Blacklisted in Baghdad: Can Washington Fix Iraq’s Election Crisis?

On why Iraq keeps blowing up in the face of the Obama administration, and what it can do to prevent this from happening again. Opinion piece at the website of Foreign Affairs; full article here.

Decentralisation Bonanza in the Iraqi Budget

“Pork barrel” may perhaps come across as supremely insensitive in the Iraqi context and yet this very American expression may be the best way of explaining the political compromise that facilitated the passage of the 2010 budget in the Iraqi parliament yesterday.

The key to understanding at least some of the underlying dynamic here is hidden in article 43 of the new budget law, which specifies special rates of added income for a number of Iraqi governorates according to their economic structure. The historical roots of this article goes back all the way to December 2007, when the Basra branch of the Fadila party exploited local regionalist sentiment to make an unprecedented demand for a one-dollar fee per locally-produced barrel of oil to be set aside for the governorate in a special fund. Basra holds maybe 60 to 70% of Iraq’s oil (currently producing more than 1,000,000 bpd) and yet has one of the lowest standards of living in the country. Accordingly, many Basrawis think they are specially entitled to the disproportionate share of oil revenue that is constitutionally mandated for under-developed regions, and have earlier flirted with the idea of territorial autonomy for improving their lot. The idea of using federalism to solve the problem received a blow in a failed referendum initiative in January 2009, but the demand for a share of the oil lingered – to the point where their logic was accepted by the Maliki government, which eventually indicated its preparedness to give Basra 50 cent per barrel of oil. When news about this broke last May, it was immediately followed by demands from Kirkuk, Iraq’s second biggest producer (maybe 600,000 bpd) for a similar half-dollar per barrel fee. Fast forward to article 43 of the budget passed yesterday where this kind of logic has been pushed to its logical maximum: Henceforth, one dollar will be paid to the relevant governorates for 1) each barrel of produced oil; 2) each barrel refined oil (the biggest refineries are in Bayji in Salahaddin province and Dura near Baghdad) 3) each 150 cubic metres of produced natural gas. Also, 20 dollars will be paid for each foreign visitor to the “holy sites” in the governorates! In practice, the latter will mean Karbala, Najaf, Samarra and Kazimayn in Baghdad. It seems like an inverse version of the taxation strategies of absolutist rulers in seventeenth-century Europe, when attempts were made to put a levy on every conceivable household item from shoes to wigs for the purpose of increasing state revenue.

The underlying politics that enabled this development can be explained as follows. Back in the 2009 local elections Maliki made a big win in Basra because of the security improvements. Given his centralist instincts, the concession to the Basra demand for a special share of the oil by Maliki last May was quite remarkable; nonetheless it can be explained as a necessary step towards securing continued Daawa influence in Iraq’s second city. Only weeks ago, Basra’s governor, a Maliki ally, declared that the eyes of the Basrawis were “fixed on the half-dollar promise”, and other Basra politicians had earlier made claims for as much as a 3% share of the oil revenue so this was clearly creating pressure on Maliki.

But Maliki needed political allies to get the budget passed with the special fee for Basra. Last summer, partly with the help of Iran and the Islamic Supreme Council of Iraq (ISCI) which attacked him for flirting with secularists such as Salih al-Mutlak (who is now being banned), and partly assisted by the United States who told him to back off from criticism of the leading Kurdish parties, Maliki managed to thoroughly estrange what would have been his most natural political partners from the ideological point of view – the centralist secular-nationalists including Iraqiyya, Hiwar and the Hadba front in Mosul. That severely restrained his choice of partners, especially as long as he continued to indicate a preference for a separate electoral ticket without any coordination with the other Shiite Islamist parties. In fact, by the autumn of last year, there were few alternatives left except the Kurds, whom Maliki had previously alienated quite severely (to the point where Peter Galbraith described Maliki as one of the most dangerous centralists on the Iraqi political scene). Nonetheless, the Kurds and the Daawa party were able to find common ground on a number of issues, in particular on the compromise over Kirkuk in the election law and the subsequent debate over the Hashemi veto and the parliamentary seat distribution key.

For the past weeks, the Kurds have in fact been the main driving force in getting the budget passed alongside Maliki. What price did they exact for this? It is still a little hard to analyse the detail of this because the most important parts of the budget law – the annexes to the law itself – have yet to be published. But some main points, as well as the language of a number of revisions to the previous version of the budget published on 20 January, make it possible to see at least the general contours of the underlying political compromise. The first Kurdish demand was simply to retain the 17% share of the country’s general budget after the deduction of federal spending. This demand has been disputed with reference to demographic statistics by political opponents of the Kurds who claim the figure is too high, but it was accepted by Daawa early on. Similarly, the demand for a per-barrel fee for Kirkuk to match the arrangement previously approved for Basra was also acceded to (and indeed doubled to one dollar in the final version of the budget and made universal for any oil-producing governorate). Another Kurdish demand was that the Kurdish regional militia or peshmerga be paid separately (instead of over the Kurdistan budget), though apparently without giving up Kurdish command and control; this aroused controversy and pending the publication of the budget annexes it is impossible to see whether a solution was indeed found, though it seems more unlikely. (PS This latter issue is in fact “solved”, Iraq-style, in article 16/9: The prime ministers of the federal government and the KRG will agree on a solution that is “in accordance with the constitution”. Which means there is no solution and the ball has been kicked down the road again; clearly not the sort of thing one would expect in a normal budget…)

What seems clearer, however, is that some money has been set aside for the interesting separate heading of “oil exports via Turkey”. Already on 20 January, it was reported that the revised budget included 416 billion dinars for “expenses” for oil production and 84 billion dinars for payment for exporting oil to Turkey. Again, the exact sums cannot be confirmed in the absence of the annexes, but the principle of the federal government paying something special for export via Turkey is confirmed in article 16/7 of the budget law itself, where such expenses are expressly deducted from the federal government before the share of Kurdistan is calculated. At this point, much of this is still conjecture, but given the overall tendency of tentative rapprochement between Daawa and the Kurds, it is not entirely inconceivable [but see comment at end of paragraph] that these funds are intended to enable the Kurds to at least cover the operating costs of the foreign oil companies (DNO and Genel) that briefly began exporting from Kurdistan last year (but received no payment since Baghdad does not recognise their contracts, thereby forcing the KRG to make any payments from its own purse). This is of course not the big breakthrough in terms of recognition of contracts that these companies had been hoping for – that after all does not relate to the budgetary process and will likely be handled by the next Iraqi oil minister. It is also unclear whether the state oil exporting company, SOMO, is prepared to carry out resumption of export in practice. But the inclusion of this item in the budget does seem like a significant concession by Maliki, who is likely to come under criticism from strongly nationalist politicians if he has given the Kurds at least some of what they wanted in terms of increased possibilities for maintaining a working relationship with foreign companies that are still considered controversial by many Iraqis (chiefly because of the big profits envisaged in their deals with the Kurdistan authorities, and also the way in which the contracts came about, by circumventing Baghdad). [CORRECTION: The same expression about Turkey exports can also be found in the 2009 budget, suggesting that no radical change is implied by this heading in itself. An alternative explanation relates to Turkish pipeline surcharges, which also apply to ordinary Kirkuk exports by the central government. Again, much of this is impossible to address authoritatively pending the publication of the annexes, but the similarity to the 2009 budget is at least a good indication of where things stand.]

The more orthodox centralist thinking of Maliki’s oil minister, Hussein al-Shahristani, can probably be seen elsewhere in article 17 of the budget, which threatens to penalise regions and governorate that halt exports (which the Kurds did last summer; the Kurdish politician Khalid Shwani objected to this clause as “politicised” in early January), and in the statements by Abd al-Hadi al-Hassani of the Tanzim al-Iraq branch of the Daawa (also a prominent figure on the oil and gas committee), who recently expressed his desire to convert the DNO and Genel contracts to what he described as “straightforward technical service contracts”. Still, no major disagreement has been noted between Daawa and the Kurds after 20 January other than a Kurdish rejection of a proposal to have spending on the port of Basra defined as “national” instead of “provincial” expenditure (the latter being in line with the Kurdish general policy of weakening Baghdad as much as possible); it seems unlikely, therefore, that they would have signed off on the budget package had they not received more or less what they had asked for on 20 January. All in all, apart from the political aspect, it seems clear that while the recent flurry of technical service contracts with major foreign oil companies to boost production for the southern oilfields are helping Shahristani to maintain his political independence vis-à-vis the Kurds (i.e. continuing to demand the right to review and possibly revise the foreign contracts), they are not yet helping him towards the economic independence he had wanted for the financial year of 2010: The nationwide production forecast has reportedly been set at a very modest 2,15 million barrels per day at an average price of 62 USD.

But the Kurds and Daawa were not enough to get the budget passed. More consistent resistance to Maliki was seen in the shape of the Iraqi National Alliance headed by ISCI and the Sadrists, who have been unhappy about Maliki’s refusal to join them in an all-Shiite political alliance ahead of the parliamentary elections. Last autumn this escalated to the point where ISCI joined forces with their erstwhile enemies in the secular Iraqiyya, to introduce the idea of a “law on electoral conduct”. While most of the draft of this law is unremarkable, a provision under article 25 would transform the Maliki government to a caretaker government with no independent spending power for the period leading up to the 7 March elections, thereby preventing him from using state funds to support his electoral bid. In late December, this was further developed with the idea of coupling the passage of the budget to the “electoral behaviour” law: Maliki would not get his budget without agreeing to cede some spending authority in the dying days of his ministry.

Whereas the idea of a law on electoral behaviour and a caretaker government remained popular in secularist circles, ISCI gradually began adopting a bargaining position that could enable the budget to pass after all. Around a month ago, some deputies began focusing more on extra money to the governorates and the agricultural sector, and on 31 December Jalal al-Din al-Saghir of ISCI announced a move to get more of the investment money directly to the governorates (i.e. by circumventing the relevant ministries in Baghdad), also expressing a general desire for reducing the number of ministries in Baghdad. Around the same time, the idea of replicating Basra’s oil surcharge began spreading to the ISCI heartland around Najaf where there is only negligible oil production. Instead, ISCI’s Layla al-Khafaji on 30 December introduced the idea of financial remuneration for the “touristic governorates” (the principal of which are Najaf and Karbala, on account of the holy sites there). The rationale of this arrangement is perhaps not as readily understandable as the oil surcharge (which in addition to making up for under-development also serves as compensation for environmental problems in an industry setting that is not particularly labour-intensive; conversely tourism generates significant income locally), but it does reflect a certain regionalist instinct in the Najaf governorate that is comparable to what is found in Basra. ISCI completed its list of demands with some nice populist touches such as cuts in the salaries and budgets of top state officials (most prominently the “three presidents”, i.e. the prime minister, the president proper and the speaker of the assembly). Still, their pressure persisted right until last week and it seems likely this may have contributed significantly to further increases in governorate allocations (and the per-visitor fee for the holy cities grew 40-fold from 50 cents to 20 dollars), although the precise figures have yet to be published. Conversely, and reflecting the chronology of the compromise behind the budget, the Kurds have largely refrained from supporting the law on electoral behaviour (and certainly the idea of coupling it with the budget), even though it had initially been introduced last autumn by the collective presidency (which includes the Kurdish president, Jalal Talabani). This apparently reflects the tentative rapprochement between Maliki and the Kurds which began last December.

It is interesting that the Sunni Islamist Tawafuq, often seen as enemies of Maliki after his resistance to their rise to the parliamentary speakership under Ayad al-Samarraie last April, has actually acted quite loyally alongside Maliki (and the Kurds) in this. For example, on 4 January, Salim al-Jibburi rejected the idea of linking the passage of the budget to the law on electoral behaviour, thereby reiterating the Daawa stance. At the same time, they, too, have gone further than ever before in expressing decentralisation ideas, with Samarraie on 5 January publicly backing the idea of sidelining a number of Baghdad ministries and sending the money directly to the governorates. Alaa al-Sadun presided over the financial committee and on 20 January announced the decision to decentralise the budgets of several ministries to the governorates instead; this was followed by two laws issued by parliament on the day before the budget passed on the “breaking of ties” between the ministry of public works and its departments on the one hand and the relevant governorate institutions on the other.

One disputed item of the budget can highlight where we stand today. In the hours following the passage of the budget yesterday, a bitter dispute erupted between Daawa and the ISCI – to the point where Khalid al-Atiyya, the deputy speaker of parliament and a Maliki ally, reportedly asked the presidential council to veto the recently-passed bill! The disagreement relates to the appointment and confirmation of some 115,000 civil servants, which in article 21 is postponed to the next parliament. In practice, this is a smaller version of the electoral behaviour bill, since Maliki had wanted to have those Iraqis confirmed as a way of strengthening his own role as patron for them. He is now being prevented from this, and the level of intra-Shiite bitterness on the issue is certainly interesting.

What we have then, all in all, is a budget where Maliki has been forced to give up much of his centralist credentials after the half-dollar initially promised for Basra oil simply snowballed out of control. The failure of federalism south of Kurdistan has shown that most Iraqis don’t fancy formal decentralisation, but at the same time it seems clear that they certainly do not object to the purely economic variant that is reflected in this governorate-level spending spree. Throughout the process, few politicians have highlighted ideas such as budgetary prudence, centralised planning and the greater danger of corruption at the local level. In sum, it appears Iraqis are being treated to the good old formula of bread and circus these days, with the swelling budget coming on the heels of the arbitrary de-Baathification process (this has also coincided with several executions, and state television keeps spending much time broadcasting court proceedings against officials of the former regime). It is remarkable how much has changed since the local elections just a year ago, and how successful the parties with an ethno-sectarian agenda such as the Kurds and ISCI have been in regaining the initiative after Maliki failed to ally with the nationalists and instead went out on a limb with his attacks against Syria and ex-Baathists after the Baghdad bombings last autumn. This has created an unexpected return to alliance patterns more similar to 2005 than to early 2009; to a great extent this is now mostly about pork barrel and a contest among the Shiite-led parties about being tough on de-Baathification. It is noteworthy, however, that in terms of concrete alliance formation, it is ISCI and the Kurds that appear to have been in the closest talks as far as the future is concerned.

The New De-Baathification Board?

The big news out of Iraq today is of course the passage of the 2010 budget, but since the final document  (including the all-important annexes) has been a little slow to emerge, we might as well have a look at another interesting item in the meanwhile, published this morning by Sumaria TV.

Sumaria, which was also the first to publish the names of the 511 banned candidates for the 7 March parliamentary elections, claims to have obtained the revised list of candidates for the de-Baathification board that the government is eager to put in place in order to improve the legal façade of its de-Baathification process. According to the sources, the new names are Kamran Rasul and Bakhtiyar Umar from the Kurdistani list, Haydar Hanun of Daawa, Falah al-Shanshal of the Sadrist list (he has lately been the most outspoken parliamentary supporter of Lami/Chalabi’s de-Baathification policy), Muhammad Salim and Mahdi Salih listed as Iraqi National Alliance (presumably ISCI or close to ISCI since the Sadrists are listed separately), and Abd al-Razzaq Hassan of Tawafuq.

The apparent removal of Walid al-Hilli, Maliki’s preferred candidate to head the commission, is interesting. Other than that, it has to be said that with the exception of Shanshal, these aren’t individuals about whom a great deal is known. But if the party affiliations are correct as reported (the candidature of Shanshal, at least, has been confirmed by other sources) then this is bad news indeed. Blunt, straightforward ethno-sectarian and party-based muhasasa with 4 Shiite Islamists, 2 Kurds, 1 token Sunni Islamist and, as usual, no one representing the secular nationalists. The board was reportedly not voted on today even though Shanshal had pressed for such a vote.

The Ghost of Paul Bremer Strikes Again: Nine Entities Banned with Reference to CPA Order 97

The Iraqi elections commission (IHEC) has earlier queried the constitutional court about the relationship between excluded party leaders and the entities they represent. Last December it asked whether it would be constitutional to ban an entity if its leader were excluded; the court replied it did not want to issue an opinion on this and said the matter rested with the IHEC. It was subsequently rumoured that the accountability and justice board wanted to exclude between 10 and 15 entities, and it was thought that there might be an attempt at linking the banning of entity heads and their entire parties.

Today, the IHEC has acted in a bolder fashion. Referring to section 5 of CPA order 97 from 2004, they have cancelled the approval of 9 entities previously slated to take part in the elections. CPA order 97 is an unmistakable Paul Bremer creation. It pompously begins, “Pursuant to my authority as Administrator of the Coalition Provisional Authority…” The relevant section simply runs as follows, “All further matters regarding the regulation and certification of political entities lie with the Commission exclusively”. Very general and wide-ranging powers indeed. The document was signed on 7 June 2004; the “commission” referred to is what was then the “Independent Electoral Commission”, which later became the “higher commission”.

The entities affected include two sub-entities within Iraqiyya (most famously the Hiwar front of Salih al-Mutlak); two parties within Unity of Iraq; the party of Nehru Abd al-Karim; one party within State of Law, and the rest smaller lists and independents. The commission does not spell out what the annulment of the approval of these entities will mean in practice. It says the candidates in the elections cannot use the names and logos of these parties. That may possibly mean that the practical implications are limited – the case of Iraqiyya is in any case more convoluted because the banned Hiwar technically merged with Wifaq to form a new movement or haraka last autumn, distinct from the coalition, and Ayad Allawi is the head of it.

What this whole issue shows is that once more the IHEC is acting in concert with the accountability and justice board. The reversion to a carte-blanche article in a law authored by Paul Bremer – no specific coherent legal justification for the exclusion is offered, just a brutal attempt at asserting boundless power –  serves to highlight the murkiness of the waters that we are headed for with this election.

Postscript: Finally, one more detail. By highlighting the names of the party heads in the list of excluded entities, one gets the impression that the IHEC wants to focus on the de-Baathification status of the leader as basis for exclusion.  But apparently, four of these leaders are not on the blacklist of the 511 excluded candidates, even though some expected them to be there! The only Arshad on the list is called Arshad Husayn Muhammad Yunis, and yet the party of Arshad Ahmad Muhammad Mustafa (Zibari, a Kurd) has been banned. Similarly, Jamal Nasir al-Karbuli and Saad Asim Abbud al-Janabi have had their lists banned, and yet the list of 511 contains only 4 Jamal and 4 Saad, none of whom have parental names that fits. That inevitably raises the question of whether there is any relationship between the de-Baathification status of the leaders and the banned parties at all, and whether the IHEC thinks that it can outlaw whatever list it bloody well wants to exclude, even for no good reason, as long as it is done in the name of Paul Bremer’s sweeping edict from 2004.

Advantage Lami-Chalabi; Obama-Biden in Real Trouble in Iraq

Indications are that Vice-President Joe Biden came up against a wall of resistance when he visited Baghdad yesterday in an attempt at dealing with the recent row over de-Baathification. Apparently, both Prime Minister Nuri al-Maliki as well as the parliamentary speaker, Ayad al-Samarraie, went out of their way to defend the idea of “non-interference” in what they refer to as the Iraqi “constitutional” process. Also President Jalal Talabani, who had briefly indicated a position more compatible with the US preference for a delay of the whole de-Baathification process, seems to have fallen into line. At the end of the day, the three Iraqi leaders gathered for a meeting and settled for the worst possible outcome: Those excluded will simply have to await the outcome of their individual cases in the hastily-assembled special appeals tribunal for de-Baathification cases that came into existence only one week ago – the very solution advocated by Ali al-Lami and Ahmed Chalabi of the de-Baathification board all the way. Doubtless, “un-Baathifications” will be available for sale to those who can pay the right price (much in the way they were sold and bought last week) and may go some way to reduce the sense of marginalisation; after all, the aim behind this whole plot was probably just to secure a sufficiently sectarian climate before the elections, which has already almost been achieved. Before leaving, Biden expressed complete “confidence” in the Iraqi process.

Meanwhile, there are interesting reports to the effect that the Maliki government may still try to get a new board for the accountability and justice board appointed in the dying days of the current parliament. Back in December, the legislative assembly failed to approve the list of candidates submitted by the government, mainly due to Sadrist–Daawa disagreement about who should head the committee. Maliki supporters were visibly displeased at the rejection of their own candidate, Walid al-Hilli, and in December produced several documents and statements by Ali al-Allaq and others indicating their belief that the old accountability and justice board was “illegal” (these statements are the ones that have more recently been discovered by Iraqiyya and are now being used as ammunition against the legitimacy of the board). Yesterday, there were reports that a new, slightly revised list of candidates was on its way to parliament.

Importantly, this move should be seen as window dressing rather than substantial change as far as de-Baathification process is concerned. Added to the list of candidates is Falah al-Shanshal, the Sadrist head of the parliamentary committee for accountability and justice whom the Daawa party for a while tried to marginalise. He has been the most vocal supporter of Lami and Chalabi throughout this process, and so even if a new board is appointed this will not by any means represent any real marginalisation of Lami and Chalabi and the hardliner approach they personify, even if the two may possibly fade more into the background in the future. Rather, the latest developments suggest this is simply a cosmetic act aimed at making the committee look more in conformity with the legal framework adopted in January 2008. There is no suggestion that a new board will revisit the 511 existing cases of exclusion (but no one should be surprised if a new board will find grounds for adding some more cases in the last minute).

However much the Iraqi government tries to fix the facade, nothing can change the fact that the whole de-Baathification process is fundamentally flawed from the legal point of view. When pressed, Iraqi politicians tend to defend themselves with reference to “constitutional” procedure. Dusturi, dusturi, dusturi… It is a nauseating chorus. Most of the time this expression simply means “I know I am right but I am unable to provide a coherent argument in support of my position”. It is a sad fact that a large number of Iraqi deputies haven’t got the faintest idea about the contents of the constitution to which they so solemnly refer; those who do know tend to forget the parts of it they don’t like (just to take the most notorious example: the Kurdish zest for article 140 and their indefatigable attempts at pretending article 142 does not exist). And when it comes to de-Baathification, the list of constitutional and legal breaches is indeed long, starting with small but significant breaches of the accountability and justice law (such as reducing the appeals period from thirty to three days and apparently also ruling against Baathists that were only at the firqa level of membership), via dubious attempts to generalise from the individual level to the level of political entities with reference to article 7 of the constitution, to a questionable attempt by the board to use that same constitutional article to act in a more general anti-Baathism watchdog role (even though the accountability and justice law from 2008 specifically sought to limit its prerogatives to a set of highly specific de-Baathification measures). Unsurprisingly, this kind of legal chaos has fostered an atmosphere of vigilantism at all levels: In the capital, Daawa politicians have abruptly invented new procedures for repentance that supposedly may reinstate excluded candidates; in Najaf and Diwaniyya Sadrists and Daawa leaders have declared that “Baathists” must “give up their arms” or even remove themselves from these areas within a specified time period! Interestingly, however, in an apparent admission of the legal vacuum, Ali al-Dabbagh has today asked parliament to create new legislation that would outlaw glorification of the Baath party.

Before leaving, Biden gave Maliki the extra bonus of a promise to appeal the Blackwater case. This will enable him to look “national” (unsurprisingly, most Iraqis tend to agree that Blackwater is just as scandalous as Abu Ghrayb), while conveniently deflecting attention from the deeper systemic problems of the so-called “State of Law” that he is running.

Some More De-Baathification Metrics

The party-level statistics of the fallout from the latest round of de-Baathiciation are now beginning to filter through. This information was not obtainable from the accountability and justice board or the IHEC, since the only document leaked from them was a consolidated list of 511 banned candidates without any party affiliations given. However, the individual parties received lists of their de-Baathification “results” in the various provinces.

As expected, it is the secular and nationalist parties that are hardest hit. The biggest of them, Iraqiyya, has reported that altogether 72 candidates across the country are on the banned list, 22 of them in Baghdad. The Ahrar list, a much smaller nationalist party but one that is even more critical of Iran , says 20 of its candidates are on the black lists. We already know that the Unity of Iraq alliance headed by Jawad al-Bulani, the Shiite interior minister, and Ahmad Abu Risha, the Sunni leader of the Anbar awakenings, has been disproportionately hit even at the highest level, with several entity heads banned. It is a fair guess, therefore, that their share of the outlawed candidates may be even bigger than what Iraqiyya has. Finally, the Coalition of National Unity – which defected from Unity of Iraq soon after its inception but is a similar Sunni-Shiite secularist set-up headed by Nehru Abd al-Karim, an Iraqi nationalist of Kurdish origin – is also widely seen as a main casualty. It is therefore likely that these four parties may account for as much as half of the banned candidates, with the rest being made up of independents plus some symbolic cuts in the Shiite-dominated State of Law and Iraqi National Alliance (reportedly in the region of no more than 10-30 each, perhaps a convenient range for removing internal enemies given that the latter party effectively controls the de-Baathification process).

At the same time, remarkable pieces of information about the utter capriciousness of the entire process keep popping up. Perhaps the most brazen one concerns the appeals process. According to the accountability and justice act of January 2008, those covered by the legislation are supposed to have 30 days to appeal. But without any explanation, that has now been reduced to three days! Surely even diehard supporters of the de-Baathification board must realise the flagrantly despotic nature of that kind of approach. Also, as already suspected, it does seem as if the accountability and justice board has tried to exclude former Baathist regardless of rank, since a good deal of members at the firqa level (who are explicitly OKed for public service under the law from 2008) have reportedly been blacklisted.

Unpredictability and imaginative interpretation of the legal framework are not the unique preserves of the accountability and justice commission either. Today, there is a lot of focus on statements by the Iraqi president, Jalal Talabani, to the effect that Salih al-Mutlak should not be subject to de-Baathification, because he was not a “Saddamist Baathist”, meaning he left the party before Saddam became its leader in 1979. The move by Talabani to defend Mutlak is an interesting and positive one, perhaps finally reflecting some second thoughts in the Kurdish camp about the closeness of many of their Shiite Islamist partners to the most repressive corridors of power in Tehran. But again this is not particularly coherent in legal terms. The term “Saddamist Baath” occurs only once in the Iraqi constitution, in relation to the ban on Baathist revivalism (with regard to which it is questionable whether the de-Baathification committee has any mandate at all, since that paragraph is also part of a more general ban on racism and sectarianism). Conversely, the accountability and justice legislation from January 2008 – to which the whole de-Baathification process is supposedly linked – defines the entire period from 1968 to 2003 as Baathist, focusing instead on differentiation between various level of party membership.

Other creative proposals for dealing with the current crisis include a suggestion about public repentance and denunciation of the Baath by the affected candidates! Ali al-Dabbagh of the Daawa, among others, has said things that seem to go in this direction. But once more, this kind of ad hoc public parading of the accused without giving them a chance to explain their past in a wider context would be a contradiction of the general approach to de-Baathification followed by the powers that be in the post-2003 period, where public dialogue and “truth commissions” on the subject have been studiously – and, one suspects, conveniently – avoided. It is generally believed that a more systematic and public approach would show that the Shiite Islamist themselves have silently “un-Baathified” large numbers of former Baathists of their own sect, while publicly maintaining a fierecely anti-Baathist rhetoric.

Particular attention has been given to the alleged existence of a government-level document that declares the current de-Baathification board illegal following the failure by parliament to approve its new board on 12 December last year. This document – which of course only represents a point of view within the government and is not a ruling as such – has reportedly formed the point of departure for a move by Talabani and Tareq al-Hashemi (one of the vice-presidents) to obtain the views of the federal supreme court on the matter. This could be a promising avenue. The accountability and justice board is particularly vulnerable to legal scrutiny because the parliament in practice has cut and pasted those parts of the relevant January 2008 legislation that it liked, i.e. it has kept the old board without electing a new one in accordance with the procedures of the new law, but only weeks ago it super-imposed an appeals court where the procedures defined in January 2008 were adhered to (the old commssion had no appeals mechanism). It is, in other words, a half-finished job, and the inconsistency of the application of the accountability and justice law is therefore perhaps the most promising line of attack that could help solve this entire issue within the Iraqi framework. It would certainly be better to abolish the current de-Baathification board completely than to place much faith in the appeals process at the level of individual candidates. Two caveats, however: The federal supreme court did have a role in putting in place the appeals mechanism (it had already submitted candidates for the court to parliament several months ago and last week asked the council to approve them as a matter of urgency), and, like the current de-Baathification board, the FSC is itself a relic from the CPA area whose constitutionally-mandated replacement has yet to materialise due to the legislative logjam in the Iraqi parliament.

The 511 De-Baathification Cases: Sectarianism or Despotism?

Late Tuesday night, the Iraqi television station Sumaria published the full list of 511 Iraqis that have been barred from standing as candidates in the 7 March parliamentary elections with reference to the de-Baathification procedures. The list says a good deal about the nature of the recent decision by the de-Baathification board – what it is, what it isn’t, and not least what it means in terms of unexpected complications for the Iraqi elections process at a time when many observers thought the institutional framework had been safely locked in place.

Admittedly, this list presents several analytical challenges. As is standard in Iraqi bureaucracy, individuals are identified not by the names they use normally, but by their own first names followed by the first name of their father, grandfather and great-grandfather. Conversely, in every-day usage, the first name is used normally in combination by maybe one or two of these (and this could be the great-grandfather rather than the father for example), or the patronymics are discarded altogether in favour of a nisba name, indicating tribal or geographical origin. Just to give an example, if one wants to find out whether the Nujayfi brothers of Mosul have been de-Baathified or not, one needs to know that they would appear in this material as “Athil bin Abd al-Aziz bin Muhammad” and “Usama bin Abd al-Aziz bin Muhammad” respectively, without any reference to the Nujayfi nisba. Or for Tariq al-Hashimi, again just for the sake of a hypothetical example: Tariq bin Ahmad bin Bakr bin Ahmad. Further complicating the picture is the fact that this list contains no geographical or party references (which usually facilitates this kind of analysis for example when candidate lists are under consideration). In short, while the Iraqi way of doing this kind of indexing is clearly superior to Western standards in terms of reducing the risk for mix-ups (i.e. there is no John Smith; even in difficult cases there will be four variables, say, Ali Muhammad Hussein Abdallah), it is problematic in terms of analysis because of the sometimes great discrepancies between the formal registers and the names that are familiar from the media. As a result, oversight is almost inevitable in a material of 500 plus candidates.

This methodological challenge relates directly to the first important analytical point about the lists: Even in those cases where collating register names with the forms familiar from every-day usage is possible, it seems that many of these individuals are relatively unknown. As soon as one proceeds beyond the few cases that are already famous from having been repeated in the media all the time – the exclusion of people like Salih al-Mutlak of Iraqiyya, Abd al-Qadir Muhammad Jasim, the defence minister, and Nehro Abd al-Karim, an Iraqi nationalist of Kurdish origin – many of the other names are not particularly prominent (and, no, the Nujayfi brothers are not on the list). For example, a few weeks ago, many Shiite websites circulated lists of 40 alleged Baathists that were expected to be banned. (Apparently, the number “40” had been inspired by a rumour to the effect that some Iraqi politicians said at least 40 Baathists would secure seats in the next parliament.) However, out of these 40, only around 10 actually appear on the final list of banned candidates. They include people like Saadi al-Jibburi (Saadi bin Faysal bin Abdallah bin Ibrahim), an independent candidate, Ahmad Hamid Ahmad Jirjis, an independent nationalist from Kirkuk, Muzahim al-Tamimi (Muzahim bin Mustafa bin Mansur bin Kaanan, above), a Shiite tribal leader from Basra affiliated with the secular-nationalist Unity of Iraq bloc of Jawad al-Bulani, as well as Abdallah Jasim Muhammad Ali (al-Muhammadawi) and Jawhar Mahi al-Din, also both from Unity of Iraq. Similarly, looking at the level of heads of coalition sub-entities, it appears to be only Unity of Iraq that has been hit by the exclusion of two of the leaders of its constituent parts (the last two mentioned above) in addition to the well-known cases of Nehru Abd al-Karim (who heads the Coalition of National Unity) and Salih al-Mutlak (who used to head the Hiwar front but is technically no longer a party head after its merger with Wifaq).

A second dimension that needs to be taken note of relates to sectarian issues. American analysts branded the list as an overt “anti-Sunni” measure before it had even been printed. What the list actually shows is a typically Iraqi, far more complex picture. There are certainly Shiites and Kurds on the list, too, as shown by the prominent examples of Nehru Abd al-Karim (above) and Muzahim al-Tamimi. And even from the grey mass of this material it is possible to conclude without being too essentialist that the presence of more Shiites is attested to by five instances of the name Abd al-Hussein, two of Abd al-Hassan and one Abd Ali, to give just a few examples of highly obvious Shiite personal names. There are likely hundreds more Shiites here; the key point is that this is not quite as black and white as the media would like us to believe.

As regards the level of party affiliations, as expected there seems to be a tendency of hitting at the secular and nationalist parties. Still, Maliki’s list has taken a few casualties beyond the defence minister: Some had expected Abbad Mutlak Hamud to be banned but he wasn’t; conversely Salih Jaafar has been excluded. Even the Iraqi National Alliance, which controls the whole process through Ali al-Lami, has de-Baathified at least one of its own, although this has apparently been done for good measure and affects a candidate far down on its Basra list: Rashash al-Imara (Rashash bin Jiyad, above; thankfully at least some of these names stand out!), an independent candidate with a past in the Iraqi security forces.

The main problem with the de-Baathification measures, then, refers not so much to systematic and overt sectarianism or partisanship as such as to despotism more generally, albeit clearly with the ulterior goal of perpetuating a sectarian political atmosphere. The basic problem here is the attempt by the accountability and justice board to portray its decisions as “legal” and “constitutional” when they clearly are not – and the failure of the rest of the “democratic” system in the new Iraq to offer any meaningful resistance. Previous developments have shown that the accountability and justice board is an anachronism that lacks a clear legal basis after the passage of the accountability and justice law in 2008, that the formation of a seven-judge appeals court (to which these decisions may be appealed within three days) remedies this situation only in a partial way, that the Iraqi elections commission seems to be in league with the accountability and justice board in this matter, and that even if one accepts the dubious existence of the current de-Baathification board, its application of the relevant laws appears to be both partisan and selective in the extreme.

In sum, rather than being an attempt at a complete exclusion or elimination of political enemies, these de-Baathification measures seem aimed at intimidating and terrorising, with the overarching motive of keeping sectarian issues on the agenda. Any attempt at remedying the situation must keep this aspect in mind: What is at stake here is not a question of “Sunni participation” versus a “Sunni boycott”; rather this is about the very fundamentals of the post-2003 system of government in Iraq and the importance of offering hope to those Iraqis who wish to get rid of the narrow sectarian categories altogether. Hence, even if the US should miraculously succeed in reversing or postponing the de-Baathification moves, the ball will simply be kicked further down the road: The so-called independent elections commission (IHEC) which will oversee the elections is in practice owned by the same Shiite Islamist parties that control the accountability and justice board, and that authored the decision to exclude 511 candidates with reference to de-Baathification and with support from Iran. To really make a difference, what is needed today is some kind of appeals institution that does not mechanically replicate the structures of power in Iraq that have emerged since 2003 on an ethno-sectarian basis and their underlying sectarian logic, which after all is what the accountability and justice board is fighting so hard to preserve. An internationalised complaints procedure for the elections inspired by the one used in Afghanistan could be one possible option. On the whole, it is of course a good sign that US policy-makers today seem concerned about the gravity of the situation, but if they are really serious about solving it then they should realise that none of their current friends in Baghdad are capable of doing so in a truly sustainable fashion.

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The Ruling of the Accountability and Justice Board

The IHEC had promised a list of the candidates disqualified by the accountability and justice board; it then changed its mind and will now simply publish the candidate lists (i.e. those who qualified), fearing perhaps that the other approach would make the excluded candidates into martyrs. And so while parliament today has been told about the 511 persons that are barred from standing in the 7 March elections, the detailed information is still not in the public domain (as of Tuesday evening) and will probably filter through only gradually or in a media leak.

Meanwhile, while developments over the past weeks have amply demonstrated both the politicised nature of the de-Baathification bureaucracy as well as the legal impressionism of some of its decisions, it may be worthwhile to have another look at the general legal basis for its decision to exclude individual Iraqis from taking part in the next elections. What we do know from the parliamentary proceedings today is that altogether 511 candidates have been disqualified. 182 of them belonged to the secret and special security agencies of the old regime, 216 were members of the Baath, 105 were recipients of various medals of honour (including the “Mesopotamia” order), 5 had participated in repressing the 1991 intifada, while 3 were “propagandists” in favour of the Baath.

The obvious question here is whether the de-Baathification body is operating beyond its remit in its eagerness to cleanse the Iraqi public sphere of any trace of Baathism. There is much to suggest that that is exactly what is going on. A key concept here is to be “subject to the de-Baathification rulings”, which according to the 2005 constitution would bar Iraqis from various kinds of high office, including running for parliament. But what does it mean to be “subject to the de-Baathification rulings”? Clearly, this is not the same as being a member of the Baath party. In that case, the following clause of the constitution (135/5) would be meaningless: “Merely being a member of the Baath party is not sufficient basis for transfer to the courts, and the Baath party member enjoys equality before the law and judicial protection, unless he is subject to the de-Baathification rulings (emphasis added)”. In other words, the constitution clearly differentiates between the two.

A more reasonable place to start would be the procedures of the accountability and justice act of January 2008, which “de-Baathifies” the Iraqi bureaucracy by focusing on certain ranks of membership (“regional”, “branch” or “section”) or seniority in the bureaucracy (director-generals) – as well as on careers in the “repressive” components of the security forces (i.e. secret services and special forces). In this context – i.e. leaving for a moment aside the deeper questions about the legitimacy of the accountability and justice board – one cannot help wondering whether its leaders may have gone too far even in terms of the strictly legal criteria that are available. For example, apparently the board has this time disqualified people from running for office simply because of Baath membership, regardless of rank. Not only that, what about those who were recipients of medals? The fact that these are listed separately would seem to suggest that they were not party members at all, and after all some of these orders (the Rafidayn medal, for example) have apparently been issued since the days of the monarchy!

The separate group of those who participated in suppressing in the 1991 rebellion is particularly interesting, even if it is small. This probably relates to tribal leaders who were neither party members nor officers, but who opted to join the regime at the time of the 1991 uprising. As a matter of fact, by implication the 2005 constitution actually allows such participants to become deputies, because it is a special criterion for becoming member of the presidency council of Iraq that one should satisfy “the same conditions as those required for becoming a deputy, and also not have participated in repressing the 1991 uprising (emphasis added)”.  In other words, the constitution specifically envisages the possibility that a person may lawfully become a parliamentary deputy even if he took part in anti-insurgency activities in 1991. (The same logic applies to Baathist membership, by the way: a presidency council member also must not have been a Baathist member “for the last ten years prior to its fall”– meaning, of course, that a Baathist member who quit after 1993 may well become a parliamentary deputy, as long as he does not try to become a member of the presidency council.) And finally, there is the attempt to exclude “Baathist propagandists”. This is apparently an attempt by the accountability and justice board to evoke article 7 of the constitution, which outlaws Baathist revival attempts. The only problem is that according to the new accountability and justice legislation of 2008, this is not the business of the committee to deal with. There is no specific reference to article 7 of the constitution in that law, other than a brief mention of it in the glossary of terms. All in all, then, even if these latter points affect just a handful of people, they serve to highlight the brazenness and totally arbitrary ways of a commission that does not even bother to create a semblance of legality for its decisions.

The apparent excesses of the de-Baathification committee are however unsurprising, since this whole process long ago abandoned any pretence of legalism. It may be useful therefore to add one more curiosity to the picture: The recently-formed three-man parliamentary sub-committee within the accountability and justice committee in parliament, apparently with authority to intervene in the work of the de-Baathification board. For a while, it actually seemed as if Washington was hoping this might constitute a possible alternate court of appeal; it now appears that the commitee has in fact approved the final report of the de-Baathification board (the committee report was read to the Iraqi parliament today; as has become usual lately, there was no quorum, but Abbas al-Bayati, a Maliki ally, lauded the committee’s work nonetheless). In this context, however, it is the arbitrary procedure by which the three-man board came into existence that is interesting. The constitution, in its standard ambiguous way, says the de-Baathification committee should be “connected with (murtabita bi) the parliament”. This is apparently the basis for the formation of the committee, but, again, no role for it has been defined in the relevant legislation that was passed in early 2008. It was filled on the usual muhasasa basis, with a (Shiite) Sadrist, a (Kurdish) PUK member and a (Sunni) representative of Tawafuq, except that the latter withdrew in protest just days after the committee had been invented last week!

The idea of postponing further de-Baathification until after the elections has been criticised for having no legal basis. But those Iraqis who advocate a “legalistic” and strictly “constitutional” approach in this matter should perhaps start by examining the judicial basis of their own position in a very critical way.

The Bloc That Has No De-Baathification Worries

For weeks, we have been waiting for the formal release of the parliamentary candidate lists by the Iraqi elections commission (IHEC), at which point campaigning for the 7 March elections is expected to start in an official way. Pending the formal certification by the IHEC, Iraqi political parties have mostly refrained from discussing the details of their candidate lists in the various provinces. There is however one exception: The Shiite-led Iraqi National Alliance (often abbreviated as the Watani alliance), which last week began circulating its candidate lists in full.

How can the Watani list be so confident and go ahead with the publication of its candidate lists even before the IHEC has formally approved them? The explanation is very simple, and is contained in the Watani lists themselves: Its candidate number twenty-four in Baghdad is named Ali Faysal al-Lami and belongs to the Iraqi National Congress headed by Ahmed Chalabi. Sounds familiar? Yes, that’s right, Lami is the director of the accountability and justice board that recently moved to bar several hundred candidates from taking part in the elections. No resistance was offered, and today no one in Iraq seems to be making a big point of the fact that he himself is a candidate in the elections! Little wonder, then, that the Watani leaders seem confident about proceeding with the release of their list: It is they who effectively control the vetting process for the entire elections process. They enjoy full support in this from Iran; meanwhile  their leaders are being feted in Washington, where Adil Abd al-Mahdi has just been visiting.

As for the Watani lists themselves – summarised in a rough table below, where the party distribution of candidates is tabulated for the upper part of each governorate list corresponding to the number of available seats in each governorate – a number of interesting trends stand out.

• ISCI, including its close partners Badr and “Jihad and Reconstruction” (a new collective name for what was formerly “Hizbollah in Iraq”, Sayyid al-Shuhada and various other southern entities with particularly close ties to Iran, now headed by Hasan al-Sari) is generally asserting its pre-eminence within the coalition, at the expense of the Sadrists. Of course, with the open-list system, voters may reverse this, but as a general tendency ISCI now has more top candidates than the Sadrists everywhere except Diyala and Kirkuk (ISCI is not particularly popular in the latter place given its propensity for listening to Kurdish demands, so it may be a strategic decision to stay in the background there). Interestingly, in at least some governorates, the female quota system (which in practice serves to override both party listings and the open-list system by promoting non-winning female candidates) may possibly serve to dilute ISCI dominance, since the female candidates seem more evenly distributed between the parties in certain governorates.
• The Watani list confirms its image as an essentially Shiite Islamist list, where secular and Sunni participation comes across as ornamental rather than substantial in character. This is seen at perhaps its clearest in Anbar, where except for the top three candidates (including Hamid al-Hayis), the list has been filled up with Shiite Islamists from other parts of the country who cannot possibly hope to win voters there (altogether ISCI won a couple of hundred votes in Anbar in 2005).
• Also in Nineveh, no attempt is being made to reach out to the dominant Sunni Arab majority. Instead the list is packed with Turkmen candidates in an apparent hope at maximising that segment of the vote. In Diyala, the only prominent candidate that might perhaps appeal beyond traditional Shiite Islamist audiences would be Najib al-Salihi, an ex-general of the Iraqi army.
• Much like Anbar, the Kurdish governorates appear to function as parking lots for Shiite politicians that are needed in the next parliament but who apparently do not want to compete (they themselves say they are simply “making room for others”). And just like in 2005, they will win seats not on the basis of popular votes but as part of the so-called compensation seats which under the Iraqi variant of proportional representation are simply awarded to party leaders for distribution to their own preferred candidates. On this basis, people like Rida Jawad Taqi and Hamid Muala “won” seats in 2005 on the basis of the 100-200 votes they received in Anbar and Sulaymaniyya respectively; in 2010 similar seats will go to such prominent ISCI leaders as Jalal al-Din al-Saghir (Dahuk) and Humam Hamudi (Sulaymaniyya), and potentially also to several less known Badr “candidates”. These non-elected seats should be more correctly referred to as peerages – Lord al-Saghir of Dahuk, and so on.
• The candidature of Fawzi Akram, a prominent Sadrist, in Arbil, is however potentially controversial. In a number one position, and with the presence of Turkmen minorities in the governorate, he may well be placed there with the intention of actually capturing votes (unlike, say, Saghir in Dahuk). Akram has been a lot more vocally anti-Kurdish on Kirkuk than the ISCI leadership (who are generally considered pro-Kurdish on the issue), highlighting the centralism/federalism struggle within the Watani alliance and potential complications for the Kurdish–Shiite alliance that nevertheless once more seems to be in the making.
• Ibrahim al-Jaafari’s Islah front is clearly reduced to a third position, with Fadila fourth, but Jaafari himself is prominently placed as the number one candidate in Baghdad (something that smells of prime ministerial ambitions), followed by Bayan Jabr of Badr/ISCI, Ahmed Chalabi of INC, and Maha al-Duri, a female Sadrist. Other top candidates across Iraq include Adil Abd al-Mahdi (ISCI/Dhi Qar, followed by the Sadrist Baha al-Aaraji and ex-governor Aziz Alwan), Hadi al-Amiri (ISCI/Badr/Diyala), Nassar al-Rubayie (Najaf/Sadrist; he is followed there by ex-deputy governor Abd al-Hussein Abtan of ISCI/Badr).
• Beyond the four big parties, a more fragmented landscape emerges. INC generally has one candidate in a potentially winning position in most governorates, as has the breakaway movement from Hizb al-Daawa (Tanzim al-Iraq) led by Abd al-Karim al-Anizi which now styles itself Hizb al-Daawa (Tanzim al-Dakhil) or “the domestic faction”.  The Tadamun bloc and other Islamist independent parties are not particularly well represented anywhere except Baghdad, and then there are scattered secularists, monarchists, ethnic parties (mostly Turkmens in the north and Fayli Kurds in Baghdad) as well as various local lists (including most prominently the “Justice and Unity” party led by the Shaykhi sect of Basra).

	Seats	ISCI & Badr	Sadr	Islah	INC	Solidarity & other independ.	Daawa (Anizi)	Fadila	Secular	Local	Ethnic
Basra	24	6	3	3	1	1	2	2	1	5
Maysan	10	3	2	1	1			2		1
Dhi Qar	18	5	3	3	1	1	1	3	1
Muthanna	7	2	1	1	1		1	1
Diwaniyya	11	4	2	2	1		1	1
Babel	16	4	3	2		1	1	2		3
Wasit	11	No information available at entity level
Najaf	12	3	2	2	1	2	1	1
Karbala	10	3	2	2	1	1		1
Baghdad	68	12	10	7	4	|10	4	3	2	14	4
Anbar	14	5						3	2	3
Salahaddin	12	3	1	1	1					5	1
Diyala	13	2	2	2	1	2		1		2	1
Nineveh	31	5	3	1				1		6	9
Kirkuk	12	2	2	1						4	3
Sulimaniyya	17	7	2	3				2		2	1
Arbil	14	5	3					1	1	1	3
Dahuk	10	7				1		2

*** Rough tabulation showing approximate distribution of top candidates corresponding to the number of seats available in each governorate. The table is apparently best viewed with Firefox; other browsers may intefere with the columns.

As for the candidate lists for the rest of the parties that are not as lucky as the Watani coalition when it comes to controlling the system, it seems we will have to wait a few more days. The IHEC declared on Saturday that Iraqi newspapers would publish the lists of banned candidates on Sunday, which in turn would probably have paved the way for a release of the candidate lists. But who is the head of the “independent” IHEC to make such decisions? It emerged that Ali al-Lami wanted to de-Baathify just a little bit more, so Haydari was apparently ordered to hit the “stop press” button while another batch of last-minute exclusions are under consideration by the IHEC. The lists of those excluded are now expected for Monday instead.

Constitutional Disintegration (Part III): The IHEC Is Making Up the Law

One of the bewildering aspects of the recent decision to bar Salih al-Mutlak and some 500 other candidates from standing as candidates in the 7 March election is the apparent resolve of both the accountability and justice board as well as the Iraqi elections commission (IHEC) to enforce the ban also at the level of political entities, where some 15 parties are expected to be excluded. The rationale is the idea that an entire political entity should automatically meet the same fate as its political leader.

But where exactly is the legal basis for that approach? One would have thought that the source for such a momentous and far-reaching decision would be easily available. But it does not appear to be in the 2005 constitution. Nor is it included in what today remains of the 2005 elections law. It cannot be found in the series of amendments to that law that were adopted last autumn. Maybe it could be hidden in sections 6 and 7 of the provincial elections law from 2008, which were added to the parliamentary election law through a simple cross-reference in the amendments last autumn? No, it is not there either. Even a quick skimming of the various directives recently issued by the IHEC in relation to the upcoming elections fails to return an obvious reference of relevance.

The fact is that the legal basis does not appear to exist. Rather, it has apparently been made up. The reason we can make such a sweeping claim is that the IHEC itself revealed its uncertainty about the matter back in December last year, when it sent a query to the federal supreme court on the subject. Referring to article 7 of the constitution (which outlaws racist and terrorist parties etc., “and in particular the Baath party”), it asks precisely whether an entire political entity is automatically banned if its leader is affected by de-Baathification measures. The federal supreme court merely answers that this is outside its jurisdiction and is for the IHEC to decide.

So it appears that in this vacuum, the IHEC can make up the law as it pleases, and no force in the new Iraqi democracy feels any obligation to intervene. What is particularly remarkable in all of this is the timing. The request from the IHEC to the federal supreme court is dated 16 December 2009, just a little more than a week after the legal framework for the elections had been finalised in the Iraqi parliament after a second veto had been averted. On 7 January 2010, when the accountability and justice board announced its “bombshell” decision to bar certain candidates, it reproduced the exact language that had been used by the IHEC in its query to the federal supreme court, i.e. “14 entities would be excluded because their leaders were affected by de-Baathification measures”. Subsequent to this, many players on the Iraqi scene appears to have taken this charade at face value, including even some in the Iraqiyya coalition who a few days ago circumvented the IHEC logic rather than protesting it, saying that Iyad Allawi was the formal “leader” of Iraqiyya and therefore the bloc should not be affected as a whole even if Mutlak were banned.

To his credit, Rashid al-Azzawi of Tawafuq has reportedly resigned from the parliamentary committee for accountability and justice, citing precisely the absence of a firm legal basis for the decision to exclude entire political entities. Just to confuse matters somewhat, another Tawafuq representative, Taha al-Luhaybi, today also portrays the IHEC decision as merely reflecting the personal ideas of its chairman (Faraj al-Haydari), but Luhaybi claims to have the federal supreme court on his own side! Also an IHEC spokesperson has said that the final decision on 11 out of the 14 entities has been postponed until next week. But other than that, there appears to be little resistance among the parliamentary forces to the highhandedness of the IHEC, which, it has to be said, has manifested itself on earlier occasions as well. Even more worryingly, the chronology of all of this suggests that there may have been close dialogue on the subject between the IHEC and the accountability and justice board dating back at least to mid-December 2009, and that the decision by the IHEC to go ahead with the exclusions may have been more carefully orchestrated than previously thought.

The big question now is how the political allies of Mutlak and other candidates will react. Are they going to stand up and protest effectively against a malfunctioning and unpredictable system where a shadowy and anachronistic committee whose origins go back to Paul Bremer five years ago (and is supported by Iran today) is still allowed to arbitrarily impose its will? Or will they opt for what some see as the more convenient option of turning Mutlak and the other banned candidates into sacrificial lambs that will make its easier for themselves to gain power and influence? Hopefully, the rest of Iraqiyya will see the futility and hypocrisy of just continuing to accept the current system without any vocal protest. A “democracy” that can be dictated by a partisan character like Ali al-Lami (the head of the accountability and justice board, who, believe it or not, will run as a candidate for the Shiite-led “Watani” list of Hakim/Sadr/Chalabi!) is a system where participation in itself is of limited value.