Iraq’s rushed and divisive constitution was always doomed to fail

Read it and weep: the constitution in draft form, 2005. EPA/Karim Sahib

Iraqi democracy hasn’t come far since 2003. The outside powers who invaded, occupied and eventually departed left the country with a political system democratic on paper, but profoundly flawed in practice – and that failure is not an accident of history. This is the inevitable effect of the rushed and poorly written Iraqi Constitution of 2005.

Almost 12 years since it was ratified and approved, the constitution is, in short, an abject failure. It has failed to deliver on the promises of human rights, freedom and democratic integrity, the very values invoked to justify first the US-led invasion and then the construction of a new government. Its vagueness has been taken advantage of. Its lack of provisions has been manipulated, and sectarian divisions have been exacerbated, resulting in a fractured and chaotic country.

The constitution is a highly divisive text. The first ever official document in Iraq’s history to enshrine ethnic differences into law, its drafters hoped to achieve national unity by having all sects participate in government and public life. To do so, they created a system that allocates public sector roles based on sect and ethnicity. To this day, this principle permeates all Iraq’s institutions from the central government downwards.

The result is a climate of nepotism and clientalism, in which uneducated, unqualified and corruption-prone individuals take key posts that ultimately affect the lives of millions of Iraqis. These individuals are only making Iraq’s shortcomings worse, and paralysing its politics. They are not competing to advance the nation, but instead engaged in the sectarian warfare that pervades civic life from top to bottom.

These are the same corrosive forces, corrupt decisions and misguided policies that contributed to the rise of the so-called Islamic State in 2014 – and the parties responsible are rarely, if ever, held accountable.

Hopes dashed

One of the ways the constitution tried to balance the concerns of different groups was by giving regional governments a good deal of local control. As with other of its noble aims, some of the ways it tried to do this have backfired badly.

Under articles 115, 121 and 126 of the constitution, where regional and national legislation contradict each other on matters outside exclusive federal authority, the regional power has the right to amend the application of the national legislation within that region. In practice, these ambiguous provisions mean that when it comes to making and implementing policy, regional governments can do as they please.

The unpleasant implications are particularly visible in Kurdistan, which is host to an unaccountable, ruthless and very manipulative political class of two dominant parties. Just like the government in Baghdad, the authorities in Kurdistan variously obstruct, manipulate and regulate their political opposition as they see fit. And regardless of the suffering and tough ordeals that Iraqis living in the Kurdish region face, Baghdad is hard pressed to intervene until things reach a dangerous peak.

A protest in Erbil, Iraq against the international response to Kurdistan’s independence referendum. EPA/Gailan Haji

Sure enough, on September 25 2017, after 14 years of failed dialogue, the Kurdish Region of Iraq held a referendum for statehood through independence from Iraq. The vote will hardly settle the question of Kurdistan’s future, but that it was held at all is a sign that the federal system has failed.

What happened next was even worse. After more than 92% voted “yes” to statehood, the Iraqi prime minister, Haider Al-Abadi, called in the Iranian Islamic Revolutionary Guard Corps and Iraq’s Popular Mobilisation Forces, an umbrella group of militias, to take back the historically disputed Kurdish capital, Kirkuk, from Kurdish Peshmerga forces.

The offensive displaced hundreds of thousands of Sunnis and Kurds; many of their homes were looted and destroyed. The fighters who turfed them out carried both Iraqi and Shia flags, a sign that national security is increasingly left up to sectarianised religious militias. And even though Al-Abadi ostensibly deployed these forces to curb Kurdistan’s secessionist aims, his move will do more to divide Iraq than to protect the integrity of its borders.

Silenced and crushed

All the while, Iraqi political life remains in a sad state of violent repression. The constitution’s framers had high hopes for the security of civil society, but in vain.

While article 38 of the constitution protects freedom of speech, as far as the civilian population and journalists are concerned, it might as well never have been drafted. Those who dissent, in print or in the street, are targeted and often killed. Since 2005, numerous organisations have documented consistent violations of constitutional rights: Amnesty International, Human Rights Watch, the US Department of State, the UN Assistance Mission for Iraq and the Office for the High Commissioner for Human Rights have all have reported extensively on violations of freedom of press, expression and peaceful assembly.

More than a decade after it was invaded in the name of spreading democracy, Iraq is a democratic state only on paper, and even the letter of the law is questionable. It’s time for the same outside forces that helped create this new order to help Iraq through this most critical period. In the meantime, the next generation of Iraqis are watching their hopes for a better country wither away.