Unlike Egypt which moved swiftly through a referendum with only minimal amendments to its constitution, Tunisia chose to write a brand new constitution. Although the transitional government of Tunisia wanted to hold presidential elections, popular demand pushed the government to instead announce elections for a national constituent assembly that will, in turn, write a new constitution. This was primarily driven by the need to reformulate the system of governance in a way that would ensure a balance of powers – something lost in the 1959 Constitution, which created a highly presidential system.
Although elections were scheduled for July 14, they were extended to October 23 partly for technical reasons. A lot needs to be done to hold credible elections in countries that had none in the past. Also, the new parties emerging from the uprising begged for more time to organize, which, although it might have been politically motivated, is also a legitimate reason for parties that did not exist just six months ago.
The History: How We Got Here
The constitutional transition in Tunisia appears to be both legitimate and orderly. For example, before former President Zine Abidine Ben Ali was forced to step down from his post, he temporarily delegated his authority to the prime minister in accordance with Article 56 of the Constitution. Then, in keeping with Article 57, the head of the lower house of parliament, Fouad Mebazza, temporarily assumed the presidency for a period of 45-60 days, with a presidential election to follow. Although the tenure of Mr. Mebazza has been extended beyond the 60 days (for reasons mentioned earlier), the process so far constitutes (to a certain extent) a valid and legitimate transfer of administrative power.
The whole process of overseeing the election of the NCA and the overall constitutional reforms is being performed by the High Commission for the Fulfillment of Revolutionary Goals, Political Reform and Democratic Transition (originally established by the deposed president Ben Ali), also known as the “Ben Achour Commission” because it is chaired by Yadh Ben Achour.
The Ben Achour Commission, with its 150-member political committee and 16-member technical commission, is the umbrella organization responsible for the NCA election. The Ben Achour Commission established the High Independent Election Commission (known as ISIE by its French initials) to directly administer the elections. The ISIE consists of 16 members, including four lawyers, three judges, two university professors, two civil society leaders, one expatriate, one notary, one journalist, one accountant, and an IT expert.
Unfortunately, the ISIE has failed to swiftly address important logistical considerations regarding the elections calendar and voter registration procedures. As a result, on the eve of voter registration in mid-July, the transitional government dismissed the ISIE’s administrative staff and reduced its focus to the administration of legal matters, public communications and observer accreditation. Conversely, the transitional government established a new nine-member Liaison Committee in its place to provide all logistical support to the ISIE for the efficient and effective execution of the NCA election.
Under this new organizational shuffle, the Liaison Committee is composed of representatives from the prime minister’s office and the finance, foreign, interior and information ministries. Unfortunately, this has resulted in the interior ministry (which ran former President Ben Ali’s corrupt elections) assuming a greater leadership role in the new electoral administration. A lot of analyst and experts wonder what exactly about the elections process has changed if Ben Ali lieutenants are still in charge of the administration of the NCA election. Couple that with the great deal of uncertainty about the overall process and the lack of adequate information and education of the voters about the process, and many doubt the effectiveness and legitimacy of the upcoming NCA election.
Structure of the Process
For the purpose of conducting the election, the country has been divided into 33 electoral districts, with 27 inside Tunisia and 6 outside for diaspora communities (2 for France, 1 for Italy, 1 for Germany, 1 for the Arab world, and 1 for the Americas). The overall distribution of seats will be done under a “closed-list proportional representation system,” which requires that half the list of each party be filled by women who will alternate on the list with male candidates. Under this parity principle the division of men and women in the NCA will be virtually identical, which will be a very good development for an Arab country.
However, voter registration (and voter education about the process and the outcome) has been a major problem, and it is often cited by many analysts as an issue that could negatively impact the legitimacy of the NCA. First the transitional government announced a period of voter registration at designated registration centers. However, poor information and logistical preparation on the part of the transitional government has led to confusion and apprehension on the part of Tunisians. Nervous about the low registration turnout, the ISIE announced in July that registration was no longer required for domestic voters.
Post Election Goals
All legitimacy problems can, of course, be alleviated once the NCA starts its deliberations and its work towards drafting a new constitution. Whether the election is all-inclusive and properly administered will become a non-issue if the members of the NCA rise to the occasion and fulfill their historic destiny. Ultimately, it does not matter how the members of the NCA get elected, as long as the post election process is transparent and inclusive.
This is undoubtedly a historic election, much more important for its symbolism then for the end result. If (and yes this is a big IF) the final draft constitution is limited in scope and allows for reasonable ways to amend and improve upon it, minor errors in the NCA election process will be forgiven and excused. All mistakes and bad feelings of apprehension for the handling of the election will go away if the post election process is transparent and inclusive.
And how can that be achieved? By reaching out to the people to both educate them about constitutional and governance issues and to seek their opinion.
But first, as soon as the election is completed, the NCA should elect an interim president with an interim cabinet to manage the country while it deliberates on the new constitution. The NCA should also give the new interim government a very specific mandate: “No Major Initiatives – Just Do No Harm!” The new interim government should not be authorized to engage in any major new initiatives – it should focus primarily on strengthening and perfecting the operations of the major government institutions and responsibilities (policy and public order, judiciary and the rule of law, education, tax collection, infrastructure and the power grid). This way, the NCA can focus exclusively on the drafting of the new constitution, and not have to be distracted by any major initiatives by the interim government.
After that, and during the first three months, member of the NCA should take their work on the road and travel from town to town, in small groups or as a whole, and engage the people in town-hall style meetings. During that period, members of the NCA should endeavor to directly educate the people on what is at stake when drafting a new constitution, seek their advice and opinion, and offer their personal views and proposals on governance.
Once that process is completed, the NCA should convene at its permanent location and spend the next three months conducting hearing in which constitutional (and other) experts from Tunisia and around the world present their suggestion and proposals for consideration. This should be a period during which the NCA opens its doors to expert opinions, and its members probe the various proposals with questions they received from the public during the previous 3 months.
During the first six months, the role of the media in both covering the town-hall meetings and the NCA hearings will be very important. Transparency and openness during that period will build trust and respect of the NCA members. By shining a spotlight on their deliberations, by going to the public for suggestion and listening to their concerns, NCA members can gain legitimacy while opening their views to scrutiny and consideration by political parties, civil society and the people.
This is imperative if they are to produce a good product; because the final three months should be the time they deliberate in private towards the final draft. Privacy during the time of drafting and deciding will protect member’s votes on specific constitutional provisions from coercion and undue influence from corrupt elements of society. At the end, whatever draft emerges from the NCA will have to enjoy an enhanced majority vote of support (preferably 2/3rd or 3/5th of the members of NCA), and be submitted to the public on a referendum. Holding a referendum during the last three months of the year will grant the people the ultimate authority for deciding the new constitution, and further legitimize the new constitution in the minds of the people.
Advantages of a Constitutional Assembly
Under the process I outlined, the drafting of the new constitution by the NCA can give people a sense of ownership of their constitution. Too often we lament the luck of interest in the rule of law issues in the Arab world. Constitutions existed for many years, full of wonderful proclamation of democratic principles, pluralism and the protection of civil liberties. Yet, when authoritarian regimes trampled all over the democratic and civil rights of the people, they were tolerated and at times supported. Only when the people feel a strong personal connection to the constitution that governs them, they might also rise to its defense and assume their duties as citizens (to vigorously screen elected candidates and actively participate in local and national elections) wholeheartedly.
In Egypt, the interim government opted for a quick amendment of the constitution and instead is moving forward with legislative and presidential elections. Morocco and Jordan also opted for re-writing their constitutions in a ‘closed-to-the-public’ process. Tunisia started the process of the Arab Spring, and their way forward might be the best model for emulation. Libya and Yemen should be paying close attention to constitutional development in Tunisia during the next couple of months.
Resources:
2) International Foundation for Electoral Systems – Tunisia
4) National Interest - Transitional Failure in Egypt and Tunisia, by Marina Ottaway
5) Toward the Tunisian Election: High Expectations vs. Low Participation, by Gamze Coskun
Nasos Mihalakas is currently an associate professor with the University of New York at Tirana, teaching International and Commercial Law. During the past 9 years he has also worked for both a Congressional Commission advising Congress on the impact of trade with China on the U.S. economy, and for the U.S. Department of Commerce investigating unfair trade practices and foreign market access restrictions. Contact: nasos.mihalakas@gmail.com
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A Constitutional Convention for Tunisia and the Arab Spring
October 5, 2011
Unlike Egypt which moved swiftly through a referendum with only minimal amendments to its constitution, Tunisia chose to write a brand new constitution. Although the transitional government of Tunisia wanted to hold presidential elections, popular demand pushed the government to instead announce elections for a national constituent assembly that will, in turn, write a new constitution. This was primarily driven by the need to reformulate the system of governance in a way that would ensure a balance of powers – something lost in the 1959 Constitution, which created a highly presidential system.
Although elections were scheduled for July 14, they were extended to October 23 partly for technical reasons. A lot needs to be done to hold credible elections in countries that had none in the past. Also, the new parties emerging from the uprising begged for more time to organize, which, although it might have been politically motivated, is also a legitimate reason for parties that did not exist just six months ago.
The History: How We Got Here
The constitutional transition in Tunisia appears to be both legitimate and orderly. For example, before former President Zine Abidine Ben Ali was forced to step down from his post, he temporarily delegated his authority to the prime minister in accordance with Article 56 of the Constitution. Then, in keeping with Article 57, the head of the lower house of parliament, Fouad Mebazza, temporarily assumed the presidency for a period of 45-60 days, with a presidential election to follow. Although the tenure of Mr. Mebazza has been extended beyond the 60 days (for reasons mentioned earlier), the process so far constitutes (to a certain extent) a valid and legitimate transfer of administrative power.
The whole process of overseeing the election of the NCA and the overall constitutional reforms is being performed by the High Commission for the Fulfillment of Revolutionary Goals, Political Reform and Democratic Transition (originally established by the deposed president Ben Ali), also known as the “Ben Achour Commission” because it is chaired by Yadh Ben Achour.
The Ben Achour Commission, with its 150-member political committee and 16-member technical commission, is the umbrella organization responsible for the NCA election. The Ben Achour Commission established the High Independent Election Commission (known as ISIE by its French initials) to directly administer the elections. The ISIE consists of 16 members, including four lawyers, three judges, two university professors, two civil society leaders, one expatriate, one notary, one journalist, one accountant, and an IT expert.
Unfortunately, the ISIE has failed to swiftly address important logistical considerations regarding the elections calendar and voter registration procedures. As a result, on the eve of voter registration in mid-July, the transitional government dismissed the ISIE’s administrative staff and reduced its focus to the administration of legal matters, public communications and observer accreditation. Conversely, the transitional government established a new nine-member Liaison Committee in its place to provide all logistical support to the ISIE for the efficient and effective execution of the NCA election.
Under this new organizational shuffle, the Liaison Committee is composed of representatives from the prime minister’s office and the finance, foreign, interior and information ministries. Unfortunately, this has resulted in the interior ministry (which ran former President Ben Ali’s corrupt elections) assuming a greater leadership role in the new electoral administration. A lot of analyst and experts wonder what exactly about the elections process has changed if Ben Ali lieutenants are still in charge of the administration of the NCA election. Couple that with the great deal of uncertainty about the overall process and the lack of adequate information and education of the voters about the process, and many doubt the effectiveness and legitimacy of the upcoming NCA election.
Structure of the Process
For the purpose of conducting the election, the country has been divided into 33 electoral districts, with 27 inside Tunisia and 6 outside for diaspora communities (2 for France, 1 for Italy, 1 for Germany, 1 for the Arab world, and 1 for the Americas). The overall distribution of seats will be done under a “closed-list proportional representation system,” which requires that half the list of each party be filled by women who will alternate on the list with male candidates. Under this parity principle the division of men and women in the NCA will be virtually identical, which will be a very good development for an Arab country.
However, voter registration (and voter education about the process and the outcome) has been a major problem, and it is often cited by many analysts as an issue that could negatively impact the legitimacy of the NCA. First the transitional government announced a period of voter registration at designated registration centers. However, poor information and logistical preparation on the part of the transitional government has led to confusion and apprehension on the part of Tunisians. Nervous about the low registration turnout, the ISIE announced in July that registration was no longer required for domestic voters.
Post Election Goals
All legitimacy problems can, of course, be alleviated once the NCA starts its deliberations and its work towards drafting a new constitution. Whether the election is all-inclusive and properly administered will become a non-issue if the members of the NCA rise to the occasion and fulfill their historic destiny. Ultimately, it does not matter how the members of the NCA get elected, as long as the post election process is transparent and inclusive.
This is undoubtedly a historic election, much more important for its symbolism then for the end result. If (and yes this is a big IF) the final draft constitution is limited in scope and allows for reasonable ways to amend and improve upon it, minor errors in the NCA election process will be forgiven and excused. All mistakes and bad feelings of apprehension for the handling of the election will go away if the post election process is transparent and inclusive.
And how can that be achieved? By reaching out to the people to both educate them about constitutional and governance issues and to seek their opinion.
But first, as soon as the election is completed, the NCA should elect an interim president with an interim cabinet to manage the country while it deliberates on the new constitution. The NCA should also give the new interim government a very specific mandate: “No Major Initiatives – Just Do No Harm!” The new interim government should not be authorized to engage in any major new initiatives – it should focus primarily on strengthening and perfecting the operations of the major government institutions and responsibilities (policy and public order, judiciary and the rule of law, education, tax collection, infrastructure and the power grid). This way, the NCA can focus exclusively on the drafting of the new constitution, and not have to be distracted by any major initiatives by the interim government.
After that, and during the first three months, member of the NCA should take their work on the road and travel from town to town, in small groups or as a whole, and engage the people in town-hall style meetings. During that period, members of the NCA should endeavor to directly educate the people on what is at stake when drafting a new constitution, seek their advice and opinion, and offer their personal views and proposals on governance.
Once that process is completed, the NCA should convene at its permanent location and spend the next three months conducting hearing in which constitutional (and other) experts from Tunisia and around the world present their suggestion and proposals for consideration. This should be a period during which the NCA opens its doors to expert opinions, and its members probe the various proposals with questions they received from the public during the previous 3 months.
During the first six months, the role of the media in both covering the town-hall meetings and the NCA hearings will be very important. Transparency and openness during that period will build trust and respect of the NCA members. By shining a spotlight on their deliberations, by going to the public for suggestion and listening to their concerns, NCA members can gain legitimacy while opening their views to scrutiny and consideration by political parties, civil society and the people.
This is imperative if they are to produce a good product; because the final three months should be the time they deliberate in private towards the final draft. Privacy during the time of drafting and deciding will protect member’s votes on specific constitutional provisions from coercion and undue influence from corrupt elements of society. At the end, whatever draft emerges from the NCA will have to enjoy an enhanced majority vote of support (preferably 2/3rd or 3/5th of the members of NCA), and be submitted to the public on a referendum. Holding a referendum during the last three months of the year will grant the people the ultimate authority for deciding the new constitution, and further legitimize the new constitution in the minds of the people.
Advantages of a Constitutional Assembly
Under the process I outlined, the drafting of the new constitution by the NCA can give people a sense of ownership of their constitution. Too often we lament the luck of interest in the rule of law issues in the Arab world. Constitutions existed for many years, full of wonderful proclamation of democratic principles, pluralism and the protection of civil liberties. Yet, when authoritarian regimes trampled all over the democratic and civil rights of the people, they were tolerated and at times supported. Only when the people feel a strong personal connection to the constitution that governs them, they might also rise to its defense and assume their duties as citizens (to vigorously screen elected candidates and actively participate in local and national elections) wholeheartedly.
In Egypt, the interim government opted for a quick amendment of the constitution and instead is moving forward with legislative and presidential elections. Morocco and Jordan also opted for re-writing their constitutions in a ‘closed-to-the-public’ process. Tunisia started the process of the Arab Spring, and their way forward might be the best model for emulation. Libya and Yemen should be paying close attention to constitutional development in Tunisia during the next couple of months.
Resources:
2) International Foundation for Electoral Systems – Tunisia
4) National Interest - Transitional Failure in Egypt and Tunisia, by Marina Ottaway
5) Toward the Tunisian Election: High Expectations vs. Low Participation, by Gamze Coskun
Nasos Mihalakas is currently an associate professor with the University of New York at Tirana, teaching International and Commercial Law. During the past 9 years he has also worked for both a Congressional Commission advising Congress on the impact of trade with China on the U.S. economy, and for the U.S. Department of Commerce investigating unfair trade practices and foreign market access restrictions. Contact: nasos.mihalakas@gmail.com
