Creating a Constitution for and by Iraqis

Jonathan Morrow is a constitutional lawyer at the U.S. Institute of Peace, which is working with Iraqi government officials and other leaders to develop a process for drafting a new constitution.

Bertolt Brecht, in his famous 1953 poem “The Solution,” mocked Soviet powerbrokers as they bemoaned the East German people’s lack of faith in their government:

Would it not be easier

for the government

To dissolve the people

And elect another?

The grim point of the poem, of course, is that imposed political solutions are fanciful at best, and at worst, murderous. And Iraqis are no different from the people of East Germany in 1953 or any other place: Imposed solutions won’t work.

Iraqi political problems should be resolved by the Iraqi people. The elections in Iraq scheduled for January will be a start, but no one can expect those elections to magically change the political dynamics of the Sunni insurgency, the legacy of the Muqtada Sadr uprising, Kurdish separatism or women’s suffering.


For signs of hope, we must instead look beyond the elections, to next year and the negotiation and drafting of the Iraqi constitution. That will provide the testing ground for the viability and identity of an Iraqi state.

Will Iraq fracture into its ethnic, sectarian and communitarian components? Will it become an Islamic republic? Will the rights of women be protected? Neither the counterinsurgency nor the election results will answer these questions.

Instead, a serious and robust constitution-drafting process is the best hope yet for Iraqis who wish to find common ground and thrash out a real -- rather than imposed or stage-managed -- accommodation among the country’s divergent groups and interests.

What does “serious and robust” mean? First, the Iraqi constitution must be -- and be seen to be -- decided and drafted by elected Iraqis.

This was flouted last year when the United States announced that an outside expert would write it. Grand Ayatollah Ali Sistani was prompted to issue a hukum sharii -- a religious ruling of greater strength than a fatwa -- against that idea, mobilizing the majority Shiite population and winning a more representative process.

Second, Iraqis must be given a free choice as to how to structure their state. Iraq’s constitutional process will be a crucial test of the nonintervention pledges made by delegates from the Group of 8, the United Nations, the Arab League and others at the Sharm el Sheik conference last month. Outsiders should not, for example, seek to prevent Shiite parties from advancing models for an Islamic republic; nor should outsiders force the Kurds in the north to accept a centralized Iraqi state. This applies not only to the U.S. and Europe but also to Turkey, Iran and other neighboring states.

Third, as the elected members of the National Assembly create a constitutional assembly, they must also devise a means of including ordinary Iraqis throughout the county in the discussion. The international community, and in particular the U.S. and the U.N., must help them fund and organize that effort. Television programming must be devised, town meetings organized and public hearings conducted throughout the country.

Finally, the back and forth of negotiating a constitution should be treated by observers and participants not as divisive and risky but as the best way to bring about peace. In South Africa, Albania and Afghanistan, transparency in drafting a constitution and vigorous public debate and education about its contents built legitimacy and minimized ethnic, racial and sectarian violence.

There are no easy answers to the divisions in Iraqi society, especially the Sunni insurgency. But already some Shiite leaders are proposing regional/federal representation models that might give Sunnis a stake in an Iraqi constitution and give political voice to the large numbers of Sunni moderates. An Iraqi form of federalism may also allow the Kurds to have sufficient autonomy without splitting the larger Iraqi state.

And although the dialogue has already begun in some quarters, it must be extended as far and as fast as possible, even in advance of the January elections. If the drafting timetable outlined by former civilian administrator L. Paul Bremer III holds, the constitution will be written by the end of next summer. It is a very tight time frame that risks excluding all but the elites and their handpicked advisors, when what is required is a constitution supported by Iraqis of all descriptions.

Nor should it be assumed that a delay in elections would buy needed time: Indeed, the electoral boycotts announced by many Sunni Arab parties, the most likely cause for a delay, only underline the fact that a national constitutional dialogue is urgent.

We cannot transform the faith of Iraqis in their leaders by Brecht’s ironic expedient of electing another Iraqi people. But we can hope that the Iraqi people, if given an opportunity to speak honestly and openly about their constitution, will transform themselves.