Constitutional Reform in Egypt: More Time for al-Sisi, More Power for the Military

Next week, the Egyptian constitution will most likely be modified. The planned changes would allow President Abdelfattah al-Sisi to remain in office until 2034. In addition, the military is to be placed de facto above the constitution and the independence of the judiciary is to be curtailed.

In farcical elections in March 2018, the former military chief Abdelfattah al-Sisi was confirmed as president with 97.8% of the votes cast. Since the 2014 Constitution only allows one single re-election (Art. 140), he entered his second and final term of office. At the beginning of 2017, however, a number of parliamentarians proposed amending the constitution to allow al-Sisi to remain in office longer. In the weeks and months following the elections, more and more pro-regime media representatives and politicians publicly spoke out in favour. In the summer of 2018, a petition to this effect circulated, and in December, a lawyer loyal to the regime even filed a lawsuit to force parliament to deal with the issue. At about the same time, the independent news agency Mada Masr reported that the president’s staff, in collaboration with the Egyptian General Intelligence Service (GIS) and led by al-Sisi’s son Mahmoud, were preparing a draft amendment and the necessary steps.

On 3 February 2019, the speaker of parliament was finally presented with a motion to amend the constitution. 155 deputies had signed it, more than the 120 (one fifth of the parliament) needed to officially start the process. On 5 February, the Parliamentary General Committee approved the motion, and on 14 February, the plenary adopted the amendments in principle in a preliminary vote – 485 of the 596 deputies voted in favour. Now the Constitutional and Legislative Affairs Committee is preparing a final version, which will then require a two-thirds majority in plenary before it can be confirmed in a referendum. This parliamentary vote will most likely take place on April 14/15.

The proposal provides for an extension of the presidential term of office from four to six years (Art. 140). The principle that only re-election is possible is maintained. However, a transitional article will allow al-Sisi to be re-elected for a further two terms of office after the expiry of his mandate in 2022, now for six instead of four years. He could therefore remain in office until 2034, for a total of 20 years. In view of Egypt’s catastrophic transformation after the military coup of 2013, which is reflected in the Bertelsmann Transformation Index (BTI) in rapidly declining scores, especially for political development and governance performance, this is a drastic modification that further promotes the tailoring of the political system to the person of al-Sisi.

Prior to this, the public debate on a possible constitutional reform had been limited to the planned extension of al-Sisis’ term of office. Still, this aspect is very much at the center of attention, both in the country itself and in international reporting. However, the proposal submitted goes far beyond that. Some of the proposed modifications of a total of 12 articles are unproblematic in terms of democracy and separation of powers, such as the introduction of a vice-presidential position (Art. 160) or a 25% women’s quota in the House of Representatives (Art. 102). Also the reintroduction of a second parliamentary chamber, the Senate (two new articles), is in itself not objectionable. Nevertheless, the composition and work of the Senate should be closely monitored in the future. The design and tasks of this institution are very similar to those of the Shura Council, which was only abolished as the upper chamber by the Constitution of 2014. It was regarded as extremely corrupt, and numerous observers regarded it above all as an instrument of the regime to reward loyalists. Even more problematic, however, are changes which would result in a significant increase in the status of the military and a loss of independence of the judiciary.

The military becomes the guardian of the constitution and the secular state

Perhaps the most significant modification concerns Art. 200, which defines the mandate of the military. All constitutions since 1882 have attributed to the armed forces the tasks of national defence and the protection of citizens and territorial integrity. Now the mandate is to be extended so that the military also protects the constitution itself, “democracy”, the principles of the secular state and the rights and freedoms of the people. This addition puts the military effectively above the constitution and allows the generals to intervene in politics at any time if they see any of these aspects at risk. The interpretive authority lies with themselves. Even a coup against an elected government would be legitimized in this way by the constitution. The ouster of Mohamed Mursis in the summer of 2013, for example, would have been perfectly justifiable with such a statute.

In addition, an addition to Art. 234 is to be deleted, according to which the Supreme Council of the Armed Forces (SCAF) is only entitled to approve the appointment of the Minister of Defence during the first two presidential terms of office after the adoption of the Constitution. This practice is now to be made permanent, which would make civilian control even more difficult. Finally, the jurisdiction of the military courts will be extended (Art. 204). According to the 2014 constitution, civilians who are responsible for a direct attack on military installations or soldiers must also answer to military courts, in addition to all members of the armed forces. The proposal now provides for the word “direct” to be deleted. Already during the last years, the vague formulation was interpreted very broadly, so that thousands of civilians were sentenced by military courts. Such modification could even increase the use of this practice in the future.

These measures cement the position of the military as the sacrosanct center of the political order. The independence of their own institution has always been of particular importance to the generals. The 2014 constitution, which granted the armed forces an unprecedented degree of autonomy and shielded them from civilian control, already largely fulfilled this objective. The planned constitutional amendments reinforce this even further. Some observers even draw parallels to the former position of the Turkish military, which as guardian of the Kemalist republic overthrew several governments and stood de facto above politics and the constitution. While the Turkish armed forces, however, withdrew relatively quickly from politics after the three coups, the Egyptian military expanded its role not only in the nation’s economy, but also in politics and administration since the ouster of Mursi.

The independence of the judiciary is being curtailed

For decades, the Egyptian judiciary possessed a relatively high degree of independence, which was extended, at least on paper, by the Constitution of 2014. Although the vast majority of judges was and is in support the regime, tensions have increased in recent years and executive control has been gradually expanded. The main courts, for example, were responsible for appointing their own leadership, and normally the most senior judges took over when new appointments were due. This practice was terminated by a new law in March 2017. Since then, the highest bodies of the respective courts have had to submit three proposals to the president, from which he then selects a candidate. This allowed al-Sisi, for example, to bypass the most senior judge, Yehia Dakroury, when in July 2017 a new head of the State Council (the supreme administrative court) was to be appointed. Dakroury had previously been noted for some judgments, which the regime disapproved of. For instance, in June 2016 he had annulled the government’s decision to hand over the two islands of Tiran and Sanafir to Saudi Arabia.

This regulation is now to be anchored in the constitution in an even stricter form by an addition to Art. 185. It gives the President the authority to select a person from a pool of seven candidates, who for their part are determined according to the seniority principle. In addition, the President is to appoint the Prosecutor General now (Art. 189), who is hitherto appointed by the Supreme Judicial Council, consisting exclusively of lawyers. Instead, it will nominate three candidates from whom the President will choose. The same applies to the appointment of the President of the Supreme Constitutional Court (Art. 193). To date, he has been appointed by the General Assembly of the Constitutional Court from among the three most senior Vice-Presidents, but in future by the President from among the five most senior candidates. Thus, the President is given the power to fill all important judicial positions.

In addition, a further amendment to Art. 185 provides for the installation of a Supreme Council for Judicial Bodies and Entities, to be chaired by the President and to regulate, among other things, transfers and promotions. Mubarak’s attempt to create a comparable body by law in 2008 had failed due to fierce opposition from the judiciary, which feared for its independence. In December 2018, al-Sisi had already announced that he would revive the idea, and the constitutional amendment would pave the way for this. The clause that each judicial authority is entitled to an independent budget, which is granted by parliament and entered as a separate amount in the state budget, is to be deleted from Article 185. How the appropriation of funds is to be regulated instead remains unclear.

Finally, important functions are to be removed from the administrative jurisdiction, the so-called State Council (Art. 190). For example, the proposal provides for the deletion of a clause which assigns to the State Council the exclusive authority to examine draft contracts to which the government or a public institution is a contracting party. Since no other institution is assigned this function, legal supervision of public contracts would no longer be enshrined in the Constitution. This further shields the already often non-transparent procurement of public contracts, from which not least the military has profited massively in recent years, from any review.

Thus, the planned constitutional amendments would weaken the mandate of the State Council and massively undermine the independence of the judiciary. Civilian control over the armed forces, on the other hand, would be further hampered and the military would de facto be placed above the constitution. This would further reinforce the trend toward ever more comprehensive control by the president and generals that the BTI has observed since the coup in 2013. Together with the prospect of the prolongation of a-Sisi’s authoritarian rule until 2034, this is bad news for the country’s transformation.

A short version of this article was first published on AfricanArguments.org