The gathering storm provoked by Tunisian President Kais Saied’s attempt to forge a new political system could reach a critical moment on July 25. On that day Tunisians will vote in a referendum that will pose only one question: Do you support the new draft constitution for the Tunisian Republic? In the heat of summer, with most Tunisians struggling to buy food and estranged from politics, it would be a miracle if more than 30 percent of the voting populace shows up at the polls to endorse the document that the government published on June 30. Those who do turn out will respond to a referendum that will surely be worded to solicit a “yes” vote. With the “people’s will” thus revealed, the president will be well-positioned to consolidate his domination over the political arena.
Peering at the dark horizon before them, opposition leaders are still struggling to unify their ranks behind a nationwide movement. Events leading up to and following the publication of the draft constitution may work in their favor. On the day of its publication, Sadok Belaïd—a veteran constitutional scholar whom Saied appointed to lead a constitutional advisory committee—asserted that the text published in the Official Gazette on June 30 was not the one he had handed the president just ten days before. The committee’s text, Belaïd stressed, strengthens the executive branch while still maintaining democratic governance. By contrast, the official draft both gives dictatorial powers to the president and sets out some vague religious concepts he could invoke to impose his will. Amplified by a chorus of criticisms from NGOs, politicians, and constitutional scholars, Belaïd’s condemnation—not to mention his subsequent resignation from the drafting committee—is feeding a growing sense of political and social chaos only a few weeks before the government is supposed to conduct a referendum for which it has apparently done little to prepare.
The official draft both gives dictatorial powers to the president and sets out some vague religious concepts he could invoke to impose his will.
But if Saied’s seeming amateurism is good news for his opponents, the bad news is that he seems undeterred. He may be a one-man show, but he is both creating confusion and using it to his advantage, and this disarray extends to the draft constitution. A patchwork of competing goals, principles, and procedures, the constitution guarantees freedom of speech but not, as the joke goes, freedom after speech. The proposed constitution is a recipe for a reborn autocracy presided over by a president who will be the ultimate arbiter of a fragmented polity facing the peril of economic collapse.
A Tenuous Relationship and a Messy Divorce
In the wake of his July 25, 2021 power grab, Saied sought to cement his position by forming a tacit alliance with urban-based, middle-class professionals. This marriage of convenience, however, has faced two major challenges, both of which have intensified over the last few months.
The first challenge is Saied’s waffling on economic reform. While greenlighting the government’s talks with the International Monetary Fund (IMF), he has simultaneously sustained a populist economic discourse and pushed back against the austerity measures the IMF has proposed in return for a $4 billion aid package. The second, more fundamental challenge is Saied’s intolerance of dissent. Deploying the country’s military courts, he has made the judicial sector a particular target of his wrath, as shown by his February 2022 decision to dissolve and replace the High Judicial Council, and by his June 1 firing of 57 judges. From Saied’s vantage point, these preemptive strikes make sense. After all, he is assaulting the very sector that is best positioned to discredit the fatuous constitutional rationales he has spun to legitimize his power grab. But as the net of repression has grown, what was always a tenuous relationship has become even more precarious, thus raising the prospect of a permanent divorce between Saied and a sector of society that has always been deeply suspicious of him.
President Saied is assaulting the very sector—the judiciary—that is best positioned to discredit the fatuous constitutional rationales he has spun to legitimize his power grab.
Indeed, the struggle over the new constitution could very well signal the denouement of this drawn-out drama. Signs of this struggle emerged in early June when Saied tried to solicit the support of leading constitutional lawyers even as he sustained his wider assault on the judicial sector. When the deans of Tunisia’s leading law schools refused to play along, Saied then turned to Belaïd, himself a retired dean. Why Belaïd believed that his committee would be independent is anyone’s guess. After all, the process he had just joined first began with a farcical online “national consultation” that was then followed by a constitution drafting exercise that was totally hidden from public view. This absence of accountability in a committee beholden to an ambitious autocrat ensured that the June 30 draft constitution would reflect Saied’s wishes, rather than those of Belaïd and his team.
The gap between what Belaïd sought and what he then received seems considerable. In the weeks prior to the document’s release, he floated a proposal to change Article 1 of the 2014 Constitution, which stipulates that Tunisia’s “[political] system is republican” and that its religion is Islam. To the consternation of Islamist leaders, Belaïd suggested removing the reference to Islam. The second change he sought was to strengthen the powers of the president, which has been a long-standing demand among professionals, intellectuals, and business leaders. From their vantage point, having a strong president would not only contain the country’s Islamists, but it would also give the government the power required to advance economic reforms.
The June 30 draft constitution collided head-on with these expectations. Rather than create a strong presidential system based on a separation of powers between the executive, legislative, and judicial branches, Belaïd held that Saied’s document created a presidentialist system, by which he meant a system built around an unaccountable and unconstrained leader. Other members of Belaïd’s team assailed the absence of a “socioeconomic component.” Moreover, far from distancing religion from the state, Belaïd claimed that the June 30 draft would tighten this link. It did so not via Article 1, which no longer refers to Islam, but rather via Article 5, which stipulates that one of the duties of the state is to “realize the principles of Islam.” When joined at the hip with provisions for an all-powerful president, he argues, this article could sow the seeds of an authoritarian theocracy.
A Dissonant Constitution for All Seasons, but Only One Leader
Echoed in a flurry of statements and assessments from NGOs, political leaders, legal scholars, and prominent academics, Belaïd’s fierce critique of Saied’s constitution prompted the Office of the President to release a statement whose core message is that the new constitution will defend democracy and personal liberties. This response was as predictable as it is dubious. But the June 30 draft is not so much a cogent blueprint for autocracy as it is a hodgepodge of competing themes, concepts, values, and vague procedures, all of which add up to a profoundly confusing and dissonant formula for political life.
The draft is clearest when it comes to enumerating the powers of the president vis-à-vis the legislature. The 2014 Constitution provided for a prime minister selected from the party with the largest majority in parliament, although it also gave the president a role in this process when and if a nominated prime minister failed to get a majority. By contrast, Articles 101 and 102 in the June 2022 draft constitution give the president a decisive role in choosing a prime minister and dismissing the government or individual ministers. Article 110 gives the president absolute immunity, while Article 96 allows the president to declare “exceptional measures” if there is “imminent danger threatening the republic, the security of the country, and its independence.” Although required to consult with the prime minister, the speaker of parliament, and the head of the council of regions, the president has complete freedom in defining such threats. All of these provisions will come into effect as soon as the July 25 referendum approves the new constitution.
These powers may form the basis for what some experts call a system of “hyper-presidentialism.” The proposed constitution includes various articles and procedures that, in theory, might play a role in limiting the powers of the executive. However, these provisions are vague and still must be translated into law. In practice, they create a myriad of loopholes that a president could exploit to ensure their hegemony over the political system.
For example, it is encouraging that Article 125 establishes a constitutional court that will have the right to review new and standing legislation. However, it requires the passing of a new law to determine how the court’s nine members will be chosen. This opens up the real possibility that a parliament dominated by the president will give him the power to appoint the high court. Moreover, in contrast to the 2014 Constitution, which set out procedures for impeaching the president that involve both the parliament and the constitutional court (a body that was never created), the June 30 draft says nothing about impeachment. Thus, despite stipulating that the court will be “independent,” it is very likely to be at the beck and call of the president.
The gap between theory and practice is likely to be even wider when it comes to the constitution’s articles on personal and civil rights.
The gap between theory and practice is likely to be even wider when it comes to the constitution’s articles on personal and civil rights. At first blush, these rights seem plentiful: the draft’s 34 articles in this section spell out a range of basic freedoms. But other articles qualify these rights by invoking moral, cultural, and religious criteria. Article 5, which, as noted above, provoked outrage among political leaders and human rights NGOs, states that, “Tunisia is a part of the Islamic ummah (community),” and that it is “the duty of the state alone to protect the principles of Islam” by “preserving life, honor, wealth, religion, and freedom.” Similarly, Article 55 states that, “No restrictions shall be placed on the rights and freedoms guaranteed in this constitution except by virtue of law and for the necessity of national defense, public security, public health, or the protection of the rights of others or of public morals.” These kinds of sweeping, if nebulous, conditions, which are the stock-in-trade of autocratic constitutions throughout the Middle East, could be interpreted to limit, abuse, or simply extinguish personal freedoms. Given the proposed constitution’s failure to clearly spell out the basis for an independent judiciary, along with the power it invests in the executive, the president will be the ultimate arbiter of the constitution’s presumed guarantees on freedoms and civil rights.
Saied Feigns Retreat as the Opposition Tries to Unify
Surprised by the multitude of leaders who decried the June 30 draft constitution, Saied announced that “clarifications needed to be added to avoid confusion and interpretation.” The amended draft published on July 8 adds additional qualifiers by tacking on the phrase “within a democratic system” to Article 5 and the words “imposed by a democratic order” to Article 55. But this latest draft retains all of the powers granted to the executive. Indeed, the slight changes Saied agreed to make underscore one basic fact: it is he who bequeaths, removes, or edits the rights of the people.
Despite growing opposition to the constitution, it is likely that Saied will push ahead to the July 25 referendum. In a reflection of his obstinacy, Article 139 states that, “The constitution will come into effect after the final results of the referendum are announced by the electoral commission.” As one leading expert notes, the drafters of the document “don’t even take into account the possibility that the draft could be rejected.” Ironically, the prospects for such a rejection seem slim, as most voters will probably stay home, allowing a small plurality to vote “yes.” After Saied proclaims his “victory,” the real battle to prevent a full transition to autocracy will then begin.
The fight over the constitution will be shaped by the Tunisian General Labor Union’s readiness to go beyond the socioeconomic demands of its base by embracing a democratic agenda in defiance of Saied’s political project.
This fight will be shaped by the Tunisian General Labor Union’s (UGTT) readiness to go beyond the socioeconomic demands of its base by embracing a democratic agenda in defiance of Saied’s political project. Signs of such a shift surfaced in mid-June, when the union not only declared a national strike in opposition to austerity measures demanded by the IMF, but also spurned Saied’s bid to include the union in talks on a new constitution. As UGTT head Noureddine Taboubi put it, the dialogue does not include political issues in the country. He then added fuel to the fire when he decried efforts by allies of the president to “infiltrate” the union via a court case designed to force Taboubi’s resignation. A week later, a journalist was arrested after claiming that the government was planning to use the army to prevent the UGTT from holding the June 16 national strike. Whatever the veracity of the report, the government is determined to silence speculation that it is ready to deploy troops, a dramatic move that would deliver the union into the arms of the opposition.
Two weeks after the national strike, the moment of truth seemingly arrived with the June 30 draft constitution. The UGTT noted the draft’s defense of freedoms, yet also warned that many of its articles could be used to restrict rights. But even if its response was on target, it has refused to take an official position on the July 25 referendum, and has in fact announced that its members are free to vote yes or no. The UGTT is thus still sitting on the fence, unwilling to risk a full-on collision with the president.
An Unfavorable Global Equation
Whether Tunisia makes a full transition to autocracy will not depend on any single referendum. What will count most is the balance of power between a determined president and an opposition that has yet to mobilize a mass movement. The global and regional equation is not helping either. The halt of Ukrainian wheat exports has exacerbated Tunisia’s already desperate economic situation. Exhausted by the daily struggle to survive, many dispirited youth probably see the struggle over the constitution as yet another example of feckless elite politics.
President Joe Biden’s July 13 trip to the Middle East, meanwhile, is a gift to Saied. By making amends with Saudi Arabia and repairing relations with the United Arab Emirates, Biden is underscoring the realist assumptions that infuse US foreign policy—at least in the Middle East. Indeed, the message telegraphed by his visit will probably obscure ongoing efforts in the US House of Representatives to condition some military aid to Tunisia on its resumption of democracy. In any event, UGTT leaders have opposed all “foreign interference,” be it Saied’s efforts to curry favor with Gulf leaders, or the international community’s bid to save Tunisia from stepping into the political and economic abyss.