Is Tunisia’s 2014 Constitution Already Obsolete?

Tunisia – often lauded for its democratic development after the Arab Spring – is engulfed in a political power struggle and personal rivalries between office holders. Now the country’s constitution is increasingly coming under threat.

More than one year and a half after the legislative and presidential elections in Tunisia in October and November 2014, senior advisors to the President of the Tunisian Republic, Beji Caid Essebsi, have started calling for amendments of the constitution.

They believe that the current political regime, i.e. a semi-presidential political system, is leading to an institutional deadlock. The alleged weakness of the head of government Habib Essid’s cabinet in tackling security, economic and social issues as well as the limited powers of the President are pointed out as the main reasons of this blockage. Beji Caid Essebsi’s advisors argue that the key solution here is to enlarge the powers of the President by amending the Constitution of 2014 to move to a parliamentary regime with presidential leadership.

Until now, the attempts to change the constitution have not been successful. Consequently, the President recently began pursuing a different approach to achieve his goals. In late May 2016, he declared the failure of Essid’s Cabinet and called for a new national unity government. The quickest way to form this would be if the current government resigned and a new Prime Minister was assigned.

But is there really an institutional deadlock in Tunisia? Is it possible after less than two years to declare the failure of the head of government and his cabinet in reaching the five-years legislature’s objectives? And if so, does this justify the call for his replacement? And if replacement is needed, is the Presidency of the Republic the right institution, constitutionally speaking, to lead and steer the process?

Tunisia’s President is discontent with his limited prerogatives

First, we assume that there are no solid and accurate arguments in favor of the institutional deadlock thesis. In fact, Beji Caid Essebsi seems dissatisfied with the limited prerogatives that the constitution provides to the President of the Tunisian Republic. The call for an amendment of the constitution seems to derive from Essebsi’s wish to “rule alone and not to share his powers”, as he reminded journalists when he was appointed as head of government in 2011.

Second, if indeed the government of Habib Essid has failed, the responsibility for this should be identified according to the constitution. The lack of a clear strategy and a national plan to combat terrorist attacks, which have strong repercussions on Tunisia’s economy and society through reduced investment and tourism as well as rising unemployment and social movements, should be imputed to both Essebsi and Essid. Article 77 of the constitution states that the President of the Republic “is responsible for determining the general state orientations in the domains of defense, foreign relations and national security”.

Tunisia’s economic and social challenges will not be resolved in one or two years and they necessitate, as key preconditions, political stability, enforced governance practices and a better rule of law. In their absence, even a National Unity Government will not be able to reach sustainable solutions. The Bertelsmann Stiftung’s Transformation Index, BTI 2016, which analyses democracy development worldwide, makes this very clear in its latest Tunisia report:

To encourage domestic investment and lure foreign businesses into the country, the rule of law must improve. Concretely, this means guaranteeing the independence of the judiciary and rooting out corruption. Well-resourced independent constitutional bodies, a free media and a strong civil society can serve as additional checks on the powerful.

President Essebsi wants a more submissive head of government

It seems that the call for a National Unity Government is a strategic tool allowing President Beji Caid Essebsi to hit many targets with one bullet. Among other things, he can appoint a more submissive person as head of government and appease his secular Nidaa Tounes party – and also likely his son, Hafedh Caid Essebsi, who is a contested leader in the party and one of the most fervent opponents of the chief of government.

If the President’s strategy succeeds, he will become de facto and contra legem the centerpiece of Tunisia’s political regime. While this would not yet install a full-fledged authoritarian regime, it still constitutes a significant erosion in separation of powers, and conjures the specters of strong Presidents like Zine El Abidine Ben Ali and Habib Bourgiba. Then, we can consider the 2014 constitution obsolete.

Finally, Mr. Essebsi does not seem to be the right person for leading Tunisia to legal certainty, efficient governance and political stability. On 4 July 2016, he confirmed that he does not intend to observe the constitutional limitations to his prerogatives. He also tried to impose an unconstitutional economic reconciliation mechanism that supplants the transitional justice mechanism and tends to release corrupt businessmen and officials from judicial accountability.

There is also the confusion regarding Mr. Essebsi’s status as President of the Tunisian Republic in relation to him being a leading figure in the Nidaa Tounes party. Last but not least, there is the putsch in preparation against the head of government. Hence, it is difficult to conceive of the initiative of the National Unity Government as the lifeboat of Tunisia.

As Hauke Hartmann recently put it, “Democratically governed countries usually offer better conditions for long-term foreign investment than autocratic ones – particularly more stability, greater legal certainty and more efficient governance”. President Beji Caid Essebsi represents a serious threat not only to Tunisia’s democratic transition and political stability but also to its economic recovery and social peace.

Mohamed Limam is a political scientist at University of Sousse, Tunisia. He is one of 246 country experts who worked on the latest edition of the Bertelsmann Stiftung’s Transformation Index, BTI 2016.

Photo: Government buildings in Tunis, by Cernavoda via flickr.com,  CC BY-SA 2.0.