On July 25, exactly one year after Tunisia’s maverick President Kais Saied sacked the prime minister, dissolved the parliament, suspended the much-celebrated 2014 constitution, and started to rule by decree, Tunisians voted to approve a draft constitution proposed by him that critics warn will help entrench his one-man rule.
With less than 30 percent turnout, there are serious questions about the legitimacy of Monday’s referendum. Nevertheless, the deep divisions within the opposition and the public’s ever-growing disillusionment with the political system mean Saied may face little resistance as he moves to further consolidate his power.
Now, as they watch with worry Tunisia’s democratic backsliding identified by the International Institute for Democracy and Electoral Assistance, many are questioning what the international community, and especially the African Union (AU) – which counts among its objectives promoting “democratic principles and institutions” on the continent – could have done and can still do to keep the North African nation on the path towards true democracy.
A mute African Union
Throughout the past year, as President Saied sacked judges, jailed opposition politicians, and stifled public debate on the drafting of the new constitution, the AU chose to remain silent. Indeed, after the president’s July 25, 2021 power grab, the continental union released only one brief and vague statement on the situation in Tunisia, expressing its commitment to the “Tunisian constitution”, “promotion of political dialogue” and “the need to respond to the legitimate aspirations of the Tunisian people”.
In fact, in February 2022, it signaled that it is mostly unconcerned with President Saied’s actions by making the country a member of the AU Peace and Security Council – a powerful body charged with, among other things, monitoring compliance with constitutionalism and responding to unconstitutional changes of government.
It seems the AU opted not to prioritize Tunisia’s concerns, but so far thankfully non-violent, democratic backsliding and instead focused its meager resources on countries that are experiencing grave political instability, economic devastation, and conflict.
But this was undoubtedly a mistake. The fact that Tunisia is still relatively stable compared with many other nations on the continent does not mean its drift away from AU’s declared democratic standards should be ignored.
The AU should have at least sought to engage Tunisian authorities, the opposition, and civil society groups, to ensure compliance with the principle of national consensus in constitutional reform processes established in the African Charter for Democracy, Elections, and Governance – an instrument Tunisia signed that reflects established AU standards on constitutionalism.
By intervening in Tunisia’s much criticized constitutional reform process, the AU could have shown that it is treating all member countries equally and addressed criticisms of hypocrisy that have long been undermining its credibility. Furthermore, by holding Saied to account for his attempt to rewrite the constitution through dubious practices, it could have demonstrated that it is indeed serious about upholding continental standards for constitutional change.
The continental standards for constitutional change require (1) legality and compliance with the letter and spirit of constitutional rules for reform, (2) a genuinely consultative and participatory process, including, possibly, a referendum, (3) a free and stable political environment, and (4) a deliberative process that eschews unilateral decisions and instead necessitates inclusion beyond a single dominant person or political group.
In Tunisia, Saied simply disregarded the processes of reform outlined in the 2014 constitution and unilaterally adopted his own process, which allowed him to avoid any stringent requirements for the referendum, for instance, in the form of a minimum turnout requirement.
Moreover, despite purported efforts to allow Tunisians to submit their views, the process did not involve genuine participation and deliberation. Active AU monitoring and diplomatic engagement and an offer to provide comparative advice and technical support could potentially have contributed to ensuring a genuinely participatory and deliberative process.
The AU has yet again squandered an opportunity to define itself as a union of rules, rather than merely a club of incumbents.
Another African president for life?
In addition to potentially legitimizing one-man rule, Tunisia’s new draft constitution could set the stage for a president for life. While the constitution establishes a two-term limit on presidents, it does not clarify whether Saied’s current term would count, or whether he would be entitled to two additional terms, potentially enabling him to stay in power until 2035.
Moreover, the constitution allows the president to extend his term in cases of “imminent danger”, which the president will have the authority to define, with practically no or limited legislative or judicial check on such determination.
Saied’s track record so far and his proclivity to elevate his personal vision over the terms and spirit of the constitution mean Tunisians may now be bracing for a potential president for life.
But the AU can still take action to prevent this scenario.
It can engage Tunisian authorities to clarify their position and pressure them to confirm that the new constitution would not reset the presidential term count. As a member of the AU Peace and Security Council, Tunisia has a heightened moral responsibility to uphold the spirit of alternation of power imbued in continental standards.
All may not be lost
Beyond the concentration of power in the office of the president, the most defining aspect of Tunisia’s new constitution is perhaps its minimalism. The text outlines a government architecture but leaves details for further legislative regulation.
What is left out includes important details regarding the organization and mandate of the second legislative chamber and its relations with the first chamber, the electoral commission, the judiciary, the judicial council, and the constitutional court.
The new parliament, which is due to be elected in December, will therefore have tremendous potential to shape the organization of these critical bodies and to preclude the president’s grip on their independence. This means the upcoming legislative election may provide an important opportunity for Saied’s opponents to limit his consolidation of power – and put the breaks on his perceived efforts to entrench one-man rule in the country. Indeed, if opposition parties manage to rally the supermajority that boycotted the constitutional referendum and translate that into legislative seats, it could allow them to temper the personalization of power.
Given the overwhelming number of voters who boycotted the constitutional referendum, it is unlikely for Saied to secure in the December elections the parliamentary majority he needs to fully codify a one-man rule.
This means the AU can still move to help put a stop to Tunisia’s democratic backsliding. It can offer technical support to all parties and enable the newly elected legislature to advance democratic goals as it passes the many laws needed to operationalize the new constitution. It can also insist that the new Tunisian government complies with continental standards regarding principles of separation of powers and effective and autonomous courts and other democracy promotion institutions.
The AU has a legal and moral responsibility to reduce the prospects of instability and insecurity in Tunisia. By standing up for democracy and rule of law in Tunisia, the continental body would not only help Tunisians sustain the democratic gains they made in the past decade, but also show the entire continent that it is indeed serious about holding its members to the standards of constitutionalism it set.
Dr Adem K Abebe is an advisor and commentator on the African Union and governance and democracy in Africa.