Enabling Legal Framework

GSP/Taqadum continues to provide technical assistance to the newly-established Legal Working Groups (LWG) on issues relating to the implementation of Article 45 of Law 21, as amended, and legislation that conflict with the concept of decentralization. GSP/Taqadum legal staff is also providing on-the-job training on how to review and analyze these laws and propose or amend legislation to provide an enabling legal environment for decentralization.

The key element in GSP/Taqadum’s efforts with Iraq’s legal sector is to support efforts to create an enabling legal environment that moves the administrative decentralization process forward in a legitimate and sustainable way. Through the diligent work of GSP/Taqadum’s legal team during Phase II (which ended May 31, 2015), in cooperation with provincial and central government entities, 35 pieces of legislation were identified to be in conflict with, or blocking implementation of certain aspects of decentralization and the transfer functions according to the mandate of Article 45 of Law 21, as amended. Currently, in Phase III, one of our goals is the removal of these blockages by harmonizing decentralization laws and regulations, which involves the drafting of new, and the amending of existing legislation to better align with decentralization.

The Law of Fining, No. 31, 2015, passed and effective as of September 14, 2015, replaces an older law, Law of Fining, No. 12, 2006 and in doing so, is the first law to be enacted that removes one of the blockages. It’s passing not only marks a huge step forward in Iraq’s decentralization process, but also represents a huge success on the part of GSP/Taqadum legal staff who have set a goal to work in collaboration with central and provincial entities to remove the conflicts on 35 laws (34 as of September 14) currently in blocking aspects of the decentralization implementation process.

The new law itself represents a significant advance in this process. Where the old law supported a centralized government structure and gave exclusive authorities to ministers, allowing them to impose fines on employees in cases where an employee’s actions (negligence, dereliction of duty, or violation of laws, regulations and instructions) caused damage to government property; the new law allows governors to exercise their authorities over all employees working throughout their respective provinces.

Youth and Sport officials and GSP/Taqadum’s Legal Specialist discussing the roles, responsibilities, and authorities between the Governor and Youth and Sport Directorates

The following are among the wide array of authorities granted to governors by the newly passed Law of Fining, No. 31, 2015, identifying them as the highest executive officers in the provinces, and responsible for taking legal actions against violators:

  • Forming an investigative committee to launch investigations of employees actions included in provisions of this law, with the aim of identifying: 1) who is responsible for causing the damages; 2) the value of the damage inflicted; and 3) and identifying the reimbursement amount
  • Issuing a decision regarding reimbursement based on recommendations of the investigative committee
  • Identifying the amount of reimbursement and mechanism of payment whether by cash or installments
  • The right to take legal action against the person(s) responsible for causing harm to public funds and refer them to the courts in cases where the act constitutes a punishable crime according to Penal Code of Iraq No. 111, 1969, as amended

“The new law supports implementation of decentralization and grants the governor wide authorities to safeguard public funds and hold accountable the employees who fail to fulfill their duties,” said Babil’s Deputy Governor, Hasan Mandil. “We thank GSP/Taqadum’s legal specialists who have been guiding us since the beginning through the legal challenges of this decentralization process.”

Indeed, this success can be traced back to November 2014, when GSP/Taqadum hosted a three-day, national workshop titled, “Legal Challenges to the Implementation of Administrative Decentralization.” This workshop heralded the process of working closely with high level central and provincial officials and legal staff to identify laws in conflict that were blocking the implementation of decentralization. Participants discussed laws governing the work of the Ministries of Health, Education and Municipalities and Public Works, as well as laws held in common by all ministries, with the goal of beginning to identify laws in conflict with decentralization. By the workshop’s end, the 35 laws were identified as being in conflict with administrative decentralization, and in particular, implementation of Article 45 of Law 21 of 2008 as amended.

After the conference, GSP/Taqadum continued this identification process by working with Provincial Council (PC) legal committees and hosting regional workshops held in cooperation with provinces where project legal staff presented the concept of forming a Legal Working Groups (LWGs) within each PC in targeted provinces to research, analyze and draft laws and regulations; and also to track the implementation of legislation.

There is no doubt, interest in GSP/Taqadum’s decentralization approach is growing across Iraq. The ongoing commitment on the part of the United States and USAID-Iraq, reflected in GSP/Taqadum’s 16-month extension, continues to be greeted with relief at all levels government – particularly at the provincial level. Admittedly, there is much to do before administrative decentralization becomes a working reality, and the process to get there is only in an infancy stage, with each next step created as the current step demands. There is also the horror of the Islamic State forces and threats of extreme violence that are part of Iraq’s everyday reality. Yet successes such as this one, act to bolster GSP/Taqadum’s work. We understand how decentralization will provide structure and processes, and build the capacity of the local government to better provide services to Iraq’s citizens – the key element driving our work and a key element to bringing security to Iraq.