On July 25, 2021, and capitalizing on protests about failed management of the pandemic and ailing economy, President Kais Saied activated Article 80 and invoked a state of exception which granted him exceptional powers. However, in doing so, Saied also suspended parliament in a clear violation of said article, a move that was possible in the absence of the Constitutional Court which technically left him as sole interpreter of the constitution.
Weeks later, on September 22, 2021, Saied issued Presidential Decree No. 2021-117 with which he monopolized both the executive and legislative powers and eliminated any counter-power. It was not until December 13, 2021 though that the president announced his one-year roadmap for a “return to normality”. This plan involved an online national consultation, a referendum on political reforms set to be scheduled on July 25, and legislative elections for December of the same year.
As only a few days remain before the July 25 referendum, it is imperative to emphasize the transgressions and flaws in organizing it. This piece will provide an overview of these issues to pinpoint democratic shortcomings of this critical moment in Tunisia’s democratic transition.
An opaque, non-inclusive, and fait accompli process
Following the announcement of the roadmap, little was known regarding what the referendum would be about. It is only on May 1, during an address by Saied, that it was revealed to be for a new constitution. The National Consultative Commission for a New Republic, was created by Saied to prepare an initial draft constitution. The commission was to abide by the results of the national consultation which took place between January 15 and March 30, and engaged less than 600,000 participants. Of these, however, only 36 percent voted for having a new constitution, while 38 percent were in favor of constitutional amendments.
The composition, structure, and deliberations of this commission failed to meet the minimum requirements for a democratic and inclusive dialogue, and its output was also discarded by Saied. When the official draft constitution was shared on June 30, the chairman of the drafting commission Sadok Belaid denounced it, and later published the draft that the commission presented to the president in a newspaper.
Put simply, President Saied waited five months after announcing the referendum to clarify it would be on a new constitution, created a constrained dialogue commission to draft it, allowed said commission a very short timeline to draft the new constitution, only to then pass his own views in the official draft to be put to vote.
More importantly, prior to unilaterally deciding on the referendum and its content, President Saied had also undermined the partiality of the Independent High Authority for Elections (ISIE), the body responsible for monitoring elections. On April 21, 2022, and by virtue of Decree No. 2022-22 which amended its regulating law, Saied gave himself the power to change the composition of the Elections Authority. The Venice Commission opinion shared on May 27, 2022, referred to this change and concluded that the repeal of Decree 22 “essential for the legitimacy and credibility of any electoral or referendum process.” In spite of this, Saied and the new ISIE are moving forward as planned.
The sprint toward referendum day
Similarly to everything else, the timeline for holding the referendum was imposed by Saied on his political opponents, and on the Elections Authority as well. Once he belatedly promulgated the voter invitation decree in the official gazette, issued on May 25, 2022, ISIE moved forward and issued the official referendum calendar on June 3, 2022, declaring the referendum period had started on May 3, 2022. This was criticized by the president of the Mourakiboun Network, an elections watchdog, as well as the fact that the date for the referendum was set before the draft constitution was even ready, not allowing the drafting commission a reasonable timeline. This led the organization to consider that this process adopted by the president “torpedoes all standards for fair elections.”
Based on the official electoral calendar, individuals, civil society organizations, and political parties that wish to campaign in favor of or in opposition to the draft constitution were required to register at the Elections Authority between June 21 and 27. Upon confirmation of their registration, campaigners were required to submit by July 2 whether they were going to campaign for a yes or a no vote, two days only after the draft constitution was shared to the public. This was later extended to first July 4, then to July 12 after the president shared an amendment to the draft constitution on July 8 to correct errors that had “seeped” into the initial text, in a blatant disregard for due process and his own decrees. Multiple calls demanded that ISIE push back the referendum to at least respect the calendar, with some hoping that it seizes the opportunity to amend the calendar altogether and uphold principles of neutrality and authority, yet these calls remained unanswered.
Simultaneously, President Saied stated on multiple occasions that the website created by ISIE to allow voters to change their voting centers had been hacked or attempted to be hacked 1,700 times, in an attempt, according to him, to create confusion on referendum day by changing voting centers without voters’ knowledge. This echoed a ISIE statement calling on voters to check their voting centers after it “noticed attempts” to change them. In fact, voters who failed to register by June 15, were automatically registered to the nearest voting center to the address on their IDs, with the possibility to change the voting center via phone or online until July 14. By this date, more than 9 million voters were registered, but no minimum participation threshold has been set.
To vote, or not to vote?
Prior to the launch of the campaign, there were contradictory statements by ISIE members on monitoring of boycotters, considering their statements and actions as commensurate to campaigning. An ISIE member even claimed that boycotters should register to campaign, while registering would mean de facto recognizing the legitimacy of the process which parties have spoken against. While these statements were criticized by many, no cases of legal action by ISIE against boycotters have been reported as the campaign nears its end.
The campaign for the referendum officially started on July 3, and calls for boycott were launched before it even began. Various political and civic actors claim that participation would legitimize this unconstitutional process, and others go as far as to express their certainty that ballots would be tampered with even if a no-vote triumphs. This created a divide amongst President Saied’s opposition, especially political parties, most of which opted for boycott. This is visible in the official communication by ISIE on participants in the campaign, with only 153 participations—22 parties, 23 civil society organizations, 1 party coalition, 1 civil society organization network, and 106 individuals. The fact that only 22 out of more than 200 parties—most of which are relatively unknown— took part in the campaign, is problematic, and the same goes for civil society organizations. While a case can be made that this in fact is in line with citizens’ disillusionment with ‘big’ or ‘established’ parties, this does not necessarily mean that these emerging parties represent a large section of society, or have a large members base. Of these 22 parties, only six are campaigning for a no, among which Afek Tounes party, a center-right liberal party. This disproportionality pushed the Independent High Authority for Audiovisual Communication, an independent oversight body regulating media, to recommend canceling direct expression sessions, the broadcast of short videos for campaigners to convey their position, which ISIE did not heed.
Of those boycotting the referendum among political parties, two party-based coalitions and one party stand out the most. These are the National Salvation Front, involving Citizens Against the Coup and Ennahdha Party, the National Campaign to Abolish the Referendum, composed of five center, social democrat, and left leaning parties, and revolution negationist and Ben Ali era apologists Free Destourian Party. On the other hand, the majority of parties for a yes-vote are unknown to the public, with the exception of two Pan-Arab Nationalist parties; Achaab Movement (part of the Democratic Bloc in the last parliament) and Popular Current (part of the left wing bloc in the 2014-2019 parliament).
Tunisian civil society was also vocal in its opposition to the constitution. Yet faced with the same divide as political actors between boycotting or voting for “no”, civil society organizations opted to express a united position against the constitution and the referendum process without giving a voting directive. This did not stop some organizations from explicitly calling for boycott or for a no-vote. Some organizations took action and filed lawsuits against ISIE, which a number of parties also did. In a final attempt to showcase a united front, with the hopes to mobilize the street, a large coalition of civil society organizations has called to protest against the constitution and the referendum process on Friday July 22, the last day of the electoral campaign and just three days before the referendum.
Meanwhile, President Saied and his government continue with business as usual, although mobilizing to make the referendum a success. In the early hours of July 5, social media accounts of the presidency published a hand-written letter in which Saied emotionally calls for a yes-vote. Decree No. 2022-34, amending the electoral law, stipulates that the stakeholder calling for a referendum should prepare an explanatory memorandum detailing the content and objectives of the text to be voted on. It does also specify that this letter should be shared before the campaign period starts, which was not the case, leading the organization I-Watch to denounce it and file a lawsuit against Saied. The biased language of the letter also stirred controversy contesting it could be considered as an explanatory memorandum. Furthermore, after a meeting with Head of Government Najla Bouden, Saied stressed the need “to guarantee both best conditions for the explanation campaign and neutrality of public institutions,” creating confusion as to whether he referred to campaigning in general or his yes-campaign. After campaigners for the “yes” vote have been using commercial billboards and the Tunisian flag to encourage voters to vote for the new constitution, which is considered illegal in electoral law, Mourakiboun condemned ISIE’s resorting to simply sharing a reminder against this and failing to sanction this.
A plebiscite on Saied
Some telling quotes on referendums from statements made a few years ago by Kais Saied when he was still a constitutional law professor have lately resurfaced on social media. Saied stated in one of these that “a [constitutional] referendum requires a number of conditions, including a preceding campaign and a minimum participation threshold.” As the country’s president, he seems to have forgotten what he preached, putting a draft constitution to vote following a one-man rule for a whole year, during which he dismantled the handful of institutions that the country managed to put in place with no minimum participation threshold.
Another of his quotes states that the risk of holding referendums is that voting becomes comparable to a “vote of confidence” on the party that suggested it. It is most likely that he recalls this one and is in fact counting on it to increase the yes-votes. In the aftermath of his July 25, 2021 self-coup, Saied’s best defense was the complex patchwork of political and economic crises that plagued the country for years, along with the mismanagement of the pandemic, all of which caused the protest in the first place. He is setting himself as the savior leading the country into a “new phase of History,” “correcting the Revolution’s path” as he repeatedly claims and has enshrined in the preamble of his draft constitution.
The final quote that resurfaced has Kais express his regret that “there has not been a single referendum in Arab countries where the people have not voted ‘yes’”, and that he wishes to see a referendum ending with a no. For all Tunisians’ sake, be they in favor or against Saied’s measures, whether they consider it a coup or a correction, whether they would vote yes or no, or not voting at all, hopefully his wish comes true.
All indicators, however, point toward a yes-vote victory, yet the question remains as to what participation rate the referendum would see, and the percentage of supporters among those. These numbers are likely to be major talking points for political and civic opposition in the battles to come.
Aymen Bessalah is a Nonresident Fellow at TIMEP focusing on governance and the rule of law in Tunisia.