While the outcome of Iraq's October 15 national referendum is uncertain, it is clear that many of Iraq's Sunni Arabs will vote against it. Why are Sunni Arabs opposed to a constitution that appears to give them the same opportunities for self-governance that it provides to Kurds and Shia?

The answer lies in a rushed constitutional process, which aggravated the already advanced polarization of Iraqi society along ethnic lines. With more time, the referendum could arguably have commanded greater Sunni Arab support, with consequent gains for governmental legitimacy and peace in Iraq. Efforts to work with Sunni Arab communities as well as other minorities on the terms of federal government should continue, with the goal of enhancing their engagement in the political process and support for a constitution that they did not participate in drafting.

This USIPeace Briefing is based on the forthcoming U.S. Institute of Peace Special Report, "Iraq's Constitutional Process II: An Opportunity Lost," written by Jonathan Morrow, Rule of Law Program Officer at the Institute. Morrow has traveled frequently to Iraq over the last year, and worked in Baghdad with Iraqi participants in the constitutional negotiations through July and August. The opinions expressed are those of the report and do not reflect the views of the Institute, which does not take policy positions.

Sunnis Were Excluded from the Drafting Process…

In November 2004, a number of Sunni Arab parties and organizations publicly indicated that they would boycott the January 2005 election. Some of those groups, including the Iraq National Foundation Conference and the Muslim Scholars Association, made it clear they would nevertheless participate in the constitutional negotiations. Leaders from Shia and Kurdish parties welcomed this Sunni Arab overture. In February 2005, models for a Constitutional Commission or Committee of the National Assembly were discussed at a meeting in Jordan of Iraqi lawyers, political advisers and international experts convened by Institute of Peace and the American Bar Association, and later implemented. In particular, 15 unelected Sunni Arabs were invited onto the Constitution Drafting Committee in late June.

However the Committee began its work late and was terminated early. The first meeting at which Sunni Arab representatives participated was July 8. The Committee was effectively sidelined on August 8 when constitutional discussions were removed to a "Leadership Council" that included the party leadership of the two major Kurdish parties and the two major Shia parties. Thus, the Committee had only one month to operate, a plainly inadequate period of time. It would be unreasonable to expect any country in transition to draft a constitution under such time constraints, much less a country ravaged by sectarian conflict, as was the case in Iraq.

Meetings of the Kurdish/Shia Leadership Council or, as it was known more informally "the kitchen" (matbagh), took place at irregular intervals at private residences and compounds in the International Zone. Sunni Arab negotiators had no seat at the table, and were presented later in August with a fait accompli constitution in which they had played no significant drafting or negotiating role.

… Because of U.S. Pressure to Meet the August 15 Deadline

Removal of the constitution-drafting to a forum that excluded Sunnis was the result of U.S. pressure to meet the August 15 deadline specified in the Transitional Administrative Law (TAL).

Under the terms of the TAL, if the provisions to extend the constitutional process were to be invoked, such action had to be taken by the Assembly before August 1. On July 31, the day before the deadline for a timeline extension, the Committee Chairman, Sheikh Humam Hamoudi, was reported as having indicated to the Committee his wish to extend the process to September 15. This view was publicly supported by senior Kurdish negotiators, including Mahmoud Othman, by the international advisers to the Kurds, and by Shia List officials on the Committee including Abbas Bayati, some of whom advocated an extension of six months. This view also had support amongst senior independent Shia leaders in the Assembly, and from senior leaders of ethnic and religious minority groups, including Hunain Al-Qaddo, committee member and chairman of the Council of Iraq Minorities. The leaders of most if not all important civil society organizations expressed their desire for an extension.

However, U.S. Ambassador Zalmay Khalilzad had, in the days leading up to August 1, called meetings of political party leaders to impress upon them the importance of meeting the August 15 deadline, having issued similar messages to members of the international community. These strong demarches by the U.S. Government stand out as the principal reason for the Assembly declining the TAL extension provision on August 1.

This pressure was applied to Iraqis through the public and private statements of senior U.S. officials, including the Secretary of State, the Secretary of Defence and the President himself. Each of these officials made it clear that any move to extend the constitutional deadline beyond August 15 would earn the displeasure of the U.S. and UK Governments.

The decision on August 1 not to extend the timetable beyond August 15 led to a series of ad hoc decisions by the Assembly after the deadline was missed on August 15, which exposed the Assembly to charges that it was operating illegally. Sections 61(E) and (G) of the TAL treat the eventuality of a missed August 15 deadline in the same way as a failed referendum: in both cases the TAL prescribes that "the National Assembly shall be dissolved. Elections for a new National Assembly shall be held no later than 15 December 2005" to be followed by a new one-year constitution-making process. It is arguable that the Assembly should have automatically dissolved and the Government planned for new elections and the start of a new constitution-making process.

While U.S. pressure ultimately produced, several weeks after August 15, a draft that could be put to an early referendum, the rushed process had several consequences:

• Sunni Arab moderates prepared to accept a federal state structure were marginalized;
• imbalances in the preparation of respective negotiating camps were amplified, to the disadvantage of the Sunni Arabs;
• opportunities for international, and in particular UN, mediation that might have redressed those imbalances were missed;
• U.S. visibility as an agent and participant in the Iraqi negotiations radically increased;
• participation of women, and ethnic and religious minorities in the process was sharply curtailed;
• possibilities for meaningful participation by ordinary Iraqis in the constitution-making process were eliminated.

If the central problem had been that Iraqi parliamentarians were simply being slow in moving to consolidate their Iraqi identity and shared vision of government in constitutional terms, then the pressure cooker approach might have been effective. However, the problem was more profound than that. Iraqi constitution-making always required a complex three-way negotiation in circumstances where nothing – not even a residual shared Iraqi identity – could be taken for granted, and where the three major blocs had increasingly complex and rapidly changing relationships with their constituencies, and with newly emerging political forces including women's groups, centrists, and non-Kurdish minorities. The complexity of the negotiations, and the backdrop of increasingly sectarian violence in Iraq meant that the meetings increasingly resembled peace talks, where peace was clearly elusive, and would require additional time to achieve.

The Potential for Moderate Positions was Reduced…

In influential sections of the Sunni Arab community, evolving discussions on the terms of Iraqi federalism were beginning to produce more moderate Sunni Arab constitutional positions in June and July. Many Sunni Arabs had already come to accept Kurdish autonomy as inevitable, and some influential Sunni Arabs were coming to accept the possibility that federalism might work to their benefit, provided it was geographically based on governorates rather than ethnically defined. This would imply self-government in Sunni-majority Arab areas of Iraq, freeing them to some degree from fear of Shia domination. The rejection of federalism by Sunni Arab members of the Constitution Drafting Committee in August was precipitated less by diehard opposition to the basic idea and more by the failure to incorporate them into the decision-making process. With more time to engage their public and develop mature constitutional positions, moderate Sunni Arabs would have emerged as potentially willing partners. A year earlier, prior to their engagement in constitutional discussions, Shia leaders had also generally opposed federalism, but in several significant instances came to reverse their position on the issue.

The effective dissolution of the Constitution Drafting Committee and the beginning of a last-minute, unstructured negotiation suddenly shifted great weight onto the leaders of the respective negotiating teams. Imbalances between the competencies of the teams were amplified. The Sunni Arab team, which lacked democratic legitimation, was also by far the least well prepared. The Kurdish parties, by contrast, had ‘red line' positions, draft constitutional language, international negotiators and clear mandates from their constituents. The Shia alliance, while less formally prepared than the Kurds, came to the table with strong backing from its constituents on key issues and with the blessing of Ayatollah Ali al-Sistani. This imbalance further isolated and radicalized Sunni Arab positions. Under these circumstances, it was much more likely that Sunni Arab negotiators would quickly move away from the negotiating table and revert to a strategy that hinged around threats of non-participation and opposition to the referendum.

The compressed timeframe forestalled the ability of the UN and international constitutional experts to play their proper role in mediating between the parties to the negotiations, in providing options and alternatives for bridging factional divides, and in finding ways that federalism could be made more acceptable to the Sunni leadership. International experts sent to Iraq by the UN and the Institute of Peace worked directly with Hamoudi from early June. At the request of the constitutional committee they provided expert advice on all matters under discussion during the constitutional negotiations, including federalism, and paid particular attention to the Sunni Arab members of the Committee. These experts, including constitutionalist Professor Yash Ghai, spent a large amount of time illustrating the value of federalism in multi-ethnic states. In particular, Ghai referred extensively to comparative constitutional models, pointing out that federalism, far from precipitating the break-up of the state, might in fact be the mechanism that holds Iraq together. These important colloquies with Sunni Arabs were halted, however, when the negotiations were removed from the Committee in August.

… And U.S. Visibility Increased Sharply…

The compressed timetable was associated with a much heavier and more visible involvement of U.S. officials at the negotiations than would otherwise have been the case. After the effective demise of the Constitution Drafting Committee on August 8, Ambassador Khalilzad attended negotiating meetings regularly, and U.S. Embassy officials were engaged in less than subtle efforts to accelerate a final draft constitution. By August 10, the United States was pressing its views on substantive constitutional issues to reach fast compromises that resembled the terms of the TAL, for instance favoring a centralized petroleum sector even when the UN had identified shared regional and central control as the only way of reaching a compromise (the latter was adopted). On August 12, in efforts to accelerate the drafting process, the U.S. Embassy circulated its own draft constitution for Iraq in English, which took the form of a set of amendments to the draft prepared by the Constitution Drafting Committee. On August 25, it was widely reported in the U.S. press and in a major Baghdad-based daily that President Bush had telephoned the leader of a principal Shia political party to urge settlement of outstanding issues. Ambassador Khalilzad extraordinarily attended the meeting of the National Assembly on August 15 where the Assembly leadership moved for a seven-day extension, and again on August 22 when a further extension was sought. His attendance was captured and broadcast by domestic Iraqi television channels.

… While Civil Society, Women, and Minorities Lost Out

While there was extensive public discussion of the constitution, the rushed constitutional process prevented umbrella civil society groups from being formed around constitutional issues. The demise of the Constitution Committee on August 8 meant that the women and minority members of the Committee no longer participated directly in drafting. Absent from "the kitchen," women and minorities were reduced to seeking influence through the patronage of the United States and the UN. Likewise, the compressed timeline prevented the Committee Secretariat from receiving public submissions on the constitution in time for them to have any impact on the draft. Article 60 of the TAL required the National Assembly to receive "proposals from the citizens of Iraq as it writes the constitution." The Committee had a hard working staff responsible for public outreach, but neither time nor resources were sufficient. Had the process allowed them even a few more weeks, the Committee might have been in position to take the views of the public, and in particular the views of Sunni Arabs, into account. Just as important, the Committee would have been seen to do so.

Whatever the Referendum Outcome, Consequences of a Rushed Process Should be Addressed

Whatever the outcome of the referendum, the consequences of the rushed constitution-making process need to be addressed. Sunni Arabs could once again reject negotiation options and instead choose non-participation, or even support for the insurgency. There is a continuing need for outreach to Sunni moderates, as well as inclusion of women, minorities and civil society in a political process that so far has been driven by U.S. pressure on the Kurdish and Shia leaderships. If the constitution is approved on October 15, the next phase should remedy the weaknesses of this constitutional development process. The constitution identifies without elaboration important new institutions to be created, and requires the drafting and enactment of numerous laws to interpret and implement the constitutional text; development of these laws and institutions should entail the active engagement of all of these groups. In the event of a rejection of the constitution in the October 15 referendum, it will be vital to ensure that the new round of constitution-making allow for full participation, deliberation and dialogue to develop consensus among all of Iraq's constituent groups.

This USIPeace Briefing was written by Mona Iman, Program Assistant in the Rule of Law Program at the Institute of Peace. The views expressed here are not necessarily those of the Institute, which does not advocate specific policies. For additional information about the Iraq program or other Institute activities, please contact the Office of Congressional and Public Affairs at publicaffairs@usip.org or (202) 429-3832.

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