The Iraq Paradox: Minority and Group Rights in a Viable Constitution

30 Pages Posted: 22 Aug 2007  

Makau W. Mutua

SUNY Buffalo Law School

Abstract

On October 15, 2005 an Iraq ravaged by a civil war spawned by the 2003 American invasion and subsequent occupation voted to decide the fate of a permanent constitution for the country. Although many Sunni Arabs took part in the vote, the referendum lost in the three governorates where they form a majority. But the constitution was approved because opponents only succeeded in recording "no" votes larger than two-thirds in only two of Iraq's eighteen provinces, in effect one province short of a veto. A two-thirds rejection in three provinces would have doomed the charter and the transition to a regime more autonomous of the American occupation forces. However, Iraq teeters on collapse months after the referendum, national elections, and the formation of a so-called national government. Only a popularly legitimate accommodation of minority and group rights in a democratic constitutional framework, a virtually impossible challenge, can avert the disintegration of Iraq. The legislature, which is dominated by the Shia, ought to step back from the temptation of a theocracy, and instead look to equal protection and anti-discrimination norms for minorities as it constructs a lasting constitutional framework. Otherwise, the failure to address the question of minority and group rights will result in the disintegration of Iraq.

Keywords: Shi, Sunni, Iraq, Constitution, Minority, Group, Rights, Collapse

Suggested Citation

Mutua, Makau W., The Iraq Paradox: Minority and Group Rights in a Viable Constitution. Buffalo Law Review, Vol. 54, pp. 927-955, 2006 ; Buffalo Legal Studies Research Paper No. 2007-012. Available at SSRN: https://ssrn.com/abstract=1008528

Makau Mutua (Contact Author)

SUNY Buffalo Law School ( email )

626 O'Brian Hall
Buffalo, NY 14260-1100
United States
716 645-2311 (Phone)

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