Constitutional Issues in Afghanistan and Iraq

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Donald HorowitzIn a country as heterogeneous as Iraq, building a new nation in the aftermath of the war will be an extremely complex task, Duke Law Professor Donald Horowitz, a leading expert on ethnic conflict, said before a packed lecture hall on April 8.

“It’s much more complex than the press reports,” said Horowitz, the James B. Duke Professor of Law and Political Science. For example, he noted, not all of the population in northern Iraq is Kurdish, adding that the Kurds themselves are divided. In fact, most ethnic groups in Iraq, whether relatively large or small in number, are made up of politically disparate subgroups.

If not addressed properly in a post-Saddam Iraq, those differences could result in awful consequences, especially in areas such as the northern city of Kirkuk, where competing groups will vie to control oil revenue. “That city could become a battleground,” he said.

However, as in Afghanistan and other nations recently torn by conflict, Iraq has a chance to emerge as an inclusive society with autonomy for various ethnic groups. Horowitz, who has consulted with the commission drafting a new constitution for Afghanistan, said a number of questions must be answered in Iraq before an appropriate form of government can be chosen. Those same questions are at play in Afghanistan even now.

Among them:

  • Will the country have a strong central government, or will it be more decentralized with greater opportunities for minorities in outlying areas to have a greater degree of control over their own affairs.
  • What model will the highest level of government follow: presidential or parliamentary? If presidential, how will the chief executive be selected? One model for success would require a candidate to win both a plurality of the total vote as well as substantial support in many regions of the country. That method has been used for reconciliation in other divided countries, such as Nigeria. “The Nigerian system took a parochial person who wanted to be president and turned him into a pan-ethnic figure,” Horowitz said.
  • Will the overall electoral system favor victories for parties that capture a plurality of the vote, will it be a proportional system, or will it be an electoral system specifically designed for conciliation among groups?
  • Finally, decisions must be made about the role of Islam in any future government, such as how the laws of that religion will fit with the concept of judicial review. Countries trying to combine religious and secular law often find themselves in difficult situations. “You don’t want the government to say that some statute is repugnant to Islamic law,” he said, citing secular laws that require the payment of interest as a possible conflict with Islamic law. “This is a potentially toxic combination. There are some real questions.”

Horowitz has been consulted on constitutional and ethnic conflict issues in countries around the world, including Nigeria, Indonesia, Bosnia, Fiji and Afghanistan. An often-cited expert, he is the author of more than 50 articles and eight books. He spoke as part of the Food & Thought series, which brings together students, faculty and members of the community to discuss major issues of the day.

On the whole, Horowitz said, the process of nation-building in both Afghanistan and Iraq will be difficult, with many forces pulling in various directions. “Don’t count on a beautiful result in either country,” he said.