Tunisia’s Constitution Was Designed To Fail | Tunisia 7

The fall of Tunisia’s constitutional order is profoundly depressing to me. But if we’re honest, it happened long before President Kais Saied brought the hammer down on Sunday July 25th. Tunisia’s government has been a non-stop crisis for two years, leading to one of the world’s worst Covid responses, and a murderous third wave that’s happening as we speak. This provides a grim opportunity, because I’m better positioned to talk about Tunisia than I ever have been. I spent a couple months this spring studying the country and the issues facing it fairly closely. The critique I put forward in today’s video is one that I was planning to launch anyway. Tunisia’s constitution was likely to fail from the start.

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Video Transcript after the jump…

Hey there. So on Sunday July 25th the President of Tunisia froze the Parliament, dismissed the Prime Minister and announced that he would be taking control of the country, supposedly as a temporary measure. There is a tremendous amount of controversy over what to call this. After weighing it for a week, I am content to call it a coup, or an autocoup, where a government official takes powers he’s not entitled to. But more importantly, what I think we are seeing here is the collapse of Tunisian Democracy, and the blame for this goes long back before anybody had heard of President Kais Saied. To some extent, I think Tunisian democracy, in its current form, was designed to fail.

President Saied argues that Article 80 of the Tunisian constitution gives him the right to take emergency measures. I am no Tunisian jurist, but I have seen enough credible arguments that he has exceeded his rights under that article to call it a coup. For one thing article 80 says the Parliament is supposed to stay in constant session during a state of emergency, and President Saied has closed it down. More importantly, the Tunisian constitution calls for a Constitutional Court that would be able to weigh in on this. But that court has never sat. Because the members of the court have never been appointed. The current President and Parliament are responsible for this failure, but so are the last President and Parliament. There has never been a constitutional court in Tunisia, under this constitution, going back to 2014.

Many in Tunisia are celebrating the President’s move, which is a sign of just how badly things had fallen off the rails. Even before the recent monster wave of covid this government looked useless and paralyzed. The scale of dysfunction Tunisia has been dealing with since the Presidential and Parliamentary elections in 2019 may have made people forget something pretty important. This system has never really worked.

On July 25th Kais Said dismissed his second Prime Minister Hichem Mechichi. Folks who think Saied’s masterly legal genius is capable of saving the country, should keep in mind that Saied appointed Mechichi, a guy that he proved entirely incapable of working with. By the spring of this year, Tunisian government had broken down entirely, but Saied wasn’t the only President who couldn’t work with a Prime Minister, it’s been the same story ever since this constitution came into effect in 2014. Saied’s predecessor, President Essebsi, fought bitterly with his two prime ministers as well. The crisis is much more apparent in this administration due to Covid, but this level of institutional failure, and lack of attention to any of Tunisia’s problems has been the case throughout this entire constitutional era.

The truth is that Tunisia’s constitution has never worked. Every Country that has a President and a prime minister handles things differently in subtle ways. Are these figures elected or appointed? Which figure handles which duties? It seems like in most countries that have both, the President is more ceremonial.

I am not a scholar of constitutional politics, but I think the consensus is that Tunisia’s system is especially bizarre. The President, who supposedly has fewer powers, is popularly elected, and has to appoint the Prime Minister who is responsible for the day to day work of government. The Prime minister has to be acceptable to the Parliament as well, but it’s weird that the President is involved in this process. What makes it even weirder, in the Tunisian context, is the fact that from independence in 1956 until the Revolution in 2011, the President was more or less an all powerful dictator. So with all that cultural history, the president is now directly elected, debatably has a veto over the formation of the government, but isn’t supposed to have any real domestic powers. This doesn’t make a ton of sense.

Thankfully, The Constitution provides a mechanism to resolve any problems that a bizarre hybrid system like this is guaranteed to generate. You know, the Constitutional Court, the one that has never been appointed? Everybody from the Tunisian public, to outside funders like to vilify the politicians for never making these appointments. The blame game over this has been one of the main topics in Tunisian politics for the past 6 years. But when you look at the details of how the court is supposed to be appointed it’s not surprising. Rather than have one branch select the judges and then have another approve them, each branch is supposed to select four judges and then all 12 have to be approved by the Parliament and the President. It’s a truly absurd contraption of a way to appoint one of the most important powers in the land. This system was designed to fail.

And it has failed. Tunisia has been applauded, again and again for the consensus that led to its constitutional settlement. Civil society actors even won the Nobel prize in 2015, for convincing Ennahda, the popularly elected Islamist government of the time, to adopt this mess of a constitution. Before undertaking a more intense study of the country this spring, I was part of that chorus of praise.

“In the first years after the Arab Spring, many countries looked to be embarking on serious experiments in representative government. Egypt got its first popularly elected President in 2012. Libya had elections in 2012 too. Yemen never managed an election with more than one candidate, but its national dialogue process looked promising. All of these experiments now look like failures. Egypt’s only democratically elected president died in prison and he’s been replaced by a dictatorship worse than the one that was toppled in 2011. Libya and Yemen have both fallen into civil war due to a combination of internal discord and greed and savage external proxy warring and invasion.”

In 2013, it looked like Tunisia might be heading in the same direction. A series of assassinations, escalating protests and political gridlock between secular and Islamist leaning political forces looked to be tearing Tunisia apart. Instead, in 2014 a bunch of civil society groups got together and came to an agreement that kept the peace.

It was a success. It did avert an Egypt style coup. It did allow for peaceful transitions of power in 2014 and 2019. But it also kept anything in Tunisian from working at all. It kept things in a peaceful, deadly stasis.

A complicated government that never works won’t offend anybody, but it can’t help anybody either. After the 2011 Revolution there were a lot of unresolved questions. What about the old regime oligarchs that owned the whole economy? What about the security services that were implicated in human rights abuses?
Those were the sorts of actors that might have used the fear of Islam to do a coup against Ennahda in 2013. The January 2014 adoption of the constitution, that kept anybody from using Tunisian government for anything, made those actors feel safe, and averted a coup. But it also preserved the powers of all these old regime actors. There were some exceptions, but most of the old corruption stayed. New political actors, including elements of Ennahda itself, realized that the system was designed to fail, so they decided to join in on the corruption party. Tunisian Democracy has failed. But it didn’t fail on July 25th. It’s been failing for years now. It may have been failing since January 2014. This is just a crack-up long foretold, and long awaited.

The Euphoria is now passing, and I expect Tunisian politics to now get very grim. It seems to me like every Tunisian political actor believes that their opponents are in bed with the former regime and shares in their corruption. Or maybe your political enemies are the beneficiaries of funding from sinister outside forces. Depending on your politics, it could be the foreign evils of neoliberalism and Islamism, or maybe it’s the evils of Secularism and Westernization. Everybody is convinced that the completion of the revolution requires blocking their political opponents from power. What makes this extreme political paranoia even more dangerous,is that to some extent it’s all kind of true. Tunisia is a small country in a rough neighborhood, with a plummeting economy and a political system that was intentionally broken in the name of peace,consensus and nobody ever being held responsible for anything. Of course most politicians are corrupt. President Kais Saied was elected, and remains very popular because of his perceived incorruptibility.

I remain somewhat convinced of Kais Saied’s virtue, Kais Saied is certainly convinced of his own virtue. But I also think he’s got a bit of a Messiah complex. Many accounts claim he’s got widespread support, but I expect that to fade somewhat quickly. He’s got incredible self-belief, and now he’s got wide powers, but I don’t see how he’s going to satisfy anybody. It’s especially difficult to wield one man rule in a country where half the country’s political world believes the other half belongs in jail. Very little of what he has promised is possible in the 30 days that Article 80 provides for. I expect his leadership to get more dictatorial, and more long lasting.

Ironically, I have the sense that Kais Saied is going to disappoint the streets of Tunis by not acting dictatorially enough. The sorts of Tunisians I would want to party with, English speaking, secular, etc. Seem to expect a massive crackdown on Ennahda, the Islamist party, which also happens to be the only party that has a consistent democratic constituency over the past decade. Needless to say, I think this is a terrible idea.

Hey quick interjection to make something explicit that I left out of the script. I believe that Ennahda is a key reason that democracy failed, but not because of anything that Ennahda did. I believe that it was actually fear of Ennahda that got a lot of actors who actually believed and were committed to Tunisian democracy to agree to such a stupid constitution. The Constitution keeps anybody from exerting any real power in Tunisia, and in a lot of civil society actors minds it importantly kept Ennahda from exerting any real power. So that’s kind of the original sin of Tunisian democracy, at least in my very Orientalist, western-oriented view. I wanted to say that explicitly instead of just leaving it out of the script. Back to the script.

But I don’t think he’s likely to deliver. Tunisia is not Egypt, and Saied, a fairly conservative Muslim himself, seems unlikely to blame the Islamists for all of the country’s problems the way so much of Tunisian twitter seems to want him to.

I would like to close with a bit of optimism. It’s very easy, coming from the Anglo tradition of centuries of unbroken wealth and world leadership, to throw a hissy fit when the forms of representative democracy are trampled on. It might be instructive to remember that Tunisia is steeped in a more pragmatic tradition. Even before the imperialist invasion, Tunisia was more closely associated with France. France is, in its own way, a very strong democracy, but it isn’t exactly known for institutional stability. The current French government is the fifth republic and it only dates back to 1958. Some of the French republics have lasted as long as seven decades, but the second one only lasted four years. I think it’s fair to say that after seven years, Tunisian Democracy’s second Republic has failed. But that doesn’t mean we should lose hope, as I pointed out back in 2019…

So does this mean Saudi Arabia is right? Is Arab democracy impossible? Of course not. The Tunisians have proved that it is possible. The fact that they’ve managed to do this for 8 years is an extraordinary victory. Even if it does fall apart, the accomplishment will stand as an example of what’s possible.

I think the next months and years will be difficult ones for Tunisia, but they will make the advent of the third republic all the sweeter when it arrives. This version of Tunisian democracy appears to be dead. Long live Tunisian Democracy.