The balance of power in the early years after Saddam Hussein’s fall was heavily weighted in favour of the two main Kurdish parties and SCIRI, and, as such, their view of federalism carried the day. By virtue of their extremely close ties to Washington (which itself strongly backed federalism), both Kurdish parties and SCIRI enjoyed unrivalled influence on US decision-making and, therefore, on the process of reinventing the Iraqi state that US officials were leading. Nowhere was this clearer or more consequential than in the drafting of the 2005 constitution, which in many ways amounted to a trilateral negotiation between the US, the two Kurdish parties and SCIRI. (As the nominal leader of the Islamist-Shia United Iraqi Alliance, SCIRI was effectively accepted by Washington as the legitimate representative of Iraq’s Shia majority.) The views and concerns of other powerful constituencies, including the then prime minister and the Shia clerical establishment in Najaf, not to mention other factions and local groups, were often disregarded as the three main parties to the talks crafted a document that leaned heavily towards establishing a state with a federal government that was weak and enjoyed very specific, limited authorities. In other words, the eventual text of the constitution provided the legal basis for an almost confederal arrangement that the Kurds and SCIRI advocated.
However, two major political flaws in the 2005 constitution ensured that it did not settle the debate over federalism at the time. First, divisions over hydrocarbon-resource ownership (one of the most contentious issues) were papered over, leaving unresolved the critical question of competent authority to develop oil and gas deposits and, more importantly, to collect the revenue from their sale. All Iraqi factions recognized that oil equalled money and that money equalled power. That fact perpetuated the dispute as no side was willing to make a compromise that would weaken their own authority.
Second, the constitution left the implementation of federal powers dependent on the passage of additional legislation in the Council of Representatives (CoR) after the text was ratified by a national referendum in 2005. Although Washington and its Iraqi allies tried to adopt the same approach to drafting the laws as they did when writing the constitution, the need to legislate through the CoR allowed some of the most contentious disputes about the role of the federal government (including revenue-sharing and oil sector management) to be revisited. It also facilitated intervention by other mainstream parties – including key Islamist Shia ones – that opposed the loose and expansive federal formula that the constitution articulated. True, the constitutional text was approved by a majority in the referendum, but this backing had as much to do with the determination of the main Islamist Shia political parties, and significant parts of Iraq’s Shia community at large, to consolidate their post-war political ascendency in the areas of Iraq not controlled by the KRG. They believed that some form of federalism served their purpose, but not necessarily the loose federalism articulated in the constitution. As the balance of power among the different factions that made up the Islamist Shia political bloc shifted increasingly away from SCIRI, other interpretations of federalism gained political ascendance (a factor that led to SCIRI’s drubbing in the 2009 provincial council elections, and its subsequent disavowal of loose federalism).
As a result, the issue of Baghdad’s powers quickly became a partisan one between the KRG, which demanded devolution according to the constitution, and political leaders in the capital – particularly the dominant Dawa faction that wanted to consolidate their newly acquired power at the helm of the federal government. That faction also saw any effort to eviscerate Baghdad’s authority (as the Kurdish/SCIRI-supported draft laws did) as an existential threat to their interests and to the territorial integrity of the Iraqi state. While the constitution mandated that power be decentralized to the provinces, where regions did not exist, except in the narrow areas specified in the document, national leaders – Shia in particular – fought to preserve Baghdad’s competent authority instead. As a result, almost from the outset, Kurdish efforts to protect their long-term security and interests, by insisting on the full implementation of the constitution and passage of associated legislation, clashed directly with attempts by national leaders, particularly Islamist Shia ones, to consolidate their power by blocking change.
