George A. Lopez

As with many other aspects of daily life in Iraq, interpreting the meaning of the ‘yes’ vote by 78% of Iraqis casting ballots in the constitutional referendum yields more uncertainty than clarity. There appears ample data to support quite different conclusions regarding Sunni turnout, and what the prospects of all-out civil war may be in the future.

What did the Iraq people approve? And what does this new constitution mean for Iraq’s future, as well as for the role of the United States as the primary economic, military and administrative force in the country?

Essentially, the Iraqis approved a constitution (accessible at http://www.iraqigovernment.org/constitution_en.shtml) which sets out clear directions for the future of the country in four critical areas. First, the Iraqis have created a loose, federalist system wherein the regions of the nation are the autonomous power brokers. No federal law can be passed which countervails regional (provincial) law. Secondly, oil development and the distribution of profits from its sale will be decided by the federal government and the provinces working together. Thirdly, and as directly stated in Article 2: “Islam is the official religion of the state and is a basic source of legislation”. Finally, as noted in Article 39, “Iraqis are free in their adherence to their personal status according to their religion, sect, belief and choice”.

In asserting the primacy of the provinces and decentralized control of oil, the Kurds and Shiites ensured that the very conditions they argued for their participation in the entire constitutional project are now the law that validates their autonomy. Not surprisingly, these are the two provisions most objected to by the Sunnis, and this outcome that – from their perspective - fractions the country, now becomes a rallying cry for Sunni discontent.

The referendum result was all but certain due to the rules created - primarily by Kurds and Shiites - for the criteria needed to reject the constitution. Those rules, which required that at least two-thirds of those voting in three of Iraq’s eighteen provinces were needed for rejecting the constitution, proved more than the demographics of the Sunnis could muster.

In the western Anbar province, where US forces have increased their battle against insurgents in recent months, 97% of those voting cast ‘No’ votes. Just over 81% in Salahuddin voted no. But in the ‘mixed’ provinces of Niveveh and Diyala, the 55 and 48 per cent respective ‘no’ votes meant the Sunni high turnout aimed to reject the constitution had failed.

Obviously, slightly different rules – such as majority voting - by which a ‘no’ vote led to a constitutional rejection would have produced a very different result. With further American prodding it probably would have sent the Iraqi factions back to the drawing board of constitution-making, providing them the time and tensions they probably needed in the first place to forge a document – and thus a government – with which they all could live and work.

But the American time-table did not fit this Iraqi need. A tough, constitutional process that took seven months in East Timor, fifteen in Afghanistan, and twenty-four in Rwanda was straight-jacketed by the US into three months. So it is not surprising that the result was a contentious document that accented only the factions that came to create it.

Anticipating that the Sunni voting would fail to reject the constitution, but desperate to placate Sunni concerns so that they would participate in the referendum, as the vote drew near the US insisted that the Kurds and Shiites ‘promise’ in practice to honor two changes in the constitution. In the first, the constitution would be open to revision in a relatively short time – four months – after the newly elected government of December 15 is formed. Secondly, the constitutional language which banned all former Baath party members from future government work was modified to apply only to Baathists charged with crimes.

The large negative Sunni vote indicates a deeply held rejection of both the constitution and the future structure of Iraqi political life. This is one of the great tragedies of the referendum. Politics has failed to provide a better alternative than violence to the minority group most skeptical of the political process. It is doubtful that the agreed modifications in practice will be sufficient to prompt a large number of Sunnis to reject the goals and methods of the insurgency as a means for protecting their now further compromised interests and economic future.

In addition to Sunnis, the other political losers in the new constitution are Iraqi women. The constitutional rights limitations for individuals and the religious clauses in the document combine to alter significantly the lives and possibilities of women in the emerging Iraq. Rights to divorce and inheritance, that were protected by law for women under Saddam’s regime have clearly been rescinded. Now many decisions regarding women’s rights will be made by families, local and clerical courts.

In a broader interpretation of the impact of the referendum, the other political losers may be Americans. Few observers are surprised that Islam was declared the official religion of the state in a new Iraqi constitution. But the depth of the reach of the state religion into the lives of citizens contradicts many Bush Administration goals and promises regarding the tolerant and open society that the US was committed to create in Iraq.

Despite this reality, and in light of falling public support for the Iraqi venture, the Bush Administration declared this constitutional approval a ‘landmark day’ in the march toward Iraqi democracy. But it is more likely that the referendum marks the beginning of the end of Iraq as a nation in any traditional understanding of that term. And the constitution moves Iraq rather far from a rights sensitive democracy in any sense shared by Americans. And this unfolds in the same week that the death toll of Americans fighting in Iraq to support this process reaches 2000.

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George A. Lopez is a senior fellow at the Joan B. Kroc Institute for International Peace Studies at the University of Notre Dame.

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