Iraq and Gulf Analysis

De-Baathification and Criminal Charges: Patterns of Candidate Exclusion in Iraq’s Parliamentary Elections, 2014

Posted by Reidar Visser on Monday, 21 April 2014 11:57

Unlike previous years – and in particular the parliament elections of March 2010 and the provincial elections of January 2013 – the dispute about candidate exclusion ahead of elections has been somewhat limited with respect to Iraq’s upcoming parliamentary poll on 30 April. And to the extent that there has been a debate, it has focused on the question of whether candidates are of “good reputation” – a candidacy requirement enumerated in the Iraqi elections law – rather than on de-Baathification. Accordingly, whereas heated debates about the legacy of the former Iraqi ruling party made its mark on the past two elections (and especially so ahead of the vote in 2010), the focus this year has been on a dispute between parliament and the Iraqi elections commission regarding the interpretation of the requirement that candidates be of “good reputation “ – a dispute in which IHEC ultimately prevailed over parliament’s suggestion for a more restrictive interpretation.

The dual focus on de-Baathification and “good reputation” reflects the fact that legally speaking, apart from the basic age and educational requirements, there are two ways in which an election candidate can be  delisted from an Iraqi election. Either the candidate is excluded because he is subject to de-Baathification according to the de-Baathification law from 2008, or the candidate does not meet the “good reputation” requirement – something that in practice has been operationalized as the existence of multiple legal charges against an individual. This year, around 400-500 candidates were initially excluded because of de-Baathification, whereas around 70 were delisted because of a failure to fulfill the good reputation requirement.

Unfortunately, the source situation for analyzing how pre-election disqualification plays out in Iraq this year is far more problematic than previously. This is so because IHEC has departed from its past procedure of first publishing a provisional and then a final candidate list – a practice that allowed for statistical analyses of lacunae in the candidate lists resulting from procedures of exclusion. This year, only the final list has been published, meaning that the electoral blocs in many cases will have replaced excluded candidates with new ones, thereby effectively covering over the lacunae that enabled quantitative analysis in the earlier elections. Even though there are some lacunae also in the final list as well, it does not provide the same insights in the processes of exclusion that the combination of provisional and final lists did in the parliament elections in 2010 and the provincial ones in 2013.

Instead, the available material for 2014 consists of three things. Firstly there are lists of those excluded, around 400 names, which appeared in four separate batches released by the de-Baathification committee in early February . Second, there is a list of those excluded with reference to criminal charges (the first three batches along with the criminal  charges list is here; the separate fourth list is here). Thirdly, there is a list of those who were reinstated from the first two batches of de-Baathification subsequent to the appeals process (in some sources this has erroneously been described as a fifth exclusion batch). Importantly, the lists of those subject to de-Baathification give candidate names only, not list affiliation. It is therefore very difficult to pin down their party affiliation, especially so since many of them are not very prominent figures. Advanced name searches on them on Google in Arabic will rarely return any hits at all, even if a liberal number of name combinations is attempted. However, there remains a key to establishing some links between individual candidates and lists for at least a part of the material. This relates to the 52 reinstated candidates, who appear in the final list of election candidates and can therefore be identified by party affiliation.  Also, although no list of those reinstated in cases not relating to de-Baathification has been published, for the smaller number of reinstated candidates who were initially excluded with reference to the “good reputation” requirement it is possible to search through the final candidate list with the names of everyone who had been reported as excluded. It is noteworthy though, that in both categories – de-Baathification and “good reputation” – a large number of reinstated candidates appear to have opted to remain off the list, despite having regained the right to stand as candidates. One possible explanation, especially for candidate far down on the list, is that their lists may have deemed them to be more of a burden than an asset following the suspicions unleashed by their initial disqualifications.

Although these numbers are too small to conduct any kind of meaningful statistical analysis, they can at least provide a glimpse of the process. Specifically, the data relates to candidates who were attempted excluded by the de-Baathification committee or IHEC (which deals with the “good reputation” requirement in the first instance), and subsequently reinstated during the appeals process before the special appeals board for de-Baathification and the electoral judicial penal respectively. These cases of reinstatement highlight cases where the attempt to legally exclude candidates were found to be unfounded during the appeals process, making them particularly interesting for studying the question of political influences over administrative and judicial processes in the “new Iraq”.

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Another general point worth noting is that, with respect to the “good reputation” requirement, the figures of reinstatement are much higher than for de-Baathificaton, with official judiciary reports saying that eventually only 15 out of around 70 exclusions were upheld by the electoral judicial panel. This group also seems less easy to predict according to sectarian variables, with cases arising as often in Shiite as in Sunni areas, and with some of the most prominent exclusions – such as the Sadrist Jawad al-Shuhayli – being of Shiite sectarian identity. Firstly, it should be remarked that exactly like in previous years, the general picture defies the easy, black and white classification schemes prevailing in Western media whereby de-Baathification is seen as something that almost exclusively affects the Sunni Arab minority because of its ties to the Saddam Hussein regime.  In fact, de-Baathification strikes across geographical, sectarian and party lines. As does reinstatement, with which this material deals.  To the extent that some parties stand out for being targeted disproportionately, it is true that the Sunni-secular parties continue to be most preponderant. Note, however,  that this material relates to ultimate reinstatement. It is therefore clear that Sunni-secular politicians in many cases manage to seek legal redress for what is perceived as political targeting by Shiite Islamist circles.

Looking at individual de-Baathification cases, it is interesting to see that some of the cases of reinstatement relate to persons who were excluded in 2010. For example, Saadi Faysal Abdallah al-Jibburi was excluded and his entire bloc struck from the ballot in 2010 because of de-Baathification allegations. Since the de-Baathification process relates exclusively to the judicial interpretation of pre-2003 events in Iraq, his reinstatement this year as a candidate on the list of Saleh al-Mutlak effectively means the Iraqi judiciary has overruled the 2010 decision to exclude him.

Other cases, however, do not inspire confidence as far as the integrity of the process is concerned, especially with respect to the actions of the de-Baathification committee as the initial screening centre for potential candidates. When he was disqualified in February, former Unity of Iraq deputy Shaalan abd al-Jabbar Ali al-Karim (currently a candidate of Ayyad Allawi’s Wataniyya) protested that  he had never been a member of the Baath and never formed part of the Iraqi security apparatus. He said he graduated in Islamic studies in 1991-1992 and subsequently worked in agriculture and commerce until the fall of the regime in 2003. His appeal was upheld by the appeals court, suggesting that the de-Baathification committee may once more have attempted to reach beyond the legal criteria for de-Baathification exclusion, based on a combination of Baath party membership rank (shaaba or higher), rank in the Iraqi bureaucracy  (DG or higher) and sector (for security -related backgrounds there are stricter requirements).

Again other cases are more mysterious and raise the possibility of simple name mix-ups, which has happened before. Many would be surprised that the number 2 candidate of State of Law in Basra, Hasan al-Rashid – a veteran of the Badr corps who spent a long time in exile in Iran – was included in the first list of de-Baathificatons. One possible explanation is that the way his name appears in the official lists – with names of himself, his father, his grandfather and great grandfather (Hassan Kazim Hassan Ali) – makes him identical to  an individual from Babel who has been de-Baathified previously. It is mystifying though, that IHEC should overlook such a basic error with such a prominent politician, but similar problems of name mix-ups have actually been reported in the past.

All in all, after looking at this material it is more tempting to conclude that corruption, capriciousness and the absence of due process are universal in Iraq  and do not discriminate between sects in the ways many outsiders claim. Recent reports of partisans of Ahmad Chalabi being targeted by Maliki-controlled security forces would only serve to underline this point.

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