Spanish and Iraqi Influences in the UN Proposal for a Federal Yemen

It was apparently shot down by major Yemeni parties shortly after its release, but the new official UN policy document on Yemen and the problem of southern separatism is worth a closer look for what it says about the spread of federalism in the Middle East more generally, and the enduring influences of Iraq’s ambivalent federalism experience in particular.

Two key questions will recur in any proposal of constitutional federal design. Firstly, there is the issue of distribution of power between the centre and the regions. Secondly, there is the question of demarcation of regions in the new federal state. The UN proposal for Yemen, authored by the UNSG special representative Jamal Benomar, is particularly interesting for the details it provides on the UN suggestion for the second question, i.e. what will be the constituent elements of a new federal Yemeni state. Whereas the question of what responsibilities will be vested in different levels of government is largely left unresolved (and considered as being within the domain of new constitution writing), the UN paper does provide a high level of detail on what sort of political process could determine the fundamental administrative structure of a new Yemen.

The proposed mechanisms for sorting out Yemen’s future administrative structure are set out in section 3 of the UN  paper.

In the first instance, the UN envisages the formation of a national committee that will deliberate the question of what will form the ideal federal regions in Yemen, based on a series of key indicators ranging from historical factors to infrastructural considerations. The committee will specifically consider previous proposals ranging from a federal state of two constituent elements (north and south) to multi-regional proposals (typically ranging from 5 to 7 federal regions). Existing governorates (muhafaza, same term as in Iraq) will become “provinces” (wilaya) in the event of joining a new region (iqlim, also same terminology as Iraq).

The more problematic aspects of the paper relate to the very realistic prospects that, a) the committee fails to agree internally, and b) the population of the affected areas don’t agree with the proposals of the national committee.

Firstly, absent intra-committee consensus, provisions are made for a ¾ secret majority vote inside the committee itself. Failing that, the head of the committee is given special powers to  seek consensus, albeit the mechanisms for doing so remain largely unclear. The question of what will happen if there is not even an absolute majority for anything on the committee is left completely untouched.

At any rate, the rest of the document is predicated on a scenario in which a definitive proposal of federalization into a finite number of regions does indeed emerge from the committee. It then goes on to consider the modalities for popular approval. Or, rather one should say “local politician approval”, because everything will apparently be settled by votes in the councils of the existing governorates rather than by popular referenda. In the first instance, a two-thirds majority of the provincial council members in a governorate affected by a proposed new region can reject incorporation in that region. The Yes governorates, in turn,  may elect to form a region of their own without the No governorates if they can muster the required majorities for the modified regional vision. The No governorates are also accorded a second chance to join the proposed region through a second vote within 3 months; however it they then fail to join, they will remain governed by the central government for at least five years. (Apparently, they will not enjoy the option of transforming themselves to a single-governorate federal region.) Later, after five years, they can form a region together with other such non-federated governorates based on a 60% majority of their councils or they can join an existing region that may be willing to let them enter. Finally, the UN document envisages the possibility of super-region formation on the basis of neighbouring, newly constituted federal regions, requiring a ¾ majority approval in the provincial units (wilayas) of the new regions.

Does this sound familiar? In many ways the proposed process borrows from the experiences of federalization in Spain in the late 1970s after the transition from decades of authoritarian rule under General Franco, which also played out as a dialectic between popular initiatives and elite demarcation of the new federalism map. Importantly, in the way the Yemen proposal is heavily biased towards the signals from the national committee it largely resonates with what actually happened in Spain. Whereas the new Spanish constitution outlined an interesting model of ultra-democratic bottom–up federalization, elite politicians soon got worried about the forces let loose by this process and largely recouped leadership of the process, eventually settling the federal map of Spain largely through committee fiat. Crucially, in the UN paper on Yemen, whereas in theory everything is approved at the level of existing governorates, in practice the initiative rests firmly with the national committee. If they fail to join a region defined by elite politicians, governorates will be saddled with central government administration for five years, almost as if it is meant to constitute punishment for failure to adhere to the new federalism imposed from above.

It can be useful also to contrast the proposed mechanisms with the way federalism has been tentatively implemented in Iraq after 2005. Generally speaking, it seems the UN is eager to avoid some of the weaknesses that emerged from the very permissive model for federalization that was eventually adopted in Iraq through the law on forming federal regions in October 2006. In the case of Iraq, there is the theoretical possibility of almost endless and continuous region formation, something that can easily prompt political instability and may lead to situations in which the threat of region formation can be used for all sorts of blackmail purposes even by politicians who are entirely uninterested in the idea of federalism as such. This has posed significant challenges for the Iraqi central government, whose failure to allow several federalism initiatives in provinces like Basra, Salahaddin and Wasit can hardly be described as anything other than unconstitutional. Many will argue, though, that the government’s actions are justifiable for the sake of the stability of the country, and that it is really the constitution and the federalism law of 2006 that go too far and that need reform.

Conversely, in Yemen, such scenarios of bottom–up federalization will now be more unlikely. The more pressing question is how this latest UN paper will fit in with existing visions of federalism (and even independence) among the key political players, and with the process of national reconciliation more broadly. In the first place, it is unclear what role this kind of paper will really play given that it is predicated on a process of constitution writing which will likely in itself be an autonomous affair, to some extent unbound by past agreements. Second, there is the question of whether the vision of agreement on federal units among national political elites is a realistic prospect. At the present time, it is thought that the vision of a large number of federal units is partly a northern strategy to dilute the southern vision of a two-state entity that would eventually permit southern secession. For its part, the vision of southern unity seems to mask the existence of multiple, partly incompatible, projects of southern autonomy and even independence. In particular, the extent to which historical centres like Aden and the Hawramawt can realistically be considered a unified force seems open to question. Unlike the situation in Iraq in 2005, where Kurdistan was the only realistic candidate for immediate federal status, the Yemen situation is muddled by the existing of multiple aspirations to autonomy that are sometimes mutually incompatible.

Perhaps the most interesting aspect of this paper is the light it casts on the UN role in navigating Yemen’s complex political landscape. Lip service is being paid to a democratic process of federalization, yet the paper gives a national committee of political elites the greatest say in the matter, with governorate politicians (rather than the inhabitants of the governorates) playing  second fiddle. Realistically speaking, a paper like this can probably be nothing more than a means to help initiate a more fundamental process of constitution writing, during which unresolved issues will inevitably come up again. Yemen looks set to have a cumbersome federalization process – more like Libya than Iraq – but then again the Iraqi precedent makes it abundantly clear that decisions on momentous things like federalism are probably best made without deadlines and time pressures being imposed with force from the outside.