Iraq and Gulf Analysis

The Constitutionality of Compensatory Seats for Arabs and Turkmens in Kirkuk

Posted by Reidar Visser on Friday, 6 November 2009 14:13

[Second update 8 November 15:40 CET: It has been reported that Ayad al-Samarraie, the president of the Iraqi parliament, has left Baghdad for an official visit to Qatar. A second meeting of the parliament was reported as scheduled for Sunday evening at 6 pm local, ostensibly for the purpose of voting on the election law]

[Update 7 November 12:50 CET: The Iraqi parliament began its session shortly after 1 pm local time and adjourned again after a brief meeting. The assembly was going to reconvene later in order to vote on the election law, but then adjourned again around 8 pm local without voting; it will meet for another session tomorrow Sunday]

As Iraqi parliamentarians prepare for a possible vote on the draft election law tomorrow Saturday, their minds seem to be increasingly focused on the revised UNAMI/US-inspired compromise proposal for Kirkuk. The proposed arrangements are perhaps a little convoluted, but they do seem to constitute a real compromise in that they offer something for everybody: Voter rolls from 2009, as per the Kurdish preference; a one-year investigation of those registers followed by a possible re-vote, to address Iraqi nationalist concerns; two compensatory seats for Arabs and Turkmens respectively, geared at the more local interests of those two communities in Kirkuk.

Whereas there seems to be general agreement among Iraqi parliamentarians that this is the most promising solution, some Kurdish politicians have been expressing doubts about the “constitutionality” of the proposed arrangements. However, it is clear that in this case the constitution is unlikely to be a problem. The idea of compensatory seats was established as part of Iraqis proportional representation election system back in 2005, and the notion of special representation for selected communities (with which it is now being merged) was adopted in the provincial election law last year, and is also part of the current draft. Crucially, the definition of what constitutes “selected communities” has been completely ad hoc and situational in both cases – i.e. a limited number of seats are offered in certain areas to guarantee a minimum quota for communal interests which it is feared may not gain adequate representation through the open electoral contest. This is done on an asymmetrical and case by case basis and is not intended as an exhaustive subdivision of Iraq according to ethno-sectarian identities. For example, Christians may be allocated seats in Baghdad without being allocated seats in Basra and so on.

In other words, the only difference between existing laws (also supported by the Kurds) and the new proposal is that Arabs and Turkmens in Kirkuk are designated as groups that will get a guaranteed minimum representation, in practice much in the way the Shabak of Mosul will. This is done because of an expressed concern that changes to the electoral registers of Kirkuk in the period between 2004 and 2009 may have marginalised these communities to the point where their level of representation in the ordinary constituency is seen to be at risk. Conversely, no one doubts that Kurdish interests will have benefitted from those same changes and will be amply rewarded in the ordinary constituency for Kirkuk; accordingly, the Kurdish demand for a compensatory seat of their own makes no sense.

For these reasons, the possibility that the Iraqi federal supreme court will reject the new Kirkuk proposal is close to zero. If the court did that, it would find it exceedingly difficult to argue for the constitutionality of the 2008 provincial election law and indeed the minority clauses of the current draft parliamentary election law (where for example Christians in Dahuk and Arbil will get one seat each according to the latest publicly available draft; quite possibly these will go to pro-Kurdish politicians). True, the supreme court has in the past rejected the idea of four separate constituencies for Kirkuk on an ethno-sectarian basis, but an ethno-sectarian quota system and a compensatory seats regime for selected communal groups are two very different animals. The former would lead towards the “Lebanonisation” of Iraq which most Iraqi politicians reject (note that the previous demand for quotas in the administration of Kirkuk by Iraqi nationalists has always been presented as a temporary arrangement pending a more wide-ranging settlement); the latter is a far more dynamic device that secures the continued potential for cross-sectarian politics while at the same time guaranteeing a certain minimum representation to avoid the complete marginalisation of communities that are deemed at risk. So far, the definition of those forces – by community and governorate – has been the prerogative of the Iraqi parliament. There is therefore no reason to question the ability of the existing framework to accommodate compensatory seats for the Arabs and Turkmens of Kirkuk in a constitutionally sound manner.

10 Responses to “The Constitutionality of Compensatory Seats for Arabs and Turkmens in Kirkuk”

  1. bb said

    If this is the proposal that it going to pass, then it seems to me it is the one least likely, in the short term at least, to undermine the integrity of the process going forward. After all it is only throwing a couple of bones of seats each to the Turkumen and the Sunni Arabs (the latter parties to fight over their share I presume?) and it provides for a review of the voter register although I don’t think Reidar imagines for one moment this will ever happen any more than I do. Best of all the people of Tamim get to exercise their democratic right to vote.

    What does bother me is that while I can see a ton of reasons for giving the Turkumen, as a middle sized minority, an increased presence in the COR without much injury to the process, I can see no reason whatever to increase the Sunni Arab parties representation as of right? They are already well and fairly represented in the COR according to the proportion of the national vote they receive. They make a lot of allegations about the voter registers in Kirkuk but all these allegations are so far unfounded and unproven. I suspect they of all the parties are the most interested in NOT having the issue settled by census or investigation, any more than the Kurds are. That is the nature of politics.

    Finally, the Kurds claim for another compensatory seat just presages what will happen once this precedent is set. In four years time you’ll see all sorts of claims and allegations being floated in attempts to secure compensatory seats for various parties who have calculated they will be unable to secure them by their actual support in the electorate. This too is the nature of politics. But it is also a slow undermining of the system towards the disastrous Lebanese model.

    No wonder the UN/Europeans has been acting as a brake. They are thinking long term, not short.

  2. Reidar Visser said

    Bb, the problem with your analysis is that it sees everything through ethno-sectarian lenses without taking into account local and national identities. The compensatory seats are aimed at “Arabs-in-Kirkuk” and “Turkmens-in-Kirkuk”, and not at these communities as parts of imaginary, Iraq-wide minorities. The recount mechanism is catering for Iraqis across the country who share a concern about the outcome of the Kirkuk elections if the 2009 registers of voters are used without any extra scrutiny. You seem to believe that there will always be communitarian “Sunni Arab” parties in Iraq, which may reflect the situation in 2005, but is not an adequate description of the current situation.

  3. bb said

    “You seem to believe that there will always be communitarian “Sunni Arab” parties in Iraq, which may reflect the situation in 2005, but is not an adequate description of the current situation.”

    Are you saying that these seats will not be distributed to Sunni Arab political parties that contest the next election? If not, to whom? Who will be the representatives of “Arabs-in-Kirkuk?”?

  4. Reidar Visser said

    What is missing in the picture you are painting are the many new inter-sectarian alliances. Similarly, your labelling of Hiwar as a “Sunni Arab” party does not make sense. Just like Iraqiyya (with whom it has now joined in a formal alliance) Hiwar is an Iraqi nationalist party that has supporters among Arabs of both sects, Turkmens and Christians.

  5. bb said

    Sunni Arab led parties, then. My point remains: why would the shia led parties or the kurdish led parties or other parties led by whoever wish to agree to a Sunni-led party or a shia/sunni/nationalist-led party getting extra compensatory seats as of right in a national election and not them? Am sure they could have all agreed quite quickly on the Turkmen-led party/s getting a seat or two, so it is possibly this issue which is causing the hold up?

  6. Reidar Visser said

    The prospect of compensatory seats is now no longer relevant, but for the record: The quota system adopted in Iraq in 2008 was dynamic and progressive in that it left it to the entities to define themselves, i.e. whether they wanted to run for quota seats or normal seats. In other words, whether they wanted to run as a communitarian party or as a national one. Something similar could have been done in Kirkuk. Unfortunately, it seems the new law provides for subtraction from the minority quotas of seats won by (nominal?) members of the selected minorities in the ordinary competition, leading us down the ugly path of sectarian genetics. What will happen if someone with a Christian-Muslim background wins a seat for a nationalist party in Baghdad for example?

  7. bb said

    Now I’m starting to drown!

    “The quota system adopted in Iraq in 2008 was dynamic and progressive in that it left it to the entities to define themselves, i.e. whether they wanted to run for quota seats or normal seats. In other words, whether they wanted to run as a communitarian party or as a national one.”

    Firstly 2008. Is this the system adopted for the provincial elections?

    Do “quota” seats mean compensatory seats and “normal” seats mean “governorate” seats?

    Were compensatory seats available in the local elections and if so how were they distributed – governorate by governorate?

    What is mean’t by running “as a communitarian party”, not a “national” one? Does it mean a party that runs solely in one governorate in a national election or local election?

  8. Reidar Visser said

    Yes 2008 refers to provincial elections. There are no compensatory seats in local elections. The idea of compensatory seats is merged with minority seats in the 2009 parliamentary law, since seats won by minorities are subtracted from the quotas; as said I find this problematic in practice as well as from an ethical point of view. In the local elections, the parties could choose to be designated as running for minority seats or ordinary seats.

  9. Moh said

    Hi Reidar, which areas are actually considered disputed territory, I know Kirkuk and Khanaqin are but are there any others?

  10. Reidar Visser said

    Only Kirkuk is recognised as a disputed territory according to the TAL from 2004 (which is cited by the 2005 constitution). So it depends on who you ask. The two biggest Kurdish parties will tend to see any piece of land outside their federal region with Kurds living on it as “disputed”. Some Turkmens see Arbil as “disputed”. ISCI sees Nukhayb in Anbar as “disputed”. For a critical discussion of the concept, see https://gulfanalysis.wordpress.com/2009/10/05/joint-patrols-and-power-sharing-in-mosul-unbalanced-proposals-from-the-international-crisis-group/

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