Tunisia is preparing for a constitutional referendum set to take place on July 25, 2022, exactly one year after the country’s President Kais Saied set the country on an alarming trajectory. This explainer unpacks how Saied has spent the last year dismantling the independence of the judicial and legislative branches and expanding his executive authority, and details how he threatens to make permanent these steps in a new constitution.
One year of Saied’s ‘state of exception’
On July 25, 2021, Saied dismissed Prime Minister Hichem Mechichi, suspended the activities of the Assembly of the Representatives, and lifted parliamentary immunity; on July 29, he issued Presidential Decree No. 2021-80 to formalize these steps. Thereafter, he stated that he would head the executive branch alongside a new prime minister, who was eventually announced to be Najla Bouden.
On September 22, 2021, Saied declared that he would rule by decree virtue of Presidential Decree No. 2021-117 which suspended major constitutional articles and reaffirmed the previously-announced measures subverting parliamentary privileges. This step gave the president the right to rule by decree over various areas including the judiciary, the military, civil society associations, and political parties while exempting him from judicial review. Since then, Saied’s legislative and executive powers have continued to grow exponentially in the face of undermined oversight mechanisms.
These developments occurred as Saied planted the seeds for a “new political roadmap” that was rooted in a national narrative of fighting corruption and conspiracy, and holding “traitors” to account. As he did so, he declared that the 2014 constitution would no longer be valid and that the new roadmap would be based on “legal solutions” grounded in “the will and sovereignty of the Tunisian people.”
One of the steps to translate Saied’s vision into reality became the National Consultation Process, which took place between January 1 and March 20, 2022 and served as a stepping stone for the political and electoral reforms that were to come. The consultation proposed a series of questions, with specific pre-drafted answers regarding electoral, political, economic, educational, and social issues for eligible Tunisians to select from. Despite the fact that the consultation engaged only 508,000 participants, Saied declared the process a success and proceeded with his plan to implement its alleged input into next steps. Observers and experts critiqued the consultation for its low participation and methodology which resulted in unequal representation, particularly with regards to gender and region. Head of the Tunisian General Labor Union (UGTT) Noureddine Taboubi condemned the failure to inclusively involve national actors from the beginning of the consultation. In its latest urgent opinion, the Venice Commission, an advisory body of the Council of Europe that is composed of constitutional law experts, found fault in the president’s roadmap more generally and cast doubt over the possibility of arriving at a “constitutional synthesis” with a consultation that “ did not give rise to widespread popular support, as participation remained very little.”
In a step that further ate away at checks and balances more generally, on February 12, 2022, Saied dissolved the Higher Judicial Council (HJC) via Decree No. 2022-11. The HJC had been promulgated in the 2014 constitution and was the highest judicial oversight body in the state. Saied’s decree replaced the HJC with a Provisional High Judicial Council, retaining the same composition of the HJC, though altering the number of judges and the appointment process, and empowering the president to act as a disciplinary power and request removal of members. These changes tightened the executive branch’s control over the judiciary and expanded the president’s powers and influence. Months later, Saied would amend Decree No. 2022-11 with Decree No. 2022-35 on June 1, 2022, giving him the power to dismiss judges if they harmed the independence or the integrity of the judiciary; the amendments paved the way for the sacking of 57 judges, per Presidential Order No. 315-2022.
Amidst these rapid and consequential judicial and legal developments, members of the suspended parliament tried to mobilize and convene to revoke the measures taken by Saied through an online session on March 30, 2022. In response, Saied announced the official dissolution of the Assembly of the Representatives and substantiated his announcement with Presidential Decree No. 2022-309. In his decision, the president relied on a loose interpretation of Article 72 of the 2014 constitution which stipulates that the head of the state guarantees the unity, independence, and continuity of the state and ensures respect for the constitution.
Having targeted judicial independence, Saied then set his eyes on the Independent High Authority for Elections, a body created by the constitution that has supervised elections since 2011. On April 21, Saied issued Decree No. 2022-22 and amended the Law Governing the Independent High Authority for Elections. The new amendment changed the composition of the elections authority, gave the president the power of appointing its heads and members, and did away with parliament’s disciplinary and oversight functions toward it. This move raised significant concerns over the independence of the elections authority, including in comments made publicly by its head.
The path to the constitution
On May 19, 2022, Saied issued Decree-Law No. 2022-30 creating the National Consultative Commission for a New Republic to prepare a draft constitution. The commission would be made up of an economic and social affairs committee, charged with presenting reform proposals in light of the “Tunisian economic and social experience,” informed by the “aspirations of the Tunisian people based on their wishes expressed on December 17, 2010 and confirmed by the national consultation”; a legal advisory committee to “draw up a draft constitution which responds to the aspirations of the people and guarantees the principles of justice and freedom in a true democratic system”; and a national dialogue committee to synthesize the proposals of the other two committees. The decree stipulated that the chairman of the commission would deliver his final draft to the president by June 20, 2022.
Issued on May 25, 2022, Decree-Law No. 2022-32 later stipulated that the new draft constitution would be published in the Official Gazette by June 30, 2022, and that the referendum on the constitution would be governed by Organic Law No. 2014-16. Presidential Decree No. 2022-506 set the referendum date for July 25, 2022, with electors abroad set to vote between July 23 and 25, 2022, and all voters being called upon to answer either “Yes” or “No” to the following question: “Do you approve of the draft of the new Constitution of the Tunisian Republic?”
As written in an earlier analysis for the Project on Middle East Democracy, the drafting of this constitution raises much cause for concern. The process was rushed; those invited to join the commission did not begin their work until June 4, leaving them with just over two weeks to complete the drafting process. It also occurred behind closed doors, leaving much to be desired; from substantive updates to full membership, little information was made available beyond limited public reporting. The process lacked independence and inclusivity, demonstrated even in its naming as a “consultative” body, its marginalization of key voices from membership, and its reliance in Saied’s “national consultation” that was unable to garner more than 7 percent participation of eligible voters.
On June 30, 2022, a draft of the constitution was in fact published in the Official Gazette as required by the stipulated decree. Yet days later, on July 3, 2022, the Chairman of the Commission Sadok Belaid came out against this constitution. He claimed that his commission had produced and submitted to Saied a draft that was markedly different than the one ultimately published in the Official Gazette; he then published the commission’s version in the Assabah newspaper. Belaid raised concerns about a number of aspects, including insufficient oversight over the president, the vague regional governance model introduced by the draft, and waning independence of the Constitutional Court, among other issues.
Then on July 8, 2022, the eve of Eid al-Adha, Saied came out in remarks to the people of Tunisia, alleging that some mistakes had “seeped into” the version of the draft published in the Official Gazette and that an updated version of the constitution would be published shortly after his remarks. This in fact came to be—a mere 17 days prior to the scheduled referendum.
Key takeaways from the constitution
Consistent with the unilateral approach that Saied has taken in setting forward the political roadmap and constitutional drafting process detailed above, the latest version of the draft constitution that Tunisians are set to vote on incorporates Saied’s narrative into the preamble. It claims that July 25, 2021 was a “correction of the Revolution’s path and that of history,” and that it will enable the country to move into a “new phase in history”—an expression Saied has used multiple times in his remarks and rhetoric. The preamble refers to the national consultation process and inflates its legitimacy, stating that “hundreds of thousands of citizens” participated.
Most significantly, Saied’s draft constitution seeks to create what has been described as a “hyper-presidentialist” system, where the president has extensive executive and legislative authorities, with little checks over them. The draft grants the president executive powers found in presidential systems, while also affording him legislative powers typically enjoyed by the head of government in parliamentary systems. While Tunisia’s 2014 constitution distributed these powers between the head of government and the president in a hybrid presidential-parliamentary system, Saied’s draft seeks to concentrate them, not only making the president the most consequential actor in policymaking, but also making him omnipotent, in a manner similar to the 1959 constitution.
Saied’s draft eliminates parliament’s ability to vote to impeach the president prior to adjudication by the Constitutional Court, as had been set forth by the 2014 constitution. Moreover, while the government had previously been accountable to parliament under the 2014 constitution, this draft makes the government accountable to the president, who will also enjoy the authority to appoint and dismiss the head of government and other government ministers. The new draft keeps the infamous Article 80 of the 2014 constitution—which Saied relied on to declare emergency measures under a state of exception. However, the provision is now found in the form of Article 96, which eliminates the temporal deadline to lift these emergency measures and the Constitutional Court’s ability to rule on the validity of said-measures. In eliminating these safeguards, Saied makes the provision identical to Article 46 of the 1959 constitution and further expands the president’s authorities
Also similar to the 1959 constitution, Article 116 of the new draft stipulates that in case of a second vote of no-confidence against the government, the president has the right to accept the government’s resignation or dissolve one or both chambers of parliament. Although parliament in theory can still pass a vote of no-confidence against the government—albeit with difficulty as it requires a two-third majority of both chambers—its oversight power has been further constrained alongside the president’s expanded authority.
In the new draft constitution, the president enjoys expansive legislative powers at the expense of a severely-weakened parliament. He has the authority to suggest draft bills, as well as the authority to issue decrees that enjoy the force of law during parliamentary recess periods or when parliament is dissolved. The draft stipulates that the president can also call for legislative and constitutional referendums without prior parliamentary approval. On the flip side, while parliament does enjoy the authority to draw up bills that are supported by a minimum of 10 MPs, it cannot pass legislation that touches on the president’s administrative powers or on financial issues. Important to note that until a sitting parliament is elected, Saied will continue to enjoy the legislative power that he has been exercising vigorously.
While the new constitution establishes the National Assembly for Regions and Districts as the second chamber of parliament, it does away with an entire chapter on decentralization, previously present in the 2014 constitution and heralded at the time as an important success. The draft instead stipulates that local governance will further be expanded on in the law, leaving the matter outside of the constitution and raising concerns that the president may further weaken local powers, including through future amendments to the Local Authorities Code and the Electoral Law.
The draft constitution also curtails the powers of the judiciary. It eliminates the single Higher Judicial Council that was elected and tasked to manage all types of judicial jurisdictions, and replaces it instead with three higher councils that will oversee each type of jurisdiction individually—the details of which will be left to the law; it does not guarantee their independence. Leaving this to the law, rather than protecting judicial independence at the constitutional level, creates concern that the judiciary’s role will be even further weakened down the line and its independence, further compromised. The draft dedicates a chapter to the Constitutional Court, separating it from that of the remainder of the judiciary, and changes its composition. Unlike the 2014 constitution, under which the Constitutional Court was selected by the Higher Judicial Council, parliament, and the president and was composed of judges and professors from different fields, the draft creates a court composed only of appointed judges based on seniority.
The draft constitution does away with a number of independent entities created by the 2014 constitution to act as safeguards for rights and freedom by establishing additional oversight over state institutions. The draft keeps only the Independent High Authority for Elections, albeit without specifying whether its members will be elected by parliament as had previously been the case. Though the draft does recognize and protect individual rights and freedoms, an unusually-constructed Article 5 sets forth the state as the sole entity responsible “to work, in the context of a democratic system, to fulfill the “maqasid [purposes] of Islam,” raising concerns about the state’s role in interpreting religion and on how this will manifest in practice. Civil society organizations have also raised concerns about the draft’s failure to explicitly prohibit the military trial of civilians.
Ultimately, Saied’s constitution threatens to enshrine a system of governance in which the president enjoys expansive and in many cases, unchecked authorities, while the legislature and judiciary become seriously constrained, functioning with limited, if any, independence and autonomy. The draft is a reflection of a process that has lacked transparency, inclusivity, and accountability since day one and that threatens to formalize the actions that were taken in an alleged “state of exception,” grounding Tunisia and the Tunisian people further in an alarming and undemocratic pathway.
Special thanks to TIMEP Nonresident Fellow Aymen Bessalah who provided expert feedback and review on this piece.
Mai El-Sadany is the Managing Director and Legal and Judicial Director at TIMEP, and Mondher Tounsi is a Legal and Policy Intern at TIMEP.