Iraq needs to reform its constitution

It will take more than a new prime minister to resolve the country's intrinsic problems

TOPSHOT - Protesters march with a giant Iraqi national flag during an anti-government demonstration in the capital Baghdad's central Tahrir Square on December 22, 2019.
Powered by automated translation

In the past two weeks, Iraq has entered a political vacuum that does not bode well for the country. Popular discontent forced Adel Abdul Mahdi, the prime minister, to step down from his position on November 30, after his government oversaw a brutal crackdown on protesters demonstrating against a corrupt and sectarian political system. The clampdown left over 500 people dead and thousands more injured as authorities violated Article 38 of the constitution that is meant to protect freedom of expression and peaceful demonstration. Meanwhile, the Iraqi president Barham Salih has failed to name a successor to Mr Abdul Mahdi, missing the 15-day deadline mandated by the constitution for the second time and fuelling more protests.

The current crisis is symptomatic of two deeply-embedded issues at the heart of the Iraqi political system. Firstly, many of the ruling elite have shown a blatant disregard for the rule of law, which has become the exception rather than the norm. Secondly, this disregard is propped up by flaws in the post-Saddam Hussain constitution.

Iraq’s current constitution was drafted in haste, two years after the US-led invasion of the country in 2003. At the time, the Bush administration was hoping to get a new constitution approved quickly so that it could draw down its troops by 2006 and claim victory for leaving a revived country in good hands. The text was meant to cherish Iraq’s ethnic and religious diversity, giving its communities equal rights through the establishment of sectarian quotas. But instead of bringing communities together, this system only helped create divisions, which eventually led to tensions between the country’s various communities. For instance, Sunnis felt they were left out of the constitutional process and politically marginalised. It is this bitterness, among other factors, that contributed to the rise of extremists’ success in certain parts of Iraq where people felt their voices had not been heard. ISIS later exploited that frustration to portray itself as a saviour and defender of those who were excluded.

The rush to ratify the constitution also left essential passages relating to decentralisation and territorial disputes too vague or bizarrely time-specific, carrying with them the potential for clashes at the time of implementation. Article 140 is a case in point. The article stated that a 2007 referendum would determine whether the city of Kirkuk and other disputed territories would become part of the Kurdistan Region. Repeatedly put off, the referendum eventually never took place. Instead of finding a solution, then prime minister Nouri Al Maliki dismissed Article 140 as being “drafted in such a way that it cannot be implemented".

Protesters seek not only jobs, wealth redistribution and an end to foreign meddling. Many also want a non-sectarian constitution and transparent leadership that will respect the rule of law

He told Kurdish politicians that they should seek to amend the constitution if they want to be heard. The Iraqi government's failure to implement this article for a decade has frustrated the Kurds and it is one of the drivers that pushed the region's politicians to unilaterally hold a independence referendum in 2017. More importantly, the violation of a clear article in the constitution has left the entire document undermined. If one article can be violated, why shouldn’t the rest of the constitution be equally discarded. The strength of codified constitutions lies in respecting the entirety of the document by all sides, otherwise, it becomes a political football to be interpreted as each side sees fit.

Today, protesters seek not only jobs, wealth redistribution and an end to foreign meddling. Many of them also want a new, non-sectarian constitution and transparent leadership that will respect the rule of law. Naming a prime minister will not resolve issues that are deeply embedded in the country's political system. Iraq’s laws and institutions must be strong enough to protect its people and sovereignty. This difficult task requires an overhaul of the system, starting with constitutional amendments that all Iraqis can agree on and which are not influenced by foreign forces.

This is a process that requires time, expertise and transparency. All three are in short supply at the moment in Iraq, yet constitutional reform is essential to get the country out of its current political crisis and prevent it entering a new one in the future.