Tunisia: Crafting a Consensus Democracy in a Dissensus Environment

Aymen Briki

Sousse University

Bellum omnium contra omnes, the familiar phrase from Hobbes, is perhaps the most apt description of Tunisia's present constitutional and political situation. As the sole democracy in the Arab region, the country stands alone. Unfortunately, this advantage has not prevented Tunisia from drifting into a deep constitutional, economic, and governance crisis because since the government reshuffle crisis in January 2021, the country is de facto without government due to the political obstinacy of the PM, the President and the Chairman of the Parliament.

According to the country’s political and legal elite, the main culprit is the Constitution of 2014, due to its unrealistic allocation of powers. But is this really a crisis caused by poor constitutional design? Or is it a purely political problem stemming from the country's history of authoritarianism, its elite’s shallow levels of trust, and its lack of experience with power sharing? To answer these questions, we need to investigate the nature of this Constitution, its interpretations, and its interpreters’ concept of statecraft.

The Constitution of 2014 as a Consensus Constitution

To understand the current constitutional crisis in Tunisia, one should turn to the genesis of the constitution itself. Written during a period of deep polarization between Islamists and secularists, it reflects the tension that has existed between these two major currents within Tunisian society since the time of the state’s formation in the late fifties.

This tension was infused into the constitution, starting with its preamble. Each mention of secularism is preceded or followed by a reference to Islam. For instance, the first sentence of the second paragraph of the preamble begins by noting the "people's commitment to the teachings of Islam and its aims", but this statement is directly followed by a reference to "the human values and the highest principles of universal human rights." This conceptual clash is repeated throughout the constitution. Similarly, Article 1 stipulates that "Tunisia is a free, independent, sovereign state; its religion is Islam," while the following article states that "Tunisia is a civil state based on citizenship, the will of the people." The very same dialogue recurs at Article 6.

It is interesting though, that the constitution refrained from identifying a precise date for the revolution favouring consensus between the parties who could not agree on such a date.  Instead the first sentence of the preamble refers to "the revolution of December 17, 2010, through January 14, 2011."

Given the ongoing debate surrounding the official date of the revolution, this is a balanced political stance. In short, the disagreement turns on whether the date should be fixed at the time of the revolution’s outbreak or the date of Ben Ali's escape. 

Looking at the constitution, we can note that it does more than simply constitutionalize this ideological tension. Rather, it takes a significant step towards institutionalizing consensus – a gracious gesture of inclusivity given the shallow trust level and lack of confidence between the parties. Events following the 2014 election validated this observation, when President Beji Caid Essebssi and Rachid Al Ghannouchi, leader of the Islamist party Ennahdha, managed to strike a bargain that helped prevent the country from falling into a severe constitutional crisis.

In contrario, it was the lack of dialogue between the Islamists and the incumbent president and their unwillingness to build consensus that brought the country to the brink of a severe constitutional crisis and rendered the constitution vulnerable to abusive interpretations.

The Circus of Abusive Constitutional Interpretations

The conflict between the Presidency and Parliament ignited over the appointment of the new prime minister. The situation was aggravated by the quick rhetorical shifts of Rachid Al Ghannouchi and Ennahdha's attempts to interpret the constitution in abusive ways that excluded President Saied from the government formation process. The latter responded by proclaiming that he has the sole authority to interpret the constitution and that this authority was vested up on him based on  Article 72. However, the article that the president refers to actually states “The President of the Republic is the Head of State and the symbol of its unity. He guarantees its independence and continuity and ensures respect of the Constitution.”

This unfortunate interpretation is a clear violation of the principle of separation of powers, which precludes the possibility that any authority or person should concentrate the powers of legislation, adjudication, and execution. Because it is imperative to separate the making of laws from their interpretation and implementation, such a proclamation from the head of the Executive violates a foundational principle of constitutional law.

This circus of constitutional (mis)interpretation will continue so long as Mr. Ghannouchi continues to qualify the political and constitutional systems as ‘a parliamentary system’ and ignores the directly elected President and his legally constituted powers. The President's response was to reject a bill passed by Parliament that would have amended the act establishing the Constitutional Court in order to ease the voting procedures for the Court's members. Despite lengthy internal and external consultations, the letter to return the draft law was poorly justified. The President tried to draw an analogy between filing deadlines in civil proceedings and the constitutional requirement, under Article 148, to establish the Constitutional Court within one year. Beyond the obvious lack of similarity between these two comparators, the reasoning itself produces an absurd result from a constitutional point of view. It is illogical to refuse to establish the country’s apex constitutional court because of Parliament's inability to meet a deadline set in the constitution. Nonetheless, from a political standpoint, the President’s fear was legitimate in light of the recent history of acrobatic interpretations of the constitution. The very same fear and lack of trust between the political actors would lead to another inventive attempt at constitutional reinterpretation when the President claimed that his role of commander-in-chief of the armed forces extended to being the commander of all forces, including civilian forces such as the police and customs. This claim is without precedent in Tunisia’s constitutional history.

Constitution!! What is it Good for?

The tradition of the constitution misinterpretation has been continuing since 2014. The parliament failed to overhaul the country's legal framework in light of the new constitution. The ruling class mismanaged the COVID-19 crisis, which led to an obscene death toll. In addition to unemployment, corruption and a democratic transition became a consolidation of kleptocracy, resulting in an understandable popular discontent. This feeling of discontentedness led young people again to the streets several times this year. The president used this situation to interpret the constitution again and imposed a de facto state of exception on 25 July. He invoked Article 80 of the constitution. Most of the measures he took were extraconstitutional. The article allows neither to dismiss the Prime minister nor to freeze the parliament or appoint himself as the head of the public prosecution.

The invocation of this article is justifiable in case of an "imminent danger threatening the nation's institutions or the security or independence of the country and hampering the normal functioning of the State," the president emphasized that his decision was due to political instability caused by the protests. At the same time, his supporters consider that the parliament was the imminent danger that the president should get rid of and turn the country back towards the presidential system again and change the electoral system. These suggestions may make the president's measures adhere to the elements of the crime of unconstitutional change of government prescribed in Article 28e of the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights.

Despite the rumors about the president's willingness to reactivate the constitution of 1959 used during the authoritarian period, the president made it clear that he is acting under article 80 of the 2014 constitution and will abide by the constitutional legitimacy.

Apparently, from the political class actions, the answer to this section's title: constitution, what is it good for? is Absolutely Nothing. This means that the only hope of Tunisia’s democracy is its civil society and people who will not take this deduction as answer.

Statecraft Under the Constitution or out of it?

This unprecedented escalation recalls Tunisia's history as a police state and its legacy of authoritarianism; it also confirms that such abusive interpretations are a mechanism to establish a state that differs from the one outlined in the constitution.

The implementation of a new constitution will always give rise to tensions between institutions and conflicts over power, but these inevitable controversies must be settled through institutional channels rather than other means.

Although Tunisia’s Constitution of 2014 is prized as the first democratically enacted constitution in the region to establish a proportionality-based human rights review system, the country’s institutional, social, and legal actors still lack a shared democratic culture. They are elected to implement and protect the consensus constitution as they have been entrusted with the statecraft process under it and not out of it.

Rather than adopting a dialogic system to settle their differences, they have chosen to misinterpret the constitution to change the rules of the game. This harms the integrity of the political process and degrades the quality of democracy and constitutionalism in the country, especially when it results in delays to the establishment of major institutions.

This delay is not a mere deceleration in the country's institutionalization and state crafting process, but it is a contentious violation of people's rights. For example, the delay in establishing the highest constitutional adjudicative body obstructs all Tunisians’ right to a fair trial. It is also a violation of the national right to development and rule of law standards.

Conclusion

Constitutions reflect societies' complexities; they are the embodiment of crucial moments in a nation’s history. Within these documents that cannot be easily amended, we can trace the bargains made by political elites to lay down the authoritative foundations for the state's stability and continuity. These documents’ primeval soup is the people's will to live together. Therefore, it is essential to interpret the constitution in the light of the public interest; it is also necessary that it be read as a framework to build consensus and not dissensus.

Aymen Briki is a research fellow & consultant in law and political sciences and a Ph.D. candidate in public law at the University of Sousse.

Suggested Citation: Aymen Briki, ‘Crafting a Consensus in a Dissensus Environment’ IACL-AIDC Blog (6 August 2021) https://blog-iacl-aidc.org/spotlight-on-africa/2021/8/6/tunisia-crafting-a-consensus-democracy-in-a-dissensus-environment.