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Act of Commission: Iraq's New Provincial Elections Law and the Problem of Kirkuk

JURIST Contributing Editor Haider Ala Hamoudi of the University of Pittsburgh School of Law says that the new Iraqi provincial elections law's creation of a commission to determine the appropriate power-sharing arrangement for the northern Kirkuk region may actually hinder progress towards a more comprehensive solution of the extraordinarily complex problem in multi-ethnic governance that Kirkuk has become...

In the heralded new Provincial Elections Law of Iraq, it seems as if Iraqi politicians have learned an old trick of American politics. When faced with an intractable but very real problem that seems to offer no easy solutions, create a commission to study it. This postpones having to deal with the problem, avoids the necessity of making concessions, and gives at least to the novice eye some indication of progress. Unfortunately, however, it does not deal with the ultimate problem, which is allowed to fester, with uncertain results.

Such a commission appears in Article 24 of the new Provincial Elections Law, which concerns the fate of Kirkuk. By way of background, the passage of the law has been delayed for the past several months solely because of Kirkuk. The Kurdish authorities are eager to have elections, believing that this will bring Kirkuk's regional government under even firmer Kurdish control. The Arab and Turkoman populations, the other large population groups in Kirkuk, are resistant. They are suspicious of the good will of the Kurdish controlled executive authority to run free and fair elections in the province. After many months of negotiations, it seems as if Article 24 is the solution, or rather the non-solution, to permit passage of the law and allow provincial elections everywhere else to proceed.

Under Article 24, provincial elections in Kirkuk are delayed until the "executive and security authorities, and the positions of public employment" are divided on an equal basis among the three constituent groups that form Kirkuk, with the largest group (almost certainly the Kurds) given the choice to select one of the Governor, Vice Governor or President of the Provincial Council. In order to achieve this, a commission is to be created, composed of two Arabs, two Kurds, two Turkomans and a Christian selected by the representatives of these various groups in the current provincial council. This commission will issue a report by March of 2009 that will outline a mechanism for the sharing of both executive power, and, perhaps equally importantly, positions of public employment, because the use of government positions to distribute largesse to loyalists cannot be underestimated in Iraq.

The commission's report will also address the forcible taking of property both before and after Saddam's fall, another very complex and intractable issue, as the Kurdish authorities point to the forcible expulsion of large numbers of Kurds in Saddam's era as disrupting the historic balance of Kirkuk, and Arabs and Turkmen make similar accusations as against the current Kurdish forces. It will also set up a procedure to determine in some fashion who is or is not a resident of Kirkuk through examinations of property records and voter rolls. After receiving the report, the Iraqi Parliament will take necessary steps in accordance with the commission's findings and then enact a law concerning elections in Kirkuk. Thus, the matter is safely delayed for six months, as the commission goes to work.

Only a determined optimist would hold even the slightest prospect that the actual work of the commission will lead to some sort of comprehensive solution to the extraordinarily complex problem that Kirkuk has become. The notion that of the hundred of thousands of residents who have complained of forced government expropriation of their homes, both by the former Arab government and by the current, Kurdish authorities, can be dealt with in a six month study is difficult to accept. Even the simpler stuff of dispute, such as how to divide power in the executive branch, requires more compromise and less study. As a result, Article 24 has been largely ridiculed in Iraqi press and in my own private conversations with Iraqi officials, almost never defended on this basis.

Government officials will, however, at least in private, raise a second defense in favor of the commission. While this was obviously a stalling tactic, they argue there was a deep and pressing need to proceed with the provincial elections elsewhere in the country. Local, elected Sunni representation in particular is fundamental to having legitimate Sunni control of the Sunni dominated provinces such as the formerly restive Anbar. Even Shi'a areas in Iraq's south chafe at what they perceive to be Baghdad's unwarranted interference in local affairs. Provincial elections help to ensure that local officials with some level of electoral legitimacy will be able to counterbalance this concern. (By contrast, in the Kurdish region, the elections are all but meaningless as two authoritarian parties in the region, led respectively by Jalal Talabani and Masoud Barzani, have a stranglehold on Kurdish politics and divide power between them rather than contest each other. As a result, given that the elections will only confirm the obvious, I have found very few Kurds outside of the government who actually care about participating in these elections.)

There is some merit to this position, and certainly, between provincial elections without a Kirkuk solution or no provincial elections at all, the former is the far better option. Yet I cannot help but feel that these are insufficient alternatives, and that momentum towards a more comprehensive solution towards Kirkuk may have been lost by yet another postponement of its ultimate resolution. Without the pressure of provincial elections, Iraqi politicians may continue to wish to defer Kirkuk indefinitely, and at some point, the Kurds, for whom the annexation of Kirkuk to the Kurdish autonomous region is of central importance, will become impatient and demand a solution. That danger is as real today as it was before the enactment of the Provincial Elections Law. This law, for all of its benefits, only postpones the day of reckoning.

Haider Ala Hamoudi is a professor at the University of Pittsburgh School of Law. The American-born son of Iraqi parents, he has lived and worked in Iraq and has been a legal advisor to the Iraqi government, experiences he describes in his new book, Howling in Mesopotamia (Beaufort Books). He has a blog on Islamic law at http://muslimlawprof.org.


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