Iraq and Gulf Analysis

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Archive for November, 2009

The Election Law Is Passed: Open Lists, Kirkuk Recognised as a Governorate with “Dubious” Registers

Posted by Reidar Visser on Sunday, 8 November 2009 22:06

With 141 votes out of 195, the Iraqi parliament finally passed a revision of the 2005 election law this evening around 8 PM in Baghdad. The broad outline of the revised law has already been known for a long time and contained few surprises as such: Open lists, governorate-level constituencies and minority seats for Christians, Sabaeans, Yazidis and Shabak. In other respects, most features of the 2005 law (including the procedures for allocating compensatory seats, which this time makes up 5%) are kept in place. This also means that the ban on the use of religious symbols – an important step forward in the 2008 provincial elections law that was included in early drafts – has not been included in the revised law for the parliamentary elections.The controversy for the three past weeks has focused on how to hold elections in Kirkuk… Full story here.

Posted in Iraq's 2010 parliamentary election, Iraqi constitutional issues, Kirkuk and Disputed Territories | 33 Comments »

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.

Posted in Iraq's 2010 parliamentary election, Iraqi constitutional issues, Kirkuk and Disputed Territories | 10 Comments »

The Neutral, Piecemeal Approach to Kirkuk: How to Unlock the Current Stalemate

Posted by Reidar Visser on Wednesday, 4 November 2009 14:45

[Update 5 November 12:45 CET: Around midday Baghdad time today, the legal committee of the Iraqi parliament held a short meeting before the full assembly met, once more without dealing with the election law. There are however rumours about some kind of compromise (some Kurdish sources deny this) and parliament has specifically been asked by the presidency of the assembly to reconvene already on Saturday in order to vote on the election law. It does seem a little reckless to postpone the vote for a full two days if a consensus had indeed been arrived at, suggesting once more that the real decision-makers may be people who are not themselves members of the parliament]

It is by now a familiar a pattern: Towards the evening, rumours about some kind of election law compromise start to swirl in Baghdad, leading to optimistic articles in the newspapers the next morning. A few hours later the legal committee of the Iraqi parliament holds a brief meeting which ultimately breaks down, followed by a full session of parliament with no mention of the election law. Today’s variation of the theme also included a deeply worrying meeting between parliamentary speaker Ayad al-Samarraie and the Turkish ambassador in which the election law was supposedly on the agenda in a formal way. While they are at it, perhaps they should also try to strike up a conversation with Iran’s Ali Larijani, who also arrived in Baghdad today? Ostensibly his objective is to discuss water and shared oilfield issues, but there is probably also a juicy “etcetera” heading somewhere on the itinerary. Wasn’t this supposed to be an Iraqi process?

If this pattern should continue to repeat itself, it might be worth considering one of the better ideas to be circulated by the IHEC over the past days: To do this whole thing piecemeal. There is an argument for separating the Kirkuk issue from the mostly technical stuff, such as list system, total number of representatives, constituency size, number of representatives per constituency and quotas for women and minorities. This is all relatively uncontroversial and a decision on these issues would enable the IHEC to go ahead with many technical aspects of the preparations for the elections. Additionally, this would serve to eliminate the conspiracy theory to the effect that all the current procrastination in reality is caused by a secret preference on the part of many parliamentarians for a closed list.

There is however one very important caveat, apparently overlooked by the IHEC so far: For this approach to work and to be neutral, it would be absolutely necessary to avoid specifying the number of seats for Kirkuk (and, strictly speaking, their manner of election as well). This is possible since Iraq has a “compensatory seats” system (a quota of “national” seats not tied to any particular governorate, originally aimed at catering for out-of-country voting and enhancing proportionality at the national level), as well as an ongoing debate about what percentage of the total seats (probably between 10 and 17%) will eventually make up those compensatory seats. In other words, there are at least 20 to 30 seats to play with that need not (and indeed should not) be defined at this stage. If a solution for Kirkuk is found, then all well and good, Kirkuk will get its quota and its representatives will be seated. If no solution is found, elections cannot be held in Kirkuk, and the surplus of seats can form part of the general quota of compensatory seats instead (supposing this is easier for the IHEC to handle technically than to change the total number of seats).

Of course, unless this latter caveat is heeded, the whole scheme will be more or less identical to the position of the two Kurdish parties and therefore not suited as a compromise. But by leaving the number of Kirkuk seats unspecified both sides will have an interest in reaching a compromise: Otherwise they will both get fewer representatives in the national assembly! IHEC will get to know most of what it needs to know to prepare for 16 January 2010, and must be expected to be able to deal with Kirkuk on a more ad hoc basis.

Posted in Iraq's 2010 parliamentary election, Iraqi constitutional issues, Kirkuk and Disputed Territories | 7 Comments »

The Veto Straw Man

Posted by Reidar Visser on Monday, 2 November 2009 22:04

[Second update 4 November 12:00 CET: Parliament has adjourned for the day without discussing the election law in the full assembly. It will reconvene tomorrow, 5 November, for the last session before the weekend]

[Update 3 November 13:45 CET: The Iraqi parliament has just adjourned for the day. There was no discussion of the election law in the public session]

Among the most frequently used and yet least convincing arguments for advocating a delay to the vote on Iraq’s election bill is the fear of the presidential veto. Time and again, Iraqi parliamentarians contend that the greatest possible catastrophe would be to hold a vote without perfect pre-vote consensus, because this would automatically become rejected by the (Kurdish) president, Jalal Talabani, or the (Sunni Arab) vice president, Tariq al-Hashemi, that is, if the outcome failed to satisfy the aspirations of either of them. “Then we would be back to square one”, or so the argument goes. (In theory, the veto could of course also come from the Shiite vice president, Adil Abd al-Mahdi, but Hashemi and Talabani recur in the scenarios that are discussed in the Iraqi press.)

This is a fallacy for several reasons. In the first place, from a theoretical point of view, it is a reductionism that removes any autonomy from the Iraqi parliament and makes it subservient to the presidency council in a way that upsets the existing system of checks and balances and separation of powers. Secondly, from a more practical point of view, this approach ignores the fact that a parliamentary decision would create a dynamic of its own that in turn would set the stage for a different climate for the decision of the presidency council. In either case, the president in question would have the eyes of the international community on himself in a very different way than in the current situation. For example, in the case of Talabani, there would of course be pressures from his own party and the KDP to stand up for the maximalist position on Kirkuk. But on the other hand there would be potential rewards from the international community (greater international recognition of the Kurdistan federal region, economic cooperation, increased goodwill from the United States etc.) if he should choose to take a more moderate position and emerge as a compromise-seeker instead. Similarly, if Hashemi is faced with a parliament that wants the vote to go ahead in Kirkuk without any special arrangements, he would need to make a careful appraisal of what Kirkuk means in the larger Iraqi context and whether it is still worth a veto if parliament clearly indicates that it is uninterested.

And so there is no reason not to hold a vote on the bill, which is ready in all other respects. As for Kirkuk, there are several alternatives. One would be to persevere with the latest UNAMI proposal for Kirkuk (2009 registers; two compensatory Arab and Turkmen seats; scrutiny of the electoral registers after the election based on older registers going back as far as 1957; new vote one year later). The proposed formula is so Byzantine that one wonders whether it may have been conceived initially with the intention to fail, but it apparently won approval from almost everyone on the legal committee of the parliament today except the Kurds. (The Kurds reportedly found out they wanted “compensatory seats” for themselves as well, on top of the extra ones they are expected to win at the governorate level based on changes to the voter registers between 2004 and 2009!) Nevertheless, the new proposal involves a considerable compromise on part of the Iraqi nationalists and it should not be ruled out that the Kurds could end up accepting it when it is crunch time tomorrow (Tuesday has been singled out as yet another “final deadline” for the bill to pass if elections are to go ahead on schedule).

This is true in particular because the theory of an American hand behind the revised proposal also seems somewhat more proabable today, which would be another reason for the Kurds to look at it with new eyes. It has been rumoured for some time that the Americans have joined UNAMI in their behind-the-scenes effort, and yesterday the Sadrist MP Fawzi Akram Tarazi recounted the new UNAMI scheme and added “these arrangements would not have any influence on the future administrative and political status of the governorate” which is more or less a quotation from the mysterious Hill-Odierno statement from before the weekend, except that “influence” has replaced the original “precedent”. (For the record, this latter interpretation of “no influence”  is also strictly speaking incorrect; it is obvious that the results of the Kirkuk elections next January may impact the next constitutional revision committee which in turn is likely to deal with Kirkuk.) Taken together with the conspicuous intensity of telephonic contacts and visits by high-level American delegations to Kurdistan over the last days and weeks, it seems pretty clear that unlike UNAMI (which last week adopted the Kurdish position on Kirkuk) the Americans have been working for some kind of solution that involves compromises on both sides, and are apparently trying to nudge both UNAMI and the Kurds towards the centre.  The likelihood that the Kurds could adjust their policies is probably greater when the pressure is initiated by Washington than in a situation when  they are dealing only with Baghdad. [This interpretation seems corroborated by reports in Al-Sharq al-Awsat, Al-Hayat and Iraqi news agencies Tuesday morning, with Kurdish politicians for the first time complaining about US interference and "pressure" and accusing UNAMI of changing its original position.]

However, as long as they agree to hold a vote, Iraqis should not feel any obligation to necessarily include the UNAMI proposal, which is after all a rather wishy-washy affair crafted by foreign hands. This is particularly so if the Kurds decide that they are going to reject it anyway. Alternatively, they could include a vote on two of the “strong” options that have already circulated, for example 1.) No special treatment for Kirkuk, as favoured by the Kurds; and 2.) Postponement in Kirkuk until the conclusion of a satisfactory review of the voter registers, as per the Iraqi nationalist suggestion. This kind of procedure would likely produce a majority and a “dissenting minority” and therefore perhaps be a little more veto-prone, but it would be for the presidency council to review the result carefully (not least the numbers) and to sort out the relative weight of national versus communitarian agendas.

What the Iraqi parliamentarians above all need to avoid is a continued search for an elusive pre-vote consensus: They have tried this for months now, and unless the Kurds turn around and agree to the latest UNAMI proposal in the last second, no such consensus position will probably ever be found. It should be remembered that things cannot go terribly wrong here: If no vote is held at all, Iraq will end up simply using the 2005 law for the next election. The worst-case scenario of a veto is precisely a reversion to the 2005 law, so what is the risk in trying? Additionally, the sheer act of holding a vote would create positive side effects for Iraqi democracy more generally, partly because voters would get a specific indicator (Kirkuk) of what the political parties actually mean when they shout about “national unity” all the time, and partly because the conspiracy theories about secret preferences for closed lists could be laid to rest.

Finally, a critical note on how the Iraqi media is covering the election law. The Iraqi parliament is notoriously clever in disguising exactly who was present and who was not in the parliamentary sessions (only the worst offenders are given fines). For several weeks now, there have been incidents of parliament lacking a quorum. Instead of dutifully paraphrasing the sometimes not-so-inspirational comments delivered by Iraqi MPs on a daily basis, why don’t some Iraqi journalists simply stand at the door of the parliament and make a record of which parliamentarians attended and which ones were absent? That sort of information could also make the mysterious process about the election law a little more transparent.

Posted in Iraq's 2010 parliamentary election, Iraqi constitutional issues, Kirkuk and Disputed Territories | Comments Off

They Don’t Give a Damn about Kirkuk… But They Don’t Want to Vote Either!

Posted by Reidar Visser on Sunday, 1 November 2009 23:05


Procrastinator-in-chief: Jalal al-Din al-Saghir, ISCI’s parliamentary whip

Media reports on the delays in passing an election law have so far focused on Kurdish resistance to language that would give a special status to the Tamim governorate pending a settlement of its political status. However, the Kurds should not be given all the blame for the delay: Even if the Kurds are unwilling to move an inch, with their 50 plus representatives they simply do not have the numbers alone to deny the Iraqi parliament a quorum, as is sometimes claimed in the press. (Earlier, in other contexts, 30 Sadrists have also been mislabelled as potential obstructionists in their own right in this way). There are still some 220 representatives left from which the 138 parliamentarians required for a vote can be recruited.

This should bring into focus an interesting segment of Iraqi MPs whose stance on the elections law has so far largely escaped scrutiny: Those non-Kurdish representatives who say Kirkuk is a minor or even “constructed” issue but who nevertheless seem distinctly unwilling to press for a vote on the law. One example is Ayad al-Samarrai (IIP/Tawafuq) who on 24 October in a statement on the Iraqiyya television station condemned parties and representatives “from outside Tamim” for complicating the issue and for using criticisms such as “the selling of Kirkuk” – the latter reference making it clear that he was talking about Iraqi nationalists.  Another instance is Ammar al-Hakim of the Islamic Supreme Council of Iraq (ISCI), who on 30 October said that the mixing of the question of Kirkuk with the elections law was problematic, and that the “Arabs and Turkmens [of Kirkuk] make exaggerated demands.” He elaborated: “We are only talking about two or three seats”. The same tendency of portraying the Kirkuk as essentially a local issue was evident even before the summer vacation when Salim al-Jibburi (another Tawafuq MP) blamed “Arabs and Turkmens of Kirkuk” for creating trouble over the elections law on 21 July.

The basic thrust of all these three examples is that they deny any national aspect to the Kirkuk issue. They deplore the attempts by others to see Kirkuk as a question of national concern and construe those who make demands for a special status for Kirkuk as parochial recalcitrants and/or Iraqi nationalists fishing in waters outside their proper jurisdiction (“Kirkuk has a Kurdish majority”, Hakim maintains, again choosing to see only the ethnic sub-identities). Forgotten is apparently the argument put forward by Iraqi nationalists (often from Hiwar and Iraqiyya) that Kirkuk is a truly national question. Ignored is the fact that there is a direct link between the next parliamentary election and the fate of Kirkuk, since it is for the next parliament to create a new committee to finish constitutional revision (in which the settlement of Kirkuk is likely to come to the fore again). In that perspective, it does matter whether the representatives of Kirkuk favour to stay with the central government in Baghdad or instead want annexation by the Kurdish federal government.

The big question is, of course, when their position is in practice identical to that of the Kurds, why are these MPs so reluctant to press for a vote? If the problem consists only of a couple of local hardliners, what is all the fuss about? There could be two alternatives, one with no special status for Kirkuk and another involving a postponement of elections there, and if Kirkuk is really so insignificant then they would easily win! After all, in the past, ISCI and the Kurds had no qualms about trying to bulldoze their opposition, as seen in October 2006 during the vote on the federalism law (even if they barely managed to win the vote back then). And yet each time someone in the Iraqi parliament has pressed for a vote, ISCI has been at the forefront of the calls for more talks and more consensus, or they have not been present in the chamber at all. One just cannot help wondering whether for some this all has to do with the fact that an early vote in parliament on the elections law would also produce an open list – a prospect about which many of the current parliamentarians are distinctly uneasy. Or is the reluctance there because these politicians know somewhere deep inside that many Iraqis are concerned about Kirkuk and for this reason the MPs do not want to have too much focus on their dealing and wheeling within the safe confines of parliament? Perhaps they might even be worried about accidentally triggering a revival of the 22 July trend inside parliament?

This paradox also puts the recent discovery of the alleged “loss” of the registers of voters for Kirkuk for 2004 (central to many of the compromise proposals so far) in a strange light. Yes, those registers have apparently been lost. Or so says the Iraqi elections commission (IHEC). Except that it adds – just to be on the safe side it seems –  that “even if the registers are found, they cannot be used”. Why? Because they were compiled by the United Nations and not by an Iraqi commission! That was the explanation offered by Qasim Hasan al-Abbudi of the IHEC. Abbudi, a high-ranking member of the commission, has an interesting background. His resume says he graduated from law school in Baghdad in the 1990s, but little detail is offered before he emerged as a judge in post-2003 Iraq. However, in 2008 additional information came to the fore as Sadrists accused him of strengthening the control of ISCI and the “Iranian security services” within the IHEC, among other things describing him as a past employee of Al-Alam, the Iranian television station. And so, while the proposal by Adil Abd al-Mahdi (another ISCI figure) to use the 2004 registers for a two-constituency system seemed genuinely creative when it emerged a week ago, its rejection one week later by the member of the IHEC that is closest to ISCI makes you wonder what is going on while the clock is ticking. By far the two most prominent IHEC persons in shooting down any attempt at introducing Kirkuk compromises in the election law have been ISCI’s friend Abbudi as well as Faraj al-Haydari, a former KDP politician.

Meanwhile, today, there are reports of another attempt by UNAMI to mediate, apparently without giving any consideration to the fresh proposals on constituency sub-division along administrative (not ethnic) lines that were contributed by Iraqis last week. As usual, there is no word from UNAMI itself about what it is doing, but if correctly reported by Iraqi television the latest proposal does involve a slight improvement of the previous position which was basically identical to that of the two Kurdish parties and therefore badly suited to reach out to the Iraqi nationalists. According to Al-Baghdadiya, the new scheme would mean establishing a quota guarantee for Arabs and Turkmens from Kirkuk; however these seats would belong not to the seats for Tamim proper but to the “compensatory” seats that are distibuted at the end to enhance proportionality at the national level. (Reportedly, there would be a minimum fallback position of one seat for “Arabs” and one for “Turkmens”, but it is unclear how this quota would be affected by any representation obtained directly by “Arabs” or “Turkmens” in the Kirkuk constituency (i.e. outside the quota arrangements), and there would be the perennial problem of imposing crude ethno-sectarian order on a highly complex reality: How do you count a seat won by an Iraqi nationalist with a Turkmen mother and a Kurdish father, for example?) Additionally there would be a one-year process of scrutinising the Kirkuk elections registers (the 2009 ones would be used in January 2010, despite objections by Iraqi nationalists, but the re-investigation would involve looking at older rolls of voters), followed by new elections for Tamim one year into the new parliament.

The new proposal seems weak in that caves in to the primitive ethno-sectarian logic that many Iraqis feel are undermining their whole nation. “Arabs” and “Turkmens” may get reserved seats, but what about those forces in Tamim that want to define themselves through civic forms of identity, like “Kirkuki” or “Iraqi”? Another problem is that key appointments to the next committee for constitutional review – to which the entire Kirkuk issue will be intimately connected – will likely take place before the foreshadowed one-year period has come to an end, thus probably producing representatives for Kirkuk whose legitimacy will be disputed. Despite these weaknesses however, this is at least some kind of compromise in the sense that it is so diluted that there can be no good reason for the Kurds to reject it, whereas at the same time it satisfies the nationalist demand for a special status for the Tamim governorate, albeit a highly symbolic one.

The main problem now is whether Iraqi politicians really want to have a new election law.

Posted in Iraq's 2010 parliamentary election, Iraqi constitutional issues, Kirkuk and Disputed Territories | 5 Comments »


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