Request to Postpone Kirkuk Elections

Dr. Youssef Mohammed Sadiq
December 9, 2023

Two lawsuits, Nos. 256 and 264/Federal/2023, were recently filed before the Federal Supreme Court, and were consolidated by the court. The contents of the two lawsuits stipulate a request to postpone the Kirkuk Provincial Council elections until the completion of the voter registry audit, in accordance with the first clause of Article (13) of Law No. 4 of 2023, the Third Amendment to the Law on Elections to the Council of Representatives and Provincial and District Councils No. 12 of 2018. The aforementioned clause stipulates the following points:
First: The Independent High Electoral Commission, in coordination with the relevant ministries (Interior, Health, Justice, Trade, and Planning), and a representative of each social component of Kirkuk Governorate from among the members of the Council of Representatives representing the governorate, shall audit the governorate’s voter records on the following basis:
A. Citizens registered in the 1957 census, with the exception of citizens of the Zab and Sarkaran districts, shall be included in the Kirkuk Governorate electoral register approved for the Council of Representatives or provincial council elections.
B. Returning deportees who have bypassed the Fact-Finding Committee pursuant to Article (140) of the Constitution or who will bypass its procedures in accordance with the applicable legal conditions and regulations.
C. Citizens residing in Kirkuk Governorate whose residence is proven through a ration card prior to 2003.

It is noteworthy that neither this clause nor the aforementioned article specify a timeframe for completing the required audit process. At the same time, the clause does not stipulate that the completion of the audit process is a condition for holding elections for the Kirkuk Provincial Council or the Council of Representatives. Therefore, the request not to hold elections in Kirkuk on the grounds that the audit process has not been completed has no legal basis.

On the other hand, the Iraqi Constitution specifies procedures for normalizing the situation in all disputed areas, including Kirkuk, which include the measures stipulated in Article (140) of the Permanent Constitution and Article (58) of the Law of Administration for the State for the Transitional Period. Therefore, any other measures that conflict with these two articles are inconsistent with the Constitution. In this context, the Federal Supreme Court decided in its Decision No.

(103/Federal/2019) on the unconstitutionality of Article (12) of the First Amendment to the Law on Elections of the House of Representatives, Provincial and District Councils No. (14) of 2019, which was similar to Article (13) of the Third Amendment to the Law on Elections of the House of Representatives, Provincial and District Councils No. (4) of 2023. The court’s argument was that it did not take into account the demographic and administrative changes made by the former regime in Kirkuk and other governorates. Therefore, any measures to normalize the situation in Kirkuk must be within the framework of Article (140) of the Constitution, rather than becoming a tool for electoral conflict between competing political parties.

Furthermore, clauses two and four of Article 13 of the aforementioned law stipulate that the results of the upcoming elections will not be the basis for any legal or administrative procedure to determine the future of Kirkuk Governorate, and that local government positions will be distributed fairly among the governorate’s components, not based on the election results. Therefore, there is no risk of any political force or component of the governorate seizing power and marginalizing others.

In light of all the above, the request to postpone the local elections in Kirkuk Governorate has no legal or constitutional justification. Accepting it will complicate the situation in this governorate, which has not held local elections since 2005, and will hinder the establishment of an elected and stable local government that represents and serves all its components.

: 264 / Federal / 2023
Argument Date: 2023:11:27
Plaintiff: Safwat Saleh Saber Bana
Defendant: Chairman of the Independent High Electoral Commission / In addition to his position
Subject of the lawsuit: Request for a ruling obligating the defendant, in addition to his position, to audit the voter registry in Kirkuk Governorate prior to holding the provincial council elections in Kirkuk, based on the provisions of Article (13) of Law No. (4) of 2023, the third amendment to the Law on Elections of the House of Representatives and Provincial and District Councils No. (12) of 2018, and requesting the postponement of the provincial council elections in Kirkuk until the defendant completes the audit of the voter registry.
Status of the lawsuit: Consolidated with 256 / Federal / 2023
Outcome of the lawsuit :
Case No.: 256 and its unified form: 264/Federal/2023
• Pleading date: 12:12 PM EST
• Plaintiff: Najah Hassan Ibrahim – Candidate for the Kirkuk Provincial Council elections.
• Defendant: Chairman of the Independent High Electoral Commission/Additional to his position.
• Subject of the case: Request for a ruling obligating the defendant to postpone the Kirkuk Provincial Council elections until the defendant completes his work of auditing voter records, based on the provisions of Article (13) of Law No. (4) of 2023, the third amendment to the Law on Elections to the House of Representatives and Provincial and District Councils No. (12) of 2018.
• Case status: Postponed as of 12/4/2023