Tunisia’s Kitchen Sink Constitution

On January 26, 2014, the Tunisian constitution passed with 200 out of 216 votes. Continued disagreement over Islam’s social and political role, however, is the new constitution’s blueprint.

On January 26, 2014, the Tunisian constitution passed with 200 out of 216 votes, two years and three months after the National Constituent Assembly (NCA)—the body elected in 2011 to draft the constitution—first convened. Deputies, many in tears, stood, hugged, and chanted “olé, olé” in unison, celebrating the historic moment. For perhaps the first time since the NCA began its work, progress and relief reverberated throughout the amphitheater.

The post-Ben Ali Tunisian political sphere comprises a mix of religious and secular actors thirsty to assert their views after years of repression. The NCA exceeded its one-year mandate to draft the constitution largely due to this diversity; in months of assembly debates, deputies struggled to produce a document of consensus and compromise. According to the Western media, the new text reflects this idealized synthesis of Islam and modernity, a delicate balance of power between Ennahda, the Islamist party that held the plurality of seats in the assembly, and the largely secular opposition.

This continued disagreement over Islam’s social and political role, however, is the new constitution’s blueprint. The document is hardly the “carefully worded blend” that the New York Times praised it to be; conflicting points are juxtaposed, not resolved—a criticism that Tunisian bloggers and journalists have not hesitated to launch. Article 39, which came under fire from secularists, stresses the importance of scholarship “grounded in Arab-Muslim identity” and the “generalization of the use of the Arabic language.” Just several lines down, Article 42 guarantees the right to culture, seemingly contradicts 39, and leaves a divisive question—Tunisia’s identity—unanswered.

Jurist Yadh Ben Achour reflected on the process: “The most important thing is that these questions were finally debated. This was never the case in Tunisia, not under Bourguiba, nor under Ben Ali…Today, these debates occur openly for the first time, provoke immense controversies within the assembly, in newspapers, and on television. I think this is a true beginning to our society’s secularization.” Two and a half years of heated arguments were part and parcel of Tunisia’s first experience in democratic apprenticeship, but this partisan rancor fell short of achieving its goal to overcome divergent views or address popular demand.

Article 6, which states that the State protects religion and guarantees freedom of belief, puts these opposing forces into law. Tense debates over the article hardened during the final vote, after an Ennahda deputy accused an opposition member of heresy, reminding many of the rhetoric that preceded the assassinations of Chokri Belaid and Mohamed Brahmi last year. The article was subsequently amended to ban takfir, or the act of accusing someone of being a miscreant.

While this amendment shows that deputies integrated the transitional experience into the new text, banning takfir may be overcompensating. For some, prohibiting accusations of apostasy is not a victory for the opposition, but reflects their acquiescence to the Islamist camp by accepting the notion that criticizing the sacred is indeed an offense. Constitutionally codifying blasphemy is only logical in the context of a religious text. Article 6 is also problematic for freedom of expression. In a recent report, Human Rights Watch noted that the text’s protection of secularists still leaves loopholes for individuals interested in publicly insulting religion, an inherent democratic right.

The judiciary will ultimately be responsible for smoothing over the text’s inconsistencies, which will likely provoke future conflicts over religion’s place in society. Three years into the transition, Tunisia is left with a legal framework that reflects tumult and divide, rather than provides mechanisms to unite the political sphere. It is important to recall the way in which Ben Ali relied on his constitution to bolster his dictatorship, regularly amending the text to suit his political interest and strengthen his grasp on the citizenry. The new text’s ambiguities leave space for future exploitation, and will leave judges struggling to produce cohesive verdicts from the constitution’s kitchen sink of ideological positions. In order to hedge against the legal document’s loopholes, institutional reform is of utmost importance. Ben Ali’s penal code, punctuated with provisions that criminalize “defamation,” “offenses against state agents,” and public morals and values, could be toxic when combined with an Article 22 that deems life sacred “except in extreme cases regulated by law.” Over the last three years, judges have already exploited Ben Ali’s repressive laws to arbitrarily arrest journalists, rappers, and artists. The new charter does little to break with this trend.

In early January, as deputies devoted hours to debating takfir, protests and strikes paralyzed Kasserine, an impoverished city in the country’s southwest. Although formed to consecrate the uprising’s demands, the NCA’s balance of power derailed the transition’s trajectory, as a series of concrete grievances over the economy and distribution of resources took back seat to endless discussions over Islam. With the long-anticipated constitution finished, Tunisians find themselves with a disjointed text, wondering when politicians will align policy decisions with the reality of a country in need of economic development and institutional accountability. Democratic consolidation is not a solely textual process. Moving forward, political leaders should base policy on citizens’ demands, and let the country’s needs dictate debate, not the other way around.

Karina Piser is a Master’s candidate in International Security at Sciences Po Paris. She recently spent three months in Tunis conducting fieldwork on the constitution.