Editor’s note: This week, Lawfare is running a series of essays on federalist governance in the Middle East. This essay is the fifth in the series. Read the introductory essay here.
The effort to improve governance has become one of the defining struggles of Arab-majority countries. In recent decades, standards of living in many countries have stagnated or declined, and many citizens and observers have pointed to the constitutional systems of government as a major contributing factor. As policymakers and members of civil society debate solutions, decentralization (in some countries) and federalism (in others) have emerged as leading possibilities—particularly in the wake of the 2011 Arab Spring.
Motivating the focus on decentralisation and federalism is the fact that the Arab region is among the most unequal on the planet. Some countries (those with tiny populations and massive natural resources, including Kuwait) have among the highest GDP per capita in the world, while others (including Yemen and Sudan) suffer from extreme poverty. There exist vast disparities within individual countries as well: Capital cities plus one or two other major urban centers receive disproportionate amounts of public investment, leaving the rest of the population to mostly fend for themselves.
Many states in the region have debated the value of decentralization and federalism as a solution to these problems, but none have successfully adopted a constitution that satisfies those objectives. Some countries remain mired in internal conflicts partly caused by disagreements over systems of government. Other, more stable countries have made halting progress towards decentralisation, but that progress has so far failed to reap any major rewards for ordinary people.
Merits and challenges
Proponents of decentralisation and federalism point to three primary benefits they say will flow from a well-constructed deconcentrated system of government. First, they argue that elected local officials would be empowered to manage local interests through local rule-making, unhindered by the burdens imposed by ineffective central planners. The chairman of Yemen’s 2014 constitution drafting committee, also a former minister of justice, is a proponent of federalism in his country. He argues that the Yemen of his generation was governed by a “blind centralism” that created injustices that were both unbearable and senseless and should therefore be replaced. All decision-making—even minor issues, such as fishing permits for tiny villages—was concentrated in the hands of central bureaucrats, who were sometimes hundreds of miles away.
Second, proponents argue that a decentralized system would open up the possibility that parts of the country could be governed by the political opposition, instead of the same individual or group of individuals controlling all aspects of life. That could serve to detoxify national politics, which throughout the Middle East has been governed by a “winner takes all” attitude. Under a decentralized system, competition for control of the central government would be less crucial, as political groups excluded from national politics could run for election elsewhere and still hope to influence important policies.
Thirdly, those advocating federalism often suggest that decentralization and federalism have the potential to resolve long-standing disputes in divided societies. Arab-majority societies are highly diverse, ranging from Yemen’s historic city-states to Iraq’s ethno-sectarian communities. Many of these communities’ sense of identity is particularly heightened as a result of decades, and sometimes centuries, of persecution—which some argue makes federalism a suitable system of government.
Yet any effort in the region to deconcentrate power away from powerful centers will necessarily face political and material challenges. Many ordinary people throughout the region view federalism very negatively: Colonial legacies, including the devastating tendency by foreign powers to divide and conquer countries and communities throughout the region, weigh heavily in the popular conception of federalism. The descendants of those who suffered at British, French and Italian hands view attempts to deconcentrate power as yet another tool to sow division, which they view as tantamount to treason. The consequence is that it is now almost impossible to use certain terms publicly—which explains why legal theorists, politicians and constitutional drafters in almost all countries in the region have adopted an alternative term, “itihadi,” to replace the otherwise highly unpopular “federali.” As a consequence, opportunities to discuss the merits of federalism, decentralisation or centralism in public are limited. Non-specialists cannot hope to be properly informed on the subject in the absence of this dialogue, with the result that even those people who do support either system often do so for the wrong reasons.
More problematically, governments throughout the region see decentralization and federalism as a threat to their monopoly hold on political power, and are determined to prevent or slow any initiative that would deconcentrate power away from their hands. Whether ethnically and religiously homogeneous or not, governments throughout the region are unprepared to allow any significant territories to elect their own executive officials and set their own local policies. Everything has to be done through the capital, and the capital should have the prerogative to veto any policy change.
Finally, even in countries in which these threshold political difficulties are overcome, material difficulties will necessarily slow any attempt to federalize or decentralize government. Many countries in the region have a serious lack of human capacity in key areas, such as auditing, project implementation, planning and other issues. In Iraq, for example, capacity in these areas is concentrated in the capital and in a few other cities. Yemen, meanwhile, struggles with the lowest human development standards in the region, though its 2015 draft constitution establishes a very ambitious and complicated plan to federalize the country. In these circumstances, federalism and decentralisation could very easily lead to an increase in corruption and declining services.
Federalism in post-conflict environments
These dynamics have essentially frozen almost all efforts to move away from the centralized systems of government that currently dominate the region, even in countries in which state institutions have collapsed under the weight of longstanding despots who had monopolized all the levers of power. In Iraq, Syria, Yemen and Libya, state institutions suffocated their respective populations until conflict broke out. Reformers in all four countries suggested federalism as a possible solution to national divisions in the wake of conflict. But while the idea of federalism as a tool to resolve violent conflict and reconstitute states has a wide appeal, there are few successful examples to seek inspiration from.
Take Libya. Immediately after the fall of Muammar Gaddafi, the country’s first post-2011 administration began discussing various mechanisms of deconcentrating power away from the president. The interim constitution, which was adopted at the end of 2011, provided for a parliamentary system of government as a first step in that direction. The country’s east has historically been marginalized, particularly economically, and a number of groups emerged early on to lobby in favor of a federal system. Some ethnic minorities also expressed the view that a federal arrangement would give them sufficient autonomy to manage their own affairs. Others disagreed, with some favoring a more traditional form of centralized government as a means of guaranteeing national unity. These competing visions were a source of significant tension as Libya moved to draft its permanent constitution in 2014. An early draft of the constitution contained two proposals: the first was for a governorate-based system that would have introduced limited decentralization; the second would have established a three-region federation.
The final draft, which was published in July 2017 (but which has not yet been approved in a final referendum), therefore came as a major surprise. It proposes moving Libya back to a presidential system and establishing a weak form of decentralization that would place very significant tools in the president’s hands. It provides for the existence of governorates and municipalities but includes no information on what these local governments will look like, how they will function or what they will do. Almost everything is left for future legislation. This suggests that Libya’s Constitution Drafting Assembly has been unable to come to any final agreement on what powers the country’s future local authorities should have and has instead decided to defer the matter to the country’s future elected officials. Yet comparative practice, particularly from within the region, strongly suggests that when a state does not establish the fundamental basis of a truly decentralized system of government in its constitution, that country is very unlikely to be able to decentralize effectively.
Yemen set itself apart from other Arab Spring countries early on. In November 2011, its former ruling party accepted to negotiate a transfer of power (albeit only after significant pressure), and the country opted in favor of a national dialogue conference rather than early elections. While the concept might have appeared convincing early on, the manner in which it was implemented was so defective that it contributed to a worse outcome than the rest of the region. Considering its unique history, Yemen had perhaps the greatest chance of all countries to emerge as a federation—but that now appears uncertain.
Yemen’s transition suffered from a number of important issues, including the fact that the country never developed a convincing mechanism to debate and decide key elements of its federal system. The dialogue conference brought together 565 members, representing all of the country’s major political groups and civil society movements. The conference took it upon itself to discuss a large number of issues, ultimately reaching 1,800 separate decisions (the “outcomes”) on issues such as socio-economic rights, civilian oversight of the military and transitional justice, all of which were supposed to be implemented by the state. Members also discussed and adopted federalism as a system of government, without indicating what type of federal system should be adopted or debating its practical implications.
Many conference members complained that they were not permitted to have a meaningful debate on federalism by the conference’s secretariat, but in reality, such an unwieldy gathering was unlikely to ever be able to debate and reach agreement on a future federal system’s inner workings. Establishing a new federal system in a country like Yemen presents a large number of challenges, and requires a deliberative and complex approach that would have combined political and technical input over a considerable period of time with a view to designing an appropriate system for the country.
Instead, the process that actually did take place appeared mostly improvised, which encouraged many parties to challenge the process’ legitimacy. The issue of internal boundaries was particularly sensitive in Yemen (as it is in most countries). A presidential committee was composed in January 2014 to decide the issue. It met for the first time on Jan. 29, 2014 and issued its final report on Feb. 10, 2014, which caused many Yemenis to complain that the committee did not adopt a genuinely consultative approach.
The rest of the federal system, including financial arrangements, was decided by the constitutional drafting committee. The committee was originally supposed to be technical in nature and was only supposed to repackage the “outcomes” as a final constitution. Instead, the committee actually spent the bulk of its time and effort drafting from scratch intimate details of how the future federal system should function. That work took place behind closed doors and sometimes even in a different country, without any meaningful guidance from Yemen’s political forces. The drafting committee’s final draft provided for a number of important innovations and structural changes, including the establishment of a new regional police and a national revenue fund, among others.
These arrangements contributed to two consequences. First, Yemenis today still do not agree what a federal system for their country should look like. Many assume that the country would still remain highly centralized, while others expect that each of the country’s regions would be as autonomous as Kurdistan is from Iraq. These irreconcilable perspectives are likely to complicate any post-war stabilization effort.
Second, some of those actors who were not involved at the drafting stage and who did not agree with the outcome took to alternative means to scuttle the process of adopting the new constitution. The powerful Houthi movement shut down the entire process on the same day that the draft constitution was completed in January 2015. The breakdown in the constitutional process is one of the many factors that contributed to the current conflict.
Iraq commenced on its path to federalism in 1970. The Baath government adopted an interim constitution which recognized “the national rights of the Kurdish People and the legitimate rights of all minorities within Iraqi unity” (article 5). In 1974, the government adopted an “autonomy law for the Iraqi Kurdistan Region,” ostensibly to allow for the country’s Kurdish majority provinces to exercise greater control over their own affairs. The arrangements that the law provided were so stifling, however, that this self-governance never saw the light of day.
Cut to 1991. The aftermath of the Gulf War saw a no-fly zone enforced over Kurdish majority areas, which then grouped together to form the autonomous Kurdistan Region that governed itself separately from Baghdad for more than ten years; in addition, an internal civil war within the Kurdistan Region led to the establishment of two separate administrations. Following the U.S. and U.K.-led military invasion of the country in 2003, Iraq set about drafting a new constitution, which some in the Kurdistan Alliance hoped would lead to the establishment of a loose form of federalism. A new parliament was elected, which appointed a constitutional drafting committee. When a majority of the committee’s members pushed in favor of reestablishing a strong central state, the U.S. embassy conspired with a small number of parties to dissolve the committee and complete the process in secret, in complete violation of the agreed-upon procedural rules. The final arrangement provided for an asymmetric form of federalism, meaning that different parts of the country were given more or less autonomy from the center depending on circumstances: Provinces were granted nominally wide powers, and the full extent of the Kurdistan Region’s exceptionally autonomous form of government were recognized.
That arrangement did not receive a warm welcome. The politicians who took control over government immediately after the constitution entered into effect were deeply suspicious of federalism. Over the following ten years, in the vast majority of cases, these politicians’ statements and positions were largely based on the biases that they inherited from the highly centralized pre-2003 era. The constitution’s provisions on federalism were both alien and unclear to the bulk of Iraq’s politicians outside the Kurdistan Region, and those politicians naturally refused to apply them.
As a result, the country was administered on a strictly centralized basis. Even the Kurdistan Region, which managed to maintain significant levels of autonomy from Baghdad, was extremely centralized— causing officials in Suleimania and elsewhere to complain that every minor issue of policy would have to be approved by Erbil. Although provincial councils were directly elected on several occasions and governors were indirectly elected in every province, a 2008 law governing provincial powers (entitled the “Law for Provinces Not Incorporated Into a Region”) effectively stripped all of these offices of any authority. In addition, the federal government established ministries in a number of areas over which it had no or limited constitutional authority, including education and health care. Those ministries, which maintained offices in each of the country’s provinces, had the sole responsibility of implementing policy established at the federal level. The elected provincial authorities were powerless to influence the formulation of that policy or its implementation.
Since then, the law governing provincial powers has been amended with a view to granting more autonomy to Iraq’s provinces. According to the law’s current version, provincial authorities are now exclusively competent in a number of areas, including health care and education, and have the power to intervene in others, including security. The current government has negotiated a plan with provincial authorities to implement parts of the law by gradually transferring authority to the provincial authorities over a period of years. The plan faces a number of challenges, including resistance by a large number of Iraqi officials who do not believe in decentralisation as a matter of principle: many Iraqis recall that the great strides that their national health care service were made prior to 1990, when the country was heavily centralized. In addition, some of Iraq’s provinces have been neglected for so long that their governments have close to no capacity to manage hospitals and schools. Some Iraqis have complained that this decentralization has already contributed to a decline in the delivery of some services outside the capital.
The incremental approach
Policymakers in the rest of the region have been pressured to decentralize authority but have been broadly reluctant to do so. The United Arab Emirates (UAE) is the only partial exception: Its federal system has helped the country’s seven distinct regions coexist peacefully, which has contributed towards greater prosperity. But given the country’s unusually low population and massive natural resources, the UAE’s model is almost impossible to replicate elsewhere in the region.
Morocco, Tunisia, Egypt and Jordan were spared the worst of the Arab Spring. Each of these countries has either replaced or amended their constitutions, and all opted in favor of stronger decentralization than what had previously been provided. Constitutional drafters and policymakers in all these countries were aware of the international trend towards greater decentralization and wanted to be seen to be moving in that direction. They were also broadly aware of the major problems within their own countries and of the fact that people were expecting innovative and courageous solutions. Each of the new constitutional arrangements therefore committed to establishing a decentralized system of government, but left all the detail to subsequent law.
Egypt’s 2013 constitution serves as a good illustration: it stipulates that the state should be decentralized without providing any details on how local institutions will function. The result is that the country remains heavily centralized. The constitution holds that, “The law regulates the manner in which governors and heads of other local administrative units are selected, and defines their mandate” (article 179). In other words, the current system, under which governors are appointed and dismissed by the Ministry of Interior, will continue with no prospect of any change in the near future. The only saving grace is that local councils (which are elected) are empowered to withdraw confidence from the heads of local units (article 180), but those decisions can be overturned by the central government if they are considered to “damage the public interest” (article 181).
In addition, the 2013 constitution does not provide any indication whatsoever as to what governors and local councils will actually be responsible for. The 2012 constitution provided very slim guidance in that regard, writing that local councils would be responsible for “local facilities, economic, social and health-related activities, as well as other activities.” In comparison with modern constitutional systems currently being set up across the world, that level of detail was very wanting—but even that was too much for the committee that was responsible for drafting the 2013 constitution which removed any reference to a clear mandate for the country’s local administrations over any specific area of governance.
On the eve of the 2011 revolution, one in five Tunisians were living below the poverty line. Most of that poverty was concentrated in the center-west and southwest of the country, which explains why, in December 2010, the Tunisian revolution commenced in the country’s center. Partly in response, Tunisia’s 2014 constitution creates a stronger basis for decentralized government than its regional counterparts. Nevertheless, the constitution only partially departs from the patterns set by other countries in the region.
The constitution provides for elected local councils (article 133), which will enjoy “regulatory power” (article 134). In keeping with regional practice, the constitution does not indicate how local authorities’ executive bodies will be composed and also does not state what these local authorities are responsible for, leaving the matter entirely to subsequent law to determine. The constitution also does not provide local authorities with the right to raise revenue. It provides that funds are “transferred to them by the central government, [and that] these resources are proportional to the responsibilities that are assigned to them by law” (article 135). This arrangement essentially places the central government in firm control of all the state’s finances, which in turn provides the central government with a huge advantage in shaping local authorities’ policies. The constitution does introduce a number of innovations, including specific references to “participatory governance” and “open governance” and the establishment of a “high council of local authorities” as a representative structure for all local authorities (although close to no detail is provided about its powers and functions).
At 398 articles and 98 pages of text, the 2018 decentralisation law makes for very dense reading. It offers a number of new mechanisms designed to open up governance in Tunisia, particularly in its early sections. By way of example, it provides for the possibility of local referenda on local development plans, which can be instigated either by one-third of the provincial council, or by ten local residents who then must obtain the approval of two-thirds of the local council. The law also requires local authorities to be as transparent as possible when engineering their development plans.
While these mechanisms are undoubtedly positive, a full reading of the law suggests that local authorities’ powers are generally unchanged in comparison to the past and to regional standards. The law provides that local authorities will exercise exclusive, shared and delegated powers (article 234). The list of exclusive powers relates almost entirely to environmental issues, such as road maintenance, waste disposal and public lighting (article 240), which is generally consistent with regional practice. The list of shared powers includes a number of determinant issues, including the development of the local economy and the creation of local employment opportunities (article 243). Given that a number of Tunisia’s municipalities are suffering from employment levels that are either above or very close to 30 percent, economic development and job creation is clearly a priority.
The difficulty, however, is that the decentralisation law does not indicate what role local councils should play when exercising these “shared” areas. According to the law, the central government and local authorities must cooperate in exercising shared powers. The details of how that cooperation should operate in practice will be set out in forthcoming legislation that will be passed after the “high council of local authorities” (which has not been established yet) has an opportunity to issue an opinion on the matter (article 13). The difficulties are twofold: first, it could be years before the law is passed, and second, the new law may very well prevent the local authorities from playing a meaningful role in this key area. In the meantime, it is likely that local councils will be limited to managing exactly the same type of issues they were responsible for handling in the past.
The regional debate on how to improve governance started decades ago and accelerated in 2011 with the Arab Spring. With the partial exception of Tunisia—now considered to be the region’s only democracy—it has not yet yielded any clear benefits insofar as standards of living and service delivery is concerned. For progress to be made within countries in conflict, the warring parties will have to first agree to resolve their differences peacefully and then agree to a convincing mechanism to decide on a system of government. Elsewhere in the region, decentralisation may yet be part of the solution—but state institutions will have to significantly accelerate their efforts if they hope to reverse the same negative trends that motivated the 2011 uprising.