Tunisia dispatch: does the result of the constitutional referendum signal the end of the ‘Tunisian model’ of democratic change?
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Tunisia dispatch: does the result of the constitutional referendum signal the end of the ‘Tunisian model’ of democratic change?

Jihene Ferchichi is JURIST’s staff correspondent in Tunisia. She reports from Tunis.

Hello everyone, my name is Jihene Ferchichi, a Tunisian practicing lawyer and the holder of an LLM from the University of Pittsburgh in International Studies and Comparative Law. I will be reporting for JURIST on the state of rule of law in Tunisia, conveying the ups and downs of a young country managing its new democracy and trying to secure a non-arbitrary form of government and ensure a non-arbitrary use of power.

Many around the world will remember the injustice and the economic hardship that afflicted too many Tunisians in the latter years of the regime of Ben Ali, Tunisia’s president from 1987. Street protests from the interior governorates at the end of 2010 spread quickly and unexpectedly throughout the country and soon reached the capital, leading to the flight of Ben Ali and his family to Saudi Arabia on January 14th 2011. This was the beginning of the so-called “Arab Spring” wave of popular protests and rebellions that soon spread to other nations of the Arab world in the Middle East and North Africa.

Even though the overthrow of a dictator was a dream of many of these countries, following that path did not always bring the same results. Uprisings in different countries not only unfolded differently in terms of their relative violence, but they resulted in different types of transitions. The political history of the region is well known for one-man rule and dictatorship, resulting in degrading socio-economic situations. Here in my inaugural dispatch I’d like to focus on the particularity of the Tunisian model, the results of the Tunisian revolution after ten years of legislative, political and socio-economical choices, and consider whether the issuing of a new constitution is an answer to the hardship Tunisians are facing or just a way to escape tough economic decisions.

After the July 2022 referendum saying “Yes” to the new Tunisian constitution, many affirm the “end of the Tunisian model,” others simply assume that “many Tunisians voted away the democracy won in the Arab Spring.” The reality is way more complicated. 

There is no doubt that the transition to a democratic government after the revolution of 2011 was long and arduous and had tangible financial consequences. The protests in fact continued after the fleeing of Ben Ali as people tried to cut all ties with the old regime. On March 1st, 2011 the new Tunisian government led by Prime Minister Beji Caid Sebsi legalized Ennahda, an Islamist party banned under the Ben Ali regime, paving the way for it to enter candidates in future elections. The choice between two different approaches to transition to a new era had to be made: it was either  making adjustments, reviews and modifications to the old political system and legislation, or cutting all ties with the old regime, including its constitution, political system and legislation and building everything up from scratch.

The decision was clear: on March the 3rd, 2011 interim President Mebazaa announced that an election to choose a National Constituent Assembly would be held and that once elected, that National Constituent Assembly would be tasked with appointing an interim cabinet, drafting a regulation of public authorities and a new constitution. The decision was to start building the new Republic from the ground up. This was a costly and risky choice.

The first free and democratic elections to elect the National Constituent Assembly resulted in an astonishing voter turnout at nearly 70 percent of registered electors. The Islamist party Ennahda took 90 of 217 seats. In drafting a new constitution, tensions were naturally very pronounced as the main two views of the next Republic were that of the conservatives and of the progressives, i.e.  Ennahda and the secularist. Nonetheless, a constitution was finally adopted on January the 26th, 2014 by the Constituent Assembly by 200 votes to 12 with four abstentions, proving that the 2014 constitution was the fruit of a successful compromise. This resulted in the first peaceful transfer of power from one democratically elected government to another when Tunisia inaugurated the second President and second Parliament in 2019.

The 2014 Constitution provided for a semi-presidential system where the executive power was shared and exercised jointly by the President and the Head of Government and the legislative power was exercised by the people through the elected members of the Assembly of the Representatives of the People and referendum. The Tunisian Parliament under the 2014 constitution was unicameral and was elected for a term of five years.

But even though Tunisia’s executive and legislative branches were elected democratically, their practices were often reminiscent of the ancient regime. Public services were still slow and inadequate.

It is also important to note that efforts were concentrated on legislative and political reforms in a pursuit to establish a democratic system guaranteeing no return to dictatorship. However, no clear vision and true socio-economic reforms led to a degrading financial situation in the country, even though the clear demands of the revolution were purely economic and social. The poor felt poorer and the middle class felt burdened and barely survived through changing seasons.  Unwisely, various governments responded by further increasing public sector hiring and wages, adhering to the burdensome requests of various unions when the percentage of strikes reached unprecedented figures. All the governments failed to face the ever-challenging international economic situation and managed to deepen Tunisia’s foreign debt without creating or raising investments. As a consequence of such unfit and short-term responses, the dreams of the people were never fulfilled and many Tunisians were – and still are – rightfully in despair as the situation is simply getting worse and the inflation is reaching new levels.

A few years into the revolution with a shaking economy yet real progress in terms of legislations on independent institutions and on rights and freedoms, Tunisia had its second direct democratic presidential and parliamentary elections in 2019. Kais Saied, a candidate considered to be a political outsider and a social conservative, won the elections in the second round with 72% as people voted for the promise of an impartial man who would fight corruption and social injustice, thereby restoring the economy. However, the measures Saied would undertake would deeply affect not only the political scene but also the rule of law in Tunisia, and that for the worse.

President Kais Saied had a populist manner and promised to fight the cause of the recession, which he decided was the previous ruling political party, Ennahda. He then started a series of measures destined to exclude all and anyone against his vision of reform, considering the opposition traitors and outlaws. On July the 25th 2021, Kais Saied invoked exceptional measures citing article 80 of the 2014 constitution, suspended parliament and dismissed the government. He granted himself the exclusive right to rule by decree, before giving himself the mandate to change the constitution. Indeed Presidential Decree No. 117-2021 suspended much of Tunisia’s 2014 Constitution, assuming that the 2014 constitution was drafted by Ennahda and that the turmoil and the ever deteriorating socio-economic situation was mainly caused by the Parliament and Ennahda. This was a very superficial if not naïve and narrow-minded way to analyze the situation.

Saied then issued Decree-Law No. 11-2022, which dissolved the Superior Council of the Judiciary. That had been considered to be one of the many achievements of the 2014 Constitution, as it guaranteed the independence of the judiciary through supervision by an independent body that is composed largely of judges elected by their peers. Decree-Law No. 11-2022 also established the Provisional Superior Council, which, among others, conferred on the President the power to directly appoint some of the members of the Provisional Superior Council. Decree-Law No. 35-2022 on the other hand gave the President the authority to summarily dismiss judges, allowing him to dismiss 57 judges based on mere “suspicions of corruption and threat to the security of the country…” with other various crimes, which is another abhorrent violation of the judiciary independence.

One year later, on July the 25th, 2022, Saied organized a referendum for the adoption of a new constitution. This referendum was undertaken by Saied in his process to “correct the course of the Revolution.” This new constitution was in fact, drafted behind closed doors in a process entirely controlled by him. The Tunisian people were shocked to discover that the commission Saied publicly chose to draft the new constitution had its work set aside and that the draft published for referendum was entirely drafted by him. It is even more unbelievable to know that the decision to draft a whole new constitution was taken sole by Saied and there was no reasoning provided to the people to explain why that was necessary.

In its complete lack of a participatory approach the 2022 Constitution clearly carried the signature of Saied. Despite his campaign pitch“Say yes to save the State from collapse and achieve the goals of the Revolution. There will be no misery, no terrorism, no famine, no injustice, no suffering” Saied failed to gather the masses in favor of his project. People were deeply alarmed by the draft Constitution as well as the process that led to it; almost 3 out 4 Tunisians did not answer his call. Such a broad boycott and abstention resulted unfortunately in a “Yes” that carried the vote by 94%, with 5% for the “No.”

No constitutional referendum has ever passed with such a low turnout in the region or in the world, except for the 2020 Algerian constitutional referendum, which was boycotted by the opposition. In Tunisia the recent referendum has sadly highlighted the opposition’s inability to efficiently organize and unite. Beyond those disinterested in politics, even the anti-referendum camp was divided between boycotting the referendum and voting no.

The reality is that the drafting of the new constitution was the product of an illegitimate legislative process which excluded large segments of Tunisian society, and its passing constitutes a major setback for democracy, human rights and the rule of law in Tunisia. Saied’s Constitution, as many of his opponents like to call it, stands in stark contrast with the 2014 Constitution, which was adopted following a representative and inclusive process and which was widely considered to be one of the most progressive constitutions in the Arab world.

Unfortunately, the 2022 Constitution gives authoritarian powers to the President and reduces the role and independence of both the legislative branches and the judiciary. The parliamentary oversight mechanisms established under the 2014 Constitution are also eliminated. Parliament no longer bears the main responsibility to form the Government. Instead, it is the President who appoints the Government that implements the policies set by him and the Government is accountable to the President in doing so.

Any possibility of holding the President accountable for his actions as President is eliminated, which will inevitably contribute to an increasing culture of impunity. It is another significant step back from the 2014 Constitution, pursuant to which the Parliament could present a motion to remove the President in case of grave constitutional breaches.

The gaps and traps in the new system established by the 2022 Constitution are countless and can also be seen in the lack of accountability of the President of the Republic before other state bodies, a judiciary that has lost its power to become a mere service, and an abolishment of “local power”, although that was a keystone of the 2014 Constitution. In addition, the new text provides for key fundamental rights and freedoms, but tightens its grip with possible restrictions on those by law and introduces a controversial Article 5 setting forth Islam as the religion of the State. It is also worth mentioning that Kais Saied will retain his mandate, which theoretically enables him to run for two more terms according to his Constitution, i.e. until 2034.

The Tunisian people did not vote for Kais Saied or vote “Yes” for his constitution thinking they were voting away their democracy; they are still looking for the system and the individuals who will deliver their revolutionary dreams. What Said managed to rip apart during his mandate will most definitely affect the economy and pace of progress, but it will never alter the people’s desire to better their lives and the lives of future generations. As many before tried to change the world by themselves and failed, he will fail and leave a space for others who believe in participatory approaches, who are not scared to face true economic challenges with data-based analyses and strategies, and who can set socio-economic agendas and stick by them and be accountable to the people.

If you want to learn more about the evolution of the rule of law in Tunisia, please follow my dispatches on JURIST as I will be reporting regularly from now on.