The Daily Demarche
Wednesday, March 02, 2005
Hammurabi, Redux.
(Note: this is a really long post- it is all New Sisyphus fault).

The elections are long over, as measured by the media attention span, and exactly what they mean to the future of Iraq and the region is a matter of much debate. The Michigan Review offers a few lessons learned. Here is the first sentence of each “lesson”, but these don’t really convey the article:

5. Don’t listen to the French.
4. Thoughtful political analysis is never a given
3. There are benefits to republican government.
2. The thirst for freedom exists in the Middle East – but it may not be the kind of freedom we want.
1. Elections are not about issues even in the times when they should be.

Austin Bay indicates that the terrorists are losing in Iraq quoting a WaPo account:

Insurgents fielded only “around 3,500″ fighters on election day, he said, citing U.S. intelligence estimates. Earlier U.S. intelligence had put the number of core Iraqi and foreign fighters at as many as 20,000.

Oraculations details how to deal with the rest of the terrorists out there (not for the faint of heart) in a post called U.S. Military Not a Realistic Answer because they can't win

The only solution, one of which we are partially using in Iraq, is a very old one: a mercenary enforcement. Private armies that will be motivated by money, pussy, and loot. Just the way it used to be before we had countries. Guys who will decapitate enemies and hang them in the public square for everyone to see. A government hired Mafia. That’s the way it used to be and Van Cleveld says it’s the only way we will survive this return to the past. It’s what worked before. Queen Elizabeth hired Sir Francis Drake and a bunch of other pirates and let them run wild in order to win an unconventional war. The Conquistadors were mercenaries. Wars used to be mercenaries vs mercenaries and sometimes they were bought off for higher wages right in the middle of a war. The Brits used Hessian mercenaries against us in 1776.

All of this is well and good, and some of it is mighty entertaining. But what does it mean for the people of Iraq? In our haste to congratulate the Lebanese let’s not forget that Iraq still has a long row to hoe. Next on their agenda is the writing of a Constitution. I can’t even imagine what that must be like. Luckily, I don’t have to. The U.S. government has a little known (anything I did not know about before today is little known) project called the United States Institute for Peace (no, that is not the nickname for the Marine Corps) which has recently released a very interesting report entitled “Iraq’s Constitutional Process Shaping a Vision for the Country’s Future.”

The central theme of this report is one that I have not seen elsewhere, namely the process by which the Iraqis develop their new Constitution is every bit, and possibly more, important than what the final product looks like. In an nutshell the authors spell out the idea that this is the opportunity for the various factions in the country to come together, in a very real way this is where the healing process begins. Here is the summary of the report (it is 16 pages long in .pdf format):

• The process by which constitutions are made matters. In countries such as Iraq, the constitution-making process can be a transformational one that facilitates peace and stability. If not organized transparently and with public participation, however, the constitutional process runs the risk of further fracturing the country.
• From the time of the overthrow of Saddam Hussein’s regime, there have been various positions advanced on the terms of a future Iraqi constitution, but little attention paid to the process by which this constitution will be made.
• The challenge will be for the elected National Assembly to organize this process, ideally through a set of interim rules to ensure transparency and to articulate fun­damental constitutional principles, as done in many other countries.
• A constitutional commission for Iraq, composed of National Assembly members and supported by a secretariat of Iraqi professionals, should conduct civic education, broadly consult the population, and compile a draft constitution. There are many models from around the world for such a commission.
• The constitutional commission’s education and consultation should reach out to all Iraqis, and should be given adequate time. The commission should engage in consensus drafting, and avoid relying on existing drafts.
• If invited to do so, the international community can play a beneficial role, which should be supportive of the commission’s work, and could consist of providing neu­tral advisers to the commission. Governments should respect what is a sovereign Iraqi process.

Now, I can’t say that I agree with everything in this report, but these folks have done their homework. They have examined the processes by which countries draft constitutions in the modern age (18 countries to be exact) many of them recovering from periods of violence and/or great internal divide. They draw many parallels between South Africa and its constitutional convention and what the Iraqi people face today. The authors see this as a possible role model for the Iraqi assembly:

South Africa’s constitutional process—a case that may provide some useful lessons for Iraq—is an example of this approach. At the time of its transition, South Africa was a deeply divided society, with a legacy of repression, ongoing violence threatening the transition, and a certainty regarding which political and racial faction would dominate the Constituent Assembly and the new government. Various political factions privately negotiated the terms of the interim constitution, which set out the basic ground rules for the process of adopting a permanent con­stitution and provided for the basic functioning of a Government of National Unity throughout the constitution-making period. The Constituent Assembly, in addition to drafting a permanent constitution for the country, would also function as a parliament in the interim period. The interim constitution set out 32 substantive principles to be followed in the drafting of the permanent constitution.

They stress repeatedly the need for a working group within the assembly, and the need for transparency and outreach to the Iraqi people.

In the context of a divided society, the emphasis on public participation in the development of the constitution can provide the best possibility for vulnerable groups, or even those who view themselves as politically disenfranchised, to engage in an open national dialogue regarding decisions that are vital to the future direction of the country. This approach can be crucial to forging a common vision for the nation’s future, resulting in a new constitution in which all these diverse groups may not have the immediate satisfaction of all their demands, but in which they have a stake and a sense of ownership.

At its core, broad public participation and consultation is most important in devel­oping an authentic sense that the new constitution is not irrelevant and abstract, or a tool to be used or abused by those in power but, rather, is the possession of all the people, who will insist on its implementation.

At first I scoffed at some of the ideas presented in the paper as to how best to conduct outreach. Ideas such as town halls and radio addresses are great, but what about skits or cartoons? Then I heard (turn on your speakers) a song in the back of my head and I realized they were right:

We the people
In order to form a more perfect union,
Establish justice, insure domestic tranquility,
Provide for the common defense,
Promote the general welfare and
Secure the blessings of liberty
To ourselves and our posterity,
Do ordain and establish this Constitution
for the United States of America.

Public education and outreach will be very important. Of course they also have to listen to what the people tell them and take it under advisement, work together and make sure the timing is right as well. The report also spells out what the international community can do as well, provided we are asked:

The U.S. Institute of Peace–UNDP study has found the role of foreign experts to be especially constructive when they have served as a neutral resource, offering guidance to locals by elucidating the pros and cons of particular substantive issues, frequently through comparative analysis of how constitutional issues have been handled in other countries. This kind of role facilitates informed debate of issues among locals, who will ultimately make the substantive choices.

One of the most important ways that the international community can assist the constitution-making process in Iraq is by facilitating access to information about, and key experts from, the relevant constitution-making experiences of other countries.

In other words, don’t make them reinvent the wheel. The report ends with a number of concrete recommendations as well:

• Iraq’s new National Assembly should embrace a model of robust public participation in the constitution-making process. This effort can be pivotal in establishing the legitimacy of the process, fostering national dialogue, developing a common vision for Iraq’s future, and cultivating a sense of public ownership and commitment to the country’s new constitution, resulting in greater stability for the political system established by that constitution.
• The recent constitution-making experience of several countries, particularly with respect to public participation in the process, can provide helpful lessons and tools for Iraq, and the international community should facilitate Iraqi access to such comparative information.
• The National Assembly should consider early adoption of rules governing the consti­tution-making process that (1) spell out further details and organizational structure for the constitutional process, including active public consultation and participation, and (2) reaffirm fundamental principles and guarantees of human rights that will be respected during the life of the National Assembly and enshrined in the new consti­tution.
• Separate phases of public education and public consultation should be conducted. Members of the National Assembly, civil society groups, the media, academic institu­tions, and others should play active roles in this effort. This process should include dialogue among Iraq’s various ethnic and religious communities regarding one another’s concerns and ideas for the country’s new constitutional system. Adequate time should be allocated for this component of the constitutional development pro­cess.
• A constitutional commission should be established in Iraq to facilitate public edu­cation and consultation efforts, collect and organize public input for the National Assembly’s constitution drafters, and conduct research and drafting for the National Assembly.
• The drafting of the constitution should ideally develop from an open consideration of issues and options, rather than simply focusing on a complete draft constitution tabled by any particular political faction.
• The international community should provide resources and technical assistance to aid the Iraqi constitution-making process. Foreign governments and institutions should not be aligned with particular political factions but, instead, should provide neutral assistance to the National Assembly and civil society constitutional efforts.

If you have made it this far with me, thank you, and thanks to the Beltway Traffic Jam too. I am convinced, after finishing this report and thinking about what I would want from the drafters of a constitution today, and what I would not want, that more than anything I would not want the end product simply presented to me one day. For the Shia, Sunni, Kurd, Christian and all the other groups in Iraq to have a future they will need to agree on the foundation. How will mosque and state work together? How will good laws be passed and bad laws repealed? What ownership do I have over my freedoms and future?

As I said at the top, it is a long row to hoe. I wish the framers and the people of Iraq the best of luck.

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dé·marche 1) A course of action; a maneuver. 2) A diplomatic representation or protest 3) A statement or protest addressed by citizens to public authorities.

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