Zaid Al-Ali writes about the lessons learnt from writing a constitution under the nose of a hostile foreign occupation In the end, the constitutional commission violated its own rules and principles, and still could not present Iraq with a text that had the unanimous approval of its membership. The end result now is that a constitution that is far from perfect will be presented to the Iraqi people in a referendum that will take place on 15 October, 2005, and that those parties that took part in the drafting process have broken up the negotiations in the midst of what can only be characterised as bitter recriminations and insults, with members referring to each other as "truck drivers", "nobodies" and accusing each other of having been affiliated to Saddam Hussein's intelligence services. If legal negotiations within the context of a relatively small constitutional committee have degenerated to such an extent, one cannot but shudder at the thought of what will take place in the run up to the referendum. A draft was presented to the Iraqi National Assembly on Monday 22 August and the negotiations were extended by a further five days in order to give the Sunni negotiators time to agree to the proposals. Sheikh Hammam Hamoudi, the president of the constitutional committee, stated that "during the coming days, we will have a dialogue to convince them, in fact that federalism is not to divide Iraq". The purpose of the extension, which was not provided for by the rules governing the drafting process, was merely to encourage the Sunni representatives to sign off on the document and on its arrangement for the future federal structure of Iraq. These efforts have failed. The issue however has never been one of federalism or non-federalism. Almost all parties that are involved in one way or another with the political process agree that a federalism that is based on the current administrative regions, with special status being granted to the Kurdish region in the north, presents an acceptable option. What many refuse to accept however is a federalism based on Iraq's sectarian divide. Although the final version of the constitution does not indicate that it is specifically in favour of dividing the country along ethnic lines, it provides for a mechanism that will allow and may even encourage this outcome. Article 114 of the constitution provides that "one province or more have the right to form a region", and sets out the different mechanisms through which a province can become a region. The problem is that there is no limit to the number of provinces that can join together and form one region. The result may very well be that nine out of Iraq's 18 provinces may join together to form a single region which will have a Shia majority, which some Shia leaders have been calling for. Thus, Iraq could be dominated by a Kurdish region in the north, and a Shia region in the south, which would in turn encourage the Sunnis in the west and centre of the country to join together and form a region of their own. A useful precedent for such a constitutional framework is the First Nigerian Republic, which was partitioned into three powerful regions, based largely along ethnic lines. This construction fostered ethnic, party and regional conflict that eventually led to the Nigerian Civil War in the 1960s. While some members of the constitutional committee suggested mechanisms to discourage the formation of regions, in fact the opposite was carried through. Indeed, the constitution only contains two articles that deal with those provinces that are not organised into regions. In addition, these articles do not actually indicate what the powers of the provinces shall be. The outcome may very well be that provincial authorities will be frustrated in their attempts to administer local government, and will thereby be encouraged to organise themselves into provinces as a result. This, combined with other factors, such as the failure to indicate that Iraq is part of the Arab world, and provisions relating to the de- baathification commission, have encouraged the Sunni members of the constitutional committee to reject the final version of the constitution. In any event, even before the draft had been finalised, as its details were being leaked to the Iraqi press, various communities were making up their minds about how they should vote in the upcoming referendum. On Friday 26 August more than 100,000 Shia followers of Moqtada Al-Sadr demonstrated against federalism. The day after, Sheikh Khalisi, another nationalist Iraqi Shia leader, held a press conference with Sheikh Kubaisi, one of Iraq's most prominent Sunni leaders, in which they jointly announced their opposition to the constitution. It is also well known that the vast majority of Iraq's Sunni community is intending to vote against the constitution. The problems are therefore twofold: the first, relating to the substance of the constitution itself, is that the document may contain the seeds for Iraq's dissolution; the second, relating to process, is that there is no consensus between Iraq's various constituencies. This second dilemma was caused by the artificial timetable that had been set in order to satisfy the occupation authorities, and by the fact that the constitution was drafted for the most part by people who have spent the greater part of their adult lives in exile. The question now becomes whether those parties that are opposed to the draft constitution can muster enough votes to strike it down. If so, then the national assembly will be dissolved and new parliamentary elections will be held. The result may end up being the same, but that will depend in part on whether the Sunnis decide to maintain their boycott of the political process. If however the constitution is adopted in the aftermath referendum, and if Iraq falls apart during the next few years, then the lessons of constitution- writing under a hostile foreign occupation will have to be learned.
