Mar 03, 2006

Kurdistan: Identity Denied in the Iraqi Constitution

The Iraqi constitution deprives Kurdish religious groups from their rights

By Dr Rebwar Fatah

“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. With no 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 Kurdish 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 - the same hands that committed genocide against the Kurds.

Fatah Zaxoyi, the former minister of culture in Sulemani, voted against the constitution and in so doing may have become its first victim. For voting “no”, Zaxoyi lost his ministerial position.

Ironically Jalal Talabani, the current president of Iraqi, whose party and authority sacked Zaxoyi believes that he too is a victim of the constitution. Talabani says he will not retain his role for the next term of the government because he does not have enough real power. Talabani forgets that the power of the President stems from the Iraqi constitution that he and his party – PUK - wholeheartedly promoted and approved.

The Kurdish political leadership presents the Iraqi constitution to the Kurdish people as a “historic milestone” and a “historic achievement." In this paper I shall refute this claim and argue that instead that the constitution marks a new chapter in the history of Kurdish oppression.

Overview of the constitution

The United States and Britain have exercised considerable influence in shaping the draft constitution working to appease neighboring 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 recognize the ethnic, historic and geographical reality of a Kurdish homeland. Unlike the case in Sudan, the federation does not lead to the right to self-determination in the future. In Sudan, the South can attain independence, if their people are not satisfied with the central government after 4 years of the accord.

Different Sunni Arab leaders, once again demonstrating their chauvinism, are also against a 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. Kurds must take these Arab views very seriously.

Umro Mousa’s pressure has paid off. 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 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 history, a nation denying the existence of its historical diversity cannot build a democratic civil society which justly follows the rule-of-law and respects human rights.

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. One would have thought that Umro Mousa, the head of Arab League, would be treated as a criminal in Kurdistan for supporting Saddam in his genocide campaign of Kurds.

Kurds must not accept the deliberate ignorance that is expressed by some racist circles and communities. Kurdistan was forcibly annexed to Iraq by the British despite the will of Kurds early last century. Kurds must not accept to isolate Southern [Iraqi] Kurdistan from the greater Kurdistan, which is divided between Iraq, Iran, Syria, Turkey and former Soviet Union. Kurdistan can only survive if worked as a united country with unity between Kurds on different aspects locally and internationally.

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.

In general the constitution fails to recognize 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”.

Kurds must realize that nations, peoples, ethnic and religious groups exist because they share a common history which is encapsulated in a number of symbols. Terms such as Anfal, Halabja and Peshmerga are vital parts of Kurdish identity and have served as historical uniting factors. Denying the Kurds these symbols is a step towards dissolving their identity. It is cultural genocide. Kurds must never compromise on their historical identity.

The process by which the constitution was produced was Arab Shiia dominated. Kurds must ask why the first draft constitution was produced only by the Shiia bloc, when Kurdish groups claim that they are sharing the government and parliament in Baghdad.

Through media, government and social institutions, Kurdish political groups pressured the Kurdish people to vote in favor of the constitution. Yet the options that were presented to the Kurds by such party propaganda machines were sanctioned by a Shiia Arab government. Now that Saddam is out of the picture, Kurds are being treated by Kurdish leadership as they have been treated in the past by Arabs.

Ethnic and religious groups

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 Shiia has the majority and ruling Iraq, they would find it easy to only legislate Islamic laws and decrees, in particular when they will be controlling the “Federal Court”, the backbone of a political system and Ayatollah Sistani issuing daily fatwas. We have already seen the beginning of this.

Iraqi ethnic and religious groups are not granted enough rights, subordinated to restrictions.

The Iraqi people, regional powers and the international community must realise that Iraq has arrived at this disastrous point chiefly because Kurdish rights have been violated.

Kurdish identity and the right to self-determination

Kurdish groups themselves are not united over their rights to self-determination. Jalal Talabani, the PUK leader, believes that “some youth dreamers demand an independent Kurdish state”. My understanding was that the president of Kurdistan and the leader of the other main Kurdish group, the KDP, believe that “the Kurdish right to self-determination” is granted in the constitution.

But the constitution does not clearly state that Kurds are one of the two main people in Iraq. Neither does it convey that Iraq as a country is a voluntary union between two peoples, Kurds and Arabs, or a voluntary union between two homelands, Kurdistan and the homeland of Iraqi Arabs. As illustrated earlier the people of Kurdistan have not been mentioned as a people in the constitution. The preamble of the constitution does not link any nations or ethnic groups to the Kurdistan Region.

Previous Iraqi constitutions during the Baathist governments of Ahmed Hassan Al-Bakr in 1970, and Saddam Hussein in 1990, as well as the transitional Iraqi constitution of 1958, state clearly that Iraq is composed of two people, Kurds and Arabs. It is clear that the people of Kurdistan have vanished as a people in the new constitution. If Kurds and Arabs are equal in Iraq and if Kurds are not second-class citizens, like the other constitutions suggested, the constitution must be revised. Iraq must be described as a union between Kurds and Arabs. The geographical borders of these two Regions must be stated in the constitution.

Iraq is a voluntary union between Kurds and Arabs

There are major contradictions between the statements of the Kurdish President Barzani before and after his visit to Baghdad. He never delivered what he promised to the Kurdish people in the Kurdish Parliament. 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.

Let us take another example. The “Kurdish language” is mentioned in 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 states that “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 states 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 - union system - is vague, and the authorities of the regional governments are very limited and weak. 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 that 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 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.

Historical-geographical coverage of Kurdistan

Article 138 regards “part A of article 53 of the Transitional Administrative Laws (TAL)” part of the constitution. This means that the Kurdistan region borders are the same borders under the control of the PUK and KDP since 1991.

The historical and geographical coverage of Kurdistan has not been identified in the constitution. An estimated 40 percent of Kurdistan is outside the authority of the “Kurdistan Regional government”. No article in the constitution identifies these areas as part of Kurdistan and no roadmap has been identified to reunite these areas with the Kurdistan Region. Even the areas that are not disputed such as Makhmur, Dibaga and Khanaqin have not been identified as part of Kurdistan.

Why did the Kurdish political leadership compromise on the undisputed areas? Why were not they returned to Kurdistan’s borders.

The constitution robs the Kurdish identity form Kirkuk, and includes articles that clearly attempt to stop Kirkuk ever becoming part of Kurdistan. It must be understood that Article 58 of Law of Administration for the Transitional Period (TLA), which is adopted by the constitution, is not about the Kurdish heritage of Kirkuk and other Arabised areas. It is wrongly assumed that after the implementation of Article 58 of TAL, Kirkuk would automatically unite with the Kurdistan Administration. This article is essentially about “normalization” and “land disputes” – not de-Arabisation of Kurdistan.

The constitution does not pave the legal way for a Governorate (Muhafaza: Iraq is 18 Governorates) to unite with a Region (eg Kurdistan Region or Shiia Arab Region). No articles suggest the possibility for a union between a Region and a Governorate. Because of this, Kirkuk, for example, cannot legally unite with the Kurdistan region even after its normalization, i.e. de-Arabisation.

In the early drafts of the constitution, article 114 stated that two Regions can unite to create a larger Region, that two Governorates or more can unite to create a Region, and a Governorate can declare itself as a Region. But in the current constitution draft these rights are not mentioned. Why this paragraph was removed?

Based on this, the Kurdistan areas outside the Kurdistan Regional Government’s control cannot unite with the Kurdistan Region. They also cannot declare themselves, in a referendum, a Kurdish Governorates according to article 116, because Kurds do not make up the majority in these Governorates. The results of the January 2005 elections illustrate this point. Not forgetting that Sunni Arabs boycotted elections in these Governorates, in Diyala, Kurds managed to get around 17% of the vote. In Salahaddin, Kurds managed to get 13% and in Mosul (Nainawa Governorate) Kurds managed to get 38% of the vote. In sum, none of the Kurdistan Regions outside the current Kurdistan Regional Government’s control can form a decentralised Kurdistan Governorate nor can they unite with the Kurdistan Regional Government.

Southern Kurdistan, or Iraqi Kurdistan, does not emerge as a political entity, even within Iraq, and is pessimistically disintegrated forever. Southern Kurdistan remained a united entity within the Iraqi borders for over 80 years. Kurds disintegrated their region by themselves starting in 1991. This disintegration was solidified in the 1994 civil war between the KDP and the PUK and is now legalised in the Iraqi constitution.


I summarise the implications of the constitution in a number of points, representing the constitution's flaws:

- The constitution is a mixture of contradictory concepts and terms, which makes it very difficult to legislate.

- There are no articles concerning the de-Arabisation of Kurdistan, a repressive policy carried out by Saddam’s regime and associated with genocide.

- Arabs are identified as a nation, but Kurds are not.

- The constitution does not identify Kirkuk and Kurdistan areas outside the KRG as part of Kurdistan.

- The right of Kurdish self-determination is non existent.

- Minorities in general are not granted enough rights and instead are subordinated to various cultural and legal restrictions.

- The Prime Minister is granted sweeping powers, which may be perilous in a country where democracy has no roots.

- In the Federal Court, the voice of Kurds and other non Arabs is quite weak.

- The borders of the Kurdistan Region are inherited from Saddam Hussein and over 40% of Kurdish territory is left outside Kurdish administration.

- Kurds have essentially been denied the right of being Kurdish, while Arabs have been given this right as Iraq is described as an Arab nation. Worser still, Kurdish parties have agreed in the constitution that they do not exist in other parts of Kurdistan or are a different people or race from Kurds of other parts of Kurdistan.

The Iraqi constitution is a manifestation of the political bankruptcy of the Kurdish political leadership. It reifies the ideology of dark ages revived by the US-led coalition to rule Iraq. The constitution severely challenges the US-led claims of promoting democratisation in the Middle East. The coalition has shown they are the same bunch that supported Saddam Hussein’s government throughout the years of Kurdish genocide and they have politically profited from their war in Iraq where an estimated one million victims have paid the price.


I am grateful to Dr Hussein Tahiri, Ayoub Barzani, Andrea Hickerson and Sheelan Fatah for reading and commenting on the draft of the article.

Notes, Kurdish online, President Barzani took part in voting (see President’s picture voting), 15 December 2005

The draft of the Iraqi Constitution, Sharq al-Awsat, Arabic daily, London, 30 August 2005

Massuad Barzani,, Kurdish online, 29 August 2005; Barzani states: Iraqi voluntary union means the right to self determination, Kurdish online, President Barzani: The drafted constitution is a great achievement, 24 August 2005

Massuad Barzani, Xebat, KDP organ, in Kurdish, 7 August 2005: Barzani’s speech in the Kurdistan Parliament before attending negotiation in Bagdad with Arab forces

The draft of the Iraqi constitution, the Shiia drafted early version, in Arabic, Al-Sabbah Arabic daily, Baghdad, 26 July 2005