  To remedy this injustice, the Iraqi Transitional Government shall take the following steps:


“(1) With regard to residents who were deported, expelled, or who emigrated; it shall, in accordance with the statute of the Iraqi Property Claims Commission and other measures within the law, within a reasonable period of time, restore the residents to their homes and property, or, where this is unfeasible, shall provide just compensation.


“(2) With regard to the individuals newly introduced to specific regions and territories, it shall act in accordance with Article 10 of the Iraqi Property Claims Commission statute to ensure that such individuals may be resettled, may receive compensation from the state, may receive new land from the state near their residence in the governorate from which they came, or may receive compensation for the cost of moving to such areas.”


Annexing Kirkuk

On 30 January, elections were held to assemblies in the 18 Iraqi governorates (and to the Kurdistan National Assembly) as well as to the National Assembly.  The result in the Kirkuk governorate (which also seems to be known as the At-Ta'mim governorate) has given a powerful boost to Kurdish claims on Kirkuk: they got over two-thirds of the votes cast, and 26 out of the 41 seats in the assembly (see, for example, Forbes Magazine).  They were helped by the fact that the Iraqi electoral commission anticipated the reversal of Arabisation provided for in the Transitional Law, by allowing some 72,000 Kurds to return to Kirkuk and vote.


Naturally, the Kurds are using this result to justify the incorporation of the Kirkuk region into Kurdistan, and this was an issue in the talks between UIA and the Kurds about forming a Transitional Government.  However, an agreement appears to have been reached to proceed with the process of returning Kurds to the Kirkuk area, as laid down in the Transitional Law, and to leave the decision about annexing Kirkuk to later.


Fuad Masoum, a member of the Kurdish coalition, was quoted in Guardian Unlimited on 10 March as saying:


“We agreed to solve the issue [of Kirkuk] in two steps. In the first step, the new government is committed to normalising the situation in Kirkuk. The other step, regarding annexing Kirkuk to Kurdistan, is to be left until the writing of the constitution.”


Of course, there’s no guarantee that a constitution that establishes an expanded Kurdistan with Kirkuk as its capital will be approved in a referendum, even if it had the support of the Shia Alliance: two-thirds of the voters in three or more governorates may vote against.


Even if such a constitution were approved in Iraq, Turkey is unlikely to stand idly by and let an expanded, and perhaps oil-rich, Kurdistan come about, with the potential that, unchecked, it will form the nucleus of a must larger Kurdish state in the region.



Labour & Trade Union Review

March 2005