The Process of Power-Sharing
How Constitutions Were Established in
Afghanistan and Iraq after US Intervention
Anne van den Heuvel
Student Number 0318698
Utrecht University
17 March 2009
Thesis submitted to
the Board of Examiners
in partial fulfillment of the requirements of the degree
of Master in Arts in Conflict Studies and Human Rights

Supervisor:
Chris van der Borgh

Date of Submission:
12 March 2009

Word Count:
17,507 (excl. Bibliography)

Trajectory:
30 ECTS:
Compulsory Courses
15 ECTS:
Research/Thesis and Internship Report
15 ECTS:
Internship (12+ weeks) at International Crisis Group
UN Advocacy Team
New York, USA
Additional:
Internship (12 weeks) at
MoFA of the Netherlands,
Permanent Representation
to the European Union
Department Middle
East/Northern Africa
Brussels, Belgium
Table of Contents
Introduction
2
Chapter 1: Power-Sharing Theory and Horowitz’ Notion of “Process”
5
1.1 Theories on Power-Sharing and Current Scholarly Debate
5
1.1.1 Consociationalism and Centripetalism
5
1.1.2 The Current Scholarly Debate on Power-Sharing
7
1.1.3 Power-Sharing Theory and the Case Studies Afghanistan and Iraq
9
1.1.4 Conclusion on Consociationalism and Centripetalism
10
1.2 The Constitutional Process and Power-Sharing
11
1.2.1 Definition and Relevance of Process
11
1.2.2 Process in Existing Power-Sharing Theory
12
1.3 Analyzing Constitutional Processes
Chapter 2: Afghanistan
13
14
2.1 Overview Interim Period
14
2.2 Outcome: The Constitution
15
2.3 Local Actors and Groups
16
2.4 The Constitutional Process
18
2.4.1 Decision-making During Bonn
18
2.4.2 US Role/Warlords
19
2.4.3 Centre-Periphery Relationship
21
2.4.4 UN/International Community
21
2.4.5 Hamid Karzai
22
2.5 Findings
Chapter 3: Iraq
24
25
3.1 Overview Interim Period
25
3.2 Outcome: The Constitution
26
3.3 Local Actors and Groups
27
3.4 The Constitutional Process
28
3.4.1 US Role and Iraqi Ownership
28
3.4.2 UN/International Community
31
3.4.3 Exclusion of Sunni Arabs/De-Ba’athification
32
3.4.4 Ethnicization of Politics
34
2.5 Findings
35
Conclusion
36
Bibliography
39
Introduction
Afghanistan and Iraq were invaded by coalitions led by the United States (US) within a time frame of
eighteen months. In the period after the invasion and the toppling of the ruling parties, new constitutions
that included power-sharing arrangements were established in both countries. Power-sharing is a crucial
part of peace agreements and new constitutions in many contemporary post-conflict situations. For groups
to agree on sharing power can provide an alternative for the violent power struggle that took place during
conflict. Power-sharing agreements have both succeeded and failed but, after researching power-sharing
arrangements in 191 countries and in-depth research of ten post-conflict societies, Pippa Norris of Harvard
University concludes, “power-sharing is one of the most promising avenues towards lasting peace
settlements and sustainable democracy” (Norris 2008:223).
There are different areas in which power-sharing can be applied; at the executive and government
level, but also in the legislature and in judicial and economic sectors. In each case where power-sharing is
applied, these areas are in- or excluded in a more- or less comprehensive way. In this thesis the focus is on
political power-sharing arrangements. “Political arrangements” refers to regulations regarding the executive
and government levels that include institutional and constitutional rules such as the type of electoral
system, the type of executive (presidential or parliamentary) and the division of power between central
government and regions (Papagianni 2007:25, Norris 2008:23). A detailed definition of power-sharing
depends on the theory of power-sharing advocated. A general, broad definition is based on common
elements from political power-sharing theories and is given by Pippa Norris and Timothy Sisk, an oftencited scholar on power-sharing in post-conflict societies. Sisk defines political power-sharing systems as
“practices and institutions that result in broad-based governing coalitions generally inclusive of most, if not
all, major groups” (Sisk 1999:vii, 4). The definition used in this thesis is put forward by Pippa Norris, who
defines political power-sharing as “formal institutional rules which give multiple political elites a stake in
the decision-making process” (Norris 2008:23).
In order to institutionalize and implement political power-sharing arrangements, questions on
which groups will get a stake in power, on how it will be decided how much power a group gets and on
who is to answer these first two questions have to be answered (Papagianni 2008:49). Power-sharing theory
deals with these puzzles.
There are two main theories in power-sharing literature, known as consociationalism and centripetalism.
Both include guidelines and explanations on how to share political power and on what type of powersharing arrangements works best. The scholarly debate evolves around the critiques of these theories and
focuses on the questions “what can be done” (criticizing practical use of centripetalism) versus “what
should be done” (criticizing theoretical foundations of consociationalism). The power-sharing arrangements
that were adopted in Afghanistan and Iraq differ significantly and correspond for a large part with the two
different theories. At the same time, the countries show important structural similarities which “provide the
constraints that narrow the options” for power-sharing (Horowitz 2008:1247); In both countries the
2
establishment of new power-sharing arrangements was caused in the same way, namely after US-led
military intervention as part of the “War on Terror” and the toppling of governing regimes. Another
similarity is that the US and its coalition partners had a special and important role in the period after the
invasion when the countries had to be rebuild; not only as a mediator with great leverage, but also as an
invader with an own agenda. Finally, the two interventions started less then 18 months after one another
and the interim period - the period between the invasion and the adoption of the new constitution - was in
both countries of similar duration, around three years.
The fact that Afghanistan and Iraq show important structural similarities but adopted very
different power-sharing arrangements that largely reflect different power-sharing theories, raises questions
about how these differences can be explained. Donald Horowitz, a prominent scholar on power-sharing,
recently argued that power-sharing arrangements are the outcome of negotiations that take place during
constitutional processes that precede the adoption of the power-sharing arrangements (Horowitz
2008:1226, 1230).
The structural similarities and different types of power-sharing arrangements in Afghanistan and
Iraq, combined with Horowitz’ notion that power-sharing arrangements are the outcome of constitutional
processes, leads to the following research question: “How can differences in power-sharing arrangements
in Afghanistan and Iraq be explained by Horowitz’ notion of constitutional process?” The answer to this
question will provide insight in the particular composition of power-sharing arrangements in Afghanistan
and Iraq. Instead of focusing on what works best, as most power-sharing literature does, the focus in this
research is on how to explain the particular composition of - and differences between – power-sharing
arrangements.
The answer to this question will apply to the case studies Afghanistan and Iraq, and results will
not necessarily be similar in other cases. This research is qualitative; the goal is not to come up with a
blueprint that lists factors that influence the outcomes of constitutional processes in any case. Even though
there are structural similarities, there are numerous differences as well. Afghanistan and Iraq are selected
because the specific similarities between the countries (the reason why power-sharing arrangements are
established, the duration of the interim period and whether an external power plays a large role) are
according to power-sharing literature decisive elements for the eventual success of political power-sharing
(for example, Papagianni 2007:29, Schneckener 2002:217, Sisk 1999:xiv). In Afghanistan and Iraq, powersharing arrangements are defined in and legalized by adopting them as part of the constitution. For that
reason, in this thesis the term constitution refers to the adopted power-sharing arrangements. The
constitutional process is the period that precedes the adoption of a new constitution during which the new
constitution is made. The constitutional process will be defined in more detail in chapter 1. In both
countries the constitutional process took place during the interim period, which is the period between the
toppling of the respective regimes and the adoption of a new constitution.
In order to answer the research question I will address the following issues in this thesis: The first
chapter deals with the theoretical context of power-sharing and Horowitz’ notion of process. First of all
3
existing power-sharing theories, and why they are not used to answer the research question will be
discussed. Secondly, Horowitz’ notion of process as a framework to explain differences in power-sharing
arrangements will be defined and the way in which the constitutional process will be researched in this
thesis will be explained. In the second and third chapter, the constitutional processes and power-sharing
arrangements in Afghanistan and Iraq will be described and analyzed. In the conclusion, findings will be
presented, the research question will be answered and options for further research will be given.
4
Chapter 1: Power-Sharing Theory and Horowitz’ Notion of “Process”
As noted in the introduction, the power-sharing arrangements in Afghanistan and Iraq differ significantly.
The purpose of this chapter is to explain why in this research an analysis of the constitutional process is
chosen to explain these differences, and how this analysis will be done. In his recent article “Conciliatory
Institutions and Constitutional Processes in Post-Conflict States” (Horowitz: 2008), Donald Horowitz
argued the constitutional process is a crucial part of power-sharing arrangements.
To understand the context in which Horowitz came up with the notion of process, in the first part
of this chapter existing power-sharing theories and the current scholarly debate will be discussed, and their
meaning for the power-sharing arrangements in Afghanistan and Iraq will be explained. In the second part
the definition and use of the constitutional process with regard to power-sharing will be elaborated upon.
Attention will be given to what process is and how it relates to the current power-sharing debate. Finally,
an explanation of how to analyze the constitutional processes of Afghanistan and Iraq will be discussed in
the third paragraph.
1.1 Theories on Power-Sharing and Current Scholarly Debate
Within power-sharing literature, two main schools of thought have evolved around two theories, the first
introduced by Arend Lijphart, the second by Donald Horowitz. Both theories will be introduced, followed
by a discussion on the current scholarly debate on power-sharing. Whether and how current power-sharing
theory can explain the differences between the constitutions in Afghanistan and Iraq will explained in the
last section of this paragraph.
1.1.1 Consociatonalism and Centripetalism
Consociationalism: Arend Lijphart
The dominating approach among scholars and practitioners on power-sharing is introduced by Arend
Lijphart in 1969, and is known as “consociationalism”. Lijphart’s theory was groundbreaking because it
provided both an alternative to majoritarian rule and an answer to the question how to implement
democracy in deeply divided societies (Sisk 1999:5, Norris 2008:23). Consociationalism highlights
protection of groups, especially minorities, who often are victims in conflict. Consociationalism is based
upon the idea that in a post-conflict climate where trust between parties is minimal, all significant parties
must be secured of participation in government.
Consociationalism relies on three principles: First of all, all major parties are represented in
government on basis of proportional representation (Lijphart 2004:103). Because all parties are guaranteed
representation in government, political parties are formed before elections take place, often along groupboundary lines (Sisk 1999:5). The second principle is the mutual veto. The veto-right protects every party
of being politically outvoted by a majority (Lijphart 2004:97,107). As a consequence of the mutual veto,
decision-making is based on consensus and thus a grand coalition, in which all parties participate, is
required. Another consequence of the mutual veto and the decision-making based on consensus is that
5
executive power in a consociational electoral system often lies within the parliament (Horowitz
2008:1216). The last principle is segmental group autonomy, often through federalism. The underlying idea
is that minorities can rule “over itself in the area of the minorities exclusive concern” (Lijphart 1977a:41, in
Sisk 1999:37), meaning that only in areas of common concern decision-making will take place by
consensus at the national level. Autonomy can be given through territorial or non-territorial federalism
‘Schneckener 2002:205, Norris 2008:25).
Although Lijphart emphasizes that there is “no single consociational blueprint” (Lijphart
1982:175), these three principles are to be found in a consociational approach.
Centripetalism: Donald Horowitz
The other main theory on power-sharing is introduced by Donald Horowitz is known as ‘centripetalism’
and was established as a critique on and an alternative to consociationalism (Norris 2008:28). Horowitz’
main argument is that power-sharing should provide incentives for cooperation between moderates.
An essential feature of centripetalism is intergroup cooperation as a prerequisite for electoral
success, which means that leaders have to gain support from other groups in order to be elected (Sisk
1999:41). The underlying idea is that in order to receive votes from other groups, parties have to moderate
their views by finding common ground between their own and the other group(s) and show that they are
willing to compromise. This will lead to informal cross-boundary coalitions between groups that are
formed before elections take place. According to Horowitz, the commitments of one party to another make
the centripetal approach superior to the consociationalist approach (Horowitz 2008:1219). In order to make
sure leaders need to reach out to other groups, incentives for moderates, such as electoral rules and
institutions fostering political cooperation, are an important factor in centripetalism (Horowitz 2008:1218-).
An example of an electoral rule is the use of the alternative vote, whereby voters need to vote for their
second preference as well. The alternative vote is usually given to the group that offers most compromises
after first voting for the ‘own’ group. This electoral rule helps to form cross-boundary coalitions and forms
an incentive for parties to reach out to other parties in order to get the second votes (Sisk 1999:43). Most
power-sharing agreements characterized by centripetalist ideas have a presidential system as opposed to a
parliament, because a strong moderate president can serve a “nation-building role” and is able to push
legislation through a divided parliament (Sisk 1999:43). Centripetalism is not opposed majority rule, but
tries to create a moderate ruling majority that is willing to compromise and reach out to other groups
Horowitz argues that as a consequence of intergroup cooperation across group boundaries,
political parties will evolve along lines different then the group differences by which society was divided
during conflict and that therefore centripetalism will lead to stable governments.
6
1.1.2 The Current Scholarly Debate on Power-Sharing
Consociationalism and Centripetalism: Analyzing Similarities and Differences
Consociationalism and centripetalism have similarities; both focus on avoiding exclusion (Horowitz
2008:1215), both accept existence of group boundaries and try to manage their effects (Horowitz
2008:1219) and both promote broad inclusive governing coalitions, although they differ about how and
when these coalitions are formed (Sisk 1999:7). These similarities are mostly a consequence of the fact that
any power-sharing theory has to deal with in- and exclusion of groups in the political process.
The differences between centripetalism and consociationalism, such as the electoral system or
electoral rules like the alternative vote or mutual veto, can be seen as a consequence of the fact that the two
theories rest on fundamental different ideas about social identities (Sisk 1999:13). This can be clarified by
looking at the difference regarding timing of coalition-formation and elections. In the centripetal approach,
coalitions are to be formed before elections, whereas in the consociationalist approach parties form
coalitions after elections (Sisk 1999:45).
The formation of unofficial coalitions that include members of multiple groups before elections
take place shows that the centripetal approach is based on the structuralist idea that identities are fluid and
can be (re)constructed (Norris 2008:28). This (partial) reconstruction of identity makes it possible that
people vote for another party then their own. A definition of “coalition” according to the centripetalist
approach could be “one large political party, with the goal of forming a majority in government, that
consists of members from multiple (ethnic/religious/social/territorial) groups”. It is hard to find empirical
examples of centripetalist systems. Although many US’ citizens identify themselves with their ethnic
group, political parties are not organized along ethnic lines - a characteristic of centripetalism. Ethnicity
does not make someone Democrat or Republican and thus there are Democrats and Republicans within
each ethnic group. Consequently, politics in the US are not divided along ethnic lines. Still, the US is not a
centripetalist system as it does not have the electoral rules that require a certain number of votes from
groups other then their own in order to get elected; in the US the majority wins, no matter where the votes
come from. Horowitz cites the 1978 constitution of Sri Lanka as an example of a centripetalist system that
used special electoral rules that required votes from different groups in order to be elected (Horowitz 1993,
in Sisk 1999:43). Still this is not a very good example, as this system did not stop Sri Lanka from further
conflict.
The guaranteed government participation and post-election formation of coalitions, essentials of
the consociationalist theory, show the roots of this approach lie in the primordialist idea; social identities
are fixed and hard to change; therefore people will not vote for any group but their own. Because identities
are not easily reconstructed and people from one group will not compromise with other groups on issues
that they perceive as crucial, each group needs to be assured of government participation in order to include
all major groups in the process. A definition of coalition according to the consociationalist approach could
be “multiple political parties (often formed along ethnic/religious/social/territorial group boundaries) that
work together in order to form a majority in government”. The political system in the Netherlands, on
7
which Lijphart based his approach, was founded on the consociationalist idea; Dutch society was strongly
divided along religious lines and each religious group was assured of political representation in
government, resulting in a multi-party democracy (Lijphart 1975).
Centripetalism and Consociationalism: Critiques
There are three main criticisms on consociationalism. The main critique on Lijphart’s theory is that
consociationalism rewards extremists’ views; since every party is granted participation at the executive
level, there is no incentive to moderate views and granted participation instead encourages more populist,
extreme views by party leaders in order to let other groups look ‘bad’ and the own group best (Sisk
1999:41). Consociationalism, critics say, freezes wartime balances because political parties are formed
along group boundary lines that reaffirm cleavages that played a role during conflict (Papagianni 2007:3031). This can obstruct long-term transformation of society because groups that participated in the conflict
become competing political parties and are not stimulated to develop a relationship of trust and
cooperation; groups do not build common identities different from wartime identities. The following
critiques are based on this main critique.
Another critique is that consociationalism is undemocratic (Papagianni 2007:29), because parties
know they will be represented in government before elections take place. Guaranteed representation also
means participation in conflict is rewarded since not participating in the conflict can mean no
representation in government. Since leaders know they will be part of the government, they are less
accountable in relation to their constituencies since their representation is already assured (Papagianni
2007:23, Sisk 1999:39).
The third critique is based on the effects on the mutual veto. The veto can have the consequence
that decision-making is slow and the chance for a political deadlock (when parties cannot agree with each
other and one continues using its veto rights to block decision-making) is significant, which has for
example happened in Bosnia after Dayton. The veto can also cause can create unwillingness of majorities
to participate in a consociationalist system since they loose a lot of power to minorities, who in a majority
system would not have been large enough to block decision-making by themselves (Horowitz 2008:1219).
Critiques on consociationalism evolve around questions on long-term issues and theoretical
disagreements about identity formation. Critics agree that consociationalism might be easier to implement
(for example, Horowitz 2008:1223) but argue that implementing this theory will impede long-term peace
and stability because groups do not transform along lines that were different form the group boundaries in
conflict.
Critiques on centripetalism evolve around two points. The most heard critique is that centripetalism is hard
or impossible to implement in a deeply divided society. To demand from parties that have been fighting
each other to interact and compromise during the very first stage of the constitutional process proves hard
to implement in practice; voters are often unwilling to vote for any party but their own when conflict
8
recently ended, when differences between groups are perceived big and when trust between groups is
minimal. As a consequence, there are very few empirical examples of centripetalism, especially when it
comes to post-conflict societies (Sisk 1999:44). Horowitz agrees partly on this critique by noting; “warfare
may be hard to end except on at least some consociational terms” (Horowitz 2008:1223). Favorable
conditions for implementing power-sharing are often absent due to the adverse environments on the
ground, a characteristic of most post-conflict societies (Schneckener 2002:218).
Another critique is focused on the vulnerable position of minorities. In a centripetalist system
minorities are not assured participation in government, and even though leaders need their support in order
to be elected, it is not guaranteed that once a leader from a large group that includes majorities and
minorities is elected, minorities will get the share of power they deserve (Sisk 1999:5,44).
The critiques on centripetalism evolve around questions on short-term issues, in particular
practical obstacles. Critical authors are often not explicitly “against” the centripetal idea, but argue that
centripetalists fail to come up with a way to implement this theory in practice.
1.1.3 Power-Sharing Theory and the Case Studies Afghanistan and Iraq
In this paragraph consociationalism and centripetalism will be used to explain the differences in powersharing agreements in Afghanistan and Iraq. When comparing power-sharing theories with the cases,
Afghanistan shows important similarities with centripetalism, whereas power-sharing arrangements in Iraq
show mainly consociationalist characteristics. This is clearly reflected in the governing and electoral
system adopted in each country; Afghanistan adopted a majoritarian system with an alternative vote for
presidential elections, Iraq has a parliament formed on basis of proportional representation with
compensatory seats for minority parties (Norris 2008:29).
To use consociationalism and centripetalism to explain differences in the constitutions of
Afghanistan and Iraq would look like this: Afghani constitution-makers largely based power-sharing
arrangements on “what should be done”, as they adopted a system that is hard to implement in a postconflict society with deep cleavages and minimal trust between groups. Iraqi constitution-makers based
power-sharing arrangements on “what can be done”, as they adopted a system that impedes long-term
stability since in this system it is likely that groups do not build common identities along lines that are
different from the group boundaries in conflict. This answer is not satisfactory for three reasons.
First of all, the answer merely explains which theory is easier to implement – not why differences
exist. Secondly, power-sharing arrangements are not (only) based on power-sharing theory; if this was the
case constitution-makers could choose the theory they think would be most successful and write the
constitution accordingly, which in post-conflict societies does not happen. An observation by Donald
Horowitz, which is reflected in the cases of Afghanistan and Iraq, is relevant at his point. Horowitz notes
that in practice, contemporary post-conflict power-sharing agreements contain elements from both theories
or implement only parts of either theory; there are no current post-conflict examples of one theory
implemented as a whole (Horowitz 2008:1226). This is in line with Arend Lijphart’s observation that there
9
is no blueprint for a power-sharing agreement (Lijphart 1982:175). Because the power-sharing agreements
of Afghanistan and Iraq are for a large part but not completely reflected in the two theories, conclusive
answers on differences between the two constitutions can not be provided by centripetalism or
consociationalism. As Horowitz notes, “partial innovations and hybrid outcomes may well be at the root of
the inability to form conclusive judgments about contending prescriptions for inter-ethnic accommodation”
(Horowitz 2008:1226). Finally, to explain why power-sharing arrangements are the way are (and thus why
one is different from the other) would require a step-by-step analysis about how they were created. Powersharing theory does not pay attention to this; it takes the already adopted power-sharing agreement as a
starting point for analysis and debate.
1.1.4 Conclusion on Consociationalism and Centripetalism
This paragraph provided an insight in power-sharing theory and showed that the scholarly debate focuses
on two power-sharing theories and their gaps and possible solutions, thereby trying to find an answer to the
question that Timothy Sisk poses, “Which approach manages conflict best – one that essentially sees ethnic
groups as building blocks of national politics in multi ethnic states [consociationalism], or one that
purposefully encourages the formation of political blocs across group lines [centripetalism]” (Sisk
1999:13). Three conclusions on the main theories and current power-sharing debate can be made. First of
all, consociationalism and centripetalism are used as the two corner stones for the scholarly debate. Most
scholars favor one theory and make recommendations for improvement, while criticizing the “other”
theory. Scholars use power-sharing arrangements as a starting point for debate by looking at what factors
are in- or excluded, what went wrong and what succeeded after adoption and how failure or success can be
explained by looking at the constitution or the post-adoption implementation process. Secondly, similarities
between the two theories are consequences of the fact that all power-sharing theory has to deal with the inand exclusion of groups, which leads to assumptions about social identity formation. Thirdly, the scholarly
debate showed that critiques on consociationalism focus on the theoretical question “what should be done”
and argue the ideological fundaments and long-term durability of this theory is questionable. The critics on
centripetalism focus on the practical question “what can be done” and argue that the proposed arrangements
of centripetalism are, in practice, hard or impossible to implement in a post-conflict society.
As for the case studies, power-sharing theory cannot explain the differences in the power-sharing
arrangements in Afghanistan and Iraq in a satisfactory way because of three reasons. First of all, conclusive
answers cannot be found using the two theories since neither the Afghan nor the Iraqi arrangements fully
reflect those theories. Secondly, power-sharing literature bases analysis of power-sharing agreements on
the content of the actual agreement and the post-adoption period; the question how differences in the
agreement itself can be explained remains unanswered. Finally, even though power-sharing theory leads to
interesting insight in what power-sharing constitutions “should look like” in theory or “can look like” in
practice, the debate is stuck as it poses theoretical obstacles versus practical implications, which only leads
to conclusions on which approach is easier to implement, not in how differences can be explained. For
10
these reasons, current power-sharing theory is not used to explain differences in power-sharing agreements
in Afghanistan and Iraq. In the next paragraph another way of looking at power-sharing constitutions, and
its possible use for explaining differences, will be introduced.
1.2 The Constitutional Process and Power-Sharing
In this paragraph an alternative way of explaining differences in power-sharing arrangements, namely
through analyzing the constitutional process, will be discussed. First the definition and relevance of
“process” will be explained, secondly how process is addressed in current power-sharing theory, and finally
how it can be used in this research as a framework to explain the differences in the constitutions in Iraq and
Afghanistan.
1.2.1 Definition and Relevance of Process
One of the conclusions drawn when explaining differences in power-sharing arrangements in Afghanistan
and Iraq by using consociationalism and centripetalism was that power-sharing theory is never the same as
practice and that therefore power-sharing theory alone is not sufficient to explain differences in powersharing agreements. The following statement by Donald Horowitz is related to that observation and
addresses the relevance of process. Horowitz writes: [If partial innovations and hybrid outcomes are at the
root of the inability to form conclusive judgments about power-sharing theory,] “constitutional processes
and their impact on the adoptability of contending designs are the neglected elements in debates about
measures to promote interethnic cooperation” (Horowitz 2008:1226). In other words, processes preceding
power-sharing arrangements are crucial for power-sharing theory because any issue regarding powersharing has to be decided upon during this process before it can be adopted as part of the constitution.
According to Horowitz, power-sharing agreements are a combination of the process leading up to the
power-sharing agreement and the institutional arrangements eventually adopted. Focusing exclusively on
institutional arrangements (the adopted power-sharing arrangements), as most power-sharing literature
does, would be neglecting the dynamics of the process in which power-sharing agreements are adopted
(Horowitz 2008:1225-1231). Therefore, in order explain why power-sharing arrangements are different
from each other, studying the process that led to those arrangements can prove relevant.
The definition of process according to the Compact English Oxford Dictionary is: “a series of actions
or steps towards a particular end”. A constitutional process can be defined as a series of actions or steps
towards a constitution, or more specifically towards political power-sharing arrangements. Power-sharing
arrangements consist of a number of political arrangements, which were defined as “regulations regarding
the executive and government levels” in the introduction of this research. Therefore the “actions or steps”
towards political power-sharing arrangements are the regulations regarding government and executive
levels - all these regulations together form the power-sharing arrangement. The groups or individuals that
have decision-making power during the constitutional process decide upon these regulations, and therefore
these groups or individuals can play a crucial role during the constitutional process.
11
1.2.2 Process in Existing Power-Sharing Theory
In power-sharing literature Donald Horowitz is the only author who, only recently, paid attention to
processes preceding power-sharing arrangements (Horowitz: 2008). Horowitz noted that coherence and
developments during constitutional processes are adversaries, as one thing is “traded” for another during
negotiations with the result of a “bargained” outcome. Further on he explains that the process of
constitution-making is often not done with the goal of ending conflict or implementing the centripetal or
consociationalist approach, but with the goal of meeting time and cost limitations and getting the parties to
agree upon terms: “Constitution-making is not typically as much a deliberative process as it is a negotiating
process” (Horowitz 2008:1230). The outcome of a negotiating process is likely to differ significantly from
what would be the best system according to power-sharing theories or from what would be most effective
for long-term political stability, because stakes in power-sharing arrangements will depend on the role a
group or elite played in negotiations, as opposed to what would be best for long-term stability.
Other power-sharing scholars do pay some attention to process or constitution-making but do not
analyze the process itself. There is a body of literature on “democratic constitution-making” that focuses on
constitution-making and which describes prerequisites that would lead to democratically adopted, durable
constitutions. The problem is that in severely divided societies these ideas are hard to implement, as this
literature prescribes a “deeply participatory process” in situations when feeling towards other groups are
adverse, and “transparency”, which is often impossible or counter-productive during negotiations
(Horowitz 2008:1231-2). The power-sharing scholars Norris, Sisk and Schneckener acknowledge that the
way in which power-sharing agreements are brokered influences the likelihood of success. They argue that
power-sharing constitutions that are imposed by third parties seem less likely to survive and provide
durable peace settlements (Norris 2008:30) and agreements should be indigenously arrived at, not as a
result of too-heavy external pressure (Sisk 1999:xiv). The role of third parties should be limited to the role
of assistant (Schneckener 2002:216). These conclusions are based on research that is focusing on what is
wrong with the final arrangements, not on analyzing the process itself.
Applying these conclusions and recommendations to the case studies of Afghanistan and Iraq does
not explain the differences in the power-sharing arrangements, but does show the common obstacles both
countries faced at the start of the constitutional process: whereas theory on democratic constitution-making
prescribes an inclusive, transparent process and scholars on power-sharing argue that the role of external
parties should be minimal and that arrangements should be indigenously arrived at, in Afghanistan and Iraq
the constitutional process took place because of external intervention and external parties continued to play
an influential role during the interim period. By analyzing the constitutional process it will become clear
how these “obstacles” were dealt with.
1.3 Analyzing Constitutional Processes
In this paragraph will be explained how the information acquired in this chapter will be used for analyzing
constitutional processes in Afghanistan and Iraq in the following chapters. The purpose of this chapter was
12
to find a theoretical framework in which differences in power-sharing arrangements in Afghanistan and
Iraq can be explained. In the first paragraph existing power-sharing theories were discussed and used to
explain the differences between the power-sharing arrangements in Afghanistan and Iraq. As discussed in
paragraph 1.1.4, differences could be explained on grounds of practical versus theoretical preferences of the
constitution-makers, but the question why the arrangements were different remained unanswered.
In the second part of this chapter it was argued that differences between power-sharing agreements
can be explained by analyzing the constitutional process. The constitutional process is no central element in
the current power-sharing debate, but all issues regarding political power-sharing have to be decided upon
during this process. As a result of Horowitz’ division between process and institutions, the assumption was
made that analyzing the constitutional process could be relevant in order to understand the composition of
power-sharing arrangements and why they differ.
The definition of the constitutional process is the first step in how to analyze constitutional
processes in the next chapters. “Constitutional process” was defined as a series of regulations regarding the
executive and government levels that together form a constitution or power-sharing agreement. As
discussed in paragraph 1.2.1, the individuals and groups that are in the position to decide upon those
regulations have decisive influence on the content of power-sharing arrangements: they decided who was
involved in writing the constitution, it was some of them that were in the position to change it and that
could decided who was involved. Therefore those individuals and groups will be the main objects of study
when analyzing constitutional processes.
In the next two chapters the constitutional processes in Afghanistan and Iraq will be analyzed by
discussing the role of the most influential internal actors and groups in relation to factors that shaped the
political situation in the interim period. In Afghanistan these factors were: the goals of the US, the political
dynamics between centre and periphery, decision-making during the Bonn Conference, the role of the
international community and the role of Hamid Karzai. In Iraq, these factors were: the role of the US and
Iraqi ownership, the role of the UN and international community, the exclusion of the Sunni Arabs and the
ethnicization of Iraqi politics. While discussing these factors, the focus will be on which groups and actors
were involved, what the (trends in) relations between them looked like, who exercised power and how, and
what their influence was on the process and the power-sharing arrangements eventually adopted. This
analysis will result in an overview of the constitutional process that led to the power-sharing arrangements.
13
Chapter 2: Afghanistan
In this chapter and in chapter 3, the constitutional processes of Afghanistan and Iraq will be analyzed with
the goal of explaining differences between their power-sharing arrangements. In order to clarify the context
in which the constitutional process took place, the first paragraphs are descriptive and include a timeline of
the interim period, an overview of the power-sharing arrangement that was eventually adopted and an
introduction of the local groups involved. In the fourth paragraph, the constitutional process will be
analyzed. Finally, the findings of this chapter will be presented in the last paragraph.
2.1 Overview Interim Period
On 7 October 2001, troops from the US and the United Kingdom (UK) invaded Afghanistan as part of
‘Operation Enduring Freedom’. The invasion was a response to a series of suicide attacks by Al Qaeda on
the United States that took place on 11 September 2001. The ruling party in Afghanistan since 1996, the
Taliban, had provided a safe haven for Al Qaeda, an Islamic extremist movement. Following the invasion,
the Taliban fled the capital Kabul on 12 November.
After nearly three decades of conflict, government institutions had to be build up from scratch
(Fukuyama 2006:3). Afghanistan was one of the poorest and weakest governed countries worldwide and
had not had a strong central government for decades (ICG 27/11/01). Therefore, after the toppling of the
Taliban there were two main issues that needed to be addressed in the political arena: the establishment of a
transitional government that would govern the country until elections could take place, and the drafting of a
new constitution on basis of which elections could be held.
These issues were addressed under United Nations (UN) auspices during the Bonn Conference,
which started in the end of November 2001. Lakhdar Brahimi, the UN Special Representative of the
Secretary General (SRSG) for Afghanistan, chaired the talks. Nine days after the start of the Conference the
Bonn Agreement was established (Rubin 2004:6). The Bonn Agreement included a timeline for a new
constitution and elections, and prescribed the way the country would be governed until a permanent
government could be elected.
The Afghan Interim Authority (AIA), appointed in Bonn, would govern the country for six months
after Bonn (ICG 16/05/02:web). Hamid Karzai, a former deputy foreign minister who had been living in
exile in Pakistan before the US-invasion, was appointed chairman. After six months an Afghan Transitional
Administration (ATA) and an Interim President would replace the AIA. Members of the ATA and the
interim president would be elected through an Emergency Loya Jirga (ELJ), a traditional Afghan decisionmaking process. The ATA and Interim President would govern the country until a new government was
elected (elections required an adopted constitution that defined electoral systems and state structures).
The constitutional process was partly linked to the timeline of the political process. Participants in
Bonn adopted a transitional constitution that would be in place until a new constitution was adopted. After
the ELJ took place, the constitutional process had to start. The Interim President, assisted by the UN, had to
appoint a “Drafting Commission” and a “Constitutional Commission” that were tasked with drafting the
14
constitution and with public education and consultations on the draft, and a “Review Commission” that had
to review the draft (ICG 12/06/03:13-15). The draft from the Review Commission was presented to the
interim president before it was made public, and the final draft had to be presented to a Constitutional Loya
Jirga (CLJ), which had to debate and approve the constitution (ICG 16/05/02:1). The maximum period
between the ELJ and the CLJ was 18 months. The constitution was adopted on 24 January 2004.
The timelines of the political and constitutional process formed the basis of the interim period. An
overview of the interim period and the political and constitutional processes is displayed in figure 1.
Figure 1: Overview Interim Period Afghanistan
Political
process
Afghan
Interim
Authority
(AIA)
Emergency
Loya
Jirga (ELJ)
Timeline
Constitutional
process
Bonn
Agreement
Transitional
Constitution
Nov-Dec
2001
December
2001
June
2002
Afghan
Transitional
Administration
(ATA)*
Drafting
Commission/
Constitutional
Commission/
Review
Commission
Final Draft
after review
by Karzai
Constitutional
Loya Jirga
(CLJ)
Oct. ’02Sept. ‘03
November
2003
December
2003
Permanent
Constitution
January
2004
* The ATA governed the country until a permanent government was elected on the basis of the permanent
constitution. Presidential elections took place in October 2004.
2.2 Outcome: The Constitution
“No meaningful power-sharing is envisaged either within the national government or between central and
provincial governments”
(ICG 12/12/03:11)
After the constitutional process, the Constitutional Loya Jirga approved the draft constitution on 4 January
2004. It was officially signed and promulgated by Interim President Karzai on 26 January 2004. The
outcome of the constitution will shortly be discussed in this chapter, with a focus on the type of powersharing system, regulations regarding the executive and government levels constitutional arrangements, the
basic type of electoral system, type of presidential or parliamentary executive and division of power
between central government and regions. The goal of this paragraph is to explain where the constitutional
process led to regarding power-sharing arrangements.
15
The electoral system adopted is a majoritarian presidential system with a single vote. The executive
consists of a President who is elected through the alternative vote system, and two Vice Presidents (Norris
2008:29-30, Rubin 2004:5). The President is commander-in-chief of the armed forces and appoints, with
approval of the Lower House, the judges of the Supreme Court, ministers, the attorney general and the
director of the Central Bank.
The constitution prescribed a National Assembly in the form of a bicameral parliament with a
Lower House (Wolesi Jirga) and an Upper House (Meshrano Jirga). The National Assembly lacked
effective power to constrain the President. In December 2003, International Crisis Group wrote on the
proposed constitution that “given the level of political fragmentation in Afghanistan and the limited
prospect any party will emerge from parliamentary elections with a strong majority, a near complete
absence of mechanisms through which to share power and the lacks of checks on the executive are likely to
destabilize” (ICG 12/12/03:5). The constitution laid out a highly centralized administration with
considerable decision-making in the presidency and executive, checked by weak legislature (Norris
2008:29-30, Rubin 2004:5).
As for minorities, regulations for representation of specific groups were not included in the
constitution, and the constitution banned the formation of political parties based on ethnic, regional,
linguistic or regional affiliation, or connected to armed organizations. With a focus on central institutions,
little attention was devoted to administrative structures at the sub-national level, and the constitution did
not address centre-province relations (ICG 12/12/05:5).
Although the power-sharing arrangements in Afghanistan correspond for a large part with the
centripetalist approach discussed in the first chapter, it lacks comprehensive power-sharing mechanisms
(such as electoral rules that provide protection to minorities and that include incentives for moderates).
Therefore, the power-sharing system adopted in Afghanistan has more characteristics of a majoritarian
system, in which the majority rules without being constitutionally constrained by electoral regulations, then
a centripetalist system.
2.3 Local Actors and Groups
There are many different ways in which a population can be divided in groups. In this paragraph, the actors
and groups that played an influential role during the interim period in Afghanistan will be introduced.
The main ethnic groups in Afghanistan are the Pashtun, the Tajik, the Hazara and the Uzbek.
Afghanistan is a fractured nation and each of these ethnic groups consists of numerous factions and subgroups. The groups described below do not consist solely of the ethnic groups or sub-groups described;
they overlap.
The Pashtun community is the largest ethnic group in Afghanistan, although it is unclear whether
they form a majority. Estimates vary between 38% (according to the Independent Loya Jirga commission)
and 60-70% (according to Pashtun records) (Rubin 2004:11, ICG 16/05/02:9-10). Since its foundation in
1747, Afghanistan is mostly ruled by (factions of) Pashtuns (Simonsen 2004:709). During the Taliban rule
16
the Pashtuns did not clearly oppose the regime and were therefore labelled as “supporters of the Taliban”
by the Northern Alliance (ICG 16/05/02:4).
The Northern Alliance (NA) (original name Islamic United Front for the Salvation of Afghanistan)
is an organization founded on common opposition during the Taliban regime that consists of mainly three
ethnic groups. The NA mobilized themselves years before the US-invasion in 2001. The NA was a strong
ally of the US and backed by the US/UK-led coalition they re-took Kabul in November 2001 (Rubin 2004).
Its composition is dominated by three ethnic groups; the Tajiks (27% of the population), the Hazara (9%)
and the Uzbeks (8%) (CIA World Factbook). The Panshiri are a sub-faction of the Tajiks that played an
influential role in the constitutional process, mainly because of the fact that they took over key positions
immediately after the Taliban had been forced to flee Kabul, which proved to be a strong negotiation
position in Bonn.
The Rome Group is a group that participated in Bonn but that did not have any political or military
organization on the ground before the invasion. The group consists mostly of exiles, among which was
former king Muhammed Zahir Shah. Zahir Shah, originally a Pashtun, was the last King of Afghanistan in
1933. He was overthrown by a coup in 1973 and had lived in Rome ever since. The Rome Group played an
important role in drafting the transitional constitution (Rubin 2004:6, ICG 16/05/02:12).
The Taliban was the ruling party in Afghanistan between 1996 and October 2001. The Taliban is
an ultraconservative Islamic extremist faction, and provided refuge for al-Qaeda. The Taliban was
originally from Pashtun areas. After the US-led invasion, many fled to the Pakistan border area. Neither the
Taliban nor al-Qaeda was party to the Bonn-Agreement (Rubin 2006:180).
During the three decades of conflict before 2001, and especially under the rule of the Taliban,
many local military leaders or warlords such as the mujahidin militia unofficially controlled small parts of
the country, mainly through military means.
The last local group that played a large role in the constitutional process is the Loya Jirga. The
Loyal Jirga is not an established group but a gathering of hundreds Afghan representatives drawn from, for
example, settled and nomadic population, refugees and diasporas, civil society organizations and
intellectuals. Loya Jirgas are a traditional form of community decision-making, used in Afghanistan at key
moments in its history. There are no established rules or procedures, and there is no protocol for the
(s)election of its membership (ICG 16/05/02:7). Loya Jirgas have been involved with the drafting of each
of Afghanistan’s former constitutions and have assisted during key national decisions. During the interim
period after the US-invasion, two Loya Jirgas were held; one to elect a transitional administration, the
Emergency Loya Jirga (ELJ), and one to debate and adopt the constitution, the Constitutional Loya Jirga
(CLJ). The Emergency Loya Jirga consisted of 1,500 delegates, the Constitutional Loya Jirga of a little
over 500. The Loya Jirgas during the interim period were meant to legitimize the process of establishing a
representative government (Rubin 2004:7, Dobbins 2003:132).
17
2.4 The Constitutional Process
In this paragraph the constitutional process in Afghanistan will be analyzed, as explained in paragraph 1.3,
by looking at the role of the most influential internal actors and groups. While discussing the role of the
most influential actors and groups, the focus will be on the (trends in) inter-group relations, who exercised
most power and how, and what their influence was on the power-sharing arrangements eventually adopted.
The role of local actors and groups will be explained by discussing the following factors, which shaped the
constitutional process in Iraq: The goals of the US, political dynamics between centre and periphery,
decision-making during the Bonn Conference, the role of the international community, and the role of
Hamid Karzai on constitution-making.
2.4.1 Decision-making During Bonn
Government institutions and a constitutional process had to be built from scratch. The first decisions on
these issues were made during the Bonn Conference. Several decisions made in Bonn influenced the
constitutional process.
First of all, even though the establishment of a “fully representative government” was the main
goal of the political process laid out in the Bonn Agreement, the Afghan signatories to the agreement were
not representative of the Afghan people. Only four Afghan groups, all of who supported the invasion,
participated: the NA and the Rome Group, and two smaller ad-hoc groups based in Pakistan and Iran
(Rubin 2006:184, Dobbins 2003:130). This meant that the Tajiks, Hazaras and Uzbeks were
overrepresented, while the Pashtuns, although in a way represented by the Rome Group, were
underrepresented. Members of the Taliban and numerous local leaders were excluded from the talks. SRSG
Lakhdar Brahimi, who led the talks, was aware of the uneven representation and stressed that an inclusive
constitutional process was a priority. The establishment of Loya Jirga’s was meant to increase the
legitimacy of the constitutional process and make the governing institutions representative of the
population (Rubin 2006:180, Starr 2006:118). Before the ELJ convened, there were several problems with
the selection of representatives regarding electoral districts and population numbers, public information,
intimidation and keeping out commanders of local militias (ICG 16/05/02:10, Rubin 2004:10). In 1963,
electoral districts were drawn, according to non-Pashtuns in favour of the Pashtuns; the districts that were
mainly populated by Pashtuns were drawn smaller, so that a one-representative-per-district situation, the
Pashtuns would be over-represented (ICG 16/05/02:9). Public information structures were absent, and
widespread intimidation marred selection of candidates for Emergency Loya Jirga. When the ELJ convened
in June 2002 to elect a head of state and to approve structure and key personnel of a transitional
administration that would take over from the AIA, delegates complained that they did not vote on the new
structure and key personnel, and that the new administration was not significantly more representative then
the AIA (Rubin 2004:9, ICG 16/05/02:web).
During negotiations regarding the governing institutions that would be put in place after Bonn, the
Rome Group made an important compromise with the Tajik/Panshiris (ICG 16/05/02:12). The
18
Tajik/Panshiri faction had a strong negotiation position at the Bonn Conference because they had started
placing its own candidates in key posts after the Taliban forces had fled, and they controlled the
intelligence service (Rubin 2004:8). In exchange for granting the Tajik/Panshiris the three most powerful
ministerial posts in the Afghan Interim Administration (Defence, Interior, Foreign Affairs), the
Tajik/Panshiris would allow the exiled former king Zahir Shah of the Rome Group to return to Afghanistan.
The six-month mandate of the AIA gave the Tajik/Panshiris considerable time to consolidate power (ICG
16/05/01:12, Dobbins 2003:130). As a consequence, similar to the critiques on the participants of the Bonn
Conference, he AIA was criticized for not being representative of the Afghan population (Starr 2006:118).
Thirdly, in Bonn was decided that the “basic law”, the constitution that was implemented by King
Shah in 1964, functioned as a basis for the interim constitution (Bonn:Art.II.1), and many elements were
copied in the eventually adopted constitution - even though this constitution had, at the time, not been able
to establish a stable government (Rubin 2004:8,10). In other words, both major groups, the Rome Group
and the NA, took advantage of their powerful positions in Bonn.
A fourth element is the “political party law” that was included in the Interim Constitution (ICG
12/06/03:27-28). This law made it hard for new political parties to enter the political field because it
outlawed any political party that was based on ethnicity, whereas the political parties already existed - and
that were included in the political process - were often based on ethnicity. In other words, Afghan politics
were already ethnicized before the “political party law”, and the political parties law limited the chances for
moderates to enter the political arena (ICG 12/12/03:5, ICG 12/06/03:28).
With regard to power-sharing, decisions taken during the Bonn Conference were made by a group not
representative of the population, with an emphasis on exiles. In particular the Panshiri faction, who took
over government buildings after the Taliban had fled, had a powerful position in Bonn, which resulted in an
over-representation in the interim administration. The political party law made it hard for any party to enter
the political arena after the Bonn Agreement.
2.4.2 US Role/Warlords
Removing the Taliban regime, capturing Al Qaeda leaders and a cessation of terrorist activities in
Afghanistan were the objectives of the US at the time of the invasion (Fukuyama 2006:12, ICG 27/11/01).
The invasion of Afghanistan was executed in a short time; there was less then a month between the attacks
on 11 September and the start of the invasion. The US did not have an outline or plan for the post-invasion
period, as the planning document for post-intervention reconstruction that was established under President
Clinton, ‘Complex Contingency Operations’, was not renewed nor replaced (Presidential Decision
Directive 56, in: Dobbins 2003:138). After the invasion, the US had the leading role in military
reorganization and focused on counter-terrorism. The role of the US regarding the political process was
limited; on 1 October 2001, President Bush announced that the US supported a UN-coordinated political
transition and reconstruction program (Rubin 2004:6, Fukuyama 2006:13). During the first two years after
19
the intervention - almost the whole constitutional process - the US did not take on any peacekeeping or
political responsibilities (Dobbins 2003:133). Although the US did not play a direct role in the political
process, they did influence the political process, mainly in three ways.
First of all, the US was responsible for “pentagon-created warlords” (ICG 15/03/02:4). In order to
win support for the counter-terrorism objectives, the US sponsored local militias, who used this income to
mobilize patronage networks into armed groups and to take control over land and illegal economic gains.
Due to the collapsed state infrastructure the power vacuum created by departure of the Taliban was filled
by expanding power of these warlords, instead of the Transitional Administration - while support of these
leaders for the ATA was crucial in order to centralize the state and implement policies effectively (ICG
30/07/02:8). Thus, the goals of the counter-terrorism agenda of the US enhanced the influence of the local
militias and undermined the legitimacy of the ATA (Starr 2006:113, Dobbins 2003:144).
Secondly, the US influenced the political process through their position on expansion of the
International Security Assistance Force (ISAF), an international assistance force established by the UN
Security Council (and taken over by NATO in 2003) that was mandated with providing security so that the
political process would not be hindered. Establishment of ISAF had been decided upon at the Bonn
Conference. The mandate of ISAF was Kabul-focused. Although there was a growing call from the AIA
and ATA for a broader mandate outside Kabul, before October 2003 the US vetoed ISAF expansion several
times in the UN Security Council because of possible ISAF-interference with US counter-terrorism efforts.
Consequently, there was no multinational presence in the rest of the country until October 2003, which was
almost at the end of the constitutional process (Dobbins 2003:135-137).
Thirdly, on the ground a (perceived) US influence regarding the electoral system and other
constitutional issues became prevalent during the constitutional process. Since Karzai was both the interim
head of state involved with the constitution-making process, and as widely known the favoured candidate
of the US for future Afghan president, the perception that the constitution would only serve the interests of
Karzai, the US and rest of the international community became prevalent – even more so because there was
a lack of transparency during the constitution-making process (Shah 2004:4). Karzai was increasingly seen
as a puppet of the US, which undermined his legitimacy (ICG 16/05/02:15). The fact that Karzai appointed
two Afghans who had US-citizenship in the cabinet of the AIA, strengthened this view.
With regard to power-sharing, the main problem regarding US decision-making is that the US did not take
the political situation and constitutional process into consideration, as it was not part of their agenda or
mandate. During most of the constitutional process, US-policies regarding security and counter-terrorism
did influence political developments, but political developments in Afghanistan did not influence US
policy. As part of its counter-terrorism efforts, the US sponsored warlords that undermined the legitimacy
of the government and the attention for the constitutional process outside Kabul. ISAF could not provide
security or enhance visibility outside Kabul because its mandate was limited, and the US blocked
expansion for the main time of the interim period. It was in the second half of 2003 that the US took on
20
more responsibilities regarding the political process through a major policy shift in Washington, but the
influence of this shift on the constitutional process, which was almost at its end, is debatable.
2.4.3 Centre-Periphery Relationship
During the constitutional process, the gap between the capital and the rest of the country widened.
Although the interim constitution prescribed a centralized system, away from the capital the influence of
the central government was minimal and showed an increasing gap between grass roots realities and
constitutional rules (Rubin 2004:8). Local leaders filled the power gap and increased in popularity. There
are several explanations for this. Two important ones are named in the last paragraph; the increase in power
and of local militias that were sponsored by the US, and the mandate of ISAF that was limited to Kabul.
Another argument is that the interim constitution is responsible for the gap between cities and
provinces, since it prescribed a very centralized form of governing – something hard to realize in a
fractured nation like Afghanistan that had not had a strong government for decades (ICG 15/02/02:8). The
interim constitution did not only include political centralization, it also stated that armed groups had to
come under control of the AIA and ATA - an extremely difficult process in itself, complicated by US
counter-terrorism efforts.
With regard to power-sharing, the increasing gap between centre and periphery meant that national politics
and the constitutional process became something capital-oriented, instead of a national process. Since the
population outside the capital did not see any government influence or changes made by the government,
the notions power-sharing and constitution became something obsolete for the population that did not live
in the capital, especially because the power vacuum was filled by local militia with their own laws and
regulations.
2.4.4 UN/International Community
Even though the UN had the lead in the political process, its influence after Bonn was small and it had
more an advisory role then anything else since it had a limited presence with a mandate focused on the
capital. During the constitutional process there was a very modest presence of the international community;
a small ISAF/NATO force and a UN mission that was not capable of effectively leading the transitional
political process. The initial decision to deploy ISAF forces only in Kabul was hard to change at a later
stage since the US blocked expansion efforts until the end of the constitutional process was near, even
though in the rest of the international community the idea that ISAF presence should be expanded was
widely supported. The idea behind expansion was that ISAF presence throughout the country could make
Afghans hesitant to resort to force (like it did in Kabul), and could in that way provide political space to for
transitional administration (ICG 15/03/02:3).
During the interim period the international community stayed neutral and did not undertake much
action towards groups that were undermining the political process (ICG 30/07/02:16), as the focus was
21
more on security then on a legitimate political process (Starr 2006:108). External players did play a role in
the reconstruction process and had mandates focused on different areas of reconstruction. However, during
the interim period the international community was operating without having a coherent strategy (Rubin
2006:176). This influenced the political process as support for it was heavily dependent on efforts beyond
Karzai’s scope such as demobilizing militias and eradicating drugs trade (Rubin 2004:6).
With regard to power-sharing, the international community did not have enough leverage to significantly
influence the constitutional process. The UN was criticized for not playing a large enough role, and the
international community did not influence US-counter terrorism activities. The effect of several external
countries taking part in the reconstruction efforts was minimal for the political process, as the lack of
central government and, for example, the demobilization of militias were negatively influenced by each
other’s lack of performance.
2.4.5 Hamid Karzai and Drafting the Constitution
Through the constitutional process, Hamid Karzai has been chair of the AIA and Interim President. In these
positions, had considerable influence on the constitutional process. Two examples of his influence are his
role regarding the constitution commissions and his role in debate whether or not to include a Prime
Minister in the new government, and whether to adopt a parliamentary or presidential system.
The constitution-making process included different Constitutional Commissions (as to be seen in
figure 1). The drafting commission was tasked with preparing the first draft, the Constitutional Commission
with finalizing the draft and holding public consultations (that were aimed at increasing the legitimacy of
the draft), and the review commission to prepare to final draft before it was presented to Karzai. Hamid
Karzai appointed all three commissions without existence of any criteria regarding its members and without
a public document that listed responsibilities and obligations (ICG 12/06/03:13). As a result, members of
the ATA, in particular of the Panshiri-faction, dominated the commissions (ICG 12/06/03:16).
Another example of his influence becomes clear when looking at Karzai’s role regarding the type
of electoral system. In April 2003, the Drafting Commission completed initial draft of the constitution that
reflected, like the interim constitution, many elements of the 1964-constitution (Rubin 2004:10). The draft
proposal included a semi-presidential system, with a directly elected Pashtun president and a non-Pashtun
prime minister in order to keep ethnic balance. In this version, executive power would be shared between
the Prime Minister and the President. The Constitution Review Commission, inaugurated by Karzai
through a Presidential Decree, reviewed the text (Shah 2004:2). The final draft was presented to President
Karzai on 3 September. One month later, on 3 November 2003, the draft was made public (Shah 2004:3,
Rubin 2004:10). There were important differences between the versions of the Drafting Commission and
the version that was published after Karzai reviewed and changed it (ICG 12/12/03:3). The main difference
was that in Karzai’s draft there was no longer a Prime Minister. A vice president, who would only have
executive power in case the president would die, replaced the post of Prime Minister (Rubin 2004:12).
22
During the Constitutional Loya Jirga in December 2003 there were different opinions regarding the
changes to be made in the proposed constitution regarding power-sharing. The Northern Alliance was the
main opposition group to the proposed draft. The NA and a number of smaller groups campaigned for a
greater check on presidential powers through a parliamentary system and a prime minister (Shah 2004:7).
The Tajik/Panshiris advocated for power-sharing at the central level, and the Uzbeks and Hazaras wanted
recognition of their identities and mechanisms for local self-government (Rubin 2004:11). The main
argument of the group opposing the draft was that with a strong president the risk for ethnic dictatorship
would be enlarged, and that a parliamentary system would lead to coalition governments that would be
more inclusive and thus more stable (Rubin 2004:12). Karzai and his supporters, mostly but not only
Pashtuns, argued that a strong president was needed because of the absence of political accommodation
between parties and since the ethnic divide had widened; too much power-sharing, as with a parliamentary
system, would obstruct state-building and efficient decision-making. Moreover, for Pashtuns the choice for
a presidential system with a Pashtun president was seen as the preferable outcome, especially because they
say the outcome of the Bonn Agreement as a “compromise”: since Pashtuns formed a majority of the
population, they would relatively lose the most in a power-sharing system as opposed to a majoritarian
system, something that already had happened in Bonn (Rubin 2004:12).
According to Karzai, a parliament would be a “fragmented body controlled by warlords”;
participation in parliament would provide warlords with funds that could be used for more support, which
would make an even more divided political culture in a time when Afghanistan needed a strong
government (Rubin 2004:13, Shah 2004:7-8). Because of the support of the majority of the Pashtuns for a
strongly centralized state with a strong President, Karzai’s supporters formed a majority in the CLJ (Shah
2007:7).
Another issue of disagreement was the appointment of cabinet positions holding dual citizenship,
which had been the case in the ATA for the Interior Minister and the Finance Minister. During the public
consultations, a strong disagreement was expressed and a ban on minister with dual citizenship was
requested. However, Karzai and the international community were against the ban. Eventually it was
decided that if the President appointed a Minister with dual citizenship, the Lower House (Wolesi Jirga)
had to vote on it, which had not much meaning as that was the was the case for any minister (Rubin
2004:13). During the CLJ, changes and compromises were made regarding differences but when it came to
power-sharing arrangements, the final draft that was approved did not significantly differ from Karzai’s
draft.
Hamid Karzai had a big influence with regard to power-sharing. His decisive role in appointing members of
the constitutional commissions shows his influential role in steering constitution-making, but even more
crucial were the changes that he made after reviewing the final draft that was presented to him by the final
(review) commission. Karzai’s preferences were clearly reflected in the constitution that was finally
adopted, especially with regard to the type of executive and division of powers. Two factors contributed by
23
the powerful role Karzai played; first of all, he was the favoured candidate by the US, and his aims for
strong Presidential powers did not raise objections from the US-side. Secondly, Karzai was from Pashtun
origin, the largest ethnic group in Afghanistan. Because of strong Pashtun support during the CLJ, the
proposed constitution was eventually adopted.
2.5 Findings
The purpose of this chapter was to analyze the constitutional process by looking at the role of different
local actors and groups during the interim period. Their role had been discussed by looking into decisions
made during the Bonn Conference, the role of the US and the international community, the role of Hamid
Karzai and the increasing gap between centre and periphery were discussed. At the end of each paragraph a
short summary on how the issue related to- or influenced power-sharing was given. Although all factors
discussed are interrelated, the most distinct characteristic of the constitution, the (unusual) strong position
of the president, was mostly influenced and made possible because of two factors. First of all, the support
of the president’s ethnic group, the Pashtuns, was crucial - they formed a majority in Afghanistan and
wanted to consolidate power. Secondly, the US and the international community favoured Karzai for
president and did not object to strong presidential powers. The fact that a centralized system was adopted in
the end and the fact that the constitution did not address centre-province relations can be seen as a
consequence of the increasing gap between centre and periphery. This increasing gap can be explained by
the limited mandate of ISAF and the increasing power of US-sponsored warlords as opposed to the central
government.
In short, the outcome of the constitutional process was a set of power-sharing arrangements that
were favoured by the groups and actors that played the most influential role during the interim period.
These local actors and groups could play such a powerful role because they were empowered during the
constitutional process by being included from the beginning (for example the Panshiri faction) and by
support from the international community (such as Karzai).
24
Chapter 3: Iraq
This chapter has the same purpose and set-up as the previous chapter; to analyze the constitutional
processes of Iraq with the goal of explaining differences between the power-sharing arrangements in
Afghanistan and Iraq. In order to clarify the context in which the constitutional process took place, the first
paragraphs are descriptive and include a timeline of the interim period, an overview of the power-sharing
arrangement eventually adopted and an introduction of the local groups involved. In the fourth paragraph,
the constitutional process will be analyzed. Finally, the findings of this chapter will be presented in the last
paragraph.
3.1 Overview Interim Period
On 20 March 2003, US-led coalition forces invaded Iraq as a consequence of Iraq’s alleged possession of
weapons of mass destruction that, according to the US, posed a threat to the western world. The objective
of the invasion was to turn Iraq into a democracy, which was seen as start of a much larger goal; to
transform politics in the Middle East (Fukuyama 2006:3). On 9 April Baghdad fell when the ruling Ba’ath
party was toppled and Iraqi President Saddam Hussein fled. After the invasion, Iraq was occupied and
governed by the “Coalition Provisional Authority” (CPA) that was led by the US. Even though the CPA
appointed an Iraqi Interim Governing Council (IGC) in July 2003, it kept all decision-making power and
was actively governing Iraq until June 2004.
The first steps regarding an Iraqi political and constitutional process were taken in the November
Agreement of 2003 between the CPA and the IGC. This agreement included a timeline regarding the
transfer of sovereignty from the CPA to an Iraqi Interim Government in June 2004 (ICG 22/12/04:4). Prior
to this date a transitional constitution, which would take effect when the Interim Government was
established, had to be drafted and adopted by the IGC. The transitional constitution laid out further steps
towards a permanent constitution
After the November Agreement the constitutional process consisted of two parts; firstly the
drafting and adopting of a transitional constitution, secondly the drafting of a permanent constitution. The
transitional constitution, named Transitional Administrative Taw (TAL), was adopted by the IGC and
would take effect in June 2004, when sovereignty was handed over to an Interim Iraqi Government
(ICG:08/04/04). The TAL would function as the constitution until a permanent constitution would be
adopted. The next step was the establishment of a permanent constitution. The TAL prescribed that a
democratically elected Transitional National Assembly (TNA) would draft the permanent constitution. The
TNA was elected in January 2005 and had to submit a draft constitution by 15 August 2005. The draft
would be adopted through a referendum no later then 15 October 2005.
In regard to the political process, it was decided in the November Agreement that power would be
handed over to the Iraqi Interim Government by 30 June 2004. The TAL set out a timeline for the political
process after June 2004. Elections for a Transitional National Assembly (TNA) were to be held no later
then January 2005. Apart from drafting a permanent constitution, the main task of the TNA was to appoint
25
a transitional government. In April 2005 this transitional government was appointed and took over from the
Interim Government. The transitional government would rule the country until elections for a permanent
parliamentary assembly and government under the new constitution were held (ICG 22/12/04:7). The
constitution was adopted through a referendum on 15 October 2005.
The November Agreement and the TAL set out the timelines for the constitutional and political
process in the interim period. An overview of the interim period and the political and constitutional
processes is displayed in figure 2.
Political
process
Figure 2: Overview Interim Period Iraq
Central
Provisional
Authority
(CPA)
Interim
Governing
Council (IGC)
Iraqi
Interim
Government
Transitional
Government*
Timeline
Constitutional
process
November
Agreement
Central
Provisional
Authority
(CPA)
April
2003
July
2003
November
2003
Transitional
Admin.
Law
(TAL)
Transitional
National
Assembly (TNA),
through elections
June
2004
January
2005
Permanent
Constitution
April
2005
October
2005
* The transitional government governed the country until a permanent government was elected on basis of
the permanent constitution. Presidential elections took place in December 2005.
3.2 Outcome: The Constitution
“A sectarian document that both marginalized and alienated the Sunni Arab community”
(ICG 27/02/06)
When the constitution was adopted on 15 October 2005, Iraq became an Islamic federal democracy. The
electoral system adopted is was a parliamentary system with proportional representation plus compensatory
seats for minority parties, with a Prime Minister as head of a multiparty coalition government. Executive
power was divided between the Prime Minister and an indirectly elected three-person Presidential Council.
A high level of decentralization with four levels of government characterized the constitution: the central
government in Baghdad, and the regional, provincial and local administrations. The powers of the central
government were reduced to defence, foreign policy, and fiscal and customs policy - the rest was deferred
to the regional or local levels (ICG 16/09/05:i-ii).
Three crucial issues for Sunni Arabs were rejected in the constitution. First of all, the draft
included (a high degree of) federalism, a notion Arab Sunni’s rejected. Secondly, the de-Ba’athification
26
process was not eliminated, and finally, the national Arab identity was denied by the words in which it was
put in the constitution (“its Arab people are part of the Arab nation”, ICG 26/09/05:6-9). Apart from these
provisions, the constitution did not show consensus, since all major issues were left out or vaguely
described (Norris 2008:29-30).
Many crucial issues were not decided upon but were either deferred to the permanent National
Assembly (that still had to be elected), or they were tackled in a vague way (ICG 26/09/05:1). Examples of
issues that were deferred are: a specific definition of federalism and the exact division of powers between
the centre and regions, details on how the regions will be formed - except for the Kurdish region and details
on the procedures of key institutions (such as the presidential deputies, the supreme judicial council, the
Federal Supreme Court) (ICG 26/09/05:6, Brown 13/12/05). A last minute compromise to get the Sunni
Arabs on board included a provision that the constitution could be amended in the first six months of 2006,
which decreased the legitimacy of the constitution.
The Iraqi constitution included many consociational characteristics, with proportional
representation, compensatory seats for minority parties and a multiparty system with a mixed type of
executive. However, the Ba’ath party was outlawed and thus not represented, since many crucial issues
were deferred, and since a major group was largely excluded from the constitution-making process, the
constitution is a weak document (ICG 27/02/06:2).
3.3 Local Actors and Groups
Iraq is a multi-ethnic and multi-religious society. The main ethnic groups are 75-80% Arabs, 25-20% Kurds
and 5% other and the main religious groups are 97% Muslims (of which 60-65% Shia Arabs and 32-37%
Sunni Arabs) and 3% Christian or other (CIA World Factbook). The main groups that played a political
role during the interim period are Shia’s, Arab Sunni’s and Kurds – although these groups are no
homogeneous communities but rather groups whose many factions follow different leaders (ICG
26/09/08:5).
The Arab Shia’s (also called Shiite) are the largest community in Iraq. Several different factions
from within the Shia community formed a political alliance, the United Iraqi Alliance (UIA). The UIA was
led by Grand Ayatollah Ali al-Sistani. Al-Sistani was a moderate highly respected Shia cleric with a large
following. He commented often on the political and constitutional process and was able to influence the
political situation since he was be able to mobilize large crowds (27/04/04:4). The UIA won a majority of
votes in the TNA elections (Phillips 2005:9). Shia’s legitimized their strong role in the constitutional
process because they formed the largest group in Iraq (Brown 11/05:2).
The Arab Sunni’s (“Arab” because the majority of Kurds is Sunni as well) were the most powerful
community under Saddam Hussein’s regime, and were most affected by the invasion of the US and the
toppling of the ruling Ba’ath party. Although the Ba’ath party was originally a party in which all religious
denominations could participate, in practice Sunni Arabs dominated the party. There are three factions
within the Arab Sunni group; the rejectionists (who want to restore power as under Saddam Hussein’s
27
regime), the Wahhabists and Salafists (who want a holy war against to US) and the moderates (who are
tired of the insurgency and want minority rights and decentralized self-rule) (Phillips 2005:9).
The Kurds is an ethno-linguistic community spread out over several Middle Eastern countries. In
Iraq, the Kurds have a long history of repression by the state and, for decades, their main objective has been
autonomy. David Phillips explains how the Kurds’ objective influenced their stance on the new Iraqi
government and on the constitution. Phillips writes that the Kurds were “seeking enough concessions form
Iraqi Arabs to justify their participation in an Iraqi state while, at the same time, building a system to
become independent if opportunity arises” (Phillips 2005:11). This position influenced negotiations
regarding power-sharing significantly; Kurds proved to only be prepared to postpone their main goal if
their concerns were addressed (ICG 13/11/03:13-14). These concerns included secularism and the creation
of a federal Iraqi state called Iraqi Kurdistan with Kirkuk as capital.
3.4 The Constitutional Process
In this paragraph the constitutional process in Iraq will be analyzed in the same way as Afghanistan in the
last chapter. When discussing the role of the most influential internal actors and groups, the focus will be
on (trends in) inter-group relations, who exercised most power and how, and what their influence was on
the power-sharing arrangements eventually adopted. The role of local actors and groups will be explained
by discussing the following factors, which shaped the constitutional process in Iraq: the role of the US and
Iraqi ownership, the role of the UN and international community, the exclusion of the Sunni Arabs and the
ethnicization of Iraqi politics.
3.4.1 US Role and Iraqi Ownership
The US role is larger then “a factor”; the US had complete governing authority through the Coalition
Provisional Authority for thirteen months after the invasion. During this period, the US role was not an
influence to the political process; it was the process. For power-sharing, this meant that the US decided
which groups to in- or exclude in the political and constitutional process. The two main documents guiding
the political and constitutional process during the interim period, the November Agreement and the TAL,
were both put forward or heavily influenced by the US. Since the US played such an influential role in Iraq,
its influence regarding power-sharing will be analyzed during two different stages; when the US was
governing Iraq, and the role of the US when sovereignty was handed back to the Iraqis.
The United States: Governing Iraq
The post-invasion goal of the US was to turn Iraq into a model-nation for the region: a democratic, secular
nation upholding free-market principles (ICG 22/12/04:28). Even though planning started a year before the
invasion, the US post-war planning office that would coordinate reconstruction efforts was established less
then two months before the invasion (Fukuyama 2006:11). This office, called the Office of Reconstruction
and Humanitarian Assistance (ORHA), had prepared a blueprint for the governance of Iraq that was loosely
28
based on a document called the “Final Report on the Transition to Democracy in Iraq”, a document
prepared in November 2002 by a group of 32 Iraqi exiles that lived in the US; the majority of this group
came from two Kurdish parties and one Shia party (ICG 13/11/03:3).
Quickly after the invasion, the Coalition Provision Authority (CPA) superseded ORHA. The CPA
functioned as a temporary government and all executive, legislative and judicial issues fell under its
authority (ICG 27/08/03:10). In June 2003, attacks and protests against the US opposition increased and the
Interim Governing Council was established in order to give Iraqis a role in the transitional process. The US
selected the members of the IGC and selected thirteen Shia’s, five Sunni Arabs, five Kurds and two
representatives from smaller groups. These ethnic groups did not form unified political entities and many
IGC-members were former exiles and pre-war opposition groups with small constituencies and limited
legitimacy.
Several Baghdad-based political parties and grass roots organizations complained to be
excluded from participating in the IGC (ICG 25/08/03:14). It turned out that the IGC was more a symbolic
Iraqi representation then anything else; it did not increase Iraqi participation in or legitimization of the
political process, it had no bureaucracy of its own, its authority was vague and it did not have access to the
existing administration. The political role of the IGC is largely dismissed, as it did not have governing
authority. However, it did have an influence on the constitutional process and left a mark on power-sharing
arrangements – which became clear in the November Agreement, in which they were assigned an important
role.
Due to rising insurgency, a gradual loss of control over large parts of the country and a growing
call from Iraqi’s and the international community to transfer power to the Iraqi people in the first six month
of the occupation, the CPA changed its initial approach and decided to speed up the handover of
sovereignty. In a plan known as the November Agreement the US unexpectedly announced that the CPA
would be dissolved by July 2004. The Agreement included a timetable that included a transitional
constitution, the handing over sovereignty to a transitional Iraqi government and the drafting of a
permanent constitution, on basis of which democratic elections could be held. The Interim Governing
Council was meant to write the transitional constitution (TAL) and elect the transitional government. The
IGC had to present a program outlining steps regarding the constitutional process to the UN Security
Council by 15 December 2003 (ICG 27/04/04:2-4).
Grand Ayatollah Al-Sistani, who led the UIA and was not part of the IGC, organized several
protests regarding the proposals in the November Agreement and TAL. According to the TAL the draft for
the permanent constitution would be written by the IGC, and an interim government would be appointed by
the IGC. This would give the IGC, a non-representative body selected by the US, a too powerful role (ICG
27/04/04:24-26). Al-Sistani demanded national elections for an interim government that would draft the
permanent constitution. After consultations with the UN it was decided that the IGC would appoint a
commission that would write the TAL and elect a temporary interim government before June 2004.
National elections for a transitional government, which would be tasked with writing the permanent
constitution, would be held in January 2005 (ICG 27/10/04:2). In this way, sovereignty would be
29
transferred to the Iraqis as soon as possible and a democratically elected government would draft the
permanent constitution.
A committee of ten Iraqis selected by the IGC drafted the transitional constitution and in March
2004, the IGC signed the Transitional Administrative Law (TAL), which would function as a transitional
constitution after sovereignty was handed over to the Interim Government. The TAL included a bill of
rights and provisions to govern the transitional period. The TAL would take effect upon US handover of
power until a permanent constitution was adopted. An interesting provision was that all laws that would be
in force on 30 June 2004 would remain in effect, including all laws issued by the CPA. Another interesting
paragraph included provisions on an autonomous Kurdish region, a highly divisive issue in Iraqi politics,
clearly against Arab Sunni interests. Disproportionate representation of Kurds and Shia’s in the IGC was
clear when looking at the content of the TAL. In the end of June 2004, sovereignty was passed to Iraqi
Interim Government through UNSC resolution 1546.
United States post-CPA: Iraqi Sovereignty?
On 28 June 2004, the US (CPA) transferred sovereignty to the interim government. After formally handing
over sovereignty and dissolving the CPA, the US remained a powerful political player in the Iraqi
landscape because all the laws it had adopted were still in place and because the US kept full authority over
security operations and its troop strength remained undiminished (Fukuyama 2006:7). Because of the
earlier transfer of “sovereignty” to the IGC that turned out to be symbolic, because the IGC selected
members of the interim government, and because the US remained an influential player after June 2004, the
term “sovereignty” was disputed had lost credibility, especially for the groups that were not included in the
process (ICG 22/12/04:5).
The constitution-making process provided an opportunity to include all groups and gain new
legitimacy. However, with insurgency and anti-US sentiments on the rise in Iraq and decrease of support
for the war among the US population, the Bush administration chose to sacrifice inclusiveness for the sake
of deadlines (ICG 26/09/05:1). As explained by a US Official: “The one thing going for us is that the
political process is moving along. If we manage to hold elections that are reasonably free and fair, the
problem of legitimacy basically will be solved” (Interview ICG with US Analyst, Washington DC October
2004, in: ICG 22/12/04:13). Another reason for the US to “rush” the process was that a major US troop
rotation was planned right after elections were scheduled to take place in December 2005; if elections
would be postponed the newly arrived troops immediately had to deal with elections, which was not
preferred by the US (IGC 08/06/05:9).
In the very last stage of the constitution-drafting process, the US focus on sticking to timelines
changed. The notion that inclusiveness as opposed to timelines was the pretext for stability was adopted
when it turned out the Sunni Arabs would not support the proposed draft in he very last weeks before the
referendum. In the last weeks before the referendum on the constitution US Ambassador Zalmay Khalilzad
started intensive efforts to bring the Sunni Arabs back into the process.
30
With regard to power-sharing, the role of the US in Iraq is immense. There are two main factors. First of
all, the US created the IGC, and through the IGC had a big influence on the content of the TAL. Even
though the governing authority of the IGC was minimal, they did have an influence on the constitutional
process because they selected a six-month interim government, and they selected the authors of the TAL.
The unexpected quick transfer for sovereignty announced in the November agreement caused a rushed
political and constitutional process preceding the transfer.
Secondly, the US administration's determination to stick to the by them established timelines in
the November Agreement and TAL, even though actual Iraqi empowerment and legitimization of
institutions was far behind, has emptied symbolic dates and developments of their meaning (ICG
22/12/04:4). As a consequence, legitimacy of the newly established institutions was disputed since the
transitional constitution and the interim government were established by the IGC under heavy US
influence. The notion “sovereignty” lost its meaning as the Iraqi perception that the US would do whatever
it wanted with or without Iraqi representation or government. US goals and methods changed towards the
end of this process (inclusiveness over timeline), but the question is whether that was too late. As
International Crisis Group wrote in April 2004, “The history of post-Saddam Iraq is one of successive,
short-lived attempts by the US to mould a political reality into its liking” (ICG 27/04/04:i).
3.4.2 UN/International Community
The UN and rest of the international community have not been able to influence the constitutional process
significantly. This is mainly due to two factors: First of all, the US had veto power in the UN Security
Council (UNSC). During the constitutional process, the US was resistant to internationalizing the political
process in Iraq and it blocked any serious effort by other countries to expand the political or peacekeeping
role of the UN in Iraq (ICG 27/03/04:1). Secondly, in the cases where the UN or international community
did play a role, it was mostly in an advisory or subordinate capacity (ICG 25/08/03:20). This can be seen
when looking at resolutions adopted by the Security Council. In 2003, for example, three resolutions on the
political situation in Iraq were passed. The first two (resp. UNSC resolutions 1483 and 1500) lacked
substance: they welcomed new institutions and even established a UN Assistance Mission in Iraq
(UNAMI), but were vague on the exact political responsibilities of the UN or international community
(Phillips 2005:12). The third resolution (UNSC resolution 1511, adopted in October 2003) included
stronger language regarding the political situation: it requested from the IGC a precise timetable and
program for a constitution to be drafted and elections to be held. This plan had to be presented to the
Security Council by 15 December 2003. However, whether this is to be called influence from the
international community is debatable, as this resolution was drafted by the US (ICG 13/11/03:19).
The times when the UN did play a role, was when the US reached a deadlock. This happened after
the 15 November Agreement in 2003, when the discussion on how to elect a Transitional National
Assembly was at a dead end. The Grand Ayatollah al-Sistani insisted on elections, while according to the
31
US elections would be too difficult and time-consuming to implement. Lakhdar Brahimi, UN Special
Envoy for Iraq, was requested to look into possibilities and come up with a plan. The “Brahimi Plan”
concluded that elections were necessary but unrealistic to be held within a short time, was translated into
the new policy that an appointed Interim Iraqi government would take over from the CPA in June 2004 and
would rule for six months. After six months elections would be organized for the Transitional National
Assembly, which would draft the constitution (ICG 27/04/04:4). Overall, the UN and international
community have been willing to offer help and have assisted; but during the interim period the US was
unwilling to accept it.
With regard to power-sharing, the UN and the international community only played a role when the US
“permitted” it during the constitutional process. The UN did influence the constitutional process with the
Brahimi Plan, which had the result of elections taking place before a permanent constitution would be
drafted. Since Sunni’ Arabs boycotted the TNA elections, which will be addressed in the next paragraph,
the real influence of the UN on power-sharing arrangements remains limited.
3.4.3 Exclusion of Sunni Arabs/De-Ba’athification
“At each stage of the transitional process, the US and its Iraqi allies decided against wider inclusion in the
political process (of former Ba’ath members), although alternatives existed which could have created a
political space for dialogue. As a consequence of this alienation, Sunni’s and Ba’athists rejected the 2005
constitution” (Papagianni 2008:44-45)
The Sunni Arabs, some of who supported the Ba’ath regime, but by many seen as one group that as a whole
supported Saddam Hussein, were excluded from political and constitutional processes at several stages.
Between May and November 2003, the CPA outlawed Saddam Hussein’s Ba’ath party, dissolved
the Iraqi national security and intelligence forces and installed a Supreme National De-Ba’athification
Commission to root out Ba’ath-member from the ministries. As a consequence, thousands experienced
Sunni Arab employees, who might not have committed crimes under Saddam Hussein’s regime, were
excluded from the political process and thousands of professionals (for example doctors and teachers)
could not exercise their profession any longer (ICG 28/08/03:2). Additionally, the disbanding of the
security forces left a large group of people jobless and took away any indigenous security sector. In April
2004, when support for insurgency increased, the US changed their policy and brought several senior
former Ba’athists back in the security forces, and in June 2004 the De-Ba’athification Commission was
dissolved, although it continued to exist and it was eventually outlawed in the constitution (CFR Website).
Secondly, on 30 January 2005 elections for a Transitional National Assembly took place. Most
Sunni Arabs boycotted these elections out of fear for violence. As a result, seats in the TNA for the three
biggest groups were divided as follows: the United Iraqi Alliance (Ayatollah al-Sistani’s party) won 140
32
out of 275 votes, the Kurdish Coalition List (coalition of two main Kurdish parties) won 75 out of 275
votes and Sunni Arabs parties won 17 out of 275 votes. Consequently, the Sunni Arabs played a downsized
role in the transitional government that was formed in April 2005; they received five out of thirty-six
ministries. A Shia Prime Minister (Ibrahim al-Jaafari) and a Kurdish President (Jalal Talabani) led the
transitional government. Since the Kurdish and Shia parties had a relative strong position in the TNA,
sticking to deadlines became favourable for those groups as they were in a strong position regarding what
to in- and exclude in the constitution (ICG 08/06/05:1-2). Because meeting deadlines was prioritized over
inclusiveness, the constitution-making process became a new stake in the political battle instead of an
instrument to solve it (ICG 26/09/05:4).
Thirdly, Sunni Arabs were marginalized and excluded during the constitutional process in 2005.
Although the US initially insisted on including representatives from all groups, the US did not protest when
Sunni Arabs were progressively marginalized during this the process in order to meet the time table for the
new constitution that had been established in the Transitional Administration Law (TAL). The TNA
appointed a 55-member Constitutional Committee consisting solely of TNA members (ICG 08/06/05:2);
there were only two Sunni Arabs included. Grand Ayatolla Al-Sistani and US Secretary of State
Condoleezza Rice urged to include more Sunni Arabs in the constitution-drafting process, but the process
to select those individuals, how many should be added, and their status vis-à-vis elected committee
members was time consuming (ICG 08/06/05:4). Less then six weeks before the draft had to be finalized,
fifteen Sunni Arab leaders were added to the Committee. After this date the constitutional negotiations
moved from the Constitutional Committee to an informal leadership of Shia and Kurds, where the Arab
Sunni drafters were only invited after the Shia and the Kurds worked out the basic terms of the agreement
behind closed doors (ICG 26/09/05:3). Consensus could not be reached and Arab Sunni’s eventually
withdrew from the negotiations (ICG 26/09/05:1). The Constitutional Committee handed in a draft
constitution to the TNA in the end of August, after less then 3 months of constitution writing, which was
accepted without a vote. This was followed by US-led mediation to include the Sunni Arab community
back into the political process. In a last-minute deal the Sunni Arabs agreed to participate in both the
constitutional referendum in October and the national elections in December of 2005. In exchange, a
mechanism to review and amend the constitution in the first six months of 2006 was added to the draft
(Economist 27/10/05). When the constitution was approved through a referendum in October 2005 it
exposed ethnic voting trends: Shia and Kurdish areas almost unanimously approved the draft while Sunni
areas rejected it with overwhelming majorities (Brown 11/05:1).
With regard to power-sharing, the exclusion from the Sunni Arabs had major implications for powersharing because the Shia and Kurds could express their preferences during the constitutional process, while
Sunni Arabs could not. As International Crisis Group wrote in wrote in 2006, “no single issue proved more
polarizing in post-war Iraq than the 2005 drafting of the country’s permanent constitution” (ICG
19/12/06:3). There was no substantial political dialogue between Sunni Arabs and other key political elites
33
during the transition from 2003 until the adoption of the constitution in 2005 and former Ba’athists were
excluded from the political process, which meant that the former governing structures were completely
neglected in the political process.
3.4.4 Ethnicization of Politics
Iraqis increasingly grouped themselves along ethnic lines during the interim period. A main reason for this
development is that the US selected Iraqi representatives along ethnic lines, which increased the
perceptions on importance of group differences and boundaries.
The ethnicization of politics started with the selection of the IGC. Its members were chosen as to
mirror Iraq’s sectarian and ethnic groups. This was the first time in the history of Iraq that political
representation was explicitly apportioned according to ethnic quotas. Even though the number
representatives should or is likely to correspond with the size of their constituency, the fact that this became
a decisive factor for selection had the effect that the role of ethnic identity increased in Iraq (ICG
22/12/04:ii). Before the invasion Iraqi political society had not defined itself in terms of religious or ethnic
affiliation. The decision to take ethnicity and religion as a parameter for representation reflects how the US
- not the Iraqi people - viewed Iraqi society and politics (ICG 25/08/03:13-16). Unrest between groups is
likely to be exacerbated as its people increasingly organize along these divisive lines (ICG 25/08/03:16).
The IGC and interim government consisted for a large part of parties that were founded in exile
that, upon their arrival in Iraq in April 2003, had no recent experience with authentic political life, Saddam
Hussein’s regime having suppressed it and the CPA having failed to provide for it. The IGC and interim
and government have proved unable to bring about the important compromises needed to heal the
deepening rifts - they have accentuated differences by their brand of identity politics and promotion of a
political system in which positions are allotted according to communal (ethnic or confessional) identities.
During the interim period, Sunni, Shia and Kurdish identities were transformed into the primary markers of
political group formation, superseding a national identity or interest (ICG 19/12/06:3). As a consequence,
Sunni’s increasingly felt that they were equated with Ba’athists (ICG 25/08/03:16).
With regard to power-sharing, the fact that group formation in the political arena was increasingly
dominated and marked by religion and ethnicity, deepened gaps between groups and led to a polarized view
on society and other groups. The US played a role in group/boundary formation, as they started to select
Iraqis that could participate in the constitutional process on basis of ethnicity or religion. The Shia’s and
Kurds used this polarized climate, in which Sunni Arabs were increasingly identified with Saddam
Hussein’s regime, to win more support. Since Kurds and Shiites, who formed a majority in the transitional
government, were satisfied with the status quo, they did not push for a redraw of group boundaries.
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3.5 Findings
The purpose of this chapter was to analyze the constitutional process in Iraq by discussing the role of actors
and groups during the interim period. Their role has been discussed by looking into the role of the US and
the international community, the exclusion of Sunni Arabs and the ethnicization of politics. At the end of
each paragraph a short summary on how the issue related to- or influenced power-sharing was given. As
was the case for Afghanistan, factors turned out to be inter-related; one influenced the other. However, the
main characteristics of the constitution, namely the high level of decentralization and the vagueness or
absence of provisions that are perceived crucial by (one of) the parties, can be explained in the following
ways when looking at the groups and actors that influenced the constitutional process. First of all, the high
level of decentralisation was a consequence of the over-representation of Kurds, who wanted to be as
autonomous as possible and the exclusion of Sunni Arabs, who have been the most nationalistic group in
Iraq that was opposed decentralization. The Sunni Arabs were first excluded by the US through a process
of de-centralization. Later, this was taken over by Shia’s and Kurds, as they wanted to profit as much as
possible from their newly gained decision-making power.
The fact that many issues were still undefined, postponed, or vague, showed deep rifts between
groups; the constitution was not a consensual one, as most divisive issues were simply left out (ICG
26/09/05:6). The deepening gap between groups was a consequence of the ethnicization of politics, a
development started by the US in the very first stage of the interim period through selection processes
based on ethnicity or religion. Again, groups that saw their power increase through this, the Kurds and the
Shia, held on to their new positions; the increase of their power gave them a vested interest in resisting
further change.
35
Conclusion
In this conclusion, findings of this research will be summarized and the research question will be answered.
To conclude this thesis, a few suggestions for further research will be given.
After presenting the research question in the introduction, the decision to use Horowitz’ notion of process
to explain differences in power-sharing arrangements was explained in the first chapter by exploring
current power-sharing literature and its ability to explain the different arrangements. The conclusion was
that current power-sharing theory would not be used to explain why power-sharing arrangements differ for
three reasons. First of all, power-sharing literature bases analysis of power-sharing agreements on the
content of the actual agreement and the post-adoption period; the question how differences in the
agreement itself can be explained remains unanswered. Secondly, consociationalism and centripetalism are
never fully reflected in power-sharing agreements. Conclusive answers on these theories derived from
empirical evidence are therefore impossible. Thirdly, the power-sharing debate is polarized and paralyzed
between centripetalists and consociationalists because critiques regarding practical obstacles and theoretical
objections only explain which theory is easier to implement, not why agreements are different.
Because power-sharing theory is never fully implemented in practice, and because taking powersharing agreements as a start for analysis fails to explain differences in power-sharing agreements, Donald
Horowitz’ notion that “constitutional processes and their impact on the adoptability of contending designs
are the neglected elements in debates about measures to promote interethnic cooperation” was interesting.
During constitutional processes all regulations, which together form power-sharing arrangements, have to
be decided upon. Analyzing these processes might explain why power-sharing agreements “are the way
they are” – and why one is different from the other. At the end of the first chapter, a framework to analyze
the constitutional processes in Afghanistan and Iraq in order to answer the research question was presented.
Since the groups and actors that eventually have to share power by agreeing upon a constitution have to
decide upon all the regulations that together form the power-sharing arrangements, the constitutional
process would be analyzed by focusing on these groups and actors. After researching the interim periods in
Afghanistan and Iraq, the key factors that shaped the power-sharing arrangements were identified, and the
role of groups in relation to these factors was explained.
In the second and third chapter, the constitutional processes in Afghanistan and Iraq were analyzed. In
Afghanistan, the counter-terrorism agenda of the US, the decision-making during Bonn regarding interim
governments, the limited role of the international community, the influential role of Hamid Karzai and the
deteriorating relationship between the central government and regions shaped the constitutional process. In
Iraq, the occupation and authoritative role of the US, the limited role of the UN, the gradual exclusion of
the Sunni Arabs and the increased ethnicization of politics were the main issues that influenced powersharing arrangements. These are the main issues that decided and shaped power-sharing arrangements in
36
each country because they influenced inter-group relations and the distribution of power and influence per
group.
When looking at these factors and the (trends in) inter-group relations, which groups and actors
exercised most power and how, and what the influence of particular groups and actors was on the powersharing arrangements eventually adopted, there are two main similarities between Afghanistan and Iraq.
These similarities reflect the conclusions of this thesis and the answer to the research question: “How can
differences in power-sharing arrangements in Afghanistan and Iraq be explained by Horowitz’ notion of
constitutional process?”
First of all, in both Afghanistan and Iraq, the local groups or actors that were empowered directly
after the invasion, were the groups most involved with setting the agenda for the constitutional process, and
they maintained their powerful positions throughout the interim period. In Afghanistan, the Panshiri
faction, who was able to take a powerful position in the Interim Administration, continued to play a
powerful role, and Hamid Karzai, initially appointed as chairman of the AIA, had crucial decision-making
power regarding the new constitution. In Iraq, the Kurds and Shia’s gained strong positions in the
beginning of the interim period, positions that they secured by gradually excluding Sunni Arabs and taking
a lead in the constitutional process. On the contrary, groups that were excluded or under-represented from
initial talks or interim administrations continuously did not play a significant role in the political and
constitutional process or were even excluded from it. In Afghanistan, the political party law made it hard
for groups to establish themselves as new political parties, and the US-sponsoring of local militia caused
more distance between the groups that were already part of the political process and the groups that were
not. In Iraq, Sunni Arab’s, who were under-represented from the start, were gradually more excluded
through a process of de-Ba’athification and ethnicization.
Secondly, external parties involved, in this research mainly the US and the UN, had powerful roles
when it came to empowering groups; they initiated and led talks about the new political and constitutional
processes and decided who would be represented, and the groups they selected continued to play an
influential role in the constitutional process in both countries. In Afghanistan, the groups that participated
in the Bonn Conference turned out to be the most influential groups during the constitutional process, and
in Iraq the groups that had the largest representation in the IGC proved to play the most influential during
the interim period.
In short, this research showed that empowering groups and actors in the very first stage of the
interim period is crucial and decisive for the type of power-sharing arrangements that were adopted in
Afghanistan and Iraq, and the difference in power-sharing arrangements can be explained by looking at the
interests of the groups that were first empowered in the interim period, and the interests of the external
parties that contributed to their empowerment.
This conclusion confirms Horowitz’ notion that constitutional processes are negotiating processes and thus
include winners and losers based upon the amount of power they exercised during the constitutional
37
process. Moreover, this research adds another detail to Horowitz notion; in the cases of Afghanistan and
Iraq the “winners” of the processes (the ones who were in the position to shape power-sharing
arrangements to their likings) were in both case studies the individuals or groups that were empowered in
the very first stage of the constitutional process. In both Afghanistan and Iraq, the type of power-sharing
arrangements that were adopted were the ones that consolidated the influential positions of the groups that
were in power during the interim period in the most effective way. In Afghanistan President Karzai would
be most benefitted by a majoritarian, centralized system with strong presidential power, and as a member of
the largest ethnic group and with support of the international community he had the power to establish such
a system. In Iraq, there was no strong majority, and because Arab Sunni’s were largely excluded from the
process, the Shia’s and Kurds had relatively strong positions that they wanted to consolidate, which worked
best in a parliamentary system.
The conclusion that group empowerment in the first stage of the interim period is a decisive factor in
constitutional process raises questions about the importance of the constitutional process in power-sharing
literature. As discussed in the first chapter, similarities between the consociationalism and centripetalism
are based on the dilemma inherent to power-sharing; who to in- and exclude in the process. When powersharing arrangements are (re)defined, which was the case in Afghanistan and Iraq when a new constitution
had to be adopted, it is likely that some groups will have to “hand in” power, whereas other groups can use
this as an opportunity to increase their power. Consociationalism and centripetalism are based on different
social identity theories that deal with in- and exclusion of groups. Each theory presents ways to minimize
the exclusion of groups, which nevertheless remains problematic in both consociationalist and centripetalist
systems. The problem of “who to include” could be explained by looking at the interests of the groups first
empowered in the interim period; in this research those groups or individuals proved to play the most
decisive roles regarding power-sharing arrangements and who to in- and exclude.
However, any assumption or conclusion on the importance of constitutional process for powersharing literature is premature, and more research on this topic is required. Suggestions for further research
are thus whether the conclusions of this research correspond with other cases in which the constitutional
processes was brought about by foreign intervention, and on an even broader level: whether in other postconflict cases the first groups put in power during a transitional or interim government will remain in power
by shaping the power-sharing arrangements as to consolidate their power during and after the constitutional
process. Researching constitutional processes of other cases will show whether Donald Horowitz’ division
between institutions and process deserves permanent attention in the political power-sharing debate.
38
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Reports International Crisis Group:
On Afghanistan:

Securing Afghanistan: The Need for More International Action, Asia Briefing N°13, 15 March
2002

The Loya Jirga: One Small Step Forward?, Asia Briefing N°17, 16 May 2002

Afghanistan: Judicial Reform and Transitional Justice, Asia Report N°45, 28 January 2003

Disarmament and Reintegration in Afghanistan, Asia Report N°65, 30 September 2003

Elections and Security in Afghanistan, Asia Briefing N°31, 30 March 2004

Afghanistan: From Presidential to Parliamentary Elections, Asia Report N°88, 23 November 2004

Afghanistan: Getting Disarmament Back on Track, Asia Briefing N°35, 23 February 2005

Political Parties in Afghanistan, Asia Briefing N°39, 2 June 2005

Afghanistan Elections: Endgame or New Beginning?, Asia Report N°101, 21 July 2005

Afghanistan’s New Legislature: Making Democracy Work, Asia Report N°116, 15 May 2006
On Iraq:

Iraq after the Surge II: The Need for a New Political Strategy, Middle East Report N°75, 30 April
2008.

Iraq and the Kurds: Resolving the Kirkuk Crisis, Middle East Report N°64, 19 April 2007.

After Baker-Hamilton: What to Do in Iraq, Middle East Report N°60, 19 December 2006.
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
Iraq and the Kurds: The Brewing Battle over Kirkuk, Middle East Report N°56, 18 July 2006.

Unmaking Iraq: A Constitutional Process Gone Awry, Middle East Briefing N°19, 26 September
2005.

Iraq: Don’t Rush the Constitution, Middle East Report N°42, 8 June 2005.
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