Reengineering the 2014 constitution: Could it offer a way out of the crisis of government in Tunisia?

24 August 2021
Clockwise from top left: Abderrazak Al Mokhtar, Waad Zakaria, Essam Abdelshafy and Ahmed Driss. [Al Jazeera]

Al Jazeera Centre for Studies and Al Jazeera Mubasher held a webinar on Tuesday, 10 August 2021, to discuss current conditions in Tunisia following the president’s decrees of 25 July suspending parliament, lifting the immunity of parliamentarians, dissolving the government, declaring a state of emergency, and assuming prosecutorial powers. These actions polarised the domestic public; regional and international powers were similarly divided, some of them supporting the decisions, others opposed, and still others taking a wait-and-see stance.

The webinar featured three Tunisian researchers specialised in politics and law— Rabeh Kharayfi, Abderrazak Al Mokhtar, and Ahmed Driss —as well as an Egyptian researcher with expertise in politics, Essam Abdelshafy; the webinar was moderated by Waad Zakaria, a presenter at Al Jazeera Mubasher.

The speakers discussed three major topics: the domestic causes of the crisis; the role of regional and international actors in past and future developments; and the prospects for a solution and the shape it might take. The participants viewed the events from different perspectives and voiced divergent expectations of the future of the democratic transition in Tunisia.

Anticipating constitutional amendments

Rabeh Kharayfi, a researcher on constitutional and parliamentary law, said that when it comes to public policy and managing the affairs of state, President Kais Saied’s style tends to be unpredictable and enigmatic, making it difficult for observers to anticipate the future. “The only thing we know,” Kharayfi said, “is that we are currently living in two exceptional frameworks: the first set forth in Article 80 of the constitution, and the second based on the emergency provisions declared by the president on 25 July.” Both of these are incompatible with the ordinary operation of state institutions. The uncertainty also runs counter to some Tunisians’ demands for a roadmap that would specify and clarify steps for the present and future. Expressing support for the president’s measures, Kharayfi said that he believed they were necessary, explaining that political, economic and social conditions and the government’s capacity to meet society’s basic needs had descended to such a level that no other course was possible.

Addressing the concerns for Tunisian democracy raised by the decrees, Kharayfi believes they are overstated; Tunisian democracy is in fine shape and will suffer no future harm as a result.

Kharayfi also said that speculation about a regional or international role in Saied’s decisions is misplaced, arguing that states in the region and around the world were taken unawares and took a variety of stances on the move, alternately supporting, opposing or taking a neutral position.

Kharayfi located the roots of the crisis in the nature of the country’s post-revolution political system, which divides executive authority between the president and prime minister in an ill-advised way. In the coming period, he said, the president would introduce amendments to the 2014 constitution to transfer the prerogatives of the prime minister to the president, while offering more guarantees and authorities to the parliament to prevent the president from becoming a dictator. This, Kharayfi said, is the “second dose” the president referred to on the national vaccination day against Covid-19 on 8 August.

The hoped-for “strategic” solution

Abderrazak Al Mokhtar, a professor of constitutional law at the Tunisian University, concurred with Kharayfi on some points and disagreed on others. He agreed that political and social conditions in Tunisia had reached a deplorable state prior to the Kais Saied’s decrees. But he believes that the president used this situation to introduce measures that have thrown the country into a profound crisis, impeding in whole or in part the operation of state institutions and subsequently limiting the range of action and influence of all parties, including the Tunisian General Labour Union (UGTT), as they await direction from the president, the sole player on the landscape. Indeed, public debate on the state of exception has been relatively sparse, Al Mokhtar said, and as a result, it is not a social priority at the current time.

Al Mokhtar concurred with Kharayfi’s description of the constitutional nature of the current crisis, saying that Tunisia had combined the parliamentary and presidential systems while distributing constitutional powers and prerogatives asymmetrically based on dissimilar forms of legitimacy. So, for example, the president is elected in a general, direct election, while parliamentarians are elected based on a proportional system, giving rise to a conflict over legitimacies. The constitution envisions unconditional cooperation between the authorities of state, Al Mokhtar explained, but such cooperation was lacking due to structural and political factors. As a result, it created a political system that generates crises.

A second cause of Tunisia’s profound crisis is structural, according to Al Mokhtar, by which he means the state of party politics and mainstream political culture. Party politics are still fragile and not fully formed. What exist in Tunisia are less parties in the Western sense, he said, than “partisan manifestations” governed by a pre-revolutionary, reactive mentality, arising in response to authoritarianism and the challenges of the democratic transition. “Tunisian parties over the last decade have not absorbed parliamentary values, which has made them incapable of governance,” he said.

Another cause, which he labelled “contextual,” concerns the democratic transition. “We speak of Tunisia like it is an established democracy,” Al Mokhtar explained, “when it is in fact a nascent democracy.” The disjointed, conflicting process of democratisation typically generates a state of institutional fluidity within aging parties and the enervated state. All of this is an objective cause of the crisis of governance combined with constitutional and structural factors.

Al Mokhtar does not see in the constitutional court—which has yet to be created—a final solution to the crisis of the Tunisian political system. In his view, the court is a tactical, rather than strategic solution. In contrast, the strategic solution involves “overhauling the 2014 constitution and remaining within it.”

Popular legitimacy vs. constitutional legitimacy

Ahmed Driss, Director of the Centre of Mediterranean and International Studies (CEMI), did not significantly disagree with Mukhtar, but was not optimistic about the prospects for a near-term solution to the Tunisian crisis. “We are currently in a painful situation, a dark tunnel with no light in view,” he said; “the events of 25 July placed us in an untested situation with uncertain outcomes. While some hope to quickly return to constitutional and political legitimacy, our currently opaque conditions make this difficult in the short term.”

Describing the current state of country, Driss said that the social contract embodied in the 2014 constitution has been broken and that social divisions have brought the country to the brink of civil war. The heightened unrest on the street on 25 July only exacerbated the crisis and further narrowed horizons, preventing the parties to the crisis from coming together to envision a solution or a framework for a new social contract.

Speaking of what form he believes a new social contract might take, Driss said it would be individualistic and unipolar, driven by the idea of unilateralism defended by the president and expressed in his recent call with the French president, when he spoke of popular legitimacy versus constitutional legitimacy. In Driss’s view, this suggests a readiness to entirely abandon the 2014 constitution and embark on a new constitutional experiment or new politics that are not necessarily constitutional, but instead formed in part by the people or the street. All of this, Driss said, “means the tunnel is very long and very dark and makes the hope of returning to normal very distant.” This path seems more likely considering that some of the public is urging the president to take strict measures, such as placing certain people under house arrest, bringing to account those they view as corrupt, and perhaps even dissolving certain parties and associations. “Ideas are currently gestating in the president’s mind,” Driss said, “and we cannot anticipate the surprises to come.” Indeed, on the president’s visit to a vaccination centre on National Vaccination Day, he explicitly said that a second dose was coming, referring to another spate of exceptional measures. In other words, he threatened a second dose against “all the rot in Tunisian political life.” This suggests that he will embark on additional measures that will upturn Tunisian politics, which will not resolve the present crisis.

According to Driss, those encouraging the president to take stiff measures see it as an opportunity to be rid of their political competitors. They seem unaware, however, that they are encouraging him to embark on an experiment that may come very close to dictatorship. Despite Saied’s statements on numerous occasions that there will be no return to dictatorship, he may find himself pushed into instituting arbitrary measures.

Discussing the role of civil society (other than political parties) in resolving the crisis, Driss does not believe it will be as successful as it was in 2013. He asserted that it will be difficult for civil society organisations and non-party actors to play any role because parties are the representative organisations mediating between society and the authorities, and the president—currently the single most powerful figure—does not believe in the mediating role of civic organisations. This lack of belief is a contributor to the crisis, in fact, because it cannot be resolved without mediators. Any mediation seems now a very distant prospect despite the meeting between the president and civil society representatives the day after the exceptional measures were announced. The purpose of that meeting, Driss added, was to calm the situation, not to resolve the crisis; and the president asked none of these organisations to play any role. The most important of them, the UGTT, did formulate a roadmap and offered to cooperate with the president to find a way out of the crisis. The president, however, procrastinated and did not take up the proposal, thus further deepening the crisis. As such, Driss does not envision the UGTT playing the same role it did in 2013. It is instead awaiting the president’s decrees. What we see today is that the president may not consult these organisations. He appears to be moving ahead with his decisions and will work to implement them insofar as is possible. The break this time may be between the central authority and mediating organisations represented by civil society groups.

Driss continued that if there is still a role for civil society, it might be to pressure the president to adhere to the framework of constitutional legitimacy and avoid stepping outside the rule of law to confront the crisis. The president has perhaps achieved some rapid victories over his opponents—seen, for example, during National Vaccination Day—but what will he do when he needs to make decisions that require support to be implemented on the ground? In such a case, Driss said, he will need the support of the same civil society organisations he now disregards.

As to whether dialogue and political consensus could bring the country out of the current crisis, Driss said that dialogue might not be useful this time. The president tends to deal with parties and civil society in a peremptory way, heedless of others’ opinions and determined to pursue his own path. He has maintained the same individualism, rhetoric and lexicon for some time now, Driss added, as if preparing for something; and his decisions are pointing in the same direction.

Driss clarified another point in support of his view that dialogue would likely not be conducive to resolving the crisis: Dialogue with existing political parties, he said, may not be fruitful because the political system sought by the president may not be the same one wanted by these parties. For example, talk of grassroots democracy as an alternative to representative democracy is dismissed by all parties and political actors save the president. The problem, then, is less about the shift from the parliamentary to presidential political system than “changing the entire democratic system from the ground up.” He added that this idea not clear in the minds of either those cooperating with the president or the president’s opponents, particularly since the president has not discussed it systematically or presented a roadmap to achieve it or a vision of how it might be realised. In turn, Driss concluded, these are no more than conclusions drawn by analysts, which means that the current climate is not conducive to consensus. Moreover, many have already rejected the idea of consensus out of hand, and “I ultimately do not know what the alternative is if we do not move toward consensus,” Driss said.

Dispelling illusions

Among the three Tunisian researchers, one expressed confidence in the democratic process and minimised the president’s measures, another was more pessimistic, seeing no immediate light at the end of the tunnel, and the third fell in between these two poles. In contrast, Egyptian researcher Essam Abdelshafy, the director of the Turkey-based Egyptian Institute for Studies, said that events in Tunisia were part of a plan by regional and international states to derail the Arab Spring revolutions. These same parties led the counterrevolution in Egypt, Libya, Syria, Yemen and Sudan using various means toward the same end: to stop democratisation and keep the region in a state of dependency through authoritarianism.

Abdelshafy compared events in Tunisia with those in Egypt, seeing similarities between the two in the way some justified the Tunisian president’s decisions by citing the popular will. In this respect, he noted that social media networks are not a good barometer to gauge the popularity of the president’s decrees because they can be manipulated, and indeed are often used to this end by certain parties. Similarly, the absence of grassroots activities expressly rejecting the president’s decrees is not evidence of satisfaction with them; rather, the absence could be an expression of suppressed anger. Abdelshafy pointed to an attitude of “popular renunciation” of the entire political process. A more general state of anger may therefore be expressed through the lack of involvement in politics, since ultimately Arab peoples have been persuaded by the machinery of oppression used against them that these activities do not matter and cannot bring change.

Abdelshafy commented on Ahmed Driss’s belief that additional exceptional measures may be under consideration by the president, saying that things are already clear and the measures already delineated: Tunisia may have its own political peculiarities, he said, like Sudan, Morocco and Egypt; but even so, there is “a single recipe for counterrevolution in the Arab world.” This recipe calls for the same measures and policies, leaving implementation to the appropriate time in every Arab Spring country, whether these measures are a military coup, as seen in Egypt and Sudan, or a political coup in the name of constitutionalism, as seen in Tunisia. Since 2011, Abdelshafy said, there has been a counterrevolutionary alliance, its parties clear and well known. Some incidents witnessed in Tunisia, such as the attacks on Ennahda headquarters, mirror attacks on Muslim Brotherhood headquarters in Egypt in 2013.

As to the target of attempts to thwart democratisation, is it Islamist groups, as some believe? Abdelshafy said that the true target of political and military coups is not political Islam, but the democratic experiment in the Arab world. Islamist movements may be used to induce panic, but goal of the counterrevolutionary alliance is first and foremost preventing Arab peoples from expressing their political will or striving for freedom and democracy. The alliance supports authoritarian regimes to achieve its goals.

Abdelshafy concurred with Driss that the president has achieved rapid victories but that this will not continue in the future when he runs up against reality, as demonstrated by the case of Egypt. The Egyptian regime, Abdelshafy said, bet on projects like the new administrative capital and the construction of bridges; but there are genuine issues and problems it could not address in this way, which in turn led to increased poverty, deteriorating services and growing public debt.

Discussing foreign influence in the Tunisian case, Abdelshafy said that the foreign and regional factor had the most impact on all the transformations seen in Arab states. Here, he clarified that he was referring to certain international parties that directed regional parties to thwart the democratic transition and political transformation in these states. Abdelshafy disagreed with Kharayfi’s assertion that international assistance in the form of the Covid vaccine is evidence that these parties support democratisation and that the international community’s stances had become more neutral. On the contrary, Abdelshafy said, international attitudes have not changed: Initially, they supported the exceptional measures, not only on 25 July, but even before that, when Kais Saied visited Cairo in May and later France. This became clearer with the Emirati foreign minister’s visit to Tunisia in recent days.

Abdelshafy concluded with a discussion of the need to “dispel illusions and avoid misconceptions.” Among these illusions is the assertion that there are no grounds to fear for democracy in Tunisia. On the contrary, he said, Tunisian democracy is in genuine peril, facing a full-fledged coup, effected largely through the coup against the constitution and existing institutions and the consolidation of authority in the hands of the president, who has controlled every lever of the political process since 25 July.

The second illusion that must be dispelled is talk of the so-called Third Republic. Republics are not instituted so easily, he said, in a matter of days, weeks, or years; they require an underlying philosophy and legislative structure, as well as a clear vision orienting the system and its institutions, not to mention new generations who believe in genuine, consolidated democracy.

The third illusion, according to Abdelshafy, is contained in the question, “Which is better: a presidential or parliamentary system?” In his view, the issue is not whether it is one or the other or some combination of the two. There are numerous examples of political systems facing problems despite their different natures. The fundamental point is the nature of the relationship between authorities and the controls in place to regulate and consolidate a separation of powers, to ensure that no one authority can dominate the entire political process.

The webinar concluded with Abdelshafy’s final remarks. Addressing Tunisians directly, he implored them not to wait eight years as Egypt had before evaluating the current course of events. There are signs everywhere, he said, indicating that what happened in Egypt and Sudan is similar, if not a replica, of what will happen in Tunisia in a very short period of time.