Iraq's Constitution Must Be Inclusive, not Hasty

With Joost Hiltermann, Financial Times, 13 June 2005

Getting Iraq's new constitution right is as important to the country's future as defeating the insurgency, and as the victors in Iraq's first free elections sit down to draft it, they are under huge international pressure to have the job done within three months. But what matters more than speed is a properly inclusive process. The constitution drafters must not be forced to forgo the legitimacy and political stability that a carefully written constitution offers for the uncertain gain of meeting an increasingly improbable deadline. Forcing the pace is an understandable urge, but could well produce another unholy mess.

Iraq's January 30 elections brought important legitimacy to the parties that have governed since the fall of Saddam Hussein, but this has been partly undermined by three months of wrangling over cabinet positions. Moreover, the elections, while free, were sectarian in outcome, because Sunni Arabs largely absented themselves. The formation of the new government has done little to address the growing sectarian rift, as Shia and Kurdish politicians have yet to make good on their promise to reach out to Sunni Arabs who are truly representative of their community, incorporating them at all levels of government and security and, especially, the committee to draft Iraq's permanent constitution.

In setting up the constitutional committee, Iraq's transitional national assembly passed up the opportunity to create a broad-based institution, opting instead for one drawn exclusively from its own ranks. Given Sunni Arab under-representation in the assembly, this community will not figure prominently in drafting the document that will shape the new Iraq and, not least, their role in it. In turn, their exclusion from so critical an undertaking can only serve to bolster Sunni Arab support of the insurgency.

A better way would be to seek broader representation of drafters, drawing additionally on Sunni Arab politicians as well as representatives of Iraq's budding civil society. This would not only strengthen the constitution's legitimacy but also its durability after decades of failed attempts to create stable institutions. Unfortunately, this is threatened by the Bush administration's insistence that Iraqis stick to the original deadline for fear that any delay will perpetuate internal wrangling and give hope to the insurgents.

Iraq's interim constitution stipulates an August 15 drafting deadline, with a popular referendum to follow by October 15. This approach is understandable but misconceived, encouraging a process by which a small group of Iraqis, representing only the winners of the January elections, produces a constitution that will not be accepted as legitimate by ordinary Iraqis, who will see it as partisan, at best, and, at worst, suspect a foreign hand in the drafting. There is widespread belief in Iraq that the constitution has already been written - in Washington.

The interim constitution expressly envisions a process of public consultation and permits the deadline's extension by six months. One will require the other: it is inconceivable that the institutions needed to solicit the public's views can be established, and a serious draft written, in less than three months. It would be much better to state clearly now that the current deadline is unrealistic and that the process should be extended to February 15 2006, with a referendum to follow within two months. The transitional national assembly should then establish a mechanism to broaden membership of the constitutional committee to include representatives of a cross- section of the Iraqi population.

The United Nations, which has the experience to assist, should help Iraqis set up a detailed timetable by which certain interim deadlines are met - for example, to set up relevant agencies and a mechanism to communicate with the public and to circulate the draft constitution for further public comment before final changes are made and it is submitted to a public vote.

After two years of fumbling and stumbling in Iraq, the US has to get this one right, as there is unlikely to be another chance. It should encourage its Iraqi friends to set up a representative drafting committee to solicit views from the Iraqi public at the outset of the negotiations, and extend the deadline by six months. Only thus, and through a legitimate political process more generally, can there be any hope that the sectarian divisions and debilitating insurgency will be overcome.