Tunisia’s Neglected Constitution

More than two and a half years since the revolution, Tunisia still lacks a new constitution—and no one seems to care. Although many agree on the document’s content, ongoing fights are keeping Tunisia in transition, free of the old regime but not yet able to focus on the reforms the country needs.

More than two and a half years since the revolution, Tunisia still lacks a new constitution—and no one seems to care. Although many agree on the document’s content, ongoing fights are keeping Tunisia in transition, free of the old regime but not yet able to focus on the reforms the country needs.

Progress on the constitution, intermittent in the best of times, came to a screeching halt following the assassination of opposition politician Mohamed Brahmi in July. Sixty members of the National Constituent Assembly (NCA) withdrew and refused to participate in further meetings. Capitalizing on the public’s anger, the opposition seems less intent on improving the constitution’s text than undermining the ruling Ennahda party ahead of post-constitution elections. As the politicians fight, Tunisia goes without a constitution and continues a slow decline.

The NCA, elected in October 2011 nine months after the fall of President Zine El-Abidine Ben Ali, is tasked with drafting a constitution for Tunisia’s new political era. After elections, Ennahda, an Islamic party who won close to 40 percent of seats, joined with the next biggest winners the secular Congress for the Republic (CPR) and Ettakatol parties to form a coalition. The agreement gave CPR the presidency, Ettakatol the speakership of the NCA and Ennahda the prime ministry. The coalition had announced that the assembly’s work would take one year.

During the constitutional drafting process, which officially started in February 2012, the major divide has been between Ennahda and the secularists. The opposition is now led by the secular Nidaa Tounes party, which does not control many NCA seats but benefits from resources and individuals associated with the former regime. The role of religion in society and the balance of powers in government both featured prominently in assembly debates and will likely continue to in the future.

Article 141 of the drafted constitution, which highlights the role of religion and was fiercely contested in the assembly, is a useful example of a drafting debate. The article makes multiple clauses in the constitution permanent and unchangeable, including Islam as the “religion of the state,” the “civil nature” of the state, and the “number and duration of presidential terms.” Ennahda has pushed for the article, which the opposition rejects. While, according to reports, Article 141 is likely to be removed in a compromise by Ennahda, the conflicting arguments over it illustrate the divide between the Islamist party and the opposition.

Cementing Islam’s place in Tunisian society, a clear objective of Article 141, can be seen as both a political move by Ennahda and a response to history. Ennahda is a religious party, its popularity a reflection of the prominence of Islam in Tunisia. As it relies on the religious for its voting base, Ennahda stands to benefit from enshrining a permanent role for Islam in the constitution. Ennahda also invokes a historical argument to give Islam special protection. As one Ennahda politician said, both Habib Bourguiba and Ben Ali, two dictators who governed the country for 55 years from its independence in 1956, “worked against Islam,” restricting the wearing of the hijab and harassing the very pious. Thus, according to Ennahda, Tunisia’s context makes a case for protecting Islam even if such a need is counterintuitive given Tunisia’s religious demographics.

The opposition sees things differently. To them, Islam, the dominant religion in Tunisia, needs no special protection. Instead, Article 141, they argue, reveals Ennahda’s goal of Islamizing the state. One opposition member, Salim Ben Abdessalem, stated that the “aim of Ennahda was to give Islam a special status, to put Islam above the constitution.” The opposition criticizes Ennahda’s Islam as fundamentalist, ignoring the various levels and forms of belief present among Tunisia’s Muslims. “They want to impose their vision of Islam, a rigid vision,” Abdessalem said.

Half of the debates in the assembly focused on the role of religion in the state. The issue is important and will be a constant point of discussion in Tunisia. But for now, according to analysts and assembly members, a consensus on the constitution’s text has been reached. Since this summer, the debate has instead focused on process, the how as opposed to the what. The protests following Brahmi’s assassination reflect that focus. Crowds have not demanded amendments to articles, but rather changes in the institutions that will produce the document. “The people in the streets don’t know what’s in the constitution,” said Amine Ghali, an analyst associated with the opposition. “But they know the process has been bad.”

When the June 2013 draft was released, some assembly members threatened court action. After months of working in their separate topic-based committees arguing over and drafting the articles related to the judiciary, civil rights, municipal governments, and others, they had sent their work to the drafting and writing committee, tasked with organizing the written articles into one document and polishing the language. When the draft was released, however, members said that the content had been altered. Rather than specifying what exactly had been changed, assembly debate revolved around the draft’s lack of credibility because of the committee’s actions.

If the assembly has been stalled since June, it completely went off the rails after Brahmi’s assassination in July. The drafting process, though, seems to be unrelated to the public outcry toBrahmi’s death, who like Chokri Belaid was gunned down in front of his home. Outraged, the opposition accuses Ennahda of coddling fundamentalist groups like Ansar Al-Sharia. The political rallies in Bardo square seldom brought up the constitution, instead they call Ennahda a “gang” and it’s leader an “assassin.” In July, the opposition demanded the dissolving of the NCA and government. Since, civil society groups have stepped in to mediate between the respective governing and opposition coalitions.

The roadmap that has emerged from Tunisia’s largest labor union, the UGTT, for political talks is promising as it offers calendar deadlines for finishing the constitution—one month from the first session. It remains to be seen how these deadlines will be enforced or if the meetings themselves will be successful. Some elements of the opposition’s 
demands, like a committee of experts to supervise the NCA, are present in the roadmap, but others, like the call to abolish the NCA altogether, have been dropped.

The demand for this unelected committee, opposition politicians say, comes from the public’s opinion that the assembly has taken too long, and is hence illegitimate. But the assembly’s self-imposed, non-legally binding deadline was up almost a year ago and passed without much of a stir. After another assassination, however, the opposition acknowledges it is harnessing a fed-up public to cover their withdrawal and demands.  The fervor over abolishing the NCA makes the process an end in itself, rather than the means to a constitution. Now, once the elections are planned and the constitution finalized the opposition can claim to its supporters it was due to their rebellion.

Tunisia limps on. Old regime laws, often meant to protect the authorities rather than citizens, endure; journalists face prosecution. Tunisia’s economy and infrastructure also continue to suffer as much-needed reforms are impossible without a constitutional framework. Further, the chaos of transition may be putting off exactly the kind of people who may be able to help Tunisia, highly skilled, individuals unwilling to enter what they see as a free-for-all, avoiding government and civil society service. Tunisia’s transition, often cited as a model, has taken its toll on the country. With the constitution effectively agreed upon, the transition needs to end.

Robert Joyce is a story editor at Tunisia Live. 

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