UPDATE ON IRAQ'S DRAFT ELECTION LAW

C O N F I D E N T I A L SECTION 01 OF 03 BAGHDAD 001423 SIPDIS E.O. 12958: DECL: 05/06/2018 TAGS: PGOV PREL IZ SUBJECT: UPDATE ON IRAQ'S DRAFT ELECTION LAW REF: BAGHDAD 684 Classified By: AMBASSADOR RYAN C. CROCKER FOR REASONS 1.4(b) and (d). ¶1. (C) Summary: The draft provincial election law written by the Prime Minister's Office (PMO) has been sent to the Council of Representatives (CoR); it is expected to have its first reading on May 6. This draft, while somewhat better than previous drafts we have seen from the PMO, is still internally inconsistent, mixes majoritarian and proportional representation electoral systems, is vague on the methodology to ensure 25 percent female representation on the provincial councils, ignores minority representation, establishes special election centers for the military, bans political parties affiliated with armed militias and allows for rolling elections. The hybrid voting system in this PMO draft does not represent the consensus we have seen emerge in discussions with the CoR over the past few weeks, but we believe it will be altered during CoR deliberations on the law. Embassy and UNAMI legal and election experts are providing the CoR with substantial technical assistance in revising the draft. Provincial elections are the most important event taking place in Iraq this year, and they need to be done properly. We believe the Iraqis are genuinely committed both to getting the law right and to holding provincial elections this year. If they need a little more time to get the law right, we should not push them to pass a bad law simply to meet the aspirational October 1 date for holding elections which is mentioned in the Provincial Powers Law. End Summary. DOUBLE-HYBRID SYSTEM OF REPRESENTATION -------------- ¶2. (C) On April 27, the Council of Ministers (CoM) approved a draft election law written by the Prime Minister's Office (PMO). The law was then transmitted to the Council of Representatives, where it is expected to receive its first reading on May 6. The draft law is internally inconsistent, specifically in its description of the electoral system and associated vote counting methods. It appears the drafters have confused and conflated elements of proportional representation open list systems with those of majoritarian systems, particularly around the notion of how to treat independent and individual candidates. This has resulted in a double-hybrid system that mixes the majoritarian system of voting solely for individual candidates (first past the post) with a proportional representation, open-list system (seats allocated to parties based on the percentage of votes each party receives and individuals are ranked within the list according to the highest vote winners). The draft provides that the election shall be based on a "proportional representation system according to the open list," while the majoritarian element is interjected by stating that the election shall also be based on the "individual candidacy" system. ¶3. (C) This hybrid system tends to favor parties over individuals because candidates who are part of a party list and receive votes in excess of the minimum required to win a seat (which is determined by the total number of valid votes cast in a province divided by the number of provincial council seats) may "pass" those votes to other candidates on their party's list to enable them to meet the minimum and obtain seats on the provincial council. An individual candidate can only obtain one seat on the council; any of his or her votes over the minimum required to win are "wasted." To the extent that the draft does represent a deliberate choice and not just conceptual confusion, it is not surprising that this approach has come out of the PM's Office and so reflects Da'wa's preferences. Da'wa is the smaller, less organized of the two main Shia parties and does not have widespread grassroots support (reftel). One or two strong candidates on a Da'wa list could bring it more seats on the provincial councils than it would otherwise warrant. ¶4. (C) It is important to note that this choice of voting system does not reflect the consensus that UNAMI and the Embassy have seen emerge among party blocs in the Council of Representatives (CoR) during discussions over the past few weeks. The consensus that we identified was coalesced around the choice of a proportional representation, open list, single vote, system, with some provisions for individuals not affiliated with parties to run on a list composed of independents. ¶5. (C) In theory, the double-hybrid electoral system reflected in the current draft could work, but implementing it would extend the electoral timeline significantly. The voter education campaign would have to be well-crafted and detailed to ensure the credibility of the results. The ballots would be significantly longer, affecting the logistics of printing, storing and transporting them. The BAGHDAD 00001423 002 OF 003 vote tabulation period would have to be increased because of the complexities of allotting seats. That period is currently 45 days, which is already long enough to increase voter suspicion of election irregularities. The unrest in the 2005 national elections occurred during the prolonged tabulation period. Finally, the political outcome of such a system could more easily result in fragmented councils unable to govern effectively. International experts do not recommend this hybrid approach in nascent democracies in post-conflict countries. FEMALE AND MINORITY REPRESENTATION -------------- ¶6. (C) Moving from a closed list (which was used in the 2005 elections) to an open list system may result in fewer women to no women receiving votes. The draft law requires that every third person on a party list must be a woman, but also instructs the Independent High Electoral Commission (IHEC) to "take the necessary measures to ensure that women will receive 25 percent of the total number of seats allocated to the provincial...council." However the mechanism to accomplish this is not described. International experts and UNAMI recommend that a "best loser" approach be adopted, whereby the highest vote-getting woman would replace the lowest vote-getting man in each party list until 25 percent representation is achieved. ¶7. (C) Minority representation is not addressed, despite our understanding that the CoM voted to include such provisions in the draft law. CoR Speaker Mashadani was very clear with us on May 3 that he considers it essential that the law ensure that minorities are represented on provincial councils. In order to achieve this, the law would need to define what groups qualify as minorities for the purposes of contesting seats (groups such as Chaldeans, Assyrians, Turcomen, etc., are likely to be included); identify which provincial councils will reserve seats for minorities and by what criteria; allocate a number of seats for each group; and define the system for competing for those seats and the rules for nominating candidates. A separate set of regulations would have to be drafted for each province in which special minority provisions will be implemented, since each minority group does not have the same representation in each province. SPECIAL VOTING FOR IDPs AND THE MILITARY -------------- ¶8. (C) The draft law sets up special election centers for both internally displaced persons (IDPs) and the military. IDPs will vote in their current place of residence, but for the provincial councils in their place of origin. It does not explicitly address the issue of IDPs who would prefer to vote for the councils in their current place of residence. Establishing special centers for IDPs will obviate the need for all 6500 polling centers to have ballots for every province. This will ease transportation and tabulation requirements. ¶9. (C) The military and security forces are also required to vote in special election centers. For those serving outside of their home electoral district this could make sense as Iraq does not have a system of absentee voting. However, this sets a bad precedent as it gathers all of the votes of this one identifiable group together. For election law purists, special voting centers run counter to the secret ballot concept. MILITIA BAN -------------- ¶10. (C) Political parties and entities that posses an armed militia are banned from participating in elections. International experts and UNAMI believe this provision belongs in a political parties law rather than in an election law. It would also force IHEC, a technocratic agency, to make political decisions about which parties should be banned; decisions that would likely be challenged in court. In addition, while provincial elections are being touted as a path towards national reconciliation, this provision could potentially prevent major political groups from participating in elections. Efforts to convince the Sadrists that political engagement is preferable to military engagement could be undercut if they are banned from running for provincial office. ROLLING ELECTIONS -------------- ¶11. (C) This draft also provides for the possibility of rolling elections, stating that "The Council of Ministers may specify a certain day to conduct elections in every province BAGHDAD 00001423 003 OF 003 separately, and delaying them if required." This allows for the possibility that elections could be held only in those provinces where those currently in power expect to retain their power. For provinces in which a power shift is expected, the CoM could "delay" the election for security or other reasons without any intention of rescheduling them. Although the recent operations in Basrah may have colored the Iraqi public's view of the Sadrists, there is still a very good chance that ISCI and Da'wa will lose some provincial council seats to the Sadrists in parts of the south. If elections there were to be postponed, the resulting disenfranchisement of several provinces could lead to further civil unrest. NEXT STEPS -------------- ¶12. (C) Embassy and UNAMI elections experts are working in tandem and meeting with CoR political bloc leaders and committee chairs all this week to discuss the draft law, how to improve it, and how to make its language reflect their wishes. In the past two days, CoR Speaker Mashadani and Deputy Speaker Attiyah requested that Embassy and UNAMI elections experts walk them through the law; we did so in separate meetings with each, and highlighted the major issues for them. Both agreed that the hybrid system of voting described in the draft did not reflect the political consensus that had emerged during discussions amongst the political blocs. ¶13. (C) The CoR plans to hold the first reading of the draft law on May 6, and Attiyah told us that they aim to hold the second reading on May 8. Mashadani told us that on May 7 he would provide a room at the CoR and would "lock in" the bloc leaders there, with UNAMI elections experts, to hammer out consensus on the draft law. COMMENT -------------- ¶14. (C) We believe the double-hybrid system will not remain in the draft, and the ultimate outcome will be a proportional representation system where seats are allocated to parties based on the percentage of votes received, and the top vote-getters in each list will win seats on the provincial councils. Independent candidates will probably still have the ability to run, but may be grouped together in an "independent" list. On the troubling possibility of rolling elections, we believe Mashadani now understands that the security problems posed by holding elections at different times in different provinces would be significant, and that the elections themselves could lose credibility. In addition, international best practice would call for delaying the announcement of the election results until all provinces were able to cast ballots, thus creating an even larger credibility gap. ¶15. (C) Provincial elections are the single most important event taking place in Iraq this year, and will set a precedent for future national elections. They need to be credible and they need to be done right. Although we and UNAMI both publicly support the GOI's suggested October 1 date (mentioned in the Provincial Powers Law) for provincial elections, we should not hold inflexibly to that if it means pushing the Iraqis to pass a bad law. The negative consequences of a bad provincial election law will resonate in the political landscape for years to come. The Iraqis need to get this one right, or at least a lot more right than it is now; and they may need a little more time to do that. That would not be such a bad thing. The draft law says the election date will be fixed 60 days in advance. We and UNAMI believe late November/December is a more realistic timeframe for holding the elections. We are giving the Iraqis all the technical assistance that they are asking for in drafting the law, and we believe they are genuinely committed both to getting the law right and to holding provincial elections this year. Achieving both those goals will be a real step forward for Iraq. CROCKER