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A year ago President Kais Saied announced his plans to reshape Tunisia’s constitutional and political future. What ensued – suspending parliament; dismissing and reappointing cabinet members including the Prime Minister; and dissolving the High Judicial Council (Conseil supérieur de la magistrature – CSM), a top independent judicial watchdog; and announcing changes to the 2014 constitution – has demonstrated Saied’s dogged determination.  Despite ruling the country by decree for months, Saied denies dictatorial intentions and has vowed to uphold the rights of Tunisians. However, his actions have been met with strong opposition and the murmurs of a bubbling up of an Arab Spring.

Mounting pressure

Saied, an independent candidate with no political party backing, seemed like an unlikely presidential candidate. However, his clean image attracted young voters who were frustrated with the country’s growing corruption. He ran a successful campaign despite clashing with the parliament and its most powerful member, the Islamist Ennahda party, which has been a major player in the post-revolution era.

The socio-economic challenges have been mounting for Tunisians in recent years.  The country has had the highest Covid-19 death rate in the Middle East and Africa, and the pandemic worsened the already worrying rates of poverty and unemployment. The pandemic also deepened the country’s economic crisis, which led the government to seek an International Monetary Fund (IMF) rescue package. Furthermore, food shortages of basic goods such as sugar, rice and wheat which is reminiscent of the depravation that triggered food riots  in 2011. A recent increase in petrol prices has worsened the strain. It is against this backdrop of economic decline that the country is experiencing its most acute period of political uncertainty since the Arab Spring.

Out with the old

On 25 July, the country will hold a referendum on new constitutional provisions, which if adopted, will shift the balance of power between the three branches of government. This follows Saied’s announcement on 10 December 2021 during a televised statement that a constitutional referendum on would be held. The president has explained that he “respects (the current constitution), but we can introduce amendments to the text.” Months prior, he suspended parts of the constitution and subsequently legislated through presidential decree.

Tunisia president

Saied, a former constitutional law professor, considers Tunisia’s 2014 constitution to be unbalanced in favour of parliament and is seeking to change it. The 2014 constitution incorporates a hybrid presidential-parliamentary system and many Tunisians attribute rising corruption and socio-economic ills to failures in the political system created by the constitution. This public sentiment, Saied’s dissatisfaction with the dynamic between the country’s legislative and executive branches, coupled with the former law professor’s likely desire to make a mark on the country’s foundational organising principle, caused him to re-write Tunisia’s constitution.

A wide-ranging national consultation process was launched on 1 January and ended on 20 March. Eligible discussion topics included, cultural, developmental, economic, education, electoral, financial, health and social affairs. Citizens were allowed to give their views through local committees or an online platform. Saied established the National Consultative Body for the New Republic (NCBNR) on 19 May to help draft the 2014 constitutional amendments in order to establish “a true democracy in which people are truly sovereign”.

The main substantive changes to the proposed constitution include a return to the pre-2011 revolutionary presidential system; the introduction of presidential powers to form a government (previously this was parliament’s role); the introduction of presidential discretion to declare a state of emergency with no oversight from other organs of state or time limit (previously 30 days); the creation of a second house in the legislature and reductions in parliamentary power; and a weakening of the judiciary, including referring to the courts as having a “judicial function” as opposed to “judicial authority” in the 2014 constitution.

Following the publication of the draft constitution on 30 June in the official gazette, NCBNR head and a highly respected jurist Sadeq Belaid on 3 July distanced himself from draft constitution and bluntly stated that “the committee has nothing to do with the document,” that was released. He asserted that the document, “contains risks and considerable shortcomings,” and one article relating to the president had “very wide powers… that could lead to a dictatorial regime”. Several non-governmental organisations including the Tunisian Association of Democratic Women (Association tunisienne des femmes democrats  – AFTD) and Tunisian Forum for Economic and Social Rights (Forum Tunisien pour les Droits Economiques et Sociaux  – FTDES) issued a joint statement expressing concern over the rolling back of democratic gains.

Changing the game

Although the democratic roll-back has culminated in the proposed draft constitution, it has been progressive and systematic. Saied has had a feud with former veteran leader of Ennahda and parliamentary speaker Rached Ghammouchi and then-Prime Minister Hichem Mechichi since he was sworn-in in October 2019. Their main disagreements centred  on cabinet reshuffles, control over security forces, efforts on how to handle the pandemic as well as approaches to tackling the fiscal crisis. Some local analysts have argued that the government’s poor Covid-19 response was due to this fighting, which deflected political attention and financial resources away from managing the country’s social and economic challenges.

On 26 July 2021 President Saied put an end to the long-standing feud and dismissed Mechichi, froze parliament and assumed executive authority with the assistance of newly appointed Prime Minister, Najla Bouden Romdhane. Romdhane is a geologist and university professor who worked with the World Bank and is now Tunisia’s first female Prime Minister. In a televised speech, Saied announced that parliament would remain suspended until Tunisians vote for a replacement assembly on  17 December 2022. The appointment of a new government was also announced, although an exact date was not given as Saied added that “we are continuing the search for personalities who will assume this responsibility”.

Watchdog called to heel

The legislature is not the only branch of government that has been in Saied’s cross-hairs. The High Judicial Council (CSM) was established in 2016 to oversee the appointment, promotions, and disciplinary proceedings of judges. It is meant to remain free from political interference and preserve the judiciary’s independence. However, Saied has accused the council of bias and serving political interests.  He has complained on multiple occasions about the council failing to resolve high-profile cases such as the political assassination of late left-wing leaders, Mohamed Brahmi and Chokri Belaïd in 2013. The president also accused CSM of appeasing political forces such as Ennahda.

On 6 February Saied dissolved the CSM and issued a decree that paved the way for the creation of a 21-member “Temporary Supreme Judicial Council” a month later. In addition to allowing the president to appoint nine judges to the council, the decree also grants him the right to dismiss “any judge failing to do his professional duties”. The former CSM members rejected the move that has triggered months of rolling anti-Saied protests led by members of the judiciary.

The CSM was one of the remaining institutions to stay outside the president’s control after he suspended parliament, dismissed the government, and gave himself power to rule by decree. Saied’s power grab therefore effectively grants him powers over all three branches of the state. Although he has stated that he will uphold the rights and freedoms won in 2011, his personal crusade to mend Tunisia’s fragmented political structures has created concerns that he has undermined the democratic gains of the 2011 revolution. Critics argue that Saied is drifting the country away from democracy and towards autocracy.

Quis custodiet ipsos custodes

Under normal circumstances, the 12-member Constitutional Court would protect any threat to the judiciary and limit the president’s ability to dissolve parliament on a whim. However, the court was never fully established after the 2011 revolution. Factions in parliament have failed to agree on which four judges to appoint to the court since 2014. In theory, the president and CSM appoint the other eight judges once parliament has presented its appointments. The parliamentary appointment process has been protracted due to arguments over the judges’ political affiliations and biases.

Throughout all of this upheaval, Saied claims to have acted in accordance to Article 80 of the constitution, which permits the president to claim exceptional powers for 30 days “in the event of imminent danger” to the state or its functioning. However, it also stipulates that the prime minister and parliamentary speaker need to be consulted. If it had been constituted, the Constitutional Court would have been able to adjudicate whether Article 80 was appropriately applied.

Civil society and rights groups, opposition parties, judges’ associations, Western donors, and UN agencies have all criticised Saied’s recent moves. The president has however argued that his actions as the only way to combat governmental paralysis after years of political quarrelling and economic stagnation. Saied may be the disrupter but the political system was dysfunctional and had systemic issues long before he was appointed. The question, which only Tunisians can truly answer, is whether his changes take the country forward or set it back.

Back to the start

11 years ago, Tunisia’s long-term autocrat, Zine EL Abidine Ben Ali, fled the country due to political pressure after mass protests over his corrupt and repressive regime. The five following years birthed the 2014 constitution, led to parliamentary organisations and in 2015, and a Nobel Peace Prize to four local organisations’ contribution for building a pluralistic democracy in Tunisia. As the birthplace of a regional uprising, Tunisia also became the first country to over-throw its dictator during the 2011 Arab Spring. A little over a decade later, Tunisians are once again taking to the streets to try once again to create a country governed by the principles of separation of power.

We expect the 25 July referendum to result in the adoption of the new constitution. The voter turnout is inconsequential as there is no minimum requirement for voter participation to deem the referendum credible and legitimate. Rolling anti-Saied protests are expected throughout the remainder of the year after the amendments to the constitution are passed. The country’s growing financial crisis and vocal Western criticism of his recent actions will place the president under increasing pressure. Diplomats from G7 nations have called on the president to return the country to “a constitutional order” and convey a clear way forward.

Saied is unlikely to capitulate; his actions over the past year have demonstrated a dogged commitment to fixing the country’s political ills while amassing and concentrating power in his hands. The result, if he does not change course, will be an illiberal democracy. We expect him to announce a pathway to constitutional order to allow the country to secure international financial assistance as it continues to struggle financing its fiscal deficit, debt repayments and next year’s budget. However, there is an Arabic proverb: “No crowd ever waited at the gates of patience.” Tunisians waited a long time – 24 years – to oust Ben Ali. They’re not likely to have as much patience with Saied.