When Kais Saïed was elected President of the Republic of Tunisia in 2019, he had just run his campaign on a programme of institutional reform aimed at solving, once and for all, the political crisis that the country is still going through.
His presidential project, which combines state sovereigntism with popular sovereigntism, built on the basis of local assemblies, involves dismantling the representative democracy established by the 2014 Constitution, which, according to Kais Saïed, was itself drawn up by “corrupt elites” and intermediary bodies (primarily parties), who betrayed the will of the people and diverted the revolution of 2010-2011 from its true course. The new Head of State’s goal is therefore to “rectify the revolutionary process” so as to establish a Constitution that enshrines, within the same movement, the process of building democracy from the bottom up, and the institutional primacy of the Head of State, who himself acts as guarantor of the sovereignty of the people and the unity of the nation.
Deprived of any legal means of implementing his political project by the constitutional framework and the balance of political forces in Parliament, however, the President took advantage of the severe deterioration of the economic, social and health situation in Tunisia, to effect what many in Tunisian political circles have defined as a coup d’état: with the support of the general military staff and the top brass of the security forces, he proclaimed and then extended the state of emergency, by invoking the will of the people and the higher legitimacy of the Tunisian revolution that he claims to embody.
This date marked the starting point for the systematic liquidation of the institutions of the parliamentary system established by the 2014 Constitution and the establishment of a legal and political process designed to enable the people to exercise their sovereignty. This process is due to culminate in a referendum, scheduled for 25 July, on the adoption of the draft Constitution first published by the President of the Republic on 30 June 2022 and then republished in corrected form on 8 July in the Official Journal.
Not surprisingly, the text proposed by Kais Saïed revolves around the two main axes of the presidential programme, namely “building democracy from the bottom up” and a presidential political system[1].
Kais Saïed’s draft Constitution, from building democracy from the bottom up…
Described by the President as “bottom-up”, the process of building democracy from the grass roots is organised, in Kais Saïed’s initial plan, around local popular assemblies created at delegation level (second-order administrative districts), regional assemblies and lastly a national assembly whose members are indirectly elected or drawn by lot from local assemblies. Last but not least, all these elected representatives can have their mandate revoked by their electors.
While this scheme does not appear as such in the draft Constitution, the architecture of the institutions envisaged in it is designed to enable the process of building from the bottom up to flourish, while at the same time reducing legislative power, which goes by the name “legislative function” in the text[2].
Kais Saïed’s draft envisages a bicameral parliament in which a National Assembly of Regions and Districts, elected by regional and district councils, forms a direct part of the presidential political project. But to do this, Kais Saïed does not settle for a second chamber. His text puts in place two mechanisms that constitute possible platforms for his plan to build from the bottom up.
The first of these involves the revocability of elected representatives’ mandate by the electors (art. 61). While Kais Saïed’s supporters see this as a guarantee of real democracy, on the grounds that it makes representatives accountable to their voters, his opponents see it as a way for a popular president to get rid of elected members of the opposition[3].
The second mechanism lies in the explicit reference to “local assemblies” in article 75, relating back to the initial plan for building democracy from the bottom up, which envisages, in each delegation, the creation of these assemblies, whose members would be elected by single-member plurality voting with a revocable mandate.
Ultimately, these references to bottom-up democracy are structured around nothing more than the decentralisation of legislative power. Indeed, the local, regional and district assemblies supposed to be the channels for expressing the will of the people, have no executive bodies to implement their programme. “The inversion of the pyramid of powers”, famously cited by Kais Saïed as inherent in bottom-up building, is in fact negated by a concentration of executive power in the hands of the President of the Republic.
…to a presidential political system
The sole holder of executive power (which goes by the name of “executive function” in the text), the President of the Republic is assisted by a Head of Government. The latter is accountable only to the Head of State, who appoints and dismisses ministers at his discretion. Furthermore, the government’s accountability to Parliament, referred to in Article 115, is purely nominal: on the one hand, the parliamentary motion of censure is almost impossible to implement[4], while on the other, its adoption – paradoxically – would have the effect of penalising a government incapable of implementing the policies defined by a President of the Republic who can appoint or revoke it as he sees fit.
In addition to his powers to formulate public policy and make appointments to the top ranks of the civil service and armed forces, the President also has numerous legislative powers: he can pass decree-laws during parliamentary recesses, obtain authorisation from the Assembly of People’s Representatives to govern by decree-law for a limited period (art. 70) and, above all, he can directly propose – thus bypassing Parliament – legislative referendums relating to the organisation of public powers (art. 97), as well as constitutional referendums.
It is also essential to note that the “judicial function” has a dependent relationship with the Head of State. First of all, by indicating that the appointment of magistrates falls within the President’s powers, article 120 of the draft Constitution abandons the mechanism for the appointment of magistrates established in the 2014 Constitution, which required the assent of the Supreme Council of the Judiciary. Secondly, article 119 merely affirms that a higher council will supervise each of the three branches of justice (judicial, administrative and financial), without specifying that council’s powers or the rules governing its composition. As for the Constitutional Court, it is “tied to the person of the President”[5]: while the Head of State appoints all the magistrates, the Constitutional Court is made up of none other than the nine longest-serving judges in their respective hierarchy of the courts or court systems (art. 125).
By replacing the term “power” with the term “function” in his text, Kais Saïed intended to signal the end of the separation of powers. In view of the very broad powers of the President of the Republic, in fact, only the “executive function” could reasonably be described as a “power”. The legislative and judicial functions, by contrast, are aptly named, because the executive controls them either directly or indirectly by means of a variety of constitutional mechanisms.
Like the highly presidentialist Constitution of 1959, from which it borrows widely, Kais Saïed’s text puts in place an all-powerful president, freed from all political and criminal accountability. Even if the President of the Republic were to seriously violate the Constitution, the draft contains no provision for his removal. On the contrary, he enjoys broad powers to transcend the constraints of the Constitution and extend his power as Head of State as long as he lives.
Article 90, which stipulates that the President of the Republic is elected “for a period of 5 years by direct, free and secret universal suffrage”, specifies that “if elections cannot take place in a timely manner because of war or imminent danger, the presidential term shall be extended by law until the reasons for its extension cease to exist.” In other words, by deploying the malleable concept of “imminent danger”, the President can extend his term of office for an unlimited period of time. Even better, and also on the grounds of “imminent danger”, the Head of State can proclaim a state of emergency (art. 96) and extend it at his pleasure, because no-one other than he can terminate it. In other words, the President of the Republic is free to establish a “sovereign dictatorship”[6] that is outside the law and unconstrained by time limits.
As noted by the Editor-in-Chief of Le Maghreb, a daily newspaper, the political system described by the draft Constitution is so centred upon the Head of State that, under the Kais Saïed draft, “we have moved from a position where the State has a Head, to one where the Head has a State”[7].
[1] This article does not address the place of religion in the Constitution, as this has no bearing on the actual implementation of a political system that consists in concentrating all powers in the hands of the President of the Republic.
[2] It is worth noting as of now that Kais Saïed’s draft contains no provisions granting Parliament financial or administrative independence.
[3] H. M’rad, “Les désillusions du constitutionnalisme”, Le courrier de l’Atlas, https://www.lecourrierdelatlas.com/point-de-vue-les-desillusions-du-constitutionnalisme-tunisien/, 02/07/2022.
[4] It has to be signed by a majority of the members of both chambers before being adopted by a qualified majority of two thirds.
[5] H. Mrad, article cited above.
[6] Carl Schmitt, La dictature, Paris, Le Seuil, Point Essais, 2000, p. 199-222.
[7] Zied Krichen, “From a State with a Head to a Head with a State: a reading of the intellectual, legal and political foundations of the draft constitution of the “new republic” (in Arabic), Le Maghreb, 07/07/2022.
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