Synthesis of the first panel of the 20th of January 2022 workshop day
By Victor Lachenait, Juliette Denis-Senez and Elyssa Koepp
The GI4T, in partnership with Johns Hopkins University (School of Advanced and International Studies; Bologna campus) and in collaboration with the Art Rue, organized a day of discussion dedicated to the assessment of the 10 year anniversary of the Tunisian Revolution and its prospects, especially post-July 25, 2021. This day was divided into 3 panels: one focusing on constitutional and political issues, the other on economic issues and finally the third on women and minority rights.
Within the framework of the conference ”2011-2021: A Revolution, a Constitution, Elections … Ten years later, where is Tunisia?”, we were honored to welcome Ms. Salwa Hamrouni (professor of public law), Ms. Salsabil Klibi (professor of constitutional law) and Mr. Slim Laghmani (professor of constitutional law).
Hakim Ben Hammouda introduced the conference by recalling the objectives of the Global Institute for Transitions and the concept behind this day of discussion with students from the Bologna campus of the Johns Hopkins University.
Retrospectives on the 2019 elections and the referendum scheduled for July 2022 – Slim Laghmani:
In order to understand the current political and constitutional situation, Slim Laghmani, constitutional lawyer and author, recalled the crucial political context of the first presidential term from 2015 to 2019. Béji Caïd Essebsi, the first elected president of the post-revolution Tunisia, governed under a presidential coalition called Nidaa Tounes. His death on July 25th 2019 precipitated the presidential elections by a few months. At this point in time, Tunisian politics faces (i) early presidential elections followed by the scheduled parliamentary elections, (ii) the breakup of the Nidaa Tounes coalition and thus (iii) no front for the fall 2019 presidential and parliamentary elections.
The former Nidaa Tounes coalition is fielding several potential candidates, and the Ennahda party is officially supporting its own candidate Abdelfattah Mourou. The 2019 presidential elections mark a turning point in Tunisian politics: the main traditional parties do not get past the first round. Indeed, the second round pits Nabil Karoui (Qalb Tounes) against Kaïs Saïed (independent). Here, Slim Laghmani points out that Kaïs Saïed presented himself as an almost unknown candidate who was highly mediatized since 2011 through his various appearances on broadcast news and his political activity marked by his opposition to the post-revolutionary process which he already considered to be at odds with the revolutionary movement. The Ennahda party bets on Kaïs Saïed success in the second round. The latter wins the election and, under article 76 of the constitution, takes an oath to ensure respect for the constitution and to represent the unity of the nation. At the same time, parliamentary activities are frozen due to the dispersal of the ranks of Nidaa Tounes, the creation of a new Troika (Ennahdha, al-Karama, Qalb Tounes) and the bipolarization of the Assembly between pro and anti-Islamists.
Given that the government legally emanates from the Parliament, the majority party (Ennahdha in this case) must then propose the head of government. However, given that its candidate did not win the confidence of the government, Kaïs Saïed, in accordance with the constitution, presented his own candidate Elyes Fakhfakh to become head of government. Yet, he quickly resigned after being legally prosecuted. The head of state then introduced Hichem Mechichi as prime minister, and the ministers who will accompany him. Slim Laghmani emphasizes that this candidate was the one who should carry the presidential project, but that the vote of confidence of September 2, 2020 relied on the votes of the new Troika, announcing for Kaïs Saïed a political betrayal.
Interpretations of the Constitution:
Kaïs Saïed’s mandate has been punctuated by interpretations of the 2014 Constitution.
1- On December 20, 2020, Kaïs Saïed announced that as head of state and therefore head of the armed forces, he is also head of the Interior ministry, since it has armed sections. Hichem Mechichi must therefore dismiss the Minister of the Interior on 5 January 2021.
2- On January 16, 2021, Hichem Mechichi wants to initiate a major ministerial reshuffle. Kaïs Saïed, who is opposed to it, is slow to receive the potential new ministers and considers that this reshuffle is not constitutional. He argues that (i) the head of state is not obliged to receive or appoint the ministers chosen by the head of government, (ii) a reshuffle is not necessarily subject to the confidence of Parliament (although this is the tradition since 2014) and (iii) some of the proposed potential ministers are corrupt. Thus, Hichem Mechichi refuses to put forward other candidates, dismisses the ministers in office and establishes an interim system to ensure the continuity of government activities. As an example, he himself assumed the position of Head of Government and Minister of the Interior.
3- On April 4, 2021, the Head of State refused to promulgate the draft organic law on the Constitutional Court, the objective of which was to make it possible to appoint constitutional judges and thus launch the activities of this institution. Kaïs Saïed considers that the Constitutional Court could only be created within the time limit set by the 2014 Constitution: as the one-year deadline has passed, he considers that there is no longer any possibility of electing a Constitutional Court.
4- On July 25, 2021, Kaïs Saïed declared a state of emergency by mobilizing the concept of “imminent danger”. As such, he suspended the activities of Parliament, removed parliamentary immunity and dissolved the government. According to Slim Laghmani, this is an interpretation of Article 80 of the Constitution, which however mentions that during a state of emergency, the Parliament must remain in permanent session.
5- By presidential decree, Kaïs Saïed grants himself legislative and executive powers as head of state. Thus, he grants himself the right to legislate by referendum even though this clause is not provided for in the constitution, appoints all persons to head state bodies, prohibits recourse to the decree-laws that he promulgates, and maintains in force only the first two chapters of the constitution. The other chapters can therefore be modified or suspended by the head of state; in particular, he suspends the constitutional court project and announces that he is preparing, with the help of a committee, plans for reforms and a balance of powers. On November 18, 2021, he announced (i) an electronic consultation, currently underway, whose objective is to collect the grievances of the people and (ii) the lifting of certain laws, including Law 38 on the unemployed for more than ten years.
Finally, on December 9, 2021, he announced that the 2014 Constitution can no longer function and lacks legitimacy. As such, he plans to hold a referendum on July 25, 2022, as well as legislative elections in November 2022.
Retrospective since 2011 – Salsabil Klibi
Salsabil Klibi insists on the need to look back at the democratic process started in 2011 to understand the current issues and possible ways forward.
The Tunisian particularity in the democratic transition
January 14, 2011 was the date of the escape of the head of state (Ben Ali): a symbolic date, but one that was not synonymous with the fall of the system. From January to March 2011, the fate of the 1959 Constitution was unclear: Salsabil Klibi emphasizes that a decision had to be made as to whether the democratic transition could take place within the framework of this constitution or whether it should emanate from a new text drafted by the revolutionaries. Initially, the choice was made to work within the legal framework of the 1959 constitution. Following multiple sit-ins in the Kasbah Square and popular mobilization, the government announced on March 13, 2011 the desire to create a new constituent assembly to draft a constitution detached from past authoritarian excesses. This democratic transition had the particularity of being framed and made dynamic by two ad-hoc bodies. The High Authority for the protection of the objectives of the Revolution which was in charge of revising all the texts related to freedoms and expression; the Higher Council of the democratic transition whose members, although they were not elected, were representative of the objectives of the Revolution because they emanated from the civil society in opposition and resistance to the regime of Ben Ali, and in particular from the great national institutions like the UGTT and the various regions. This body voted informally on draft laws and transferred them to the interim president, who could not oppose them in view of the legitimacy it had. Thus, bills were passed on the creation of an independent electoral administration to oversee the 2011 Constituent Assembly elections (still in effect to certify the transparency of the elections), on gender parity and on the new proportional representation voting system for the Constituent Assembly. The particularity of the Tunisian democratic transition lies in these legitimate institutions responsible for representing Tunisian diversity and implementing democratic transparency.
2014: an ambivalent constitution
The Ennahda party won the majority of seats in the constituent assembly: Salsabil Klibi nevertheless emphasizes the presence despite their splintering of “modernist” forces. However, the constitution could not represent Ennahdha’s interests alone because the large national organizations and associations acted as a counterweight. The 2014 constitution contains ambivalent and even contradictory measures, due to the fact that it was drafted by different political forces as well as by the pressure of popular mobilizations. As an example, Salsabil Klibi points out that “the street” won constitutional victories such as (i) not listing women as “complements of men” but as their equals and (ii) not listing sharia as a source of law in the constitution.
After July 25, 2021 – Salwa Hamrouni
Salwa Hamrouni highlights the ambivalence and contradictions of the constitution on many points to explain the critical attitude of jurists toward it.
Control of counter-powers
She points out that the proportional voting system determined for the constituent assembly was also maintained for the composition of the parliament. As such, this assembly benefits from a better representativeness but is also subject to instabilities and a tendency for politicians to shirk their responsibilities. Salwa Hamrouni also highlights the desire of political parties to take control of bodies initially designed to be counter-powers, such as the media or the national bodies that have worked for the democratic transition. Each new appointment at the head of these bodies gives way to a “war of the parties” who organize themselves to share out the various portfolios: thus, the games of alliance and influence of the political parties are also found in the bodies supposed to represent civil society in its broadest sense.
Conspicuous absence of a constitutional court
The absence of a Constitutional Court is an obstacle to the advent of democracy. Salwa Hamrouni recalls that the political figures in office since 2011 were fully aware of the deadlines imposed and the need to set up a Constitutional Court. The latter would have indeed allowed to supervise the various governmental actions, to manage the relations between the different powers, and thus to prevent the political crisis in which Tunisia is currently.
The decree 117 announced by the head of state only mentions article 80 of the constitution, according to which the president has discretionary power in defining “danger”. As such, Kaïs Saïed applies it to internal dysfunctions and not to an external danger that could constitute an invasion or a natural disaster. He legitimizes this choice by the first two recitals of the decree dealing with the expression of the sovereignty of the people, which he considers impossible in the current political framework.
Article 3 of the Constitution provides for the possibility of resorting to referendums, within the framework of a preliminary consultation of the institutions. However, according to Kaïs Saïed, the 2014 Constitution no longer has legitimacy. The question of amending the Constitution then arises: to remain within the current legal framework and modify it from within, or to decide that it no longer has legitimacy and work “outside the framework”. If the contradiction of certain constitutional provisions raises questions, Salwa Hamrouni emphasizes that the legitimacy of the text cannot be questioned in view of the way it was drafted and adopted. The state of exception allows, by definition, the possibility of a change in the division of powers within the authorities. Article 22 provides that the head of state shall present his reform project with the help of a commission organized by presidential decree: thus, the commission must help to implement the presidential will by means of technical and legal tools as well as by the knowledge and know-how of its members. The objective of Kaïs Saïed is to reach a “true state of democracy”.
A political project in progress but with no visibility
Salwa Hamrouni recalls the presence of gray areas in the presidential project: first of all, what is meant by the notion of true democracy, but also what is the exact outcome of this work, what projects will be announced, what legislative power will be in charge of revising the Constitution if necessary. Finally, she emphasizes the importance of a parliamentary majority and a constitutional court in order to effect change within a constitutional framework. Indeed, should the head of state decide to operate outside the framework following an announcement of the ineffectiveness and illegitimacy of the current constitution, he would be exposing Tunisia to several risks, including that of creating a precedent. This practice would in fact authorize future rulers to set aside the Constitution if they judge that there is an institutional blockage or a “bad” Constitution; this last option would be all the more legitimized by Kaïs Saïed’s decision to operate outside the framework with a committee created by himself in order to carry out his project. Salwa Hamrouni highlights the inevitability of interpretations of the Constitution, but still warns against the risks of operating outside the constitutional framework.