United Nations S/2004/140
Security CouncilDistr.: General
23 February 2004
Original: English
Letter dated 23 February 2004 from the Secretary-General
to the President of the Security Council
Following a request from the Iraqi Governing Council and the Coalition
Provisional Authority, I dispatched a fact-finding mission to Iraq from 6 to 13
February 2004. This mission was led by my Special Adviser, Mr. Lakhdar Brahimi.
I am pleased to attach herewith a copy of the report on the mission’s findings
and recommendations, which I fully endorse (see annex).
The terms of reference of the mission called for:
• An assessment of the feasibility of holding direct elections before
30 June 2004;
• A determination of the time frame and conditions required for conducting
credible elections consistent with United Nations principles and practices;
• A determination of whether there were other options for representing the will
of the Iraqi people within the time frame of the 15 November Agreement,
acceptable to all parties and guaranteeing a transparent and inclusive
mechanism.
I believe that the dispatch of the fact-finding mission facilitated the emergence
among Iraqis of a wide measure of agreement on the need for direct national
elections, to be prepared and held under optimal technical, security and political
conditions. There remain, however, a number of important outstanding questions.
These include the choice of a transitional mechanism that would enjoy the broadest
support among Iraqi constituencies and how to implement such a mechanism.
It is clear that more work will be necessary to address fully all questions in a
way that best serves the interests of the Iraqi people. I hope that we can build upon
the groundwork that has been laid down and engage further with Iraqis on how best
to move forward. The United Nations remains fully committed to assisting the Iraqi
people in completing the process of recovery and democratization.
The report of the fact-finding mission speaks for itself. I would, however, like
to take this opportunity to emphasize once again that a precondition for the United
Nations to succeed in Iraq is the clear and unambiguous support of a united Security
Council and the establishment of a secure environment. The restoration of Iraq’s
sovereignty to Iraqis provides an opportunity for the Council to forge such a
consensus on both aspects.
(Signed) Kofi A. Annan
04-24600 (E) 230204

S/2004/140
Annex
The political transition in Iraq: report of the
fact-finding mission
Contents
I. II. III. IV. V. VI. VII. Appendices
I. II. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The current situation in Iraq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The 15 November Agreement and the governance transition process. . . . . . . . . . . . Key observations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The electoral process. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recommendations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Paragraphs Page
1–6 3
7–10 4
11–20 5
21–29 7
30–40 8
41–49 10
50 12
Composition of the fact-finding mission. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Technical report. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
15
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I. Introduction
1. The Secretary-General deployed a fact-finding mission to Iraq from 6 to 13
February 2004. This initiative was in follow-up to the meeting he convened in New
York on 19 January 2004 with the Governing Council of Iraq and the Coalition
Provisional Authority and in response to requests from both parties as well as many
Iraqi organizations and personalities, including Ayatollah Ali Sistani, a prominent
Shi’a cleric.
2. The fact-finding mission was led by Under-Secretary-General Lakhdar
Brahimi, the Secretary-General’s Special Adviser, and comprised seven members,
including electoral experts from the Department of Political Affairs (see appendix I).
3. During its visit to Iraq, the mission met with a very large number of Iraqis,
including political leaders (both those who are represented in the Governing Council
and those currently outside the political process), religious leaders, tribal leaders,
non-governmental organizations, women’s groups, professional associations, human
rights organizations, journalists and academics. It also met with the Governing
Council, Ambassador Paul Bremer, the Administrator of the Coalition Provisional
Authority, and Sir Jeremy Greenstock, the United Kingdom Special Representative
for Iraq. In Amman, the mission met with Special Representative of the Secretary-
General a.i. Ross Mountain and some members of his team. A United Nations
delegation comprising Ambassador Brahimi, Ross Mountain and Jamal Benomar
also attended the meeting of Foreign Ministers of neighbouring countries of Iraq
(Kuwait, 14 and 15 February 2004).
4. The United Nations fact-finding mission would like to express its appreciation
for the warm welcome it received from all Iraqis, as well as their willingness to
meet with the team and the time they took to discuss ideas and options about the
best way forward in Iraq. The mission also wishes to thank the Governing Council
and the Coalition Provisional Authority for their hospitality and the support
provided for transport, accommodation and security.
5. Security constraints did not allow the mission to travel outside Baghdad as
extensively as it would have liked. Indeed, even in the capital, contacting and
organizing meetings with Iraqis was a challenge for the same security reasons.
Nevertheless, the mission was able to ascertain the views of a wide spectrum of
Iraqis. For its part, the technical component of the mission was able to hold
extensive discussions with groups of Iraqi experts, academics and members of
political parties who had carried out research on the feasibility of holding elections
in the current circumstances.
6. On the basis of these wide-ranging discussions, the mission was able to
develop an understanding of the political environment and recent political
developments related to the ongoing debate on the governance transition and to form
an opinion on the specific issues that the mission was asked to study. Across the
political and social spectrum, there was near unanimous agreement that the United
Nations should act as a facilitator of this process, providing technical assistance,
when required, and also helping form a consensus on the various issues under
discussion.
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II. The current situation in Iraq
7. The two devastating attacks on the Iraqi police and security forces, which
coincided with our visit, illustrated that the insurgency continues to threaten the
security of all Iraqis. Little is known about those who were behind these attacks, but
they seem determined to disrupt any plans for rebuilding a stable and peaceful Iraq.
Nevertheless, we are beginning to see the first stirrings of party political activity,
leading to new dynamics among the political elites and communal groups. It is clear
that the security situation is inextricably linked to political developments.
8. There are many indications of a growing fragmentation of the political class.
Sectarianism is becoming entrenched and inter-communal politics more polarized,
all within a context of a political process that remains limited to a few actors, with
varying credibility. This competition among the elite is taking place against a
backdrop of massive unemployment, particularly among a large young male
population. Many interlocutors also speak of rising disillusionment and anger.
Nevertheless, with so much at stake, Iraq is a dynamic place, full of ideas and
political arguments. We received numerous proposals and ideas from Iraqis, ranging
from restoring the monarchy as a solution to the crisis, holding a conference of
tribal chiefs to form a government and organizing a national conference or round
table to work out an agreement among the major actors to the setting up of a
transitional government of technocrats with limited powers.
9. However, there is also a grave sense of history attached to the current
situation. In the Sunni community and among the secular elite, there are perceptions
that they are witnessing a decisive shift in the balance of power as a result of which
they will lose in the new political arrangements that are being put in place. Many
Shi’a feel a responsibility to avoid what happened in 1922, which they believe
began their disempowerment and persecution. They are committed to correcting this
and ensuring the political emancipation of the Shi’a community. Others in the
Kurdish community realize that they have made numerous gains since the early
1980’s and after the first Gulf War but fear that new arrangements will be at the
expense of what they have now. Meanwhile, minority groups feel that a majoritarian
system will put them at a huge disadvantage, while women’s groups are concerned
that the gains made under the secular regimes of the past are under threat from a
new system dominated by religious-based parties. A case in point is the decision by
the Iraqi Governing Council in December 2003 to repeal the civil code and place
family law under the jurisdiction of religious doctrine. This decision has not been
enacted into law but women see it as an ominous indication of what might be
coming.
10. These developments are simultaneously creating expectations, fears, tensions
and distrust. There is reason to hope that the political dynamics in Iraq could evolve
into a momentum to build consensus on a new inclusive system of governance that
satisfies the aspirations for political emancipation and empowerment but also
safeguards against majoritarian politics and protects the rights of minorities and
other identity groups within a national entity. But, unless all actors — Iraqis and
non-Iraqis — urgently address the most pressing issues, including the security
situation, the underlying tensions could fuel the existing potential for civil strife and
violence. All must diligently work to prevent the escalation of inter-communal
violence and contribute to the slow, arduous process of building trust and the
momentum for continued cooperation.
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III. The 15 November Agreement and the governance
transition process
11. The political situation in Iraq is at another crossroads. On 15 November 2003,
the Coalition Provisional Authority and the Governing Council signed an Agreement
on the political process to accelerate the transfer of sovereignty from the Coalition
Provisional Authority to an Iraqi administration by the end of June 2004. The
political developments arising from this Agreement provided the context in which
the United Nations fact-finding mission took place.
12. The 15 November Agreement set out the conditions for the dissolution of the
Coalition Provisional Authority, with a new transitional assembly and provisional
government assuming power. However, key Iraqi figures, including many members
of the Governing Council itself, and a number of political and religious groups
opposed the caucus-style process suggested as the basis for choosing the transitional
assembly. Many, including Ayatollah Sistani, demanded direct general elections and
claimed that it was possible to organize a reasonably credible election before
30 June 2004.
13. Although the legitimacy and legality of the 15 November Agreement has been
questioned by many Iraqis, it should nevertheless be noted that most Iraqis
consulted by the mission emphasized that the Agreement meets the wishes of the
Iraqi people for a quick transition that will lead to a provisional government, the
restoration of Iraq’s sovereignty and the dissolution of the Coalition Provisional
Authority. Strong reservations have been expressed about some of the provisions of
the Agreement. But the debate has been polarized around the election issue, creating
serious tensions that need to be resolved before any meaningful debate can take
place on the very important substantive issues still pending.
14. These include such questions as: What should the Fundamental Law currently
being drafted contain? What institutions should be put in place during the interim
period? What kind of federalism should be adopted and when? What powers should
the provisional government after 30 June 2004 possess? What kinds of relations
should exist between the national assembly envisaged in the Agreement and the
constitutional assembly to be elected in March 2005? What would be the status of
the Coalition forces after 30 June 2004? These are but a few of the scores of
questions which can properly be addressed only after a decision is taken concerning
elections.
15. Nevertheless, the Agreement includes specific details that stipulate key
provisions of the Fundamental Law and commit future lawmakers. Specifically, the
Governing Council is to draft the Fundamental Law in “close consultation” with the
Coalition Provisional Authority. According to the 15 November Agreement, the
Fundamental Law should include “the scope and structure of the sovereign Iraqi
transitional administration” and what is agreed to by the Governing Council and the
Coalition Provisional Authority “cannot be amended”. The Fundamental Law is also
to specify “the bodies of the national structure”, “the process by which individuals
will be selected for these bodies” and “the criteria set out for candidates”, which can
include members of the Governing Council. In effect, a draft interim constitution is
to be designed, as well as approved, by the Governing Council with the Coalition
Provisional Authority. Some Iraqis noted that the Governing Council will have the
power to determine the structure of national political bodies and that there would be
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a clear conflict of interest if Governing Council members were to set the criteria for
their own participation in these future institutions.
16. In addition, the Agreement refers to a federal Iraqi state, the separation and
specification of powers exercised by central and local entities, a bill of rights that
also refers to the legislature, a mechanism for judicial review and an expiration date;
these are issues that have not been discussed and agreed to by the Iraqi people or
their elected representatives. Despite the fact that the Agreement says that the
timetable will be set in the Fundamental Law, the Agreement already fixes key dates
in the process, with the Fundamental Law to be approved by 28 February 2004,
elections for the transitional assembly by 31 May 2004, recognition of this assembly
and the dissolution of the Coalition Provisional Authority by 30 June 2004, elections
for the constitutional convention by 15 March 2005 and a deadline of 31 December
2005 for elections for a national government.
17. The Agreement also has a section on unspecified security arrangements that
gives “wide latitude” for the Coalition forces to provide security. Most importantly,
it commits a future provisional government to as yet unknown agreements made
between the Coalition Provisional Authority and the Governing Council. During the
mission, many Iraqis stressed that only a legitimate transitional or elected
government should agree to any bilateral security arrangements with the Coalition.
They consider that anything else would be illegitimate and would offer the
impression that the process by which security agreements were reached was neither
transparent nor accountable.
18. The Agreement devotes considerable attention to a transitional national
assembly, a legislature, to which Iraq’s sovereignty would be transferred. As to the
provisional government, members of the national assembly would elect an executive
branch as well as appoint ministers. There are no details about the process for
selecting the head of this executive authority or its mandate. There is to be no direct
election to this transitional national assembly. Members would be elected by a
“governorate selection caucus” to represent the governorate based on its percentage
of the Iraqi population. The selection of candidates to the caucus would be
organized and approved by organizing committees, composed of individuals
appointed by the Governing Council and by provincial and local councils.
19. Iraqis opposed to this plan objected that the provincial and local councils were
all created and supported by Coalition military commanders and that although the
Governing Council was supposed to disband, its members would be eligible to be
elected to the assembly while themselves having set the election criteria. Many Iraqi
interlocutors also warned that on the basis of the Agreement, two assemblies would
be in place by March 2005: a “selected” national legislative assembly and an elected
constitutional assembly, both running concurrently, which might create the potential
for political strife.
20. It should be recalled that the current political impasse originated in June 2003
with the controversy over the process through which the country’s constitution
would be drafted by a constitutional convention “selected” by the Coalition
Provisional Authority: this led to Ayatollah Sistani issuing a “fatwa” calling for an
elected constituent assembly to draft the country’s constitution.
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IV. Key observations
21. As mentioned earlier, there is a deadlock over the issue of direct elections
versus the caucus-style process prescribed by the Agreement. At the end of the long
discussion held by the mission at both the political and technical levels, a consensus
was forming in Iraq that it would be extremely difficult and perhaps even hazardous
to try to organize general elections before 30 June 2004. There was equally a
consensus that the caucus system as currently conceived is not a viable option. The
Coalition Provisional Authority itself accepts that it would be impractical to try and
implement this system, which is totally alien to Iraqis. Other options need to be
developed and pursued. But they can only come from the Iraqis themselves through
dialogue and consensus-building.
22. It goes without saying that no one denies the importance of elections. First, the
right to take part in the governance of one’s country is a basic human right. This
right is proclaimed and guaranteed in the Universal Declaration of Human Rights
and the International Covenant on Civil and Political Rights, and is recognized in
many other treaties and declarations. Countries and peoples around the world have
recognized that free and fair elections are an important milestone in the continuum
of democratization and an important means of giving voice to the will of the people,
which is the basis of governmental authority itself.
23. Second, there is consensus among all Iraqis that elections are an important step
in the long road towards establishing democratic governance based on the rule of
law. Elections in themselves do not constitute democracy. They are not an end but a
step, although an important and essential one, in the path towards a peaceful, stable
and united Iraq. Much debate has been devoted to the establishment of a provisional
legislative assembly. In fact, many Iraqis have queried whether a legislative
assembly would even be necessary during a short transition period. Would it not be
simpler and more effective to develop consensus on establishing a provisional,
caretaker government, with clear and limited powers to prepare the country for free
and fair elections and manage the country during the transitional period and the
process that establishes it?
24. As indicated in the detailed technical report contained in appendix II to the
present report, elections will need a minimum preparation time of about eight
months after the legal framework has been completed. If work was started
immediately and the required political consensus was reached fairly rapidly, it
would be possible to hold elections by the end of 2004. In the light of this, would it
be necessary to elect, two or three months later, a constitutional assembly? Most
Iraqis the mission met were of the firm view that a single assembly might very well
act as both a legislative and a constitutional assembly. The time frame set for the
completion of the constitution would not be affected.
25. Numerous interlocutors expressed the need to develop new ideas for a more
inclusive and transparent transitional process to establish a national unity
provisional government. In this context, many Iraqis further stressed that what is
needed is a broad-based government that is not based on quotas, one that ideally
would be primarily composed of competent technocrats.
26. There were many other ideas on the ground. Some suggestions have been made
that the life of the existing Governing Council be extended so that it could act as the
interim administration between 30 June 2004 and the national elections, or that it
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should be enlarged (150 to 200 members) to act as a transitional legislative body
that would elect the provisional government. Some Iraqis urged the United Nations
to give serious consideration to the idea of a national conference that is emerging
within Iraq from respected Iraqi figures. They believe that by inviting delegates
from across Iraqi society, a national conference would offer a more legitimate means
of establishing a transitional government. They recognized that it would not be fully
democratic but argued that it would nevertheless be inclusive and participatory.
Criteria and rules of procedure would need to be elaborated on who would
participate, but a national conference typically invites every type of political and
social constituency and operates on the basis of democratic transparency. From the
conference, a set of principles governing the transition period would be produced
(not a constitution) and an agreement on a provisional national unity government
reached.
27. Others felt that a national conference could be a forum to amend and approve
the draft Fundamental Law. Depending on its rules of procedure and how it
functioned, some stated that it is conceivable that this conference could be
transformed into a provisional national assembly at a later date. A number of Iraqis
suggested that the United Nations could facilitate the process of building consensus
leading to an agreement on a national conference and could then convene the
conference.
28. Others favoured a smaller forum or round table, consisting of the main
political, professional, religious and other identity groups representing the full
diversity of Iraqi society to develop consensus on the setting up of a caretaker
authority to manage the transitional process after 30 June 2004, with a particular
focus on the electoral and constitutional processes. According to this view, a round
table could produce credible interim arrangements affirming the protection of human
rights and a participatory constitution-making process.
29. Many Iraqis stressed that new initiatives are urgently needed to rebuild trust,
promote inclusion and explore new options. Other Iraqis affirmed that the way out
of this impasse is for the United Nations, working in partnership with the Iraqis, the
Coalition Provisional Authority and Iraq’s neighbours, to assist the Iraqis in building
consensus on a political framework that will produce a “road map” for the
governance transition and assist in the establishment of a transitional government to
bring this to fruition.
V. The electoral process
30. The analysis of the electoral process and the details involved is fully
developed in the technical analysis prepared by the electoral assistance members of
the United Nations mission (see appendix II).
31. In consolidated democracies, the time frame of an electoral process can be
readily estimated, given that most legal and institutional frameworks already exist.
Since the machinery is already in place, with the rules of the game well defined and
agreed upon by all stakeholders, it is only necessary to provide some modest support
to fine-tune what already exists before engaging in the implementation of an
electoral process that includes fairly precise deadlines.
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32. However, in transitional situations, an electoral process often needs to be
developed from nothing, building up from scratch all the elements required to enable
the preparation and the conduct of the process. The time required for meeting the
necessary preconditions is not easy to estimate, in particular those involving
political consensus. Consequently, the approximate time frame for organizing
transitional elections can only be estimated from the moment that three major
conditions have been met. Those conditions are: (a) a legal framework in place;
(b) an institutional framework in place; and (c) availability of the required
resources.
33. In Iraq, none of these conditions exist and there is considerable disagreement
over the most fundamental aspects. In fact, the mission found that most of the debate
centred on operational aspects, such as voter lists, while overlooking the legal,
political and security framework without which an election cannot take place.
34. An electoral timetable necessarily depends on the modalities chosen for the
election: an election on a single (national) constituency under a proportional
representation system using party lists will be easier (and quicker) to organize than
an election using a first-past-the-post system with a great number of single-member
districts. The issue of an electoral register is sensitive, and the option chosen for the
establishment of a credible electoral roll will affect the length of the process.
35. In terms of establishing a credible electoral roll, a number of different options
can be tried; historically in Iraq, the electoral rolls have been derived from a
population census. This option is not feasible, as it is estimated that a fully fledged
census would take up to five years, including preparation time. Moreover, the
polling allocation under this modality presents serious problems. Two other options
are available: a dedicated voter registration exercise (probably the preferred option)
or deriving the electoral roll from existing databases (such as the public
distribution —“ration cards” — database). Nevertheless, it is important to note that
in both cases, but particularly the latter one, a social validation period is
indispensable — that is to say, a period during which the initial data is exhibited to
the public and corrected as required.
36. As mentioned, a generic estimation can be made based on previous experience
and the standard tasks required for the election of a representative body. The
necessary stages for the preparation of the process would include, among others, the
definition of all electoral procedures and the preparation of the necessary procedural
manuals; the registration of political parties and/or candidates; a regulation defining
political financing; a regulation concerning electoral campaigning; the accreditation
of electoral observers; the launching of public information and voter education
initiatives; the procurement and assembly of electoral material (for the various
electoral operations); the mapping and choice of polling locations and assignments;
and the logistic preparation for polling, counting and tallying results. In addition,
should it be decided to allow for registration and voting for Iraqis abroad, it will be
necessary to determine the regulatory framework and establish a full operational
plan for out-of-country voting.
37. In countries with conditions and characteristics similar to those of Iraq, it is
possible to say that the minimum time required for preparing a credible transitional
election would be no less than eight months from the time the three conditions
described above are met, that is to say, once the political agreements have been
formalized in a legal framework and once the basis of a functional electoral
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management body have been established and the necessary resources are made
available. If it is anticipated that an election should take place by January 2005, it
would be necessary to reach the basic agreements that would form the backbone of
an electoral law by May 2004.
38. An improved security environment is a precondition for the conduct of free
and fair elections in Iraq. Lack of security could lead to major disturbances,
undermining the administration of the election, altering the established timetable
and compromising the overall credibility of the process. Just as important is to have
an environment that permits respect for the civil and political rights of candidates,
parties and voters, ensures free campaigning and a free choice, and guarantees free
speech, opinion, information, assembly, movement and association during elections.
While transitional contexts are not always the most conducive for credible elections,
minimum conditions should be ensured to allow for the process to be a successful
one, whose results are accepted by all parties. Security is therefore a major
conditioning factor in ensuring the legitimacy of the process. The current
circumstances, resulting in widespread fear and anxiety among the population, are a
major obstacle to the success of an election. The existence of militias (especially if
connected with political movements) could also be the source of coercion and
intimidation that would undermine the political credibility of the exercise.
39. It is important that the electoral campaign and the election itself be monitored
by independent observers. Rules regulating the media as well as efforts by the
international community to offer unbiased information might prove crucial. In
addition, these first elections will provide an opportunity for democratic
empowerment, in which local groups can be trained to act as media and polling
monitors.
40. There is an assumption that elections mark the beginning of an irreversible
process leading to democracy, and that after democratic elections it is difficult to
return to authoritarian rule. Another assumption is that leaders who benefit from the
demise of an authoritarian regime also benefit from the eventual consolidation of
democracy. Both assumptions are inaccurate. Elections that are not properly
prepared and that are held without the best possible conditions first being
established often lead to “token” democracies and radicalized politics, and
undermine compromise among stakeholders and coalition-building. This is
particularly relevant in situations where rule-of-law institutions are weak and
incapable of managing political debate and conflict.
VI. Conclusion
41. Iraq faces the difficult task of finding institutions capable of channelling
political contestation into legitimate directions. During this process, decisions will
be made as to the limits and practices of the new political system; the rights and
duties of its citizens; how to represent the will of the people; how to achieve a
consensus on the future of the state; and how to ensure respect for universal
principles, such as respect for human rights and democratic governance.
42. Given more than three decades of despotic rule without the basic elements of
the rule of law, a ruined economy, a devastated country, the collapse of state
institutions, the low level of political will for reconciliation, and distrust among
some Iraqis, conditions in Iraq are daunting. Iraq suffers from the standard ills of
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countries that have not succeeded in developing democratic governance: poverty,
little if any experience of democracy, and a history of maintaining domestic stability
through oppression and violence. We need to be realistic about the prospects and
speed of reform; time is needed to allow wide-ranging consultation and consensus-
building on challenging issues. A thorough, unrushed and consultative process is
essential. Nevertheless, the mission notes with appreciation that after decades of
authoritarianism Iraqis are very eager to move to a new chapter in their history by
finding political solutions to their problems through consensus-building. It was
significant that the term “tawafuq” (i.e., consensus-building) was repeated again and
again throughout our consultations.
43. The challenges of working out a legitimate political process that will lead to a
democratically elected government are enormous. Establishing security throughout
the country, building trust with the Iraqi people, drafting a constitution and building
consensus among different Iraqi factions are formidable problems. These problems
will confront the United Nations when it assumes the “vital role” that both the
people of Iraq and the international community tell us that they want the United
Nations to undertake. The international legitimacy of the United Nations is not
enough by itself to ensure the success of the process. Much will depend on the role
of the Iraqis and their willingness to compromise in the interests of their nation
rather than for sectoral or individual interests. Much will also depend on what
mandate the United Nations has from the Security Council, what the United Nations
does and is seen to be doing by Iraqis, regional actors and the international
community at large, and how well it performs this role.
44. Iraqis wholeheartedly believe that the sooner an Iraqi government is in place,
the better, so as to restore to the people of Iraq their sense of dignity and control
over their destiny. To that end, they do not wish to see any delay in the restoration of
Iraqi sovereignty. Virtually every Iraqi with whom the mission met stressed that the
date of 30 June 2004 is a deadline that must be respected.
45. That having been said, they recognized that they find themselves in a very
serious dilemma. Iraqis inside and outside the Governing Council appear to agree
that, ideally, Iraqi sovereignty should be restored to a democratically elected
government. But many acknowledged the risks pointed out to them by our mission
about prematurely conducting elections; in the mission’s view, at least eight months
are required to prepare a credible election in Iraq, once the legal framework is
agreed upon.
46. Thus, it is not possible to maintain the 30 June 2004 deadline while
concurrently ensuring that sovereignty is restored at the outset to a democratically
elected government.
47. In that context, there appears to be an emerging consensus that a provisional
government will need to be formed by 30 June 2004 through some mechanism other
than direct elections. While the caucus-style system envisaged in the 15 November
Agreement is one such mechanism, it does not appear to enjoy sufficient support
among Iraqis to be a viable option any longer. A consensus will need to be forged on
another mechanism, building on discussions that have taken place to date.
48. Irrespective of what mechanism is decided upon for the formation of a
provisional government, it must be understood that it will be short-lived and will
need to give way, as soon as possible, to a democratically elected and fully fledged
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government. In order for that fully fledged government to be established as quickly
as possible, preparations for elections need to begin now, starting with genuine
agreement on the legal framework for them.
49. It is ultimately up to the people of Iraq to take the decisions required on these
issues and to then implement them. They are more than capable of doing so. The
United Nations is ready to play a supporting role — in helping to facilitate political
consensus, as well as in offering technical advice on elections — if the people of
Iraq so request it, the Security Council mandates the Organization to play that role,
and appropriate arrangements are made to provide security for our personnel.
VII. Recommendations
50. The following are the recommendations of the present report:
1. As outlined above, a consensus exists in Iraq that elections are a
necessary step in the process of building democratic governance and
reconstruction. No one doubts the importance of holding elections. The
caucus-style system as it now stands is not practical and is not a
substitute for elections.
2. Credible elections cannot take place by 30 June 2004. Substantial
preparations are needed. Elections should be prepared well and should
take place in the best possible conditions. Discussions held by the
mission at both the political and technical levels have established that
preparations will need at least eight months after a legal and institutional
framework has been established.
3. This implies that an agreement among Iraqi stakeholders on the electoral
legal framework should be reached as soon as possible so that
preparations can begin for the various operational modalities necessary
for the conduct of elections.
4. The mission was told that political agreement on the legal framework
may be secured by May 2004. In that case and provided that other
conditions are met, elections could be held by the end of 2004 or shortly
thereafter. Immediately after reaching the basic agreements, a precise
polling date that takes into account the specified time frame should be
established and officially announced.
5. The United Nations recommends that in order to start working
immediately towards a well organized electoral process that would result
in polling at the earliest possible date, an autonomous and independent
Iraqi Electoral Commission be established without further delay. Both
financial and human resources should be made available to this
Commission so that it can begin planning and preparing the process in a
timely manner.
6. Many Iraqis already agree that a single elected assembly should be
chosen through elections held by the end of 2004 or shortly thereafter,
with the dual functions of drafting the country’s constitution and at the
same time acting as the principal law-making body or legislature. This
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7. 8. 9. 10. course of action has many advantages and would be less of a financial
burden on the country.
There is also consensus among Iraqis that the 30 June 2004 deadline for
the transfer of sovereignty to a provisional government should be
maintained, and all parties should cooperate to meet that deadline.
The resolution of the timing of the election provides opportunity and
space for Iraqis (both those on the Governing Council and those outside
the political process) and the Coalition Provisional Authority to engage
in a more focused dialogue on the mechanism to which sovereignty will
be transferred on 30 June 2004.
The United Nations would be willing to offer its assistance to help build
consensus among Iraqis on the specific powers, structure and
composition of such a provisional governance body and the process
through which it could be established.
The United Nations would be willing to provide advisory services and
technical assistance to support Iraqis in their efforts to establish an
electoral legal framework and design and implement the various aspects
of the electoral process.
11. Security is of paramount importance, both for the success of these
processes and for United Nations participation. Discussions are already
under way with the Governing Council and the Coalition Provisional
Authority; those discussions need to be intensified to complete
arrangements for expanding United Nations activities in Iraq.
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Appendix I
Composition of the fact-finding mission
Ambassador Lakhdar Brahimi
Special Adviser to the Secretary-General
Ahmad Fawzi
Spokesman for the Special Adviser to the Secretary-General
Carina Perelli
Director, Electoral Assistance Division
Department of Political Affairs
Jamal Benomar
Special Adviser
United Nations Development Programme
Carlos Valenzuela
Senior Political Affairs Officer
Electoral Assistance Division, Department of Political Affairs
Sadiq Abu Nafissa
Senior Political Affairs Officer
United Nations Assistance Mission for Iraq
Sean Dunne
Political Affairs Officer
Electoral Assistance Division, Department of Political Affairs
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Appendix II
Technical report
I. Introduction
Background
1. The 15 November Agreement (hereinafter referred to as the Agreement) signed
by the Coalition Provisional Authority and the Iraqi Governing Council outlines a
transition plan to achieve sovereignty in Iraq. It provides for a transfer of power to a
provisional government on 30 June 2004, following the selection of a transitional
national assembly by 31 May 2004. The Agreement calls for the members of the
transitional national assembly to be selected through a system of regional caucuses.
2. However, following the signing and announcement of the Agreement, many
Iraqis opposed the caucus model, calling for the transitional national assembly to be
chosen through direct elections. Opposition to the caucus system was based on the
perception that it was open to manipulation and that the members of the transitional
national assembly would lack representative legitimacy. On the other hand, other
Iraqis expressed their deep mistrust of early elections, claiming that conditions were
not ready for a free and fair process. Consequently, a stalemate ensued that critically
undermined the acceptability of an Iraqi provisional government formed pursuant to
the approach outlined in the Agreement.
Fact-finding mission
3. Following a request from the Iraqi Governing Council and the Coalition
Provisional Authority to assist in resolving the stalemate, the Secretary-General
agreed to deploy an electoral fact-finding mission (hereinafter referred to as the
mission). The terms of reference of the mission called for an assessment on the
feasibility of holding direct elections and the determination of the time frame and
conditions required for conducting credible elections consistent with United Nations
principles and practices. The mission was further mandated to determine whether
there were other options within the time frame of the Agreement, acceptable to all
parties and guaranteeing a transparent and inclusive mechanism for representing the
will of the Iraqi people.
4. The mission was led by Lakhdar Brahimi, Special Adviser to the Secretary-
General, and was composed of seven members, including the Director of the
Electoral Assistance Division of the Department of Political Affairs as well as two
of its Senior Electoral Officers. The mission was deployed to Iraq from 7 February
to 16 February 2004. Over this period, the mission met with a range of interlocutors,
including Iraqi political, religious and social representatives, academics and experts,
as well as pertinent representatives of the Coalition Provisional Authority, ministries
and other foreign representatives.
Presentation of the report
5. While the general issue of the transition of power in Iraq is a political one, the
study and appraisal of the various modalities for a genuine and credible election is
conditioned by technical limitations. The present technical report constitutes the
contribution of the technical team to the general report to be presented by the
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Secretary-General to the Iraqi Governing Council and the Coalition Provisional
Authority, outlining the mission’s findings and recommendations.
6. Section II of the technical report studies in some detail the caucus model
delineated in the Agreement and the different options presented to revise it. Section
III analyses the possibility of direct elections being held before the 30 June 2004
deadline for the scheduled transfer of power. The final assessment in both section II
and section III points to the unfeasibility of either modality being implemented
successfully within the time frame. Nevertheless, the team noted that there was
broad agreement on the need to hold elections as the best way to guarantee the
representation of all Iraqi people in the new government and to ensure its necessary
legitimacy. Therefore, section IV examines the preconditions for credible
transitional elections and highlights the criteria for establishing an approximate time
frame for the preparations and conduct of such a process.
II. The caucus model
A. Regional caucus selection
The caucus as presented in the 15 November Agreement
7. The Agreement states that the members of the transitional national assembly
are to be chosen by regional caucuses. The plan was formulated in the belief that
direct elections before the 30 June 2004 deadline were not possible and that the first
democratic government in Iraq should be elected according to a new constitution
drafted by Iraqis. The proposed caucus model was also not without precedent in the
recent administration of Iraq. The caucus proposal built upon similar processes
employed at the provincial and local governance levels and was therefore viewed as
an approach with which Iraqis had gained some familiarity. In this light, the
selection of the transitional national assembly members through the caucus system
was seen as a preferred alternative to direct appointment by the Iraqi Governing
Council.
8. The regional caucus model was designed in four phases: (a) the appointment of
a 15-member organizing committee in each of the 18 governorates, using the
following ratio: five members selected by the Iraqi Governing Council, five by the
provincial council and five by the local councils of the five major cities of the
governorate; (b) soliciting nominations for candidates to the caucus; (c) selection of
the members of each caucus by the organizing committee, through a supra-majority
vote of 11/15 for a candidate to be accepted; and (d) the election of representatives
to the transitional national assembly by each caucus, using the ratio of one
representative per 100,000 citizens. All the regulations of the process were to be
included in the Transitional Administrative Law (previously entitled the
Fundamental Law).
Caucus model assessment
9. The caucus plan met with widespread opposition from numerous sectors of
Iraqi society following the announcement of the Agreement. The mission can attest
to the widespread resistance expressed by most people consulted during the mission
to the transitional national assembly caucus selection process. Also, it was clear that
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the initial assumption concerning the use of the caucus system at the local level did
not translate into its acceptance at the national level. Further, views about the caucus
model expressed to the mission consistently cited a lack of transparency and
simplicity, which in a context of overall mistrust compounded the general Iraqi
perception that the process was being manipulated. Fundamentally, by their very
composition the organizing committees were perceived as creatures of the Coalition
Provisional Authority.
10. The perception of the regional caucus process was in contrast to the explicit
policy of the Coalition Provisional Authority that it did not want to have a visible
role in the caucus selection or its internal workings. Nonetheless, the absence of
oversight bodies that might hear appeals and reinforce the perceived fairness of the
process created a situation in which the Coalition Provisional Authority might have
been forced to intervene. As each organizing committee was left free to “work to
achieve balance between the various groups” in setting its standards and criteria for
selection, and given that the term “various groups” was loosely defined, the
organizing committees could freely determine the relevant groups in their own
communities. This also opened the organizing committee to pressures from different
elites to be included in the list of the various groups that needed to be represented,
and compounded a widespread fear that the members of Iraqi councils (both at the
national and provincial levels) might exert undue influence over the organizing
committee and use it as an instrument for the exclusion of individuals and groups.
11. Moreover, a formula for proportional representation at the national level
cannot be worked out from the bottom up in an uncoordinated manner. This
approach might lead to overrepresentation of smaller groups and factions, potential
underrepresentation of citizens who define themselves as just citizens and the
consolidation of traditional and extremist groups’ power plays over the more
moderate ones. It might also lead to violence during the process, as the most vocal
will win at the local level, thus enhancing the volatility of the process and increasing
the perception that arbitrary decisions are being taken.
Lack of standardized approach
12. From a procedural point of view, the main flaw of the caucus model resides in
its lack of standardization, resulting in extreme decentralization and fragmentation.
There is no clear definition regarding the procedures to be used; therefore, there are
no nationally consistent procedures and the interpretation and application of intent
could vary widely from governorate to governorate. In this manner, the model
cannot guarantee its overall consistency and coherence. Since the model relies on
the total decentralization of criteria and delegating absolute decision-making powers
to the organizing committees in the 18 governorates, with no common criteria or
shared regulatory framework, it seems inevitable that the process would be
perceived as arbitrary and non-transparent.
13. The only formally shared criterion for the Agreement’s regional caucus was
the number of representatives in that “... each member represents 100,000 citizens
according to the general census”. This, in itself, also posed a problem, as the figures
of the last census (1997) are widely contested. Politically, it is to be expected that
local elites and by extension the organizing committee of each governorate would
push for an overestimation of their population. As noted above, there was no central
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organ or procedure to adjudicate disputes between the different organizing
committees in the “war of numbers” that would follow.
Caucus model: final assessment
14. Based on the prevalent concerns regarding its complexity and apparent
arbitrariness, the caucus model generated such widespread opposition that it seems
politically unviable at this stage. As it stands, it also appears that the caucus model
is no longer practicable within the stipulated deadlines. The time frame is already
very tight, barely allowing enough time for its implementation without any room for
unforeseen circumstances that could delay the process. The complexity of the
selection mechanisms would have required that preparation be well advanced at the
present time. The exercises on “refreshing” provincial caucuses have shown that
these are time-consuming processes that are often difficult to manage and implement
on a tight timetable. It follows that the selection of a transitional national assembly
through the caucus system is neither politically nor technically viable at this stage.
B. Caucus model revisions
15. In order to improve the caucus model, many possible modifications were
envisaged. Those revisions, which ranged from introducing modifications regarding
the role and make-up of the organizing committees to encouraging broader
participation, centred on resolving some of the major stumbling blocks of the
original proposal, in particular the lack of standardized approach, perceptions of
non-transparency and the vulnerability to manipulation.
16. However, the various administrative “revisions” of the caucus model in order
to make it more inclusive and participatory cannot completely alleviate its inherent
deficiencies. They would necessarily complicate its implementation, making it less
transparent to the public and requiring additional time to implement. The only
manner of substantially making the caucus model more inclusive and participatory
would involve turning the process into an indirect election mechanism, organized by
a non-partisan administrative structure with standard procedures defined at the
national level and applied universally throughout the country. Such a thorough
restructuring of the process would imply almost all the requirements of an electoral
system, falling short of a universal election. Under the circumstances, there is
clearly no time for such an endeavour.
17. Significantly, a number of options have been advanced that promote partial
elections to increase the legitimacy and credibility of the caucus. These proposals
fall short of direct elections, demanding almost as much preparation without the
virtues of a popular vote, and are also impossible to put into practice given the
current time frame. Among the options advanced are the holding of a referendum on
a slate of candidates at the governorate level; conducting elections for caucus
delegates; organizing direct elections from among slates of candidates; or finally,
implementing a system of cascading caucuses, a three-tiered elections model from
the bottom-up to the selection of regional delegates.
18. Another category of proposals are defined as “hybrid” plans, combining
caucuses and direct elections. One such plan, for example, called for elections in
Baghdad and other urban areas and caucuses in other parts of the country; a different
one called for elections in the “safer” areas (south and north of the country) and the
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use of caucuses in the “unsafe” areas (mostly the Sunni triangle). Not only are these
options detrimental to a perceived national unity but they also combine the
disadvantages of both modalities without resolving the major issues. In particular,
they do not address the major obstacles in preparing and organizing direct elections,
assuming that security concerns constitute the only consideration when deciding
whether early elections are practicable or not. In fact, as will be made clear below, a
number of additional elements are essential in considering the feasibility of a
transitional election, ranging from political agreements to technical and operational
considerations.
19. In conclusion, it is clear that there are no feasible options for substantially
revising the caucus model under the time frame adopted by the Agreement in a
manner that would respond to the political objections to the initial model or that
would be technically viable before the proposed deadlines.
III. Direct elections by 30 June 2004
A. Election versus appointment
20. Direct elections are widely perceived as the best means to elect an assembly
that is genuinely representative and has the legitimacy to appoint an Iraqi
government. The sensitivity of the current transition period stems from the presence
of an occupying power and the legacy of the previous regime, which have
intensified the demand for transparent and inclusive representation. As such, Iraqis
have expressed their desire to see a legitimate and sovereign Iraqi government as
soon as possible, which would be best achieved through elections.
21. There was broad acknowledgement by Iraqi interlocutors to the mission that
direct elections were indeed the best source of legitimacy for a representative body;
differences arose on the issue of timing, specifically on whether elections before the
deadline of 30 June 2004 were possible. The main supporters of elections before 30
June 2004 made the case that elections before the scheduled transfer of power were
not only desirable but technically and administratively feasible. A number of
documents were presented to the United Nations fact-finding mission in support of
this position.
22. The opponents of early elections claimed that early elections would be too
divisive and might ignite a civil conflict. They also claimed, however, that from an
administrative and technical perspective there was simply no time to organize
credible elections before 30 June 2004. Their argument is based on three main
considerations: the lack of an electoral law, the lack of a credible electoral register
and a security situation which does not allow for free and fair elections.
Electoral roll
23. The main supporters of early elections provided the mission with specific
answers to the concerns raised by Iraqis against elections by 30 June 2004. These
answers were reinforced by papers presented to the mission, prepared by a number
of scholars and officers of the Ministry of Trade, discussing the technical side of the
elections and highlighting possible means to produce a voter’s list. Their proposal
relied on the use of the “public distribution” (or ration card) database, used for the
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oil-for-food programme as the basis for deriving an electoral register. The eligible
Iraqi voters were classified into three categories: (a) those who have ration cards and
are included in the databases managed by the Ministry of Trade and the World Food
Programme (WFP) (with regard to inhabitants of the northern governorates);
(b) those outside Iraq; and (c) those that have no ration card and are not included in
the database. The proposal sought to manage these three broad cases in the
following manner:
(a) Of the first group (Iraqis registered in the programme) the proposal
estimated that the existing database managed by the Ministry of Trade contains
about 23.5 million registrations for the inhabitants in the south and centre of Iraq. It
was also asserted that WFP has records of 3.5 million registrations for the northern
governorates. The plan assumes that with the information on each registration it is
possible to derive accurate voters’ lists for those who are 18 years old and above
(about 13 million persons), even at the level of small administrative divisions that
could serve as electoral districts. Ministry personnel claimed that the rate of
accuracy of this database is very high, exceeding 98 per cent in the central and
southern provinces, while a similar accuracy could also be achieved in the northern
governorates. Ministry of Trade personnel further claimed that by using customized
database programmes, they would be able to further correct the records and remove
multiple registrations at the provincial and national levels;
(b) For the second classification (Iraqis abroad), the proposal calls for
registration and polling abroad. The registration of the Iraqi voters at designated
centres will be computerized and the data sent to the computer centre at the Ministry
of Trade, where checks against multiple registrations would be conducted. It was
claimed that if this system were applied the period of registration would require only
one month, while the subsequent process of checking multiple entries would last two
weeks;
(c) Finally, for the third classification (unregistered Iraqis), it was proposed
that a partial registration exercise for those excluded from the database would be
undertaken. This partial registration exercise was estimated as requiring one month.
24. Overall, the proposal offered a time frame for the establishment of the voters’
lists of about two months, including a one-month registration period (abroad and
within Iraq), two weeks for final checks on multiple registrations and two weeks for
the printing of the lists. It was assumed that the amalgamation of the different
databases (ration cards, northern governorate records and new registrations) would
be carried out during this period. Thus, according to the proposal, it would be
possible to have an electoral roll ready for elections before the proposed 30 June
2004 deadline.
Legal and institutional framework
25. In order to gain time, the proposal calls for the use of an old electoral law,
subjected to amendments as deemed necessary. The lack of political party regulation
is also considered a minor obstacle, as the proposed option is one of allowing
“individual candidates” (and not political parties) to compete in the election.
However, during subsequent discussions it was proposed that the 1960 Law of
Committees would be a suitable framework for political parties. In terms of an
electoral management body, the plan proposes a hierarchical structure as follows:
(a) a high election supervising committee (at the national level); (b) a main
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committee in each governorate (18 committees); (c) an organizing committee in
each district (104 committees); (d) a subcommittee at the village level (285
committees); and (e) electoral centres for registration and polling (30,000).
26. The proposal outlined that the membership of the various committees would be
in accordance with criteria set by the high committee that would be responsible for
supervising the election. The committees would then assign responsibilities within
their localities, select and train staff according to a plan approved by the high
committee, in cooperation with the Ministries of Planning, Trade and Interior. The
electoral centre (or polling centre) would be the smallest administrative unit in
charge of conducting the polling, counting the votes and transmitting the results up
the hierarchical structure. All the organizing activities would be subject to direct
field supervision on the pyramidal basis proposed for the electoral institutional
structure. Finally, the proposal calls for United Nations approval and supervision of
the process.
Security
27. The proposal also deals with security concerns, outlining the steps that would
guarantee a safe environment and the security forces necessary for successful
elections. The argument presented is that security does exist in most parts of Iraq,
and it could be brought to other places through specific measures on polling day,
using both Iraqi and Coalition security forces. Among the elements mitigating the
security concerns, the following issues were highlighted: (a) the patriotic feelings of
most Iraqis towards elections as a means for national independence and the
withdrawal of foreign troops; (b) the presence of new Iraqi security forces (army,
police, civil defence forces and site security forces) whose establishment and
training has begun under the supervision of the Coalition; (c) the presence of more
than 160,000 Coalition force personnel in most of the country’s provinces; (d) the
fact that a number of political forces and movements present in the political arena
have a popular base; (e) the influence of tribes that could be used to provide security
and make the elections a success; and (f) the influence of religious and secular
leaders.
28. The proposal also highlighted that a national high security committee would
need to be created to be headed by one of the members of the Iraqi Governing
Council or the Minister of Interior. The committee would include, among others,
representatives of the military, the police, the civil defence force, the force for the
protection of institutions, the security apparatus, the new intelligence apparatus and
the council of tribal leaders, and religious leaders and leaders of political
movements and forces or their representatives. Equally, a security committee would
be established for every electoral centre, including the local council, police,
“imams”, chief or chiefs of tribes in the area, women’s leagues and notables from
the area. A number of specific measures are proposed for polling day, including the
closing of all borders 72 hours prior to voting, the restriction of movement on
polling day etc. The possibility of having partial elections has also been raised, to
concentrate on “safer” areas, or of adopting a “staggered” approach instead of
having all-country elections in one day.
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B. Assessment: the electoral roll issue
29. One of the most delicate and sensitive issues connected with the direct election
refers to the need for a credible and updated electoral register. Not surprisingly, the
proposal seeking to justify the feasibility of elections before 30 June 2004 is based
strongly on the plan to establish an electoral register in time for early elections.
Census and public information database
30. Historically, Iraqis have relied on an electoral register developed from the
population census. The last census conducted in Iraq was in 1997 but its credibility
has been fatally undermined due to the perceptions that it was actively manipulated
by the previous regime. Further, significant movements of population have occurred
in the past several years due to the previous regime and the effects of war. Currently,
there is no electoral register derived from the census that could be updated for a
direct election in the time period envisaged.
31. Because the 30 June 2004 deadline does not allow for a dedicated voter
registration exercise, other options have been contemplated. The proposal of using
the public distribution database to derive the electoral rolls, presented by a group of
Iraqi scholars and experts, has commanded careful consideration. However, the
ration card system is not widely acknowledged as being credible, especially in the
south, where it was abused by the previous regime as a means of community and
social victimization. Also, anecdotal accounts were provided that fraud against the
system was a primary concern. While the public distribution system may be the
basis of a derived electoral roll in the future, the mission assessed that the required
process of amalgamating, cleaning and verifying the electoral roll could not be
technically or credibly undertaken before the 30 June 2004 deadline.
No electoral register
32. One possible option that has not been widely considered is that of not using a
pre-established electoral register. An electoral roll is a very useful tool for electoral
planning but it is not always a required one. In fact, faced with the option of using
an imperfect electoral roll, it is often recommended to go to the polls without an
electoral roll. If there were to be elections in the time period before the 30 June
2004 transfer of power, this would be the preferred option. Eligible Iraqis would be
able to vote anywhere in the country, with one of several documents that would
serve as proof of identity and eligibility, without the need for a previously
established electoral register. This option offers the possibility of registering voters
as they come to vote — in this manner, you could establish a roll to use post facto
controls and actually use them as a basis for future elections. But the polling day
would undergo substantial complications.
33. The choice of having an election without an electoral roll would, however,
condition some of the electoral modalities: for it to work, the representatives of the
transitional national assembly would need to be elected from a single national
constituency, along political party lists. From the discussions with the political
actors, this is a modality that does not seem to be a feasible one. Thus, the political
viability of this model is very low. Moreover, the no-roll model would probably
create a number of problems concerning credibility, as Iraqis are accustomed to the
electoral register and would consider elections without a register as “lower quality”
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elections. It therefore appears that this is neither a realistic nor a practical option for
the election of a representative body in Iraq at this stage.
C. Assessment: other considerations
34. The main technical aspect of the proposal deals with the establishment of the
electoral roll. Nevertheless, this is only one (albeit very important) step in the
preparation of the elections. A number of additional operations are necessary in
order to prepare credible elections. The proposal presented by the Iraqi academics
and public officers does touch (although marginally) on other operational aspects of
the electoral preparations: they mention the ballot design and printing, the allocation
of voters and an estimate of the cost per voter.
35. None of these issues are satisfactorily handled, however. In order to design a
ballot, many questions regarding the modalities of the election will need to have
been answered. In fact, it is necessary for the internal procedures, reflecting on the
modalities of nomination of parties/candidates, to be able to complete ballot design.
The allocation of voters is also a problematic issue, one of the most important ones
for any electoral administration; but again the matter is solved by “common sense”
instead of a rigorous allocation method, which is likely to create immense problems
on polling day. An approximate cost of the election per voter was offered as
US$ 5 per voter, without specifying the basis of the estimation. However, this
estimated cost (of US$ 5/voter) appears to be heavily underestimated for a first
transitional election that includes infrastructure development, recruitment, training
and a brand new electoral management body.
36. More fundamentally, the proposal does not recognize the sequential nature of
the operational preparations for a credible election: it explicitly states that most
operations can be conducted in a parallel manner in order to save time. For these
reasons, while presenting interesting proposals, the document cannot be considered
conclusive as to the feasibility of holding credible elections in Iraq before 30 June
2004. In fact, based on the experience of the United Nations and the analysis of the
situation, it is clear that elections before the 30 June 2004 transfer of power are not a
viable option. In order to be able to directly elect the members of a representative
body in a credible process the date of the election would need to be delayed beyond
the specified deadlines and the process would be required to fulfil a number of
conditions, regarding both critical path benchmarks (legal and institutional
framework) and the nature and modalities of the elections.
IV. Credible elections: preconditions and time frame
A. Introduction
37. The 30 June 2004 deadline under the Agreement is universally supported by
national and international actors as the date for Iraqi sovereignty to be transferred.
However, neither the caucus approach (including several proposed “revisions”) nor
direct elections are considered feasible mechanisms to elect a transitional national
assembly within the time frame. In this context, a preferred plan involves the
establishment of a transitional government that would serve as a bridging
mechanism until elections could be held.
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B. 24
38. Under this plan, a structure would be established with a limited mandate as a
“caretaker” government on 30 June 2004. The limitation on the period of office for
this provisional government would require the establishment of a clear time frame
for conducting elections as early as possible. The ensuing electoral process would
serve to establish a popularly elected Iraqi assembly, mandated to draft a
constitution and to legislate during the interim period.
39. An early definition of the electoral modalities and timetable would be essential
for this plan to work. As such, it is of the utmost importance to establish the
minimum time frame required to organize credible elections as early as possible. In
consolidated democracies, the time frame of an electoral operation can be readily
estimated, given existing legal and institutional frameworks. Similarly, as the
electoral institution is already in place and experienced, it is only necessary to make
minor revisions before implementing the electoral plan in accordance with fairly
precise time frames. In transitional situations, an electoral process usually needs to
start from nothing, defining and preparing the elements required to enable the
preparation and conduct of the process.
40. The approximate time frame for organizing transitional elections can only be
reliably estimated after three major conditions have been met: (a) a legal framework
is in place; (b) an institutional framework is in place; and (c) the required resources
are made available. Moreover, the time required for the establishment of these
preconditions is not easy to estimate, in particular because they involve generating
the political consensus necessary for the election to be credible. These
preconditions, as well as the elements of a possible time frame to conduct elections
as early as possible, are detailed below.
Political agreements and the electoral framework
41. An electoral framework defines the rules of the electoral race, reflecting the
fundamental political agreements reached among all concerned players. In
consolidated democracies, these agreements are generally enshrined in the legal
framework (constitution, laws and regulations) regulating the electoral process. In a
transitional context, characterized by the absence of a valid electoral framework,
those agreements have to be made anew. The modalities agreed then need to be
formalized, binding all actors to what will constitute the electoral framework for the
election. Without these basic political agreements, the electoral time frame cannot
be estimated or preparations for an election started in earnest.
42. Notable in transitional circumstances is a tendency for national actors to refer
to past laws which may or may not be applicable. The important issue is to
determine whether there is general agreement on the electoral modalities based on
negotiation and consensus, and if not how these agreements may be otherwise
brokered. It is essential that these early agreements are sufficiently broad and
principled so as not to create an impasse for the electoral institution. In this sense,
the electoral framework establishes the policy questions of the process but should
empower the electoral institution to determine how to implement these decisions. In
this manner, the electoral framework may be formalized through several means but
is elaborated through the regulations and procedures of the electoral institution.
43. The minimum electoral framework would include basic agreements on the
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electoral law and political party law. These fundamental agreements must address
four main questions defining the electoral modalities: What is to be elected? How is
it going to be elected? Who will be able to take part in the process? And who will
organize and manage the process?
What is to be elected?
44. If an elected body is to be representative, the basis of that representation must
be defined. The mission’s discussions revealed that there is a general consensus that
representation will be based on geographically defined areas. However, there was no
discernible consensus on the level at which that territorial representation would
occur, otherwise known as the “unit of representation” that defines the smallest
electoral district. In this regard, Iraqi actors offered a range of responses that varied
from expectations of national through sub-governorate levels of representation.
45. In terms of facilitating early elections, the bigger the unit of representation the
easier and therefore the faster it would be to organize an election. Conversely, the
smaller the unit of representation the more complicated the logistics of the election
and the more time required to prepare and conduct the process. In the Iraqi context,
the fact that the division of the governorates does not fully correspond to the
administrative structures (the Kurdish region being the obvious example) will
complicate matters and argues for a smaller unit of representation. As a final
consideration, should the choice for using electoral districts not correspond to
existing administrative divisions, an electoral redistricting exercise would be
required, which is likely to take considerable time and raise other political
complications in connection with credible population estimates.
46. Directly linked to the unit of representation issue is the size of the assembly
and the corresponding number of representatives to be elected. Through the various
interviews, the fact-finding mission ascertained that there is widespread consensus
that there should be a ratio of one representative for every 100,000 Iraqis. With an
estimated population of 27 million residing in Iraq, this would mean that the future
assembly would be composed of approximately 270 members. The associated
question is: How would the number of representatives correlate to the unit of
representation? If the choice is of a larger electoral unit (such as the governorates)
there is no question that each electoral district would have several representatives.
Alternatively, if single member districts are chosen (as several actors advised the
mission is the historical case in Iraq) it would be necessary to define new electoral
districts, which would necessitate redistricting as noted above.
47. In summary, one of the most sensitive issues requiring agreement among the
various parties is the unit of representation. In terms of electoral practicality, using
the larger established administrative units would be the most expedient option.
Nevertheless, the main issue is whether this option is politically acceptable and the
degree to which it would meet the expectations of the different Iraqi parties.
How will votes be counted for seats?
48. A principal concern for any election is the form of representation, translating
the votes cast into seats for representatives. Will a majority system or proportional
representation be used? If proportional representation is chosen, what will be the
formula used for the distribution of seats? Will there be a system of compensatory
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seats (favouring representation of minorities)? Will there be any quotas for
guaranteeing the representation of minorities?
49. The questions concerning the form of representation are intimately related to
the basis of representation discussed above. Historically, Iraq has used the
uncommon formula of the “block” vote, that is, a multi-member majority system.
Discussions with the various groups revealed a wide divergence between Iraqis on
the recommended formula of representation. On the one hand, several Iraqis
recommended the historical practice of using a majority system (although it is not
clear whether they were referring to a block system or a first-past-the-post system);
on the other hand, several insisted that a proportional representation system would
be preferable for the sake of reconciliation and inclusiveness.
50. If a proportional representation system were to be favoured, the basic unit of
territorial representation would need to be bigger rather than smaller. However, if
such a system were to be chosen, there would need to be further consensus to define
the formula to be used, as well as agreement in such matters such as thresholds,
quotas for minority groups and other related issues. Moreover, a proportional
representation system will naturally promote the role of political parties, while a
majoritarian system would give preference to individual candidates (the historical
modality in Iraq). As such, these considerations lead to the issue of who can take
part in the electoral process.
Who can take part in the process?
51. In any transitional election, a fundamental negotiation is to define the
eligibility criteria of the participants, underpinned by universal and direct suffrage.
For voters, it is important to agree on the basic criteria for the entitlement to vote.
International standards generally recognize citizenship, age and location as
appropriate criteria to assist in determining the enfranchisement. Despite the
seeming simplicity of these criteria, discussions revealed that the enfranchisement
definition was contentious among most of the mission’s interlocutors, with the
exception of age, which was generally agreed as 18 years.
52. The nationality laws in Iraq have historically been relatively restrictive,
especially with regard to the case of Iraqis who have adopted a second nationality.
The current status of the nationality law is not quite clear, with the Iraqi Governing
Council (many of whose members would not be considered Iraqi under existing
laws) having approved a new citizenship statute; nevertheless, the Coalition
Provisional Authority cannot sign the measure into law as it is bound by the Geneva
accords in these matters. In any case, if an electoral agreement is forged it will not
be necessary to legally resolve the issue of citizenship but political consensus will
be required so that the entitlement to vote can be clarified.
53. The location/residency criterion was also a sensitive issue in the mission’s
technical discussions. Primarily, the situation of Iraqis outside the territory, both
exiles and refugees, met with a range of reactions. Most of the mission’s
interlocutors insisted that Iraqis abroad should be entitled to vote, yet there was little
consideration as to the practical implications of such an option. Where and how
should they vote? And, more importantly, for which constituency should they vote?
This also introduced the issue of who is entitled to vote in which electoral district?
Should the whole of Iraq be considered a single electoral constituency, there would
be no problems in this regard; yet this is not the majority position, which, as
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explained earlier, expects some kind of territorial representation at a lower level.
With regard to Iraqis abroad, there would need to be a decision as to which
constituency they would be allowed to vote for: their place of origin (which would
create immense practical problems) or should a new specific constituency be created
to accommodate the representation of exiled Iraqis?
54. During the mission’s discussions, it was clear that there was no consensus as to
who is considered eligible to vote in a particular electoral district. A major theme
was that eligibility would depend on the place of birth of the voter, rather than on
the residence of the voter. This scheme raises a number of serious concerns, many of
them practical, but in some cases of sensitive political nature. Some Sunni
representatives were demanding that the population census of 1957 should be used
as the basis for eligibility since, after that date many people from the provinces
moved to Baghdad and should therefore not be allowed to vote for the capital’s
representatives. The more sensitive issue seems to be around the eligibility to vote
in Kirkuk and other areas, where forced Arabization took place under the former
regime. Some of the Kurdish representatives expect that before elections can take
place, exiles from Kirkuk should be allowed to return so they can vote in their area
and “new” Arab residents should not be allowed to vote in Kirkuk as they were
settled there under the regime. On the other hand, it should be noted that Arab and
Turkmen inhabitants of Kirkuk complain of persecution by Kurds.
55. In counterpoint to enfranchisement are the criteria that may permit legal or
administrative disenfranchisement. Under international standards, these are normally
persons deemed to have been found mentally incompetent, found guilty of certain
types of serious criminal offence or, in some countries, a serving member of the
national security forces. In general, discussions revealed that mental incompetence
was readily agreed upon; however, views differed with regard to criminal histories
and the status of security forces personnel.
56. Equally important as defining the rules for voter eligibility is to determine who
will be eligible to run for office. Before even considering the requirements for
nomination of candidates, it is important to look at the issue of participation of
political parties and their role in the nomination process. Some of the Iraqis
interviewed during the mission believed that historically the Iraqi electoral system
favoured independent candidates, without political party nomination. These Iraqis
posited that future elections should also reflect this approach, implying the adoption
of a majoritarian system and a diminished role for political parties. The proponents
of proportional representation were at odds with this position and asserted that
political parties should be the backbone of the process. In any case, the status of
political parties needs to be resolved, and the absence of a political party regulation
needs to be addressed. Moreover, these decisions will influence whether individuals,
political parties and/or non-political party organizations may nominate candidates.
Similarly, this will influence the formation of coalitions and independent candidates
leading to defining steps in the evolution of Iraq’s political spectrum.
Who manages the electoral process?
57. A major element in the credibility of an election is the quality of the electoral
authority, its perceived impartiality and its efficiency in managing the process. The
decision as to who will manage and supervise the process is a crucial influence on
the successful preparation and conduct of the elections. The definition of the
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electoral authority includes not only the electoral administration (responsible for
organizing and conducting the process) but also the electoral judiciary (in charge of
settling electoral disputes).
58. Formerly, the Iraqi elections were organized by the Ministry of Interior and
supervised by the judiciary. Again, many Iraqis point to this model as a historical
reference, but it is necessary for all actors to agree on this arrangement, and to be
satisfied that it will be an effective means to manage the process credibly,
impartially and efficiently. In many transitional elections, the issue of trust is of
primary importance, and therefore a model of a completely independent electoral
authority is preferred. While defining which of the different models for an electoral
management body is the appropriate one for Iraq, it is important that the electoral
authority should enjoy the trust of the actors and be a credible one.
C. Institutional build-up
59. In order to organize any election in Iraq in the near future, a credible,
independent electoral authority would need to be set up as soon as possible. While it
may not be necessary to have a full-fledged electoral administration up and running
before the beginning of the electoral process, it is of the utmost importance that the
basis of the electoral authority be in place and functioning in order to conduct basic
pre-planning, the elaboration of the electoral framework into operational procedures
and regulations, and to spearhead the implementation of the operational plan.
60. Not only is it necessary to set up the electoral authority but, it is equally
important to establish a functional electoral administration. This element is often
disregarded in the prerequisites for a transitional election, although it is a
fundamental one. To guarantee the success of an electoral process, the electoral
authority needs to be neutral and impartial; just as important, however, it also needs
to be effective. Elections constitute a complicated logistical and administrative
challenge, possibly the biggest logistical challenge a country can undertake in
peacetime. Setting up an electoral administration capable of conducting the process
implies massive recruitment and training of electoral personnel at both central and
decentralized levels. This is a task that needs to be advanced before engaging in the
implementation of an operational plan. It should be stated that having competent
people in an electoral administration is not enough; they must also be trained in new
procedures and modalities of elections. Further, the time to insert them in the
administrative structure needs to be adequately evaluated and taken into account.
61. Before the electoral process unfolds, it is also necessary to act in setting up the
structure that will assume the tasks of responding to electoral complaints and
settling electoral disputes. The resolution of electoral complaints may be vested in
either the judiciary, the electoral institution or in a quasi-judicial tribunal. Several
issues are considered essential in the design of this process, especially for national
elections, including (a) that there is equitable nationwide access to the electoral
resolution mechanism; (b) that the complaints are resolved in a nationally consistent
manner; and (c) that the body responsible is perceived as trustworthy and insulated
from undue political influence. Previous experience in Iraq highlighted that the
judiciary was responsible for overseeing the electoral process. A decision whether
this practice should be continued will consider the state of the judiciary during the
interim period, whether a new institutional design emerges for the organization and
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management of elections, and ultimately the political acceptability by the Iraqi
political actors.
62. To allow for the rapid implementation of an electoral operational plan there is
a fundamental need for the identified resources to be readily available. While
several aspects of an election may be conducted in parallel, there are also choke
points in the process which must be cleared before the process can proceed. To
allow for smooth transitions between the stages of an election early procurement,
recruitment, training and infrastructure development needs to be undertaken so the
operation can be carried out with a minimum of disturbance. This is extremely
important in transitional circumstances where logistical difficulties can be
misinterpreted as political manoeuvres, which undermines the credibility of the
electoral institution. Moreover, the cost of the first transitional election normally
requires a sizeable investment, which is especially the case if infrastructure costs,
security costs and a new electoral register are required. However, the cost of
subsequent elections is significantly reduced after the first process.
D. Electoral time frame
Operational requirements
63. An electoral timetable will of course depend on the modalities chosen for the
election: an election on a single (national) circumscription under a proportional
representation system using party lists will be easier (and quicker) to organize than
an election using a first-past-the-post system with a great number of single-member
districts. The issue of an electoral register is a sensitive one, and the option chosen
for the establishment of a credible electoral roll will affect the length of the process.
64. In terms of establishing a credible electoral roll, a number of different options
can be tried — historically in Iraq the electoral rolls have been derived from a
population census. This option is not feasible at this stage as a full census is
estimated to take up to five years, including preparation time. Moreover, the polling
allocation under this modality presents serious problems. Two other options are
available: either a dedicated voter registration exercise (the most credible) or
deriving the electoral roll from existing databases (such as the public distribution —
“ration cards” — database). Nevertheless, it is important to note that in both cases,
but particularly the latter one, a social validation period is indispensable — that is to
say, a period during which the initial data is exhibited to the public and corrected as
required.
65. But as mentioned above, the establishment of an electoral register is only one
of the necessary operations to prepare a credible election. Other required stages for
the preparation of the process include, among others, the definition of all electoral
procedures and the preparation of the necessary procedural manuals, the registration
of political parties and/or candidates, a regulation defining political financing, a
regulation concerning electoral campaigning, the accreditation of electoral
observers, the launching of a public information and voter education initiatives, the
procurement and assembling of electoral material (for the various electoral
operations), the mapping and choice of polling locations and assignments, and the
logistic preparation for polling, counting and tallying of the results. Furthermore,
should it be agreed to allow for out-of-country registration and voting for Iraqis
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abroad, a full operational plan will need to be designed and carried out for this
modality.
66. To a great extent, the technical requirements determine the time frame required
for elections to be prepared and conducted. In terms of time frame and from a
strictly administrative and logistical perspective, it is possible to estimate a generic
timetable for the elections. Nevertheless, the need for preparation time is
conditioned not only by the administrative and logistical requirements of preparing
the poll but also by the political imperatives to make the process a meaningful one
(such as allowing for the institutional development of political movements and
channelling of political will).
Security and other social factors
67. As elections are not exclusively technical processes, several sociopolitical
conditions are required in order to have credible elections with acceptable results.
The sociopolitical context will therefore also have a substantial impact on the
electoral time frame. In the current Iraqi context, a fundamental element hampering
the establishment of an atmosphere conducive to credible elections is the unstable
security situation. There is a need to have a secure environment to allow for the
necessary preparations to take place and ensure the integrity of voters, candidates,
parties, electoral staff and electoral materials.
68. Lack of security could lead to major disturbances undermining the
administration of the election, altering the established timetable and compromising
the overall credibility of the process. Just as important, however, is to have an
environment that allows for the respect of political rights of candidates, parties and
voters, ensuring free campaigning and a free choice. While transitional contexts are
not always the most conducive for credible elections, minimum conditions should be
ensured to allow for the process to be a successful one whose results are accepted by
all parties. Security is therefore a major conditioning factor in ensuring the
legitimacy of the process. The current circumstances, resulting in widespread fear
and anxiety among the population, are at present a major obstacle to the success of
an election. The existence of militias (especially if connected with political
movements) will also be a source of coercion and intimidation that would undermine
the political credibility of the exercise.
Minimum time frame
69. In countries with conditions and characteristics similar to those of Iraq, it is
possible to say that a minimum time for preparing a credible transitional election,
including a dedicated voter registration exercise, would take no less than eight
months from the time the three conditions presented above are met. That is to
say, by that time the political agreements need to have been formalized into an
electoral framework. Also, the basis of a functional electoral management body will
need to have been established and the necessary resources made available. Of
course, it is assumed that during that period the security conditions would have
substantially improved in a manner that would guarantee the integrity of the
electoral operations and the political credibility of the process.
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E. Conclusion
70. The timing of credible elections in Iraq will be principally influenced by
political, technical and security conditions. In the current circumstances and
anticipating continuing positive developments, elections in Iraq may be scheduled
eight months from the date that the necessary basic agreements, a functioning
electoral institution and resources are available. For example, a target date for
elections in January 2005 would necessitate these conditions having been met by the
end of May 2004. In the assessment of the mission, this would permit credible and
unifying elections in Iraq.
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