Iraq’s constitutional reform process must avoid past mistakes

In October last year, the Iraqi parliament approved a new government with a mandate to jump-start political reforms. Among its priorities is the amendment of Iraq’s problematic constitution.

Prime Minister Mohammed Shia al-Sudani made the first step in this process by appointing Hassan al-Yasseri as his constitutional adviser. Meanwhile, the parliament has announced that it will form a constitutional revision committee.

This will not be the first time that Iraq attempts to reform its constitution since it entered into force in 2005. Constitutional revision committees were formed in 2009 and 2019, but both of those efforts petered out, mainly as a result of a failure to build momentum.

If this latest initiative is to be successful, lessons should be learned from the previous failed attempts to amend the constitution, but also from positive examples of constitutional reform in other countries.

An inclusive constitutional process

When previous Iraqi governments undertook constitutional reform, they closed off the general population from the process. Some attempts to be inclusive were made, including through a very small number of consultations with civil society organisations, but those meetings were unstructured, and the results were generally ignored. The discussions that took place were limited to elite circles, and no momentum or public interest was built around the process.

If the new initiative is to work, a much broader range of voices must be included to help constitutional negotiators determine the real order of priorities, instead of just focusing on the same issues that have been consuming them in the past. This should and can happen through a number of means, including by encouraging Iraqis to express their priorities en masse.

In this, the Iraqi government can follow the example of South Africa. When it launched a constitutional process following the end of apartheid, the South African government invited the general population to express their priorities in writing. Some 1.7 million submissions were received, which the drafters took into account.

South Africans were motivated to participate because the relevant authorities led a successful campaign to generate interest in the process and because there was a general feeling that the constitution could bring real change to the country.

In 2005, during Iraq’s own constitutional process, a public outreach body was established but it came to be dominated by one political party – the Islamic Supreme Council of Iraq (then known as the Supreme Council for the Islamic Revolution in Iraq) – which sought to skew the results in its favour. As a result, no one took the initiative seriously.

If such a process is launched today, it must cast the net widely and remain independent from the main political groups in order to preserve its credibility.

Inclusivity cannot just be limited to reaching out to as many people as possible at a horizontal level. It is also about giving the process more depth, by providing specialist groups with decision-making authority on how the constitution can and should be shaped.

The example of Kenya’s 2010 constitution is instructive here. During the drafting phase, a committee of experts was given virtually equal decision-making power as the parliamentary committee. The end result was a constitution that allowed Kenya to make significant progress in strengthening the rule of law.

One of Iraq’s major flaws has always been that reform efforts are dominated by a small circle from within the political class, and that any input from outside that small circle is often ignored. That manner of proceeding has contributed to significant weaknesses in policymaking, a trend that must be overturned by allowing others to wield real influence over the process.

Finally, and just as importantly, the negotiation process itself must be organised differently from previous attempts. The 2019 constitutional reform process, which I had the chance to witness personally, started on the wrong footing. The first meetings of the relevant committees were dedicated to discussing alternative wording of specific provisions.

Committee members talked past each other, as they each suggested specific types of changes, ignoring whatever else was being said. That manner of proceeding contributed to the sense that nothing would be achieved, which itself led to the process eventually being abandoned altogether.

That is why, this time around, negotiations should start as a discussion between the different sides on what their interests are. It is only after each side understands the other’s interests that common ground can be explored to reach a possible agreement. How individual provisions are worded can come after that has been achieved.

Reforming the citizen-state relationship

In 2019, Iraq witnessed the largest popular uprising in the country’s history. The demands of the protesters should have triggered political impetus to reform the relationship between citizen and state, to deepen the protection of socioeconomic rights and to revolutionalise Iraq’s anti-corruption framework.

Instead, the constitutional revision committee that was established focused most of its attention on debating the structure and system of government and paid very little attention to individual rights and the state of public services.

Any meaningful constitutional effort that is undertaken in 2023 must address popular grievances. One of the main problems Iraq has been experiencing throughout its modern history is that the constitution theoretically provides for civil and political rights, but does not clearly indicate what constitutes a legitimate limitation of those rights and what does not.

For example, while freedom of expression is theoretically guaranteed, the constitution does not provide policymakers or the courts with any guidance as to whether or not the right to criticise public officials or accuse them of corruption is protected.

The absence of clear guidance has encouraged policymakers to unreasonably restrict rights and has robbed the courts of the tools that they need to curb executive overreach. In this, Iraq could learn from the experience of other countries, including Tunisia’s 2014 constitution, which explicitly provided that all limitations of rights had to respect the principle of proportionality, a progressive standard that is spreading across modern democracies.

Iraq should also learn from other Global South countries, such as Colombia, which have eliminated the distinction between civil and political rights on the one hand, and socioeconomic rights, on the other. This makes the right to education, healthcare, housing, and other benefits directly enforceable.

If Iraq were to include such provisions in its new constitution, this would allow citizens to bring claims in the courts in the event the government has failed to satisfy its constitutional obligations to them. It would also allow the judiciary to order the government to do so. Such a move would not be a panacea for Iraq’s many socioeconomic problems, but it would be a step in the right direction.

Equally important is the constitution’s oversight framework, which is ill-conceived, poorly worded and full of contradictions. The constitution’s highly imperfect arrangements have made it easier for corruption to spread through the state virtually unchallenged.

Each of the country’s main oversight institutions (the audit institution, the anti-corruption body and the courts) will need robust mandates and far greater guarantees of independence, including greater control over their budgets and the appointment of senior staff.

Federalism and form of government

Constitutional reform should also address political challenges that the country has faced since 2003, which will also allow the state to focus more of its attention on the population’s pressing needs.

In particular, Iraq’s federal system will remain a source of instability unless a new bargain is struck between the central government and the Kurdistan Regional Government. This issue will require the different political forces in the country to negotiate a common understanding of what federalism is supposed to achieve and build an institutional relationship around that understanding.

Baghdad and Erbil must understand each other’s core interests, develop creative solutions that allow for those core interests to be defended and guaranteed, and offer compromises where appropriate.

Above all, both sides must understand that federalism is not just a means to carve out decision-making authority across territory and political lines. Rather, it is a means through which social solidarity can be protected within the borders of a single country.

The form of government in Iraq has also been brought up for discussion. Some political forces in Baghdad have called for a move towards a presidential or semi-presidential system. But past experience in Iraq, and recent experience in countries such as Tunisia, demonstrate beyond doubt that directly elected presidents invariably seek to monopolise decision-making (and usually succeed) without any meaningful improvement in the country’s governance.

That outcome is neither desirable nor possible in a country such as Iraq. Indeed, a move towards greater presidential power will likely never be accepted by many of the country’s main political groups. As a result, any discussion of the system of government should focus not on how to give a chief executive more authority, but on how to move towards a more successful form of parliamentary democracy.

Iraq faces a number of overwhelming challenges and trying to address them through the same methods that have failed in the past will not achieve anything. A new approach is necessary, a more inclusive one, and one that focuses on the interests of the population as a whole, and not just the interests of the political class.  If that can be achieved, Iraq will have come a long way towards truly turning the page.

The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial stance.