The New Iraqi Elections Act: Features, Failings, and Challenges

Following a period of intense negotiations between the various political blocs, on December 24, 2019 the Iraqi House of Representatives managed to adopt the new Elections Act. However, both the Kurdish bloc and several Sunni members of parliament boycotted the vote on the contentious parts of the 50-article bill.

This paper will examine the features and failings of the new law, as well as the challenges that must be overcome if the law is to help achieve the demands of the popular protest movement.

Features of the new law

The main feature of the new law is that it moves away from the use of proportional representation, in which each governorate is considered a constituency and candidates must be presented via a party list. The new law instead provides for individual candidates, who may stand independent of any list or party, and establishes each district (administrative units within each governorate) as a small constituency. This opens the door wide to political change and to the possibility of ending the ascendancy of the traditional large political blocs and party lists.

Other features of the law include the following:

1. The new law does away with the use of the Sainte-Laguë method, stipulating instead that the winner shall simply be whoever receives the highest number of votes. However, experts would have preferred that the law stipulate that the winner must receive at least 50% of the vote, to be determined by conducting a run-off vote between the two candidates with the highest number of votes.
2. The new parliament will take demographics into account, meaning that each “district” will have one or more representatives and that there will be one representative for each 100,000 citizens. If the population of a district is less than 100,000, then it will be merged with the nearest large district. These provisions, set out in article 15 of the new law, were opposed by the Kurds.
3. The new law makes it easier for independent candidates to be elected. It will also hinder candidates from the large political blocs, who were able to dominate the political scene under the previous elections law, and will reduce their influence over the regulatory authorities. This will affect blocs such as Nouri al-Maliki’s State of Law Coalition.
4. The law also stipulates that the President and his deputies, the Prime Minister and his deputies, the head of any independent body and his deputies, the head of any entity not affiliated with a ministry, any undersecretary of a ministry, governors and their deputies, presidents of provincial councils and their deputies, holders of “special grades” positions, and general managers cannot stand for election for a period of two years after they have left their position.

Failings of the new law

1. The new law fails to meet several of the demands made by protesters, including that candidates with dual citizenship or from parties with armed wings not be allowed to stand for election.
2. The law leaves it to the House of Representatives to determine the number of constituencies, meaning that it will be subject to negotiations and political deals, which could lead to problems in mixed areas.
3. It may take a long time to configure all the constituencies, thereby hampering efforts to hold early elections, owing to disagreement regarding the number of districts and where their boundaries lie, as well as the lack of population data.
4. The law may help tribal leaders and candidates from armed factions reach parliament, as they control certain small districts and neighborhoods.
5. The law allows anyone with a middle school certificate to stand for election, whereas previously candidates needed to hold a bachelor’s degree. This significant lowering of requirements may lead to a reduction in the proportion of parliament members with a higher education.
6. The law does not specify what will happen to displaced persons who are forbidden from returning to their home areas. It also defines displaced persons as those registered with the Ministry of Displacement and Migration, which is not correct, as there are tens of thousands of displaced persons in Iraq who are not registered with the Ministry.

Positions of the political powers

With the exception of the New Generation Movement, who voted in favor of the new law, the Kurdish parties view the vote on the law as illegitimate, on the grounds that quorum was not reached and an illegitimate voting method was used. They have appealed to the Federal Supreme Court against the decision. The Kurds want to amend the law to include guarantees that would protect their seats in the federal parliament, to return to the use of governorates as constituencies, and at, at a very minimum, to allow candidates to stand both individually and on unified lists. The Kurds believe that a system of solely individual candidates and small constituencies will lead them to lose seats in mixed areas/districts.

During a press conference for the Kurdish bloc, the head of the Patriotic Union of Kurdistan, Jwan Ihsan, said that: “Ignoring the will of the Kurds will push protesters to seek out greater rupture and tyranny of opinion in order to get rid of unsound laws.” She continued: “The Kurds want an election law that facilitates the election process in order to achieve true voter representation and combat the tyranny of those parties that want their candidates to be the top winners in every constituency.” The representative of the elections authority from the Kurdistan Democratic Party, Khosrow Koran, objected to the fact that the law had been adopted without the approval of the Kurdish members of the House of Representatives. He stated that, while the law would do little damage to the Kurdistan Democratic Party compared with other political groups, the ideal situation would be for Iraq to have either one single constituency or for each of the 18 governorates be a constituency.

Conversely, Shias welcomed the law, in particular the Saeroun alliance, the National Wisdom Movement, and Asaib Ahl al-Haq. While most of the large Sunni groups, including Al-Hal and the Union of Iraqi Forces, supported the law, some Sunni representatives expressed their displeasure. Representative Toama Lahimi from Nineveh Governorate described the law as “designed to break up Iraq”, saying that the system of multiple constituencies “will take two years to implement”. Lahimi added that: “Anyone who voted for this law just wants to remain in power for as long as possible.”

Views among protesters appear to vary, ranging from support for the bill to rejection. On social media, an account under the name of “Tahrir Square, Baghdad” has issued a statement calling on the United Nations to monitor the elections, stating that voters do not trust the new members of the High Electoral Commission. They also call for an end to voting abroad, claiming that offices of the Commission outside Iraq commit voter fraud and waste funds. In the statement, protesters also reiterated that candidates should have to win at least 50% of all valid votes in a constituency in order to win the seat, given that, while the new law provides for only one round of voting, after which the candidate with the most votes is deemed the winner, it does not specify what percentage of the vote the candidate must obtain. Activists claim that these provisions will allow the political parties and tribal leaders to gain seats by splitting the independent vote.

In addition, protesters called for the new law to prohibit any person proven to belong to a party or movement with an armed wing to stand in an election, even under a different political banner. They have also demanded that the law be amended to prevent any person with dual nationality or who has served in an executive position within the current government or the previous government at the level of minister or deputy minister or as a current or former member of the House of Representatives to stand as a candidate in the next elections.

Possible scenarios for the legislative elections

Scenario 1: Early elections are postponed owing to differences in opinion regarding the number of districts entitled to participate in the elections, as well as a number of the other reasons, most importantly:

1. Mixed districts with a population of less than 100,000 will be merged with larger neighboring districts. If a district has a Kurdish minority, it will likely oppose efforts to merge it with a district with an Arab or Turkmen majority, and vice versa. This may lead to widespread conflict between populations and political groups in such areas.
2. Traditional blocs without a strong popular support base, such as the State of Law Coalition, the Badr Organization, and the Islamic Supreme Council of Iraq, feel that the new law will not be to their advantage and will lead them to lose influence in future parliaments. They may attempt to delay the elections or to work with the Kurds to amend the law.
3. All political blocs in the current parliament want to hold the elections long enough after the protests have ended to allow them remarket themselves, as many have experienced a decline in popularity while the protests have been ongoing.

In this scenario, the new law is likely to be amended. In particular, article 15 on the number of constituencies is likely be amended to stipulate either that every 100 citizens shall be represented by a single constituency or that each governorate shall be considered a constituency, while maintaining the system of individual elections, in order to satisfy the Kurds. In either case, any amendments will be made only after the demonstrations have lessened or ceased, in order to ensure that they do not incite further popular anger. This is the most likely scenario.

Scenario 2: If the supporters of the law decide to maintain article 15 and block any amendments, legislative elections may be held within a year. This scenario will be dependent on whether swift agreement can be reached on the number of constituencies and on whether the next government is strong and united enough to conduct elections in a professional manner under intense international scrutiny.

For the elections to change the political equation, the protest movement must produce regional leaders capable of sweeping the elections or must announce the creation of a national-level movement representing protesters, under whose banner its candidates will stand.

Nonetheless, strong Islamic movements, such as the Sadrist Movement, and tribal groups may dominate small districts and control voters’ choices. Independent candidates will stand a chance of election only in large districts and in urban areas with 100,000 residents, where there is a comfortable degree of freedom. Central and southern Iraq will largely be represented by independent candidates, tribal leaders, and members of the Sadrist Movement. Tribal leaders are also likely to dominate in small Sunni areas. The Kurdistan Democratic Party will likely win in remote villages and districts, while small Kurdish political groups, such as the New Generation Movement and the Taghyeer Movement, may win more seats compared with previous elections, in particular in urban centers. In general, however, the Kurds will lose seats, as the voices of Kurdish minorities in Shia, Turkmen, and Christian areas are likely to be drowned out.

Conclusion

1. The adoption of the new Elections Act is a victory for the popular protest movement. Political forces affected by the new law will attempt to distort it, however, during negotiations on the number of constituencies. The Kurds are expected to make a number of political deals with the Shia forces loyal to Iran in that regard, in which the Kurds will promise to support the presidential candidate from Al-Banna group in exchange for configuring the constituencies in disputed areas in a manner that would benefit the Kurdistan region.
2. The next parliamentary elections are not expected to lead to any real change in the political status quo in Iraq unless protesters are able to organize a national movement capable of posting candidates in all constituencies.