Autopsy for Tunisia’s Constitution: On Life Support From the Start

The seeds of its destruction may have been sown in the messy process in which it was drafted

Autopsy for Tunisia’s Constitution: On Life Support From the Start
A protest march against the Tunisian President Kais Saied / Jdidi Wassim / SOPA Images / LightRocket via Getty Images

On the morning of Nov. 22, 2011, Jawhara Ettis walked into the 15th-century Hafsid Palace, known as the Bardo, and into her country’s parliamentary chamber for the first time. As she passed through the grand, carved doors and marble columns, and took a seat behind a dark wood desk polished to a mirror shine, a sense of foreboding rather than awe descended on her.

“The first sensation I felt was that the chair I’m sitting in is thorny,” she told New Lines on a recent afternoon. “I was thinking about all the deputies under [Zine El Abidine] Ben Ali and [Habib] Bourguiba’s regimes, who were supposed to represent the people but didn’t. They were voting machines to give the image that we were a state of laws and institutions.”

At 26, Ettis was one of the youngest members of Tunisia’s newly elected National Constituent Assembly, tasked with both governing the country in the wake of a revolution that had ousted Ben Ali and his autocratic regime as well as writing a brand-new constitution to steer its future.

The months after Ben Ali fled the country had been heady, full of political energy and hopefulness that had long eluded Tunisians, when anything and everything seemed possible. After 23 years under Ben Ali and three decades of autocracy under his predecessor, the independence leader Bourguiba, Tunisians spent the spring and summer of 2011 on the streets holding sit-ins and rallies or in coffee shops and offices in conversation with colleagues and strangers. Seemingly everyone was testing the waters of newfound freedom of speech and probing the political possibilities of the first country to emerge from the Arab Spring with the promise of a democratic transition of power.

But after a heated election that fall — the country’s first free and fair ballot since independence — it was time for Ettis and her 216 colleagues, nearly all of whom were political novices, to draw lines around those dreams and set Tunisia on a new course. The process would push them and their country to the limits over the next two years as debates raged about identity and religion, political tensions flared, and a series of catastrophic assassinations threatened to upend the entire experiment.

As Mustapha Ben Jafar’s gavel dropped to call the chamber to order that first day, Ettis held her breath, feeling those thorns rising from the seat where a former dictator’s yes-man sat. All she could think was, “I have to be different from them; I have to truly represent the people who elected me.”

The constitution Ettis and her colleagues produced against seemingly insurmountable odds and across party lines in January 2014 was different. It was messier than the three charters that preceded it — two issued by the beys in 1857 and 1861 as well as Bourguiba’s 1959 document created after independence — because for the first time in Tunisia’s history, a political framework for the country had to be negotiated by those with competing visions and priorities, as opposed to being dictated by one person alone.

In just a few days, on July 25 — Tunisia’s Republic Day — the 2014 constitution will almost surely be discarded via referendum in favor of one written by Tunisia’s ascendant autocrat, Kais Saied, a former adjunct law professor who has amassed sole control of the country over the past year as he has systematically dismantled the Parliament, government, judiciary and independent election commission. Written in closed sessions by a small coterie of legal scholars, then heavily revised and edited by the president himself, Saied’s charter returns to the ethos of the country’s earlier constitutions: setting forth the political vision of a single man and cementing his rule over the country — a carte blanche dressed up in parchment.

In its final hours, Tunisia’s 2014 constitution — the story of its genesis and its miraculous survival after what could have proved to be fatal blows — provides a window into the process that pulled Tunisia into a democratic era and the foibles that have enabled it to fall.

The fall of Ben Ali brought with it a rise in political parties. Under both Ben Ali and Bourguiba before him, most political parties across the spectrum had been systematically silenced, their members economically sidelined, imprisoned, tortured or forced to flee the country. The revolution brought some new parties to the scene, but many were the outgrowths of opposition movements that had languished underground, in prison or in exile in the 1990s and 2000s. Hardly any were prepared for the political enthusiasm that was sweeping the nation.

“In those first months, we saw a crazy number of people joining the different political parties,” said Selim Ben Abdesselem, who himself joined up with the social democratic party Ettakatol and was elected to the Constituent Assembly.

“But it was really difficult for parties to manage the arrival of a very high number of members, because before that, they were just a very small group — at the maximum, a few hundred activists,” Ben Abdesselem said. “But after the revolution, some parties jumped from this very residual number of activists to thousands of members.”

This sudden growth spurt left many parties on shaky foundations, trying to craft clear ideology and a voting platform while wrangling new members, including many newly elected members of the Constituent Assembly (MPs), whose stances or visions for their movement were often at odds with one another. But one party stood apart, with clearer ideology, better organization and more funds than its nascent neighbors: the moderate Islamist party, Ennahda.

Since its founding in the late 1970s, Ennahda had grown to become the largest and most vocal opposition to both the Bourguiba and the Ben Ali regimes. The Islamist ideology they promoted became a strong countercurrent to Bourguiba’s Westernizing vision for the country; rather than mimic the political trends in France, Ennahda envisioned Tunisia’s political system embracing its Arab and Muslim roots and using Islamic law to guide the country. Ben Ali cast Ennahda as anathema to a modern, secular state — a narrative that many Tunisians embraced enthusiastically — and imprisoned thousands of the party’s members, with many spending decades in solitary confinement. Thousands more fled for Europe or the Americas, where many honed their political skills, trying to make space for practicing Muslims in more pluralistic but deeply Islamophobic democracies.

Ennahda played essentially no role in the revolution, but the sudden openness after Ben Ali’s departure gave the party an opportunity to return to the country and reorganize. With contributions from wealthy members in exile, the movement had mobilized a massive electoral campaign and won the most seats in the new assembly but failed to reach a majority to govern alone. The specter of political Islam loomed large over the legislature, but two center-left parties, Ettakatol and the Congress for the Republic (CPR), agreed to join a coalition government with Ennahda. The choice to be a member of the troika, as it was called, was largely to serve as a check on Ennahda’s influence.

“Part of the reasoning was that, even if we don’t really want to, we have to go into a coalition with Ennahda to be the keepers of our values and to not let them apply their program,” Ben Abdesselem said. And, while CPR and Ettakatol agreed to govern alongside Ennahda, they made clear that each party was representing its own interests in drafting the constitution.

For Ettis, who belonged to Ennahda, the coalition seemed constraining. “At the time I hoped the coalition would have been larger, to be even more inclusive,” she said. “I had this awareness that it was not the moment to have a ruling party and the opposition. We were in a nascent democracy, and when you want to sow the seeds of democracy, you have to look for consensus.”

Despite the tensions within the troika and from the opposition, as the assembly set to work drafting individual articles that would form the constitution, that consensus often proved easier to find than many had originally thought. Large portions of the document came together relatively quickly, as different committees drafted segments for approval from the larger body.

“People were motivated; people dreamed of having a democratic constitution,” said Rym Mahjoub Masmoudi, a deputy for the liberal Afek Tounes party. Without resources for offices or parliamentary aides, most deputies relied on that fervor to call in favors, tapping everyone from constitutional law experts to civil society leaders to young, hungry activists to participate. “Every time we approached someone, we asked a favor of someone, they came for free.”

Mahjoub, a trained radiologist, hosted colleagues at her clinic where they would practice their negotiation skills among the X-ray machines and lead vests. “We’d role play, setting the bar high or threatening to block an article, then whittling people down to something acceptable,” she said.

The ad hoc, open nature of the assembly, and the deputies’ hunger for outside support opened the door for civil society to participate alongside as the articles came together. Lawyers, activists, journalists and regular citizens roamed the halls, dropped into committee meetings and stopped deputies in the corridors. “It was very informal and open to everyone,” said Mohamed-Dhia Hammami, who had worked briefly as an aide to two deputies before joining the nascent news site Nawaat to cover the assembly.

As he moved through the Assembly reporting on the sessions, he soon found himself being pulled into discussions during committee meetings, particularly around energy issues, and working alongside deputies in an informal advisory role.

“It was very convenient for me as a journalist to collaborate with the head of the Energy Commission, who also needed help and didn’t have the resources to get an actual aide,” he recalled. “So I was giving him documents, he was giving me documents. I was helping him with what he wanted and it would help me with what I wanted.”

Hammami, who was just 23 years old, was soon recruited by an activist lawyer to help draft an article about the use of natural resources. Though his youth made Hammami an outlier — few of the young people who were seen as the motor of the revolution actually found a place to participate in the constitutional drafting process — members of civil society became increasingly influential in drafting articles, lobbying for articles they supported or blocking those that didn’t align with their purposes.

While the bulk of the work of drafting the constitution chugged along relatively smoothly over the course of 2012, core issues of identity and political structure caused deep divides among the deputies and set off a series of vitriolic debates.

“It was the first exercise ever for this nation to discuss very controversial issues about identity, politics, religion, and the economic and social rights and the role of the state — these issues that are universal in every nation,” Ettis said.

Battles over social rights, women’s roles and the balance between a presidential and parliamentary system brewed in back rooms and on the floor of the Assembly, revealing splinters within and between parties.

Mahjoub recalled the day the assembly was voting on an article about education that she and her colleagues had worked alongside members of the troika to draft.

“It was a perfect article on education,” she said. When it came time to vote on the amendments, Mahjoub realized a deputy from Ettakatol — whom she and other progressives viewed as an ally — had proposed an amendment that would require children to be given an Islamic education. “Normally we only focused on the amendments put forward by Ennahda, but he was supposedly one of our own,” she said.

“People started voting, and I thought, ‘No, don’t vote for it!’ But they did. And it passed. I left the session in tears. I was saying, ‘What on earth are you trying to do? You call yourselves progressive?’”

Samia Abbou, a deputy for CPR, recalled the battle over an article that would, in theory, enshrine the rights of women that were secured by Tunisia’s landmark Code of Personal Status — a decree set by Bourguiba granting women rights to divorce, access contraception and gain an education, among others — in the constitution.

Abbou had proposed an amendment to the article that would codify more concretely women’s rights. When it came time for the consensus committee to debate it, she took the floor to persuade her colleagues.

“The president had given me the floor to speak, when Zied Ladhari, an Ennahda deputy, interrupted me, saying, ‘No need to read it; the movement [Ennahda] decided not to accept this proposal,’” she recalled.

Enraged, Abbou did something she said she’d never expected. “I said, ‘God have mercy on Bourguiba, because if it were up to you, you would have walked all over me,’ and a big fight erupted. Farida Labidi, the president of the rights committee, stood up saying ‘No, Samia, that’s not the case.’ But I started screaming and telling them: ‘I will mobilize all of Tunisia’s women against you. … If this article fails, I’ll see that all other consensus fails too.’”

The battle inside Parliament over women’s rights spilled onto the street as women’s civil society organizations mobilized a protest, lobbied deputies and, eventually, forced the assembly to adopt language making women equal to men in the constitution.

While the debates over education or women’s status were heated, no issue was more divisive than the role of Islam in the constitution.

“This question, the question of identity, especially the place of Islam and the place of religion in the legal organization, took us maybe half of our time in the debates,” Ben Abdesselem said.

The first article of the 1959 constitution set out a conundrum with Islam at its core: “Tunisia is a free, independent, sovereign state; its religion is Islam, its language Arabic, and its system is republican,” it reads. The vague language left open to interpretation the role of Islam in the government and in the country.

While some deputies proposed maintaining the language of the 1959 constitution, Ennahda, riding high on electoral success and confident in its mandate from the population, pushed for Islam to play a more central role in the constitution. But even within the party there were divisions. Hardliners like Sadok Chourou pushed for sharia, or Islamic law, to govern the state. Others, like Deputy Speaker Meherzia Labidi, wanted a softer stance that enshrined overarching Islamic values and freedom of conscience in the charter.

“Our mission is to offer to all Tunisians — those who want to be in faith and those who want to be out of the faith — adequate conditions and the freedom to do so,” Labidi told me in a 2019 interview.

“So I think that what we want is to change this reference of religion from a reference that makes us tutors of Tunisians telling them how to be a believer and changing it to a mission of serving them,” Labidi said. “How to offer them life and dignity, how to offer them better transportation, better education and in taking into account their religious values and not excluding them from public life.”

The pushback against Ennahda from the secularist opposition, which wanted every reference to Islam scrubbed from the constitution, was ferocious. Debates raged on the floor of the plenary for weeks before a compromise — maintaining the language from the 1959 constitution — was reached.

“Article One was a battle,” Mahjoub said. “But in the end it was a consensus. Everyone could interpret what it meant, how they saw fit.”

By June 30, 2013, a draft of the constitution was finished and the assembly was preparing to schedule a vote when two watershed events threatened to upend the process entirely.

On July 3, a violent military coup in Egypt overthrew Mohamed Morsi and the Muslim Brotherhood government. Democratically elected politicians were jailed, and the Islamist movement was forced back underground.

The coup in Egypt felt like a warning shot to Ennahda. “We felt like we had to work faster and faster in order to get the constitution, because without a constitution, there is no guarantee that the democratic transition is going to go ahead,” Ettis said. “You feel that you are threatened, that your country is threatened because this dream that you have always dreamt, to have a democratic nation, is going to be aborted.”

While the pressure from the failed transition in Egypt loomed large, the deputies continued their work, preparing for a vote on the draft constitution.

“The first version of the constitution was ready. We were about to start voting article by article. We were about to finish the law on elections. Everything was ready,” Labidi said.

Then, on July 25, 2013, as the deputies were gathered for Republic Day celebrations, news trickled through the assembly that one of their own, a deputy named Mohamed Brahmi, had been shot and killed. The entire assembly went into shock.

Earlier in the year, a political activist and opponent to the troika government named Chokri Belaid had been stabbed to death, causing a political crisis for the government but leaving the constitutional process unscathed. Brahmi’s death was different. “He was one of our own,” Labidi said.

After his funeral, 57 deputies from the opposition parties, including Mahjoub and Ben Abdesselem, who had left Ettakatol, staged a walkout, refusing to continue their work and denying the assembly a quorum to be able to vote on the constitution. They demanded not only an investigation into Brahmi’s death but also a new balance of power in the assembly.

“We as the opposition wanted to be treated as equals with the majority,” Ben Abdesselem said. “So we said, ‘If you don’t accept this condition, we are not ready to go back.’”

For three months, the deputies sat, day and night, outside the Bardo palace. The tension ramped up as police used tear gas on the deputies and fighting between those on the inside and those on the street broke out. The constitutional process seemed dead in the water.

After a hot, tense end to the summer, the stalemate in Parliament was finally broken when a national dialogue was called. Brokered by a quartet of civil society organizations, including the powerful labor union and the human rights league, the dialogue created political agreements around power sharing and government structure that enabled the constitutional process to continue.

On Jan. 26, 2014, the deputies gathered on the floor of the Parliament to vote on the new constitution. As the roll was called and the tally of ayes increased, the energy in the room grew.

“The ghosts of failure were haunting me every single day during those three years except for the final day when we voted yes,” Ettis said, “when I saw with my own eyes that 200 [deputies] voted yes for the constitution.”

When the final tally came in, the room burst into cheers, and the tears started flowing.

“Everyone was there in the Parliament — NGOs, foreign organizations — everyone was there ready to celebrate,” Hammami said. “We were chanting and dancing, and there was this picture of Mongi Rahoui … a very vocal leftist who is radically opposed to the Islamists, who was kissing the cheeks of Habib Ellouze, the Takfiri Islamists who are radically opposed to the left.”

The passing of the constitution became the political high-water mark for Tunisia. The spring of 2014 was the last time a majority of Tunisians told pollsters they saw their country headed in the right direction; it was also the last year in which the country’s GDP per capita increased over the previous year. The political rivalries and infighting that began during the drafting process amplified as the body began the sole task of governing, and in the following elections, Tunisians elected those whom they saw as the best fighters to represent them, hoping to keep those they despised in check.

Parliament grew bogged down in petty rivalries, inefficiencies and vitriol. Corruption blossomed. Fistfights and name-calling were more common than consensus. Meanwhile, Tunisia’s economy began a death spiral, its infrastructure crumbled, its currency plummeted while its debts rose, and its youth languished in unemployment.

By the time Kais Saied ran on an anti-corruption platform in 2019, Tunisians were desperate for a change, but few anticipated the changes he would implement.

Saied alone has appeared to compose the final draft of the new constitution being put to a vote on July 25, after a digital consultation to define the political, economic and social hopes, fears and frustrations of the Tunisian people this spring fell flat and a hasty national dialogue was boycotted by some of the nation’s most powerful political players. Even the legal scholars who made up a small committee charged with composing the new document have distanced themselves from Saied’s final version, which eliminates nearly all checks on the executive and leaves a worrying berth for the government to curb freedoms.

In Saied’s version of the constitution, presidents can dismiss Parliament at any time (though there is no mechanism for removing the president), postpone elections or declare a state of emergency for as long as they see fit. In this hyper-presidential system, Saied controls all branches of government, standing alone at the helm of a country sinking into debt and despair.

While parties and civil society are sounding the alarms on this step toward autocracy, many Tunisians associate a strong president with a more prosperous era under Bourguiba or Ben Ali — a time when they could buy fruit or meat at the market, when they could repair their homes or find a job for their children. The text of the document itself doesn’t concern them, but the promise of stability has grown ever more persuasive.

Despite the monumental nature of a constitutional referendum, Tunisians themselves seem largely unconcerned. The campaigns mobilizing for Yes or No votes have been tepid, their rallies often garnering just a few dozen people. Parties boycotting the vote and trying to strip it of its legitimacy have been barred from campaigning on such a platform. The electoral atmosphere seems to have wilted in the summer’s heat.

It’s expected Saied will get his Yes, even if turnout is as depressed as private polling suggests it will be; earlier this year, he amended electoral law to eliminate a minimum participation threshold.

“The 2014 constitution is dead, but maybe not yet buried,” Ben Abdesselem said on a recent afternoon. “Its funeral is on the 25th of July.”

Perhaps its death came not from blunt force trauma but from a longer, slower decline, brought on by congenital weaknesses, and in the end, it was sheer fatigue that took it.

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