Constitutional Democratic Backsliding
Elyssa Koepp
May 31, 2023

Elyssa Koepp is a Tunisian, German, and American Research Assistant, and second year MAIR student at Johns Hopkins University (SAIS). Her focus lies in the relationship between the EU and North Africa and the political developments in Tunisia since the Arab Spring. Elyssa graduated with a B.A. from McGill University with a double major in political science and international development, and has worked with refugees at different steps of the integration process in Germany, Canada, France and the US. Fluent in French, English and German, she is now studying Arabic at an advanced level. Elyssa is currently conducting research on Tunisia's new constitution.

On Monday July 25 2022, 4,577 voting offices opened their doors from 6am to 10pm to Tunisian citizens to cast their vote to approve or reject the new constitution. ^[1] Out of the 9,278,541 Tunisian citizens registered to vote on the referendum, only 2,83 million went to the ballots, capping the participation rate at 27.54 %. President Kais Saied's constitution was approved with a 94.6% rating ^[2] and promulgated on August 17 through the presidential decree n° 2022-691. ^[3]

In the weeks leading up to the referendum, the walls across Tunisian neighborhoods were covered in large black paint with the list of the 161 referendum campaigners; political parties, associations and individuals allowed 72 hours after the publication of the constitutional draft on June 30 to declare their positions for the 'Yes' or 'No' campaign. The UGTT, Tunisia's most prominent labor union initially supportive of Saied's state of emergency in July 2021, had grown skeptical of his actions after exceeding the 30 day limit, and refused to take a position in the campaign. Opposition parties such as Ennahdha, Amal, Ettakatol, the Republican Party and PDL, denounced the unconstitutionality of the referendum process by boycotting the voting day on July 25. ^[4] Five days after the beginning of the referendum campaign and only 17 days before the referendum itself, President Saied published a second version of the constitution, containing 46 modifications from the original version, and issued no additional 72 hours to adapt the referendum campaigners' initial positions.

Tunisians' reactions to the referendum varied across, and within, industries and neighborhoods, but the most telling divisions were seen between the educated elites and middle and lower classes.
Even within a single industry—taxi drivers—views on the referendum varied widely. There are people like Lotfi, my taxi driver on my first day in Tunis early last July, who did not have an active interest in keeping up with the political developments of the country: "ni vu ni connu la politique". All that matters to him is to live, eat, work and sleep, he said to me in Italian, showing off the multilingualism many Tunisians have acquired through tourism and watching the Italian television channel 'Rai Uno' under the Ben Ali dictatorship. His comment on the situation in Tunisia: "life has gotten very expensive since the revolution, everything from electricity to gas to food to clothes".

A study conducted in May 2021, entitled "A Dignity Budget For Tunisians", found that more than 40% of Tunisians, and over 50% of the people living in the capital, do not have a high enough income and resources "to access the conditions for dignified lives". ^[5]

A common thought in Tunisia these days, reiterated to me by Lotfi: "on ne fait pas de démocratie le ventre vide" – democracy does not operate on empty stomachs.

Slim, my taxi driver for the duration of my time there, explained to me why he decided to vote 'yes' in the referendum:
"Will you vote at the referendum Slim?"
"Yes!"
"And your family?"
"All of them of course."
"What will the question be?"
"If you support Kais Saied, yes or no."

For many Tunisians, the referendum wasn't about the constitution itself but rather about supporting the President and an effort for change in the country. When I asked him to explain to me his decision making process, his answer was very simple: Ennahda, the Islamist party that was in power after the revolution until July 25 2021 when Kais Saied dismissed Parliament, was to blame for the political stalemate and growing economic crisis since 2014. Kais Saied, however, "il est propre", or 'clean' in the political sense. He is not a thief like the others – like Ennahda.

"Do you think many will vote?"
"Inshallah! If we get to 3 million that would be amazing."
"Did you read the new constitution?"
"Yes, I saw it on Facebook, I think it is good."
"Do you think everyone will read it?"
"No I don't think so, some things are too complicated to understand."

Facebook, Tunisia's main method of communication, source of information and platform for freedom of expression since 2011, was also the easiest method to register for the referendum. When I asked Slim, however, if he had participated in Kais Saied's national consultation -the first step of the President's 2022 political agenda also mainly broadcasted on Facebook- he did not know what I was talking about. The initiative, aiming to include Tunisian citizens in determining the content of the new constitution, failed to serve as a good indicator of what people desired for their political future. Be it for insufficient public outreach, data privacy concerns, internet access, or simply a lack of understanding of the content of the questions, only 500,000 of 12,4 million Tunisian citizens participated. ^[6] Nevertheless, the preamble of Saied's constitution praises the national consultation as reflecting the 'will' and 'important choices' of the 'hundreds of thousands' of citizens that participated, a glorified image of its outcome and the role it served in the constitutional drafting process. ^[7]

Similar to the national consultation, the referendum on July 25 experienced a low turnout. Within the category of the electorate that boycotted – including many academics, political scientists, and constitutional lawyers who have been leading the debates on the (un)constitutionality of the President's policies since July 2021 – some believed that the constitution would have been approved no matter the outcome of the referendum. Even if the referendum campaign had convinced the majority of its citizens to vote 'No', given the President's disregard for the rules of the 2014 constitution, there was no guarantee the results would not be tampered with. For this constituency, participation signaled an approval of the President's political practices and legitimacized his rule. Hence, boycotting became the common path to denounce the regime's unlawful methods.

After a decade of political stalemate and a succession of corruption scandals within the incumbent party of Ennahda and the judiciary, Kais Saied's dismissal of Parliament on July 25 2021 was originally seen as a step in the right direction. President Saied used article 80 of the 2014 constitution to freeze the Assembly of the Representatives of the People and introduce a state of emergency. Following this event, Saied granted himself both legislative and executive powers as the head of state, as well as the right to legislate by referendum, appoint all ministers directing state bodies, and maintained only the first two chapters of the 2014 constitution, leaving all others up for modification or suspension. ^[8]

Although this started as a constitutionally valid path, permitted by the framework established in the 2014 constitution, Kais Saied quickly started to use and abuse the powers vested in him by article 80. He created his own time frame for the established state of emergency period of three months —prolonged again on January 31 until the end of the year 2023—and enacted new laws for a referendum and a new constitution.

Levitsky and Ziblatt argue that democratic backsliding may be "approved by parliament or ruled constitutional by the Supreme Court." ^[9] Although the situation in Tunisia in the last year was not directly "ruled constitutional by the Supreme Court," ^[10] the lack of a Constitutional Court to check the limits of his actions did not rule the decree as 'unconstitutional' either, allowing Kais Saied to rule by decree and extend the state of emergency as pleased. On September 22 2022, the African Court of Humans and Peoples Rights issued a statement that Saied's Presidential Decree 2021-117 in September 2021 was in contrast with the African Charter on Human and Peoples' Rights, and the Court urges Tunisian authorities to "return to constitutional democracy within 2 years from the date of notification of this judgment." ^[11]
The constitutional paradox behind Saied's reasoning around article 80 has to do with the interpretation of "imminent danger", the key to instigating an open-ended state of emergency. A state of emergency suspends the constitutional order limited and organized by the parameters of the existing constitution. Thus, it is temporary as long as the "imminent danger" remains. Salsabil Klibi, a prominent Tunisian constitutional lawyer, highlights that the purpose of a state of emergency is the survival of the state in the face of a national threat, hence it can not be used as a platform for the transformation of this same existing constitutional order. ^[12] Article 80 states that "the Assembly of the Representatives of the People shall be deemed to be in a state of continuous session", "the President of the Republic cannot dissolve the Assembly of the Representatives of the People" and "a motion of censure against the government cannot be presented," ^[13] so it is clear that under a state of emergency, there cannot be any changes to the legislative bodies that ensure the functioning of the state. It is also implied through these three points, that there cannot be any change to the constitution and electoral laws.

While Kais Saied defended his actions by emphasizing the democratic nature of his activities – such as the constitutional basis of his state of emergency, the direct suffrage of the referendum, and the organization of legislative elections in December 2022 – the 'constitutionality' of his methods highlight, in reality, a shift towards autocracy. The voting system is regulated by laws voted on by the majority of parliament, a power the President had vested in himself, and a constitution based on his personal edits, a national consultation that encompassed less than half a million people, and a national referendum with a 27% participation rate.

Nevertheless, within the limited voters that did participate, the referendum did obtain a 94.6% approval rating. A Tunisian doctor from La Marsa – a member of the electorate that voted 'Yes' – explained to me why he decided to disregard the legality of the referendum process and support the new constitution in hopes of witnessing an autonomous political trajectory for Tunisia outside the traditional path of democratization:
"I will give him the benefit of the doubt and vote yes. If it's yes, then actual change will be finally allowed to happen. Just wait and see, and trust what is happening. Nobody cares about debate or learning about the programs. For those who do show up on the day of the referendum, they will probably end up asking their friend or neighbor in the booth who they are voting for and follow their lead. We are currently living in a transition period where we are searching for a system that works, a third path, outside of a dictatorship or democracy as we know it. For this to happen we need to allow these things to develop and forget about the laws and policies that surround traditional politics. In Tunisia, they haven't been applied or respected for years anyways."

On the No-side, the electorate was divided across voters who rejected the President's methods and those who were not convinced that boycotting would serve an actual purpose. In a country under a French protectorate until 1956, and later under three decades of dictatorship until the overthrow of Ben Ali during the Arab Spring of 2011, not all citizens were as quick to dismiss the chance of expressing their voices in the ballots. Aligned with the second opinion, a 25 year old political scientist explained to me why he chose to use the referendum as a way to express his objection to the new constitution and incumbent regime by voting blank. As a former student of Kais Saied, taught a political institutions class at la Faculté des Sciences Juridiques, Politiques et Sociales de Tunis, he described the President's teaching skills as orthodox and traditional, and his syllabus as unchanged in the last 30 years. "Saied is very nationalistic", he added at the end. However, as a person, the qualities that won him the 2019 presidential election were the very ones that made him so popular amongst his students. His populist values and reputation as a man of the people were present both in the classroom and outside. He was approachable, polite, modest, and supportive of any student-led initiatives against the institution. After class, he could be found smoking cigarettes with the students or teaching people about the constitution in the neighborhood café.

In addition to his popularity amongst young Tunisians, Kais Saied was seen as an appealing candidate in 2019 with no history of corruption. Without any prior political background and in the absence of a party affiliation, Saied embodied the character of an independent candidate, separate from traditional elites from the old regime like Nabil Karoui, his opponent, who was caught in a number of fraud and corruption scandals throughout his campaign. Obtaining only 18,4% in the first round of the presidential election in 2019, Saied's support rose to 74% in the second round on October 11 2019. ^[14] Overall, there was no reason to question his legitimacy as a democratic ruler. Since being sworn in however, the Tunisian political scene has been steered by Kais Saied's personal interpretations of the 2014 Tunisian constitution, and the new constitution today is even more presidentialist than those of 1959 and 2014.

The new constitution of July 25 2022 is indeed highly-presidentialist. The president designates the government whose legislative power is now divided across two assemblies; a bicameral system, composed of the 'l'Assemblée Nationale des Régions et des Districts' and the 'Assemblée des Représentants du Peuple'. The president "presides over the National Security Council" (article 91), "is the Supreme Commander of the Armed Forces" (article 94), "has the right to pardon" (article 99), "appoints the Head of Government, as well as the other members of the Government" (article 101), "terminates the functions of the Government or of a member of it" (article 102), and "assigns high civil and military functions" (article 106). ^[15] In terms of the hierarchical relationship he has over the government and the judiciary, "the Government is responsible for its conduct before the President of the Republic" (article 112), and "judges are appointed by order of the President" (article 120). From a legal perspective, the president also has the final say on treaties as he both ratifies and authorizes them (article 74). Finally, Article 110 guarantees the president immunity during his entire mandate. Although the presidency is irrevocable, deputy immunity has been erased in contrast to the 2014 constitution. Dismissing the government is nearly impossible as it necessitates ⅔ vote of both Assemblies, and control over the president's actions is still very limited without an official Constitutional Court. ^[16] In July 2021, Kais Saied also dissolved all independent institutions like 'l'Instance Provisoire Chargée du Contrôle de la Constitutionnalité des Projets de Loi (IPCCPL)', which was in charge of overseeing the constitutionality of laws, and changed the composition of the Council of the Independent High Authority for Elections (ISIE), responsible for the supervision of elections. These changes affected the composition of the Council of seven members of which now three are designated by the President himself and the remaining four are presented to the President by institutional bodies.

The months following the referendum were consumed by a new found hope for political change and expectations for better economic policies.

Kais Saied was elected in a decade in which expectations for democracy were high from the success of the Tunisian revolution, but the economic hardships that prompted the Arab Spring were not adequately responded to. The inefficient transformation of the economic landscape after the revolution, due to the political deadlock and problems related to the vulnerability of the process of democratization, left Kais Saied in charge of a fragile socio-economic environment. He inherited a weak post-Covid economy with rising unemployment levels reaching more than 18% and "forcing thousands of people, including rural farmers, to migrate." ^[17] Saied's plan for 2022 thus included seeking a lifeline through the International Monetary Fund (IMF) to bail the state out of a dire economic situation.

In September and October, inflation levels hit a new record and shortages in bread, flour, sugar and gas pushed people to take to the streets. On October 15, both the National Salvation Front, sympathetic of the Ennahda party, and the Free Destourian Party (PDL), a politicaly opposition party, protested in the capital of Tunis, denouncing Kais Saied's democratic backsliding and the deepening socio-economic crisis. ^[18] Protests in the neighborhood of Mornag in Ben Arous also led a young man to hang himself in protest, an event mirroring Bouazizi's self-immolation that sparked the Arab Spring in 2011. Furthermore, the return to school and end of the hot summer months were marked by a stark increase in gas prices that had been halted during the months of June and July in order to appease social tensions before the referendum.

The constitutional changes instigated after the referendum facilitated the negotiations for the IMF deal obtained in November 2022. On October 10, the Central bank and Ministry of Trade and Economy flew to Washington DC to discuss with the IMF and the World Bank. ^[19] The deal obtained took the form of a staff-level agreement for a 48-month Extended Fund Facility (EFF) with an amount equivalent to 1.9 billion US$. ^[20] Through the new constitution, only the President or the Prime Minister – appointed by the President himself – is needed to approve an international agreement. In contrast to the 2014 constitution -in which all international agreements could be discussed and voted on by Parliament- this new organization changed the vote to a simpler and swifter procedure that encompasses the deal as a whole rather than segmented parts. Not only did this speed up the process, but there is now also only one person to hold accountable, making it easier to both oversee and establish a line of communication with the government receiving the loan.

Following the national consultation, the referendum, and the adoption of a new constitution, the year 2022 ended on legislative elections on December 17 to reconstitute a functioning Parliament.

In the months leading up to this election, the President amended the electoral law shifting to a vote on the individual rather than on the party.​​ This new system broke down party ties at the local level as a way of subverting the threat of subnational forms of authority ^[21] and remove any memory of political affiliation, a defining feature of prior elections that had contributed to Ennahda's victory in 2014. This attempt to encourage a stronger individual and community-level voting pattern highlights Kais Saied's bottom-up approach to restructure the Tunisian political landscape. However, the legislative election resulted in a voter turnout of only 8.8%. ^[22] Out of the 1055 individual and self-financed candidates, the 91% abstention rate indicated a strong opposition to Saied's political project. ^[23] With no candidate obtaining the absolute majority, the second round of elections were organized on January 9 2023, resulting in a turnout reaching 11.1%. ^[24] The Tunisian legislative elections under Kais Saied produced the lowest voter turnout worldwide, beating Haiti's 2005 parliamentary elections that had previously ranked as the lowest with a 17.82% turnout rate. ^[25]

Another element of concern of this new electoral law is its impact on gender parity and women's rights, a progressive identity and source of national pride in Tunisia ever since decolonization. Habib Bourguiba, Tunisia's first President from 1957 to 1987, banned polygamy, gave women the right to vote in 1959 and the right to seek an abortion in 1973. ^[26] Female civil society activists were at the forefront of the colonialist struggle for liberation, the Arab Spring, and the transition period after 2011. In 2014, the constitution enforced gender parity in the electoral law through a gender quota that guaranteed a fixed percentage of female representatives in government. Elections followed the Legislative Candidate Quota highlighting the will of the 2014 constitution to uphold "equality of opportunities between women and men to have access to all levels of responsibility and in all fields [and] achieve equal representation for women and men in elected councils." ^[27] Gender quotas were implemented at the national level, subnational level, as well as in municipal and regional councils, that were subject to a zipper quota requiring a 50/50 representation. Legal sanctions for non-compliance also prevented parties from being admitted and participating in elections. Replacing this prior order by individual candidate lists removes the vertical gender parity and increases the risk of a higher representation of men in the Assembly of the Representatives of the People. While the new electoral law enforces a minimum of 400 signatories to run as a candidate, of which at least 200 are women, the impact on gender parity is widespread. ^[28] After the legislative election in December, women won only 25 of the 161 seats in parliament in comparison to 68 in 2014. ^[29]

The Tunisian experience in the last year highlights the vulnerability of a weak political and economic state, and underlines the danger of an ambiguous constitution in preserving a young democracy. Understanding the larger political and economic context helps explain the individual reforms and actions taken by President Kais Saied since the state of emergency began on July 25 2021. On the economic level, the President has utilized the economic grievances that were at the basis of the Arab Spring and dismissal of Parliament in the summer of 2021. He has used the time-pressure of this mounting crisis, following a decade of economic stagnation due to the fragility of the democratic transition period and the Covid-19 pandemic, to justify altering the rules surrounding the approval of an international agreement as part of a larger shift in the decision-making apparatus of the state through a highly presidentialist constitution. The new constitution does not only provide Saied with an alarming amount of executive power, but sets the precedent for the following administrations as well. While his preamble will leave a populist stamp on the country's history, his centralized ruling system will leave an imprint on the country for decades, and does not offer an incentive for any future leader to 'de-presidentialize' the system.



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​​
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Footnotes

^[1] Annuaire codes USSD centres de Vote en Tunisie, ISIE
^[2] Les résultats définitifs du référendum sur un projet d'une nouvelle Constitution de la République tunisienne, ISIE
^[3] Décret Présidentiel n° 2022-691 du 17 août 2022, portant promulgation de la Constitution de la République tunisienne, ISIE
^[4] Jomni, Malek, Tunisie / fin de la campagne référendaire samedi : les partisans de Saïed mobilisés, l'opposition appelle au boycott selon la TAP, 22/07/22
^[5] Aliriza, Fadil, Half of Tunis Families Can't Afford a Dignified Life, Study Finds, 05/18/21
^[6] Naftim, Hatem, Consultation nationale: l'heure du bilan, Nawaat, 03/18/22
^[7] Preamble, Tunisian Constitution 2022
^[8] Sharan Grewal, Order from Chaos, Kais Saied's power grab in Tunisia, Brookings, 07/26/21
^[9] Levitsky and Ziblatt, How Democracies Die. Crown, Introduction, Chapters 1 and 4, 2018
^[10] Ibis
^[11] African Court on Human and Peoples' Rights calls on Tunisia to establish a Constitutional Court within two years, Agence Tunis Afrique Presse, 22/09/2022
^[12] Klibi, Salsabil, Brèves observations sur le constitution tunisienne du 25 juillet 2022, 09/09/22
^[13] Article 80, Tunisian Constitution 2014
^[14] Biographie de Kaïs Saied, élu président de la République tunisienne, Le Petit Journal Tunis, 15/10/2019
^[15] Article 80, Tunisian Constitution 2014
^[16] Thameur, Mekki, Projet de Constitution de Kais Saied : Faux et usage de faux, Nawaat, 07/02/22
^[17] Achref Chibani, Migrating to Adapt to Climate Change, Tunisians Lose Their Way of Life, Wilson Center, 02/28/22
^[18] Binley, Alex, Tunisia: Thousands from rival political parties protest against President Kais Saied, BBC News, 10/16/22
^[19] IMF Staff Reaches Staff-Level Agreement on an Extended Fund Facility with Tunisia, International Monetary Fund, 10/15/22
^[20] IMF Staff Reaches Staff-Level Agreement on an Extended Fund Facility with Tunisia, International Monetary Fund, 10/15/22
^[21] Gibson, Edward L, Boundary Control: Subnational Authoritarianism in Democratic Countries, World Politics, 58.1, 2005
^[22]Simon Speakman Cordall, Tunisian parliamentary election records just 8.8% turnout, The Guardian, 12/18/22
^[23] Ibis
^[24] Tunisia: ex-president calls for dismissal of Saied and restoration of democracy , 01/31/23, Africa News, Tunisia
^[25] Voter Turnout by Country 2023, World Population Review, Top 10 Countries with the Lowest