Publication date: 4 April 2023
Iraq’s current form of governance – based on ethno-sectarian power-sharing – began to take shape in 2003, under inauspicious circumstances. The establishment of a new, post-invasion political system was subordinated to the interests of the US occupation authorities; exploding levels of violence had worsened distrust among members of the political class; and the country’s main political groups all consisted of former exiles who viewed the existing state institutions as hostile targets to be dismantled or absorbed.
These factors, among many, were partly behind the governance decisions that ultimately contributed to Iraq’s politically challenging situation today. Although the 2005 constitution did not explicitly codify ethno-sectarianism, this expediency-based political settlement implicitly informed its every page. The features of Iraq’s system are by now well known: a parliamentary structure in which leading political groups share control over state institutions without any meaningful oversight, and an unwritten agreement that key state positions should be allocated between Shia, Sunni and Kurdish groups. All those involved in designing Iraq’s 2005 constitution had been familiar with the severe problems associated with Lebanon’s pre-existing ethno-sectarian framework. But during Iraq’s constitutional process and in the nearly 20 years that have followed, there has been no serious attempt to understand the limitations of power-sharing, its impact, or ways to mitigate the problems it creates.
My own awareness of how little the national debate has evolved reflects my long-standing personal involvement in assessments of these issues. In 2005, I served as a legal adviser to a United Nations office that was advising on the drafting of the constitution. I have also remained involved in high-level discussions about constitutional reform since then, sometimes in an official capacity as a legal expert and sometimes merely as a concerned citizen.
That experience has taught me that there are few champions of genuine reform among Iraq’s political elite, that the absence of integrity and accountability is the fuel that keeps the system going, and that many members of the elite wholly lack empathy for the very large segment of the population that is marginalized and in desperate need of economic support and functioning public services. Nearly 20 years after the constitution entered into force, there is little reason to hope a solution is around the corner.
No champions for reform
One of the main characteristics of virtually any ethno-sectarian system is that, almost by design, it inhibits good governance. Any accountability would reduce the scope of ethno-sectarian groups to exercise authority. Thus, the system actively discourages evidence-based policy debates that might serve to improve it. Instead, formal political discourse focuses on stoking fear, and on blaming other communities for failures. Fearmongering is the rule at all times.
The warnings about the potential impacts of such a system in Iraq were clear as early as August 2005, when the constitutional negotiation process went off the rails because of the actions of a small group of unrepresentative parties who leveraged their relationship with the US embassy to impose their view (which mostly consisted of reverting to arrangements already negotiated and adopted in the 2004 interim constitution). The intervention of this group resulted in the majority of constitutional drafters, including those who were supposed to be leading the process, being unceremoniously dropped from the negotiations, and excluded from meetings that led to the finalization of the draft.
Not long before the October 2005 referendum, in which almost 80 per cent of the voting public ultimately approved the constitution, I met with one of the leaders of the constitutional process. He was utterly depressed by the deliberations. ‘The politicians broke the process,’ he said. He believed that the new constitution granted unlimited power to parliament, and that this meant ethno-sectarian groups would be free to carve up the country as they wished. He was articulating what seemed to me both a convincing critique and an agenda for reform.
Later that day, he and I participated in a closed workshop to discuss the draft constitution with a small audience of experts and political party members. At that point, apparently, our private conversation from earlier that day was already a distant memory. Now, speaking in front of colleagues and counterparts, my interlocutor addressed the audience with a completely changed message: ‘No one has any complaints about the constitution,’ he said. ‘Only the Sunnis are objecting.’ In that instant, any hope that he could champion a convincing platform for reform vanished.
No champions for integrity
Iraq’s ethno-sectarianism system has led to much of politics being dominated by groups whose strength stems from encouraging fear and distrust of other communities, partially as a means to conceal their own predatory and corrupt behaviour. Senior state positions have at times been occupied by people who have no business being there, and whose only objective has been to secure access to public resources. The 2005 constitutional process was one of the first instances in which the practice of ethno-sectarian competition for rents manifested itself in Iraq.
Adding to the problems, this was also a critical moment in the country’s history. The drafting of the constitution was an opportunity to set in motion decision-making processes that could establish good governance and help remedy some of the damage caused by the Ba’athist regime and others. But constitutional processes can also be moments of intense danger – if fundamental mistakes are made, the impact can be devastating and can take years or decades to rectify.
Flaws in the proposed system became ever more evident as Iraq’s main political groups prepared to negotiate the country’s future constitution. The ethno-sectarian nature of the governance proposals was obvious. Almost all existing members of the constitutional drafting committee were representatives of the country’s main religious and ethnic communities. Many appeared to have almost no idea how to draft a constitution, or how the state should be structured. The (Sunni) Islamic Party at first presented itself as an exception: initially, it boycotted the process on the basis that the committee was sectarian and therefore contrary to the people’s interests. By June 2005, however, after some pressure, the Islamic Party joined the process, and was given the right to nominate 15 committee members. The party had an opportunity to prove its non-sectarian credentials by nominating professional patriotic representatives from diverse backgrounds. Instead, it drew all its nominees from the Sunni community.
When I met with the members of the constitutional drafting committee, I was surprised to see an engineer acquaintance who had been appointed as an adviser on legal affairs. I asked what his credentials were to be part of the process. He bluntly responded that he had none, and that he had been appointed for financial reasons only. He eventually used the money he was paid as an adviser to emigrate to the US.
No champions for accountability
To many in Iraq’s elite, power-sharing offered a sense of impunity from prosecution, almost irrespective of the crime or accusation. Efforts to address this problem have struggled to be effective. In October 2022, Iraq’s new prime minister, Mohammed al-Sudani, stated in one of his first public appearances after taking office that there would be ‘no red lines’ – in the sense of exceptions for certain individuals – in the fight against corruption, but few think anti-corruption efforts will be nearly as effective as is needed. There is a widespread perception that the politically well-connected have almost free rein to act as they wish, and that they are unlikely to face adequate punishment for any wrongdoing.
Evidence may exist that specific individuals are involved in high-level corruption. The evidence may have been collected through official channels, and may even be in the hands of prosecutors and judges. But high-level prosecutions have rarely moved forward because these require higher-level approval, which frequently has not been forthcoming. Prime ministers stretching from Nouri al-Maliki’s first term in 2006 all the way to the final days of Mustafa al-Kadhimi’s term in late 2022 have all repeated the same line, according to which they have ‘files’ at their disposal containing ‘evidence’ of corruption.
In 2020, I attended a closed meeting with senior state officials to discuss anti-corruption initiatives in Iraq. I questioned the government’s seriousness in dealing with corruption, and cited the examples of certain state officials who were well known to be corrupt. Although originally from modest economic backgrounds, these individuals were now wealthy – in some cases, conspicuously so. How could anyone take the government seriously when no action was being taken against them? One of the senior officials looked at me askance, and merely said: ‘I don’t know anything about what these individuals are alleged to have said or done. All I know is that they are on our side.’ And that was the end of the discussion.
No champions for the marginalized
Ethno-sectarian power-sharing in Iraq has also been characterized by a lack of empathy for the general population. As poverty and inequality continue to grow, and as climate change continues to erode standards of living, members of the ethno-sectarian elite do almost nothing to bring relief to those in need.
In 2005, during the drafting of the constitution, there was almost no focus on institutional arrangements that could have made a real difference in people’s lives. For example, the court system was essentially left intact, with close to no reflection on its composition and the types of changes that might be necessary to properly serve the public interest. There was no discussion on whether protections of socio-economic rights should be operationalized institutionally, instead of leaving such protections as an aspiration.
More recently, in 2019, during the height of popular protests that led to the deaths of hundreds of people and the wounding of many more, I was in Baghdad to advise a committee that had been formed to agree how the constitution could be amended. During one of the committee’s meetings, I expressed concern that all of the potential amendments being discussed related exclusively to adjusting the power-sharing arrangement in favour of one side or another, and that the general population’s concerns over corruption and poverty were being ignored. I recalled how a protester from Najaf, whom I had met earlier that day, had complained that he had been forced to thank his torturers when he was released from detention.
In response to my questions, a senior government adviser merely stated that Iraqis’ constitutional rights are guaranteed and that there is no need for reforms to improve the situation. A colleague of mine, like myself from outside the government, noted that protesters were being killed and injured in the streets less than a kilometre away. The only apparent reaction in the room was a shrug.
No solutions for the faint-hearted
The ethno-sectarian system has survived for the past 19 years but is increasingly unstable. The proportion of the population that is marginalized by this system is growing rapidly, and will continue to do so. Increasingly large and violent popular protests will almost inevitably continue in the future. For now, the state’s only response has been to violently repress protesters – this approach is clearly unsustainable as the challenges to the state continue to grow.
The system is also coming under pressure from within, as some of the country’s main political actors are increasingly unwilling to share power, even within their own ethno-sectarian groups. The fighting that took place on 29 August last year was the latest manifestation of that trend, and while the fighting came to a quick end, circumstances could easily have developed differently. The lack of political cooperation within the system also means that, over the years, cabinet formation has become increasingly difficult, with the latest round in 2021–22 being the worst by far. No serious analyst expects that to change.
Barring some unforeseen event, it seems likely that ethno-sectarian power-sharing will eventually cause Iraq’s current system of government to collapse, one way or another. The system may already be beyond reform. A likely outcome is that the institutions of state will either withdraw from daily life, gradually losing control over the country, or violently collapse.
Nonetheless, for anyone who still hopes for reform, the solution must be to protect the essential functions of state from political interference. In his resignation letter last year, the former minister of finance, Ali Allawi, suggested an overhaul that would place key government functions in the hands of professionals. Reforms could limit parliament’s power to appoint government staff, and instead could establish an independent process to fill senior positions in the bureaucracy.
But there is little reason to be hopeful: the failure of Lebanon’s political class to reach agreement after the start of economic collapse in 2019 shows that even in the face of catastrophe, an ethno-sectarian elite will defend its control over power to the very end.
