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Tunisian President Kaïs Saïed is due to present his constitutional reform project, a few days before the start of the campaign. The new text will be submitted to a referendum vote on July 25. A group of international lawyers strongly criticized the process of this reform, which crystallizes the fears of an entrenchment of an autocratic regime.
Illegal, illegitimate, and lacking in transparency. This is the verdict of the International Commission of Jurists (ICJ), an international organization campaigning for the rule of law and made up of dozens of judges and lawyers, on the constitutional reform process launched by the Tunisian authorities. In a document published on Wednesday June 29, the Geneva-based NGO calls on the Tunisian government to withdraw this draft Constitution, which would anchor the country in a presidential regime.
“This constitutional reform aims to codify the authoritarianism that has existed for a year already,” says Saïd Benerbia, director of the ICJ’s North Africa and Middle East program, referring to Kaïs Saïed’s suspension of constitutional order since on July 25, 2021. “The executive, legislative and judicial powers are not recognized as separate powers, but as simple functions”, he continues.
Presidentialization of the regime
The separation of these three powers, theorized in the 18e century to counter royal absolutism, is a cardinal principle of modern democracies. Kaïs Saïed suspended the legislative power by sending soldiers to block the Parliament on July 25th. The post of prime minister was then gutted, concentrating executive power in the hands of the president. As for the judiciary, it has suffered several blows, from the dissolution of the Superior Council of the Judiciary to the recent dismissal of 57 judges by simple presidential decree.
The Tunisian president justified each of his decisions by the desire to return power to the people, to fight against corruption and political incompetence. The holding of a constitutional referendum on July 25, 2022, followed by elections at the end of the year, are proof, according to the supporters of Kaïs Saïed, that Tunisia is still a democracy.
Guardrails in peril
Kaïs Saïed, a former professor of constitutional law, has repeatedly expressed his ideal vision of a democracy “from Carthage to the villages”, based on a direct link between local assemblies with strong presidential power. According to his reform project, the intermediate bodies and the national parliament would be reduced to the minimum, denounce the experts. The safeguards put in place by the 2014 Constitution to prevent any dictatorial drift – independent authorities on the organization of elections, the media or justice – risk becoming empty shells without any real power.
“The safeguards have already been emptied of their substance by the practice of power of Kaïs Saïed. He has completely revised the methods of appointments to make them bodies totally subject to the presidential will (…) He will do everything so that the president is predominant in the choice of the people who will sit in these so-called independent bodies”, affirms Vincent Geisser, researcher at the Institute for Research and Studies on the Arab and Muslim World (Iremam).
The conservative values of President Kais Saied on the moral order and social issues such as male/female inequality in inheritance or homosexuality should be reflected through ambivalent formulations, such as that on the role of Islam. The Tunisian President declared on June 21 that Islam would not be mentioned as a state religion in the next Constitution, but that there would be a text confirming Tunisia’s membership “in an Oumma [nation]whose religion is Islam”.
A way “to remove Islam through the door to reintroduce it through the windows”, notes Vincent Geisser, who expects the conservative vision of the president and his religious references to be present in several articles of the future fundamental law.
Beyond the content of this reform project, the ICJ deplores a process carried out in a hurry. The lack of real consultation before, during and after the drafting of the new Constitution calls into question, according to her, the democratic legitimacy of the whole.
The presidential initiative notably came up against the refusal to participate by many deans of law faculties, as well as opposition from the powerful trade union federation UGTT. The latter qualified the process at the beginning of June as “window dressing and devoid of any participatory notion”. “We were not consulted either directly or indirectly during the preparation and development of this program”, added Slaheddine Selmi, deputy general secretary of the powerful union, while the UGTT recalled its rejection in principle to the power grab by one person.
The low participation of Tunisians in the electronic consultation launched in the spring, with the expression of only 5.9% of registered voters, was not compensated by transparent discussions with representatives of civil society or political forces.
The ICJ denounces a purely and simply illegal process, because it does not comply with the reform rules enacted by the 2014 Constitution. The latter, marking the break with the Ben Ali era, had established a parliamentary regime with many safeguards, precisely to avoid the return of a strong man at the head of the country.
“A piece of paper”
The presentation of the final draft Constitution will be followed by a campaign between July 3 and July 25, the day of the referendum. Several political parties and civil society organizations have marked their opposition by calling for a boycott of the poll. The disenchantment of a large part of Tunisians after a year of political turmoil and economic deterioration could also encourage abstention.
“There is no quorum [seuil de participation] to adopt this Constitution, it could pass even if only 2000 people take part in the vote (…) If the government passes in force, it will perpetuate the institutional crisis in Tunisia”, underlines Saïd Benerbia, of the ICJ.
“This Constitution will only be a piece of paper compared to the practice of power which is increasingly authoritarian, personalized and presidential”, adds researcher Vincent Geisser. “It is not on the adoption of this Constitution that the ability of this regime to survive will depend – this text will be a symptom of the regime, but not its foundation”.