Iraq and Gulf Analysis

Archive for January, 2015

The Federalism Dimension in Yemen’s Draft Constitution

Posted by Reidar Visser on Tuesday, 20 January 2015 18:40

After having been leaked for several weeks, a draft proposal for Yemen’s new constitution has finally been officially published online. Among other things, it offers insights into the ongoing struggle about what state structure Yemen should have in the future, with important parallels to similar processes in Iraq and Libya.  The draft constitution defines Yemen as a federal country, with key questions relating to the demarcation of federal units, as well as the division of power between the centre and the projected regions.

As far as administrative divisions are concerned, the draft (article 391) defines Yemen as a country of six regions, of which four will be in the north and two in the south (Aden and Hadramawt). Subunits of the regions are listed, meaning that boundary demarcation will be a relatively minor issue. Additionally, the cities of Sanaa (capital) and Aden (commercial special area) will have separate statuses. The partition of the north into four separate subunits is known to have prompted strong objections from the Shiite-leaning Houthi movement (which senses it will be left short-changed in a way that is not commensurate with its recent military successes) but is in line with previous UN-sponsored proposals.

In this way, the Yemeni draft goes further than the Iraqi constitution in presenting a fully-fledged federal map where the entire country is subdivided into federal regions from the outset. There are also some checks and balances regarding territorial representation at the central government, including provisions for 40% representation of the two southern regions in the first parliament (article 139) and a requirement that senate decisions must enjoy support of at least a third of southern senators (article 143). The president (who, unlike Iraq, will be the main executive) and his deputy are to be elected on a single list representing more than one region (article 180), though the powers of the deputy president are not defined beyond whatever the president decides (see article 194).

The most important issue concerns division of power between the different levels of government. The Yemeni draft is unsatisfactory in this respect, exactly like the Iraqi constitution that was adopted in 2005, and arguably a lot less clear than the recently published Libyan draft constitution. The problem is the way in which the concept of residualism is tackled. In most federations, division of power is defined by a list of powers that are reserved for either the centre or for the subunits exclusively – with everything else (the “residual”) by implication being reserved for the other. There may also be a specific list of shared powers. However, in the Yemen draft constitution there are at least six points related to this. Firstly, there is an enumeration of powers for the central government. Secondly, there is an enumeration of powers for the regions. Thirdly, there is a list of powers for subunits within the federal regions. Fourthly, there is a list of shared areas of government between the centre and the federal regions. Fifthly, there appears to be an attempt at establishing residualism in favour of the regions for anything not specifically mentioned at any level. Sixthly, provision is clearly being made for special autonomies for the two cities with special administrative statuses (Sanaa and Aden) but there is no specification of their exact powers.

As for those powers that are mentioned as exclusive powers of the federal government, beyond the rock-bottom minimum of the likes of weight and measures and external defence, there is national electricity provision as well as “national education”. Both are examples of things that are constitutionally not the exclusive powers of the central government in Iraq but are nonetheless directed from Baghdad in practice. “Shared competencies” between the federal government and the regions include policy areas that are less contested like youth, women’s affairs and sports. On the other hand, a noteworthy item among the powers reserved exclusively for the regions  (article 337) is the right to sign deals for trade and investment. But other “exclusive” areas are less exclusive in reality. For example, confusingly, for both education and environment, a distinction is made between national and local policy, meaning very critical demarcation issues are left for later.

Beyond this, article 338 outlines competencies of subunits in the federal regions (wilayats). This is confusing, especially because there is sometimes no clear specification of whether policy-making or simply the provision of services is intended, for example when public services including water, gas and electricity are mentioned. There is also a contradiction in the way in which powers of subunits of federal regions are already defined by the drafters of the constitution. This  leaves very little room for meaningful content in the stipulated new constitutions of the regions.

On top of this, article 341 seems to establish the principle of residualism in favour of the regions for whatever competencies are not enumerated specifically for either the central government or the local subunits. One might think that oil and gas could be one such residual area but that is not  the case. Instead, separate sections (articles 357 and 387-90) address energy issues, but only by way of generalities, leaving the designation of revenue distribution and the management of the oil sector for future legislation. With vague concepts like “a just (adila) distribution” the Yemeni draft constitution offers even less in terms of guidelines than the hapless Iraqi one from 2005, and much less than the relatively clear Libyan constitutional draft that was released recently.

In sum, the long-winded Yemeni draft constitution provides less clarity than the often contradictive Iraqi constitution of 2005, and much less than the Libyan constitutional draft. With the military situation unfolding rapidly, there is not much in this document that key players can look to in order to save the situation and bring it back to the political track. Quite the contrary, it has been suggested that fury simply over the proposed administrative divisions and the six-way federal scheme was a contributing factor behind the recent moves of the Houthis against the Yemeni president.

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Federalism and Decentralization in Libya’s Constitutional Proposals

Posted by Reidar Visser on Thursday, 8 January 2015 14:48

Followers of Iraqi politics in the post-2003 period and the ongoing debate about federalism will likely see parallels to the way the concept of federalism has made its way into two other ongoing transitional processes in the Middle Eastern region: Those of Yemen and Libya. Whereas the political complexities of those transitions are too immense to be discussed by someone who does not specialize in the politics of those two countries, constitutional drafts are emerging that make for some interesting surface comparison with the way federalism has been applied and continues to evolve in Iraq.

As far as Libya is concerned, a patchwork draft constitution was made available in late December 2014. Consisting of several sub-documents on matters like administrative division, organization of the judiciary, transitional justice, independent commissions, finance and natural resources, it can hardly be considered a complete constitutional draft. Also, on some subjects there are two competing proposals, again stressing the incomplete nature of the emerging charter. But at least some hints about the prevailing trends inside the constitution-writing committee are provided by the publication of these documents.

On administrative structure, there are two papers. Reflecting the longstanding polarization in the Arab world between competing visions for state structure, there is one paper featuring decentralization and one paper using federalism as point of departure.

On closer inspection, beyond terminological issues (“regions” or aqalim versus “governorates” or muhafazat, literally the same as in the Iraqi constitution) the differences between the two papers on state structure are less than one would think. Structurally, there is of course some difference, since the federalism position outlines a tripartite Libya consisting of Tripoli, Cyrenaica (Barqa in Arabic) and Fezzan, largely consisting of historical divisions that were also the chief organizing principle during Libya’s past existence as a federation in the 1950s and the 1960s. Conversely, the paper advocating administrative decentralization within a unified state sets out a map of 32 governorates. Most of those units are corresponding to Libya’s administrative map of 2001 which had the same number of administrative units before some mergers ensued in subsequent years. Provision is made for a cabinet decision on exact administrative boundaries, suggesting that at least some demarcation ambiguities remain. But unlike the Iraqi constitution – a Spanish-inspired hybrid of established regions (Kurdistan) and potential regions (elsewhere) which has also been suggested for Yemen – there is no suggestion that future federal regions in Libya will emerge based on popular initiatives. Whichever version is adopted, it is assumed that the administrative structure of Libya will be decided top-down, by the constitutional committee itself.

As for the division of power between the centre and the subunits, the two papers are in fact surprisingly similar. Unlike the Iraqi constitution, these proposals keep unspecified powers as the domain of the central government under the principle of residualism, with only the powers of the administrative subunits being enumerated. Most local services are in both papers described as the powers of the subunits, including in fields like agriculture, health and local police. However, unlike the situation in Iraq, some of the weightiest spheres of government including oil and energy, general security including the military and most education (not higher education) are implicitly kept for the central government to administer. In so doing, the Libyan proposals at least offer greater clarity than the Iraqi constitution in terms of demarcating responsibilities for key areas of government.

Also unlike the Iraqi constitution, the question of dividing energy revenue is tackled head on, with a specific formula distributing income with 30% to the governorates according to population, 30% to the governorates on an equal basis, 30% to the central government, and 10% to the producing subunits. The last arrangement echoes the Iraqi petrodollar arrangement for producing governorates that has yet to achieve explicit constitutional confirmation.

Whereas the two papers on state structure are positive steps as far as clarity regarding division of power is concerned, evidence of lingering ambiguity can be found in the remaining papers meant to form the whole of Libya’s constitutional draft. In these papers, tensions relating to the federalism controversy continue to be manifest. In the primary document regarding the relationship between legislature and executive power, there seems to be a working assumption that a federal system will be adopted, since a stipulation of equitable distribution between “the three geographical regions” is included as basis for the formation of the country’s new senate. No special federal formula is iterated for the first chamber or the executive. Whereas this could be normal also in a federal system, other quotas of a non-territorial nature are referred to (ethnic minorities being specifically mentioned alongside the vaguer “components” – sharait and mukawinnat).

Similarly, the paper on resource management is partially compatible with the federalism/decentralization papers as regards revenue sharing, but does not overlap entirely. For example, there is a stipulation that producing “areas” (manatiq, which could be anything but sounds like something quite local) should get 10% of the proceeds and “neighbouring areas” (similarly undefined) should have 3%. The latter stipulation would seem to be an attempt to micro-manage internal affairs of a potential autonomous federal region.

The paper on the judiciary does not seem to relate to the federalism at all. For example, it does not include much in the way of guaranteed representation in the constitutional court on a territorial basis.

And that is pretty much it. Not much to write about and many blank spaces as far as the detailed workings of federalism are concerned. However, the Libyan drafting committee is to be congratulated on its efforts to achieve greater clarity regarding the division of power between the centre and the provinces than what has emerged in Iraq. Still today, almost 10 years after the adoption of the post-Baath constitution in October 2005, Iraq is struggling to define the relationship between Baghdad, current and future federal regions, and ordinary governorates. The decision by the new Abadi government to withdraw a legal challenge to far-ranging revisions of the provincial powers law passed by the previous parliament in 2013 really does nothing to clear up the situation: Symptomatically, the move was coupled with an initiative to introduce revisions to the revised law. By comparison, these Libyan papers offer at least a modicum of clarity as regards the intended division of power between the centre and the provinces.

The bigger question, of course, is whether something along the lines of this draft stands any change of popular democratic approval in the current chaotic conditions in Libya. If the draft converges in the direction of a decentralized system that retains central control of overarching sectors, political currents of a far more radical nature, including pure separatism, are proliferating on the ground, especially in the eastern Cyrenaica region. Again compared to Iraq, Cyrenaica arguably has a more dominant role in Libya’s oil production than Kurdistan has in Iraq, making the question of what will be acceptable in terms of a federal deal potentially an even more contentious issue. So far, the Libyan constitutional committee is offering far less to the provinces than the Iraqi committee dominated by the Kurds and one of the Shiite parties (SCIRI) did in 2005. All in all, it could offer a more viable formula for a unified state, but it could also prompt so strong reactions that the constitutional process itself gets aborted and separatism prevails.

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