A Decade of Flawed Governance: Iraq’s Troubled Constitution Hinders Its Sovereignty

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Ten years ago today, 9.7 million Iraqis ignored the naysayers and, braving threats of violence and bombs, voted in a referendum on their new constitution. The hastily-drafted document passed with 78 percent of the vote, carrying hopes that it would help to reinforce the rule of law following the state’s dismantling during the 2003 war and Saddam Hussein’s dictatorial rule. But the constitution has failed to meet expectations. The voting process surrounding it was contentiously politicized, and its implementation has been uneven at best, with many of its articles violated in the decade since its inception.

The debates over Iraq’s future have only intensified since June 2014, when the armed group Islamic State stormed Mosul, Iraq’s second largest city. Instead of fighting back, Iraq’s military commanders withdrew. These events are too often simplistically explained away as the result of sectarian divisions, just as ten years earlier, structural concerns over the constitution were regarded as sectarian disagreements. At the time, no attempt was made to address grievances voiced by the country’s Sunni-majority provinces—Ninewah, Salahuldin, and Al-Anbar—which voted against the constitution. Today, these are the same provinces living under the Islamic State’s tyranny, without state protection. There is a perceived sense of alienation and abandonment, from the time of the constitution’s drafting, which continues a decade on—epitomized by the military abandoning their post as the Islamic State approached.

More military equipment and airstrikes will not fill Iraq’s governance void. It is not just the ideology of radical groups, such as the Islamic State, that threatens Iraq’s future; it is also the lack of a strong sovereign political framework upheld by legitimate constitutional law.

As it stands, several constitutional articles are flouted and have been rendered invalid, and this undermines the document’s legitimacy. Once one article of a constitution is breached the entire document is undermined. One telling example is Article 140, pertaining to the future of Kirkuk, a microcosm of Iraq’s ethnic richness and a city of great strategic significance. The article stipulates that the Iraqi government must hold “a referendum in Kirkuk and other disputed territories to determine the will of their citizens, by a date not to exceed the 31st of December 2007.” But this date came and went almost eight years ago, and there still has not been a census or referendum.

Unfulfilled promises such as this one open the space for people to impose their own interpretations and realities on the ground. After the disintegration of the Iraqi Army Military Command, the Kurdish Regional Government sent its forces to Kirkuk, declaring control over the city in response to the Islamic State’s threats. At this point, Article 140 was further violated, as the status of the city is now being decided through military force. Several political factions have also taken advantage of the article’s ambiguous terming of such areas as “disputed territories,” invoking it to justify their own objectives.

Another constitutional article that has not been followed is Article 24, which mandates the Iraqi state to ensure the “freedom of movement of Iraqi manpower, goods, and capital between regions.” Yet the millions of Iraqis currently fleeing the Islamic State are certainly not completely free to move around the country—they require special permits to travel to certain parts of the country, including areas in Baghdad and some areas in the Kurdistan region.

Iraqis voted for the constitution a decade ago largely because it was based on a promise of future amendments, as mandated by Article 142. This process has started and stopped several times, to no avail. Similarly, Article 106 calls for a public commission to audit and appropriate public funds—an organization that never materialized. This has had serious consequences for the country. Had the Iraqi government set up public commissions or allowed amendments to the constitution, Iraq might have better managed its substantial oil revenues and avoided the present teetering on bankruptcy.

If the constitution itself is flawed and incomplete, attempts to implement it are in vein. The constitution needs not only symbolic but also legal weight, which is especially vital as Iraq’s state symbols and infrastructure continue to disintegrate. The need for a coherent and respected constitution is particularly necessary at a time when state symbols are called into question.

What’s more, since 2003, Iraq has not had a national day to celebrate. While various dates like July 14, the anniversary of the bloody 1958 coup d’etat that ended Iraq’s monarchy, and April 9, the anniversary of the toppling of Saddam Hussein’s statue, have been considered, these dates are more divisive than unifying. Likewise, the Iraqi flag is a symbol of the country’s troubled past, with many political arguments surrounding it.

Iraq already has a long, proud history of legal limits of government power. The country’s historic Code of Hammurabi—the world’s first criminal and civil laws—dates back to 1754 BC. Against this heritage and background, today’s lack of a legitimate constitution is even more patent. A respected, coherent, and representative document is urgently needed, and could once again bring Iraqis together and rally them to reform their country’s political and legal structures.

The decade since the adoption of Iraq’s constitution has been tainted by violence and a broken political system. Now is the time to change course, and to foster the constitutional guarantees that will enshrine Iraqi citizens’ rights and protect their heritage. The incremental fight for constitutional reform is neither headline grabbing nor straightforward, nor is it likely to be a cure-all for Iraq’s woes. But without it, the state lacks legal foundations and sovereignty, and changes to the country’s political structures will be fraught.

About the Author

Mina Al-Oraibi is a Yale World Fellow. An Iraqi-British journalist, Mina was the assistant editor in chief of Asharq Alawsat newspaper for close to four years and writes on Middle East politics. She has interviewed current Iraqi Prime Minister Haider Al-Abadi and his predecessor Nouri Al-Maliki.

Edited by Josh Jacobs, Editor for Articles and Interviews.

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