Algeria’s Draft Constitution 2020

Zaid Al-Ali

International IDEA

In response to a year of popular protests demanding change, Algeria’s new president launched a constitutional reform effort.  The draft that was published last week tweaks the existing Constitution in ways that are unlikely to satisfy the demands for radical change. 

Algeria’s current Constitution has been in force for decades.  It is a strong presidential system that has allowed for a single individual and a small number of individuals in the security sector to dominate state institutions.  In response to protests that started in 2011, former president Abdel Aziz Bouteflika amended the Constitution in 2016, including the reintroduction of term limits, but the population felt almost no change in the way that the government functions.  Bouteflika himself remained in power for 20 years. The end of his rule was characterised by paralysis and decline, which inspired yet another popular uprising that started more than a year ago.  In response to the uprising, the army removed Bouteflika, and a new presidential election was held.  The new president appointed a small committee of handpicked experts and requested of them that they produce a new draft Constitution in just three months, which they did.  One of the members of the expert committee has since stated that the draft amendments are inadequate and has withdrawn from the committee. 

The expert committee’s draft amendments were released at the end of last week and are being widely discussed at the moment. Supporters of the uprising reject the entire process because of the top down approach and the lack of popular input.  Others have offered substantive comments on specific provisions, focusing on a small number of elements, including issues relating to identity.  Importantly, the draft consists of proposed amendments to the existing Constitution. As a result, the draft is still very much anchored in the current Constitution, and only proposes to build on what is already there.  This makes it much more difficult to give effect to the type of radical change that ordinary Algerians are asking for, so it is not surprising that they are not satisfied. 

Under the proposed changes, Islam remains the religion of state (Article 2). There is no mention of Sharia. On the one hand the draft does not appear to propose any changes that would increase the scope of responsibility to the religion of the state in Algeria.  On the other hand, there has been significant controversy about issues relating to language and identity. Arabic and Amazight are both mentioned as "official languages" but Arabic remains the only "language of state" (Articles 3 and 4). Algerians from both sides of this issue are unhappy with this arrangement.

The draft amendments propose to keep in place most of the Constitution's "general principles", which include the usual references to democracy, plurality, and social justice (Article 15). All of these are very common in comparative practice, and none of them really mean that much without specific mechanisms to bring them to life. 

The draft proposes to make a small change to the system on decentralisation.  Decentralisation in Algeria is mainly administrative.  The central state maintains a very significant amount of control over decentralized institutions.  The proposed changes state that specific municipalities can have their own "special system" (Article 16). It is not clear exactly what that means but at the very least it appears to open the door to asymmetry.  Some commentators have expressed concern about this possibility, on the basis that it could further weaken national unity.  On its own, this does not appear to be a major area of concern. 

There is significant controversy about the role of the Army. Article 29 states that the Army can be deployed outside of the national territory to support international peace keeping missions, something that had never been the case (Article 31).  Some commentators have argued that this could change the Army's place in state and society and are concerned by the implications.  Others have suggested that this may mean that Algeria is preparing to involve itself in neighboring Libya.  It is not clear whether this change will have any meaningful impact in practice. 

On basic rights, the draft Constitution follows a by now very old technique. It lengthens the list of rights while at the same making sure that most of those rights are devoid of meaning.  For example, there is now a right to water (Article 64), but there is very little chance that this right will ever be enforced in a court, given that all social and economic rights in Algeria remain entirely aspirational. There is also very little improvement on civil and political rights.  The draft's wording on freedom of assembly is highly restrictive, providing that a law will determine how the right should be exercised without giving any indication how far the law can go in limiting the right.  Most importantly perhaps, the draft Constitution has not incorporated a limitations clause (Tunisia's 2014 Constitution has a robust limitations clause - see Article 49). That means that there is no guidance on how rights can be limited, which means that the state is very unlikely to change any of its practices in the short term. 

On the system of government, the draft Constitution is still firmly presidential. The President still enjoys extensive powers and has control over national defense, over government formation and appointments (Article 95).  The President appoints the Prime Minister "after consulting the parliamentary majority" (which means that the President can choose any candidate he wants) and can dismiss the Prime Minister at will (Article 95(7)).  The Prime Minister nominates Ministers, while the President appoints them, which clearly suggests that he can block the nomination of any specific Minister (Article 102).  The Parliament has close to no role in the process.  The President still has authority to make appointments at his own discretion to several institutions including the head of the supreme audit institution, the president of the high court (Article 96). This discretionary power should not have been vested exclusively in the President’s office.  The President now has the power to appoint and to delegate powers to a Vice President (Article 95). This provision has attracted significant attention in the public debate, although it is not clear whether this will make any practical difference.   On states of emergency, the President can still declare a state of emergency virtually at will but can only do so for 30 days. This time period can only be renewed by a joint session of Parliament (Article 112). This is a clear improvement to the previous system, which allowed for limitless states of emergency. 

The draft also proposes to give the Parliamentary Opposition the right to head Parliamentary Committees but does not specify them (Article 121). Tunisia's Constitution specifically provides the Opposition the right to head the Finance Committee.  The draft also proposes to impose a two-term limit on members of parliament (Article 127).  Parliamentary term limits are comparatively rare, but the experience that does exist suggests that have very little positive impact, and just move opportunities for corruption elsewhere.  The Parliament can withdraw confidence from the Government but must meet a very high threshold (two thirds of members), which will be close to impossible to meet in most circumstances (Article 167).  In any event, the President maintains the absolute right to dissolve Parliament, for whatever reason (Article 156), which will significantly curb the Parliament’s enthusiasm to exercise oversight over the executive. 

There are some important changes in the judiciary, but much remains the same, including the fact that the President retains very significant influence on the courts through appointments and through control over specific institutions.  For example, the President is the head of the high judicial council and also appoints some of its members (Article 187), which is a clear violation of the separation of powers.  Meanwhile, almost all of the judicial council's internal rules and powers are left to be defined by subsequent legislation, which means that it will be at the mercy of the executive and of the legislature (article 190).  On the Constitutional Court, the draft abandons the old Constitutional Council and replaces it with a court.  Most of the substantive changes had already been entered into before and mirror the reforms that were carried out in France in 2008 and that have since been adopted in Morocco and Tunisia as well.  The President appoints four members of the Constitutional Court, the Courts four, and the Parliament four (Article 194), which is almost exactly the Tunisian model.  The Constitutional Court's mandate includes reviewing the constitutionality of laws, etc. Constitutional review can be triggered either 30 days after a law is adopted, or by referral from a lower court (Article 202). This is very much in line with regional and international trends.

Zaid Al-Ali is a Senior Programme Officer in Constitution-Building in the Africa and West Asia region for International IDEA.

Suggested Citation: Zaid Al-Ali, “Algeria’s Draft Constitution 2020” IACL-IADC Blog (14 May 2020)