Democracy cancelled: Tunisia’s new constitution
Tunisia’s 25 July referendum delivered a landslide vote for President Kais Saied’s new constitution – but on a very low turnout. The new constitution, which removes checks and balances on presidential power and downgrades the role of parliament, marks the latest phase in Saied’s ongoing mission to roll back Tunisia’s democracy and concentrate power in his hands. Further restrictions of civic and democratic freedoms seem sure to follow. Tunisia’s democratic international partners must exert more pressure if Tunisia is not to go the same way as North Africa’s other autocracies.
Tunisia’s President Kais Saied has got what he wanted: the referendum held on 25 July has granted him almost unassailable power. A further assault on human rights seems inevitable.
A roadmap to repression
The referendum took place on the first anniversary of the day Saied started his stealth coup: on 25 July 2021 he sacked the prime minister and suspended parliament. Since then his actions have been increasingly dictatorial.
Since September, Saied has had the power to rule by decree. He then detained several political opponents and others who called out his actions as a coup. This February, he dissolved the Supreme Judicial Council, replacing it with a body of his own choosing.
In March it was the suspended parliament’s turn to be dissolved, hours after it held an online session that voted to oppose the president’s measures.
In April, Saied found the electoral commission not to his liking, placing it under his control; the following month he appointed new members.
In June Saied sacked 57 judges, having introduced a presidential decree giving him the absolute power to do so. This move prompted judges to go on strike.
At the same time as all this, Tunisia pretended to the world that it was moving forward with its democracy through the development of a new constitution. Last December, under pressure from Tunisia’s international partners, Saied announced a roadmap towards the referendum and then parliamentary elections, due in December 2022. A process of community and online consultations was launched.
Political parties, which Saied blamed for dysfunctional governance when he commenced his coup, were excluded from the consultations. The process by which consultations were supposed to influence a draft was opaque. And then when the head of the committee writing the constitution, Sadok Belaid, handed in the draft, Saied simply rewrote it. Belaid condemned the text that has now passed into law. The consultation was evidently nothing more than a legitimising exercise.
Democracy means the separation of powers, checks and balances, and participation, but all of these have been cancelled by the president since July 2021.
It’s certainly a constitution that works in Saied’s favour. It confirms the president’s sweeping executive powers and diminishes the status of parliament. It effectively erases the separation of powers, giving him ultimate control over parliament, judiciary and army.
The president is free to appoint and dismiss the government, without need for parliamentary approval, and rule by decree when there is no parliament. The president can bring draft laws to parliament and parliament must give them priority. There is no mechanism to impeach the president. Key terms, including those relating to human rights, are undefined, leaving it open for Saied to interpret the constitution as he sees fit, with neither parliament nor judiciary able to challenge his interpretation.
The progressive and democratic 2014 constitution developed through a process championed by civil society, which prevented a backslide into autocracy and saw four Tunisian civil society groups awarded the Nobel Peace Prize, is dead.
Voices from the frontline
Amine Ghali is director of Al Kawakibi Democracy Transition Center, a civil society organisation aimed at promoting civil society’s contribution to democracy and transitional justice in Tunisia and the wider region.
At the start of the president’s power grab, some civil society activists who were fed up with problems we have encountered in the past few years, with an inefficient democracy, saw Saied’s move as a political attempt to correct the trajectory of our democracy. One of Saied’s early promises was to fight corruption and bad governance.
But as soon as the president revealed his intention to change the constitution, political parties, influential people and some civil society groups started to oppose him.
The most vocal and influential groups are critical of him, especially since the planned new constitution was shared with the public; they realised its aim is not to ‘restore democracy’, but rather attack it.
By examining the latest polls on President Saied’s approval ratings, he still has huge public support. But this is the result of his populism. He is a populist president and populism – at least in its early years – has many supporters. But once a populist president fails to deliver on their promises, they lose popularity and support. In Tunisia, we are still going through the early stages of populism.
The president and his regime don’t care about legitimacy. For example, when the national consultation took place months ago, it was a complete failure in terms of the participation rate. Yet President Saied used it as a justification to hold this referendum.
I am afraid to say that the next phase is quite scary because the president has the ultimate power to change laws without any checks and balances, in the absence of an independent judiciary, constitutional court and parliament.
Democracy means the separation of powers, checks and balances, and participation, but all of these have been cancelled by the president since July 2021. With an attack on the judiciary, we can count less on judges to be the ultimate defenders of rights and freedoms. Our democracy is probably at its worst level since the 2010 revolution that ousted autocrat Zine al-Abidine Ben Ali.
The human rights situation is worsening with the decline of democracy. We have witnessed several human rights violations, some of which reminded us of the kind of abuses that were committed during the early years of the revolution. The difference between that time and now is the absence of any accountability. The president hasn’t been held accountable for any decision he has made during the last year.
We feel the international community has left Tunisia behind. The international community is offering a very weak response to this attack on democracy and the loss of a democratic country.
In this way, they encourage the president to commit more violations. These countries are back to their policies of the past decades in prioritising security and stability over democracy and human rights in our region.
This is an edited extract of our conversation with Amine. Read the full interview here.
Divide and rule
Tunisia’s civil society remains divided, reflecting broader public divisions. Saied is a populist president constantly striving to present himself as on the side of the masses, capitalising on popular frustration with the fractious and inefficient multiparty parliamentary system he swept away. At each regressive move Saied has made, people have mobilised against, but also for, including in the run-up to the referendum.
Many civil society groups were originally prepared to give Saied the benefit of the doubt when he dismissed the prime minister and suspended parliament, seeing potential to restore the spirit of the 2010-2011 revolution. Many have since grown disaffected as Saied’s actions have become more blatantly dictatorial. But there remains division on the best way to respond: different groups organised separate protests.
Public support for Saied’s constitution is demonstrated by a vote provisionally announced as 94.6 per cent in favour. But both apathy and opposition are communicated by a low turnout of around 30 per cent; even this may be an artificially inflated figure. In many countries, referendums on sweeping constitutional changes require a minimum turnout, but Saied ensured no such provision applied.
Both tallies are subject to an appeals process that will see final official figures announced in August. But it’s clear that while Saied has got the change he wanted, it hasn’t come with legitimacy. A boycott campaign organised by the opposition undoubtedly had an impact. At the same time, many Tunisians likely stayed at home out of apathy mingled with political disaffection, and because Tunisia’s failing economy leaves them more concerned with eking out a living than presidential machinations.
Regardless of the reasons most didn’t vote, no leader should be able to claim a mandate for major change on the basis of a vote when 70 per cent of people didn’t turn up. If Saied truly wanted to bring the nation together and strengthen democracy, he would recognise a need to take stock, reconsider and consult more widely.
But Saied isn’t that kind of leader. As a populist he wants not to unite the nation but divide it, demonising his opponents to appeal to the section of the public that supports him. He will need to keep doing so as he fails to address his country’s economic problems.
He triumphantly declared the result to be the start of a ‘new republic’ before making clear his intent to continue stoking division, stating that ‘all those who have committed crimes against the country will be held accountable’.
It can be guaranteed this means his political opponents, and particularly the Ennahda party, which Saied has long targeted. But it will also mean others. Media freedoms are deteriorating. Violations of journalists’ rights have escalated since Saied’s coup, including through smear campaigns, detentions and violence when covering protests.
In May journalists protested about increasing state interference in public media following the detention of one of their ranks on anti-terrorism charges. On the day of the vote some journalists were prevented from reporting or experienced harassment.
The violent repression of the biggest protest against the referendum, held in the capital Tunis on 22 July, may also offer a clue of what is to come. Police used batons and teargas against protesters, arresting nine people.
Post-referendum, a president subject to zero checks and balances is free to continue the attacks. Civil society organisations are coming into the firing line. A proposed law will give the government the power to ban and dissolve organisations and block their funding. Who is to stop Saied pushing ahead with it?
With civic freedoms likely to become more stifled, the challenge falls to Tunisia’s democratic international partners, which pressured Saied for his roadmap towards a constitution and election. They should not be fooled by the trappings of consultation intended to disguise an authoritarian outcome of Saied’s design.
They must emphasise the need for progress on the restoration of democracy and respect for human rights in all their interactions with Tunisia. The country’s allies to the east – Saudi Arabia and the United Arab Emirates – have no interest in these. But it should matter to democratic states that Tunisia does not go the same undemocratic way as its North African neighbours.
OUR CALLS FOR ACTION
President Saied should commit to upholding the freedom of association and end his plans to change the law on civil society organisations.
Democratic states with good relations with Tunisia should pressure President Saied to reverse his attacks on civic and democratic freedoms.
International civil society should partner with and support Tunisian civil society groups that are under attack.
Cover photo by Zoubeir Souissi/REUTERS via Gallo Images