19/07/22
Tunisia is preparing for a constitutional referendum set to take place on July 25, 2022, exactly one year after the country’s President Kais Saied set the country on an alarming trajectory. This explainer unpacks how Saied has spent the last year dismantling the independence of the judicial and legislative branches and expanding his executive authority, and details how he threatens to make permanent these steps in a new constitution.
One year of Saied’s ‘state of exception’
On July 25, 2021, Saied dismissed Prime Minister Hichem Mechichi, suspended the activities of the Assembly of the Representatives, and lifted parliamentary immunity; on July 29, he issued Presidential Decree No. 2021-80 to formalize these steps. Thereafter, he stated that he would head the executive branch alongside a new prime minister, who was eventually announced to be Najla Bouden.
On September 22, 2021, Saied declared that he would rule by decree virtue of Presidential Decree No. 2021-117 which suspended major constitutional articles and reaffirmed the previously-announced measures subverting parliamentary privileges. This step gave the president the right to rule by decree over various areas including the judiciary, the military, civil society associations, and political parties while exempting him from judicial review. Since then, Saied’s legislative and executive powers have continued to grow exponentially in the face of undermined oversight mechanisms.
These developments occurred as Saied planted the seeds for a “new political roadmap” that was rooted in a national narrative of fighting corruption and conspiracy, and holding “traitors” to account. As he did so, he declared that the 2014 constitution would no longer be valid and that the new roadmap would be based on “legal solutions” grounded in “the will and sovereignty of the Tunisian people.”
One of the steps to translate Saied’s vision into reality became the National Consultation Process, which took place between January 1 and March 20, 2022 and served as a stepping stone for the political and electoral reforms that were to come. The consultation proposed a series of questions, with specific pre-drafted answers regarding electoral, political, economic, educational, and social issues for eligible Tunisians to select from. Despite the fact that the consultation engaged only 508,000 participants, Saied declared the process a success and proceeded with his plan to implement its alleged input into next steps. Observers and experts critiqued the consultation for its low participation and methodology which resulted in unequal representation, particularly with regards to gender and region. Head of the Tunisian General Labor Union (UGTT) Noureddine Taboubi condemned the failure to inclusively involve national actors from the beginning of the consultation. In its latest urgent opinion, the Venice Commission, an advisory body of the Council of Europe that is composed of constitutional law experts, found fault in the president’s roadmap more generally and cast doubt over the possibility of arriving at a “constitutional synthesis” with a consultation that “ did not give rise to widespread popular support, as participation remained very little.”
In a step that further ate away at checks and balances more generally, on February 12, 2022, Saied dissolved the Higher Judicial Council (HJC) via Decree No. 2022-11. The HJC had been promulgated in the 2014 constitution and was the highest judicial oversight body in the state. Saied’s decree replaced the HJC with a Provisional High Judicial Council, retaining the same composition of the HJC, though altering the number of judges and the appointment process, and empowering the president to act as a disciplinary power and request removal of members. These changes tightened the executive branch’s control over the judiciary and expanded the president’s powers and influence. Months later, Saied would amend Decree No. 2022-11 with Decree No. 2022-35 on June 1, 2022, giving him the power to dismiss judges if they harmed the independence or the integrity of the judiciary; the amendments paved the way for the sacking of 57 judges, per Presidential Order No. 315-2022.
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Key takeaways from the constitution
Consistent with the unilateral approach that Saied has taken in setting forward the political roadmap and constitutional drafting process detailed above, the latest version of the draft constitution that Tunisians are set to vote on incorporates Saied’s narrative into the preamble. It claims that July 25, 2021 was a “correction of the Revolution’s path and that of history,” and that it will enable the country to move into a “new phase in history”—an expression Saied has used multiple times in his remarks and rhetoric. The preamble refers to the national consultation process and inflates its legitimacy, stating that “hundreds of thousands of citizens” participated.
Most significantly, Saied’s draft constitution seeks to create what has been described as a “hyper-presidentialist” system, where the president has extensive executive and legislative authorities, with little checks over them. The draft grants the president executive powers found in presidential systems, while also affording him legislative powers typically enjoyed by the head of government in parliamentary systems. While Tunisia’s 2014 constitution distributed these powers between the head of government and the president in a hybrid presidential-parliamentary system, Saied’s draft seeks to concentrate them, not only making the president the most consequential actor in policymaking, but also making him omnipotent, in a manner similar to the 1959 constitution.
Saied’s draft eliminates parliament’s ability to vote to impeach the president prior to adjudication by the Constitutional Court, as had been set forth by the 2014 constitution. Moreover, while the government had previously been accountable to parliament under the 2014 constitution, this draft makes the government accountable to the president, who will also enjoy the authority to appoint and dismiss the head of government and other government ministers. The new draft keeps the infamous Article 80 of the 2014 constitution—which Saied relied on to declare emergency measures under a state of exception. However, the provision is now found in the form of Article 96, which eliminates the temporal deadline to lift these emergency measures and the Constitutional Court’s ability to rule on the validity of said-measures. In eliminating these safeguards, Saied makes the provision identical to Article 46 of the 1959 constitution and further expands the president’s authorities
Also similar to the 1959 constitution, Article 116 of the new draft stipulates that in case of a second vote of no-confidence against the government, the president has the right to accept the government’s resignation or dissolve one or both chambers of parliament. Although parliament in theory can still pass a vote of no-confidence against the government—albeit with difficulty as it requires a two-third majority of both chambers—its oversight power has been further constrained alongside the president’s expanded authority.
In the new draft constitution, the president enjoys expansive legislative powers at the expense of a severely-weakened parliament. He has the authority to suggest draft bills, as well as the authority to issue decrees that enjoy the force of law during parliamentary recess periods or when parliament is dissolved. The draft stipulates that the president can also call for legislative and constitutional referendums without prior parliamentary approval. On the flip side, while parliament does enjoy the authority to draw up bills that are supported by a minimum of 10 MPs, it cannot pass legislation that touches on the president’s administrative powers or on financial issues. Important to note that until a sitting parliament is elected, Saied will continue to enjoy the legislative power that he has been exercising vigorously.
While the new constitution establishes the National Assembly for Regions and Districts as the second chamber of parliament, it does away with an entire chapter on decentralization, previously present in the 2014 constitution and heralded at the time as an important success. The draft instead stipulates that local governance will further be expanded on in the law, leaving the matter outside of the constitution and raising concerns that the president may further weaken local powers, including through future amendments to the Local Authorities Code and the Electoral Law.
The draft constitution also curtails the powers of the judiciary. It eliminates the single Higher Judicial Council that was elected and tasked to manage all types of judicial jurisdictions, and replaces it instead with three higher councils that will oversee each type of jurisdiction individually—the details of which will be left to the law; it does not guarantee their independence. Leaving this to the law, rather than protecting judicial independence at the constitutional level, creates concern that the judiciary’s role will be even further weakened down the line and its independence, further compromised. The draft dedicates a chapter to the Constitutional Court, separating it from that of the remainder of the judiciary, and changes its composition. Unlike the 2014 constitution, under which the Constitutional Court was selected by the Higher Judicial Council, parliament, and the president and was composed of judges and professors from different fields, the draft creates a court composed only of appointed judges based on seniority.
The draft constitution does away with a number of independent entities created by the 2014 constitution to act as safeguards for rights and freedom by establishing additional oversight over state institutions. The draft keeps only the Independent High Authority for Elections, albeit without specifying whether its members will be elected by parliament as had previously been the case. Though the draft does recognize and protect individual rights and freedoms, an unusually-constructed Article 5 sets forth the state as the sole entity responsible “to work, in the context of a democratic system, to fulfill the “maqasid [purposes] of Islam,” raising concerns about the state’s role in interpreting religion and on how this will manifest in practice. Civil society organizations have also raised concerns about the draft’s failure to explicitly prohibit the military trial of civilians.
Ultimately, Saied’s constitution threatens to enshrine a system of governance in which the president enjoys expansive and in many cases, unchecked authorities, while the legislature and judiciary become seriously constrained, functioning with limited, if any, independence and autonomy. The draft is a reflection of a process that has lacked transparency, inclusivity, and accountability since day one and that threatens to formalize the actions that were taken in an alleged “state of exception,” grounding Tunisia and the Tunisian people further in an alarming and undemocratic pathway.
https://www.dw.com/en/tunisia-votes-on-problematic-new-constitution/a-62556649
https://www.aljazeera.com/news/2022/7/23/popular-march-against-tunisias-new-constitution
https://www.washingtonpost.com/opinions/2022/07/18/tunisia-president-kais-saied-one-man-rule/
https://pomed.org/snapshot-yea-or-stay-away-kais-saieds-autocratic-referendum/
https://english.alaraby.co.uk/news/tunisia-unseco-envoy-sacked-over-opposing-judges-dismissal
https://www.lepoint.fr/afrique/tunisie-le-pharaon-de-carthage-24-07-2022-2484212_3826.php
https://arabic.euronews.com/2022/06/10/tunisia-judges-threaten-extend-strike-second-week-dismissal (ARABIC)
IAPL Monitoring Committee on Attacks on Lawyers 