To illustrate the political agenda of the Iraqi Kurdish leaders, it is worth mentioning two statements by the two major and influential Kurdish leaders in Iraq. ‗We (Kurds) had a prime role in the negotiation between the Sunnis and the Shiites‘ Massoud Barzani, President of the Kurdistan Regional Government and leader of the KDP, 29 August 2005 ‗Kurds were the first force which struggled for the unity of Iraq. Without a doubt, some dreaming Kurdish youths demand an independent Kurdish state‘. Jalal Talabani, The President of Iraq and the leader of PUK, 04 September 2005. Perhaps it was symbolic when the President of the Kurdistan Region, voted "Yes" for the Iraqi constitution by putting his vote into a ballet box marked in Arabic ―Muhafazat Arbil‖, or "The governorate of Arbil." In so doing, he put the future of Kurdistan in the hands of Arabs. Fatah Zaxoyi, the former minister of culture in Sulemani, voted against the constitution and in so doing he may have become its first victim. For voting ―no‖, Zaxoyi lost his ministerial position.
The Kurdish political leadership presented the Iraqi constitution to the Kurdish people as a ―historic milestone‖ and a ―historic achievement". This section refutes this claim and instead argues that the constitution marks a new chapter in the history of Kurdish oppression. The Constitution of 2005, ratified by four out of five voters in an UN- validated referendum, restructured British-made Iraq as a voluntary union of its constituent peoples. It proclaims, on paper, a pluralist federation, maps the path toward
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different and flexible forms of decentralisation, and creates multiple incentives for power sharing within a deliberately weak federal government. It remade Iraq as a parliamentary democracy— enabling its Shia Arab majority to express itself as such, though subject to constitutional restraints, the most important of which lie in the formal strengthening of regions or provinces (governorates) at the expense of what until 2003 had been a series of despotisms in Baghdad. The Constitution was made by the leading lights of SCIRI (now ISCI, the Iraqi Supreme Council of Islam) among the Shia Arabs, together with the Kurdish leadership. These victims of Saddam agreed that a recentralised Iraq would be a threat to the liberties of Iraq‘s nationalities, religious communities, and citizens— and to Iraq‘s neighbours. They built into the Constitution the recognition of Kurdistan‘s autonomy, including its right to have its own army, and granted any future regions the right to opt for the same powers as Kurdistan.
The Constitution enables any existing provinces-barring Baghdad and Kirkuk-to join with other provinces to form larger regions. Baghdad may become a region in its own right. Provinces not organised in regions have extensive rights of self-government if they choose to exercise them. Special provisions (not yet implemented) enable Kirkuk and other disputed territories to unify with Kurdistan—after the expulsions, gerrymandering, and settler infusion policies of the Ba‘thists is undone. The Constitution, in short, permits either a symmetrical federation, in which other regions are built with the same powers as Kurdistan, or an asymmetrical federation, in which the existing provinces of Arab-majority Iraq, by comparison with Kurdistan Regional Government (KRG), choose to grant greater authority to the Baghdad government. The Iraqi constitution does not describe Iraq as a voluntary union between two people, Kurds and Arabs, yet, according to the President of Kurdistan, the constitution does describe ―Iraq as a voluntary union is equal to self-determination rights‖. This is a wrong interpretation. Another example is: The ―Kurdish language‖ is mentioned in
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Article 4 and the ―Kurdistan Region‖ in Articles 5, 114 and 137. But Kurds, as a distinct people, have not been mentioned anywhere in the Iraqi Constitution. Ironically, Turkmens, Assyrians and Chaldeans are mentioned in Article 122 as distinct people. Article 1 stipulates ‗The ruling system in Iraq is a parliamentarian, democratic and united‘. But it does not clearly state the parties involved in this union. Later, Article 3 that ‗Iraq is a multi- ethnic, multi-religion, multi-sect country and it is part of the Islamic world‘. Article 133, while placed at the end of the constitution, is the most promising. Article 113 states ‗The union system in Iraq is composed of the capital, the Regions and the decentralised Governorates (Muhafazat) and the Regional authorities‘. If we describe this ―Union‖ as ―federalism‖ - without forgetting that federalism and unions are two different concepts - Iraq is re-established on the basis of ‗administrative federalism‘ and not geographical, ethnic or historical regional distinctions. Similarly, Article 114 part 2 supports the establishment of other administrative regions, stating ‗This constitution will recognise other regions which might be formed according to the constitution‘.
This constitution's federal system or union system is vague, and the powers of the regional governments are very limited. Chapter 5, Articles 113 to 123, explain authorities of regional governments cannot be compared to the authorities of the dominant central government. Additionally, Article 118 states regional governments cannot interfere with the agendas of the central government. Regional constitutions and laws must not contradict the central constitution as described in article 13. The regional constitutions therefore must shadow the central government‘s constitution (Articles 13 and 118). According to the constitution, the role of the Kurdistan Parliament will be to reflect on and interpret the decrees and decisions made in Baghdad. The role of the parliament will be similar to the role of a ―Council‖ for the region, and will not have the power of a regional parliament in a federation. The constitution grants the Prime
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Minister sweeping powers (Article 78), which may be perilous in a country where democracy has no roots and has just come out of a dictatorship. The Federal Court, if it is ruled by simple majority, would be controlled by Arabs; hence the influence of Kurds and non Arabs - Assyrians, Turkmen – is almost eliminated. The Constitution establishes yet another strong central government in Iraq.
The United States and Britain have exercised considerable influence in shaping the draft constitution working to appease neighbouring governments, particularly Turkey and Arab states. As a result, Kurdish self-determination is denied. The idea of federalism has been diluted to a very simple form of federation, which is not helpful to Kurdish people. The federation does not recognise the ethnic, historic and geographical reality of a Kurdish homeland. Unlike the case in Sudan, the federation does not lead to the right of self-determination in the future. In Sudan, according to the constitution, the South can attain independence, if their people are not satisfied with the central government after four years of the accord. In a referendum which took place on 09 January 2011 to 15 January 2011 ‗Nearly 99% from the south voted for independence‘. (Smith 2011:1). Different Sunni Arab leaders are opposed to federal arrangement for the Kurds. Other prominent Arab organisations and individuals outside Iraq have also expressed fears over the Arab identity of Iraq, including Umro Mousa, the President of the League of Arab States.
A version of Article 3 of the constitution gave the impression that there may be other people in Iraq, apart from Arabs. This article stated ‗The Arab people of Iraq are part of Arab nation‘. This has been replaced by ‗Iraq is the founding and active member of the League of Arab States and is bound by all its decrees‘. Considering that the very first Article 1 states ‗The League of Arab States is composed of the independent Arab States‘. It is clear that Iraq has an Arab identity at the expense of Kurds and other ethnic and religious groups, which only enhance the mosaic of Iraq. As proven by Iraqi
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history, a nation denying the existence of its historical diversity cannot build a democratic civil society which justly follows the rule-of-law and delivering equal citizenship.
Since his intervention in the Iraqi constitution, Umro Mousa was welcomed to the Kurdistan Parliament. He told all 111 Kurdish MPs that Kurdistan is part of the Arab nation and overtly they all accepted his claim. The constitution also deprives Kurdish religious groups from their rights. For example, the constitution specifically gives freedom to the Arab Hussiyniye tribes, but it does not identify some half a million Kurdish Kakeyis who have their own faith and have been gravely oppressed under the former government. Article 140 of the Iraqi constitution has still not been implemented. There is supposed to be a referendum where the people of the areas can freely decide whether their areas shall belong to Kurdistan Regional Government or to the central government in Baghdad. This is the only way of overcoming the consequences of the policy of forcible Arabicisation of the Ba‘th regime. Iraq can only continue to exist in its present boundaries if equal citizenship is guaranteed for the Kurds and other minorities.
In general the constitution fails to recognise crimes against humanity committed against Kurds during consecutive Arab rules of Iraq, such as the Anfal campaign, Arabisation and deportation. For example, even the term ―Peshmerga‖, which has a historic context and is sacred to Kurds, has been changed to ―Regional Guards‖. The process by which the constitution was produced was Arab Shia dominated. The question is why the first draft constitution was produced only by the Shia bloc, when Kurdish groups claim that they are sharing the government and parliament in Baghdad. Through the media, government and social institutions, Kurdish political groups pressured the Kurdish people to vote in favour of the constitution. Yet the options that were presented to the Kurds by such party propaganda machines were sanctioned by a Shia Arab
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government. In addition to Kurds, the rights of all other ethnic and religious groups in Iraq are also at stake in the new constitution. The language used in the Constitution is very elusive and can be subject to different, even opposing, interpretations. For example, the constitution defines Iraq as ―Islamic‖ and ―democratic‖. There are no universal agreements on the meaning of these two totally different, even contradicting, concepts. No law can be legislated based on such concepts. This illusive language does not only disadvantage Kurds, but it restricts the civil, democratic and human rights of the entire Iraqi populations.
The constitution is a definition of an Islamic state; it clearly states that Iraq is Islamic. While the Shia has the majority and ruling Iraq, they would find it easy to legislate Islamic laws and decrees only, in particular when they will be controlling the ‗Federal Court‘ the backbone of a political system and Ayatollah Sistani issuing daily fatwas (religious orders). The beginning of this has already been noticed.