Tunisia has plunged into a deep constitutional crisis after the President of the Republic refused to abide by the constitutional requirement to appoint the new ministers who were nominated by Prime Minister Hichem Mechichi on January 16, 2021 . Following their approval by the Parliament on January 26, 2021, the President should have accepted to swear them in before they can take up their duties.
However, in a letter he addressed to the Prime Minister Mechichi on February 15, 2021, President Kaïs Saïed expressed his principled position that refuses the government reshuffle. He clearly stated that given his objections, the swearing-in ceremony of the new ministers would not take place. Facing this unprecedented deadlock, the Prime Minister had no choice but to appoint interim ministers for the eleven vacant ministerial departments until a political solution is reached.
In fact, the current conflict between the two heads of the executive branch (the President of the Republic and the Prime Minister) has been ongoing for almost three months. The first signs have started soon after the formation of Prime Minister Mechichi's first government on September 2, 2020, when apparently he had to accept Ministers “imposed” on him by the presidency, such as the Ministers of Interior (homeland security) and culture at the very end of the deadline provided in the constitution. In the Tunisian constitution, the Head of Government (Prime Minister) is free to choose, form and dismiss his government, except for the Ministers of Foreign Affairs and Defence, who shall be named in consultation with the President of the Republic.
Tunisia's President, who had chosen Mechichi among his close and loyal collaborators, has publicly expressed on numerous occasions his anger at both the Parliament and Prime Minister. In a letter dated February 15, 2021, he stated allegations of corruption as a justification for his refusal to instate the newly reshuffled government.
As the dispute rests in part on how the constitution should be interpreted and applied, the absence of a Constitutional Court, which should have resolved this political-constitutional conflict, did not help to break the current deadlock.
Presently, none of the three branches of power even talk to each other, to the extent that separation of powers in Tunis today rhymes with divorce.
Background to the Crisis
The current political crisis began with the legislative elections of 2019, which resulted in a fragmented partisan landscape. From the outset, it was very difficult for any Prime Minister to form a majority, especially when the nominated candidate has no real political base.
For its part, the Parliament has become a kind of battle arena where even day-to-day business became almost impossible to run. Scenes of brawling between representatives from parties in parliament such as the PDL (Parti destourien libre), Ettayar, Echaab movement and theKarama coalition are part of the parliamentary “décor” now, while Ennahdha and Qalb Tounes are hoping to control the political scene by offering a “political belt” to the government.
The legislative body quickly became the symbol of political “immobilism” and paralysis, even though it is the cornerstone of the political system as per the Constitution of January 27, 2014.
The diplomatic activism of the Speaker of the Assembly of People's Representatives (ARP) partly aggravated his relationship with the President. Calls for dissolution of parliament grew increasingly, even though this scenario remains from a constitutional point of view a wishful thinking because the options for the President to dissolve the Parliament are limited to two cases only: 1) after a failure to form a government within 4 months of the first designation of a Prime Minister, or 2) following the president’s request to call for a vote of confidence on the continuation of the Government.
Government instability has also become chronic in a country where the health crisis has caused a lot of socio-economic damages. In one year, Tunisia has had no less than three governments; one of which (that of Mr. Joumli) has not even managed to gain the confidence of Parliament despite being proposed by the Islamist party Ennhadha that has a numerical majority in the ARP. The choice of his successor (Mr. Fakhfakh) has opened the way for a new form of relationship between the President of the Republic, the political parties, and consequently, the government.
One can say that a sort of legal formalism is dominant revealing the President’s mistrust towards the party system due to their responsibility in the poor governance of the country over the past decade. This type of constitutional ostracism has culminated in recent weeks with the open political-constitutional confrontation between the President and Prime Minister on one hand, and between the parliamentary majority and the President about the establishment of the Constitutional court on the other hand.
Last but certainly not least in this confrontation, the President has exercised his veto right to refuse the ratification of the amendment of the law on the modalities of electing three remaining constitutional judges by the Parliament and returned the draft law to the ARP for a second reading.
In brief, the President refuses to sit down with the parties and people whom he considers corrupt, hegemonic, and against the principles of the 2011 revolution, but refrains from mentioning them in person. Actually, the organs of the state no longer speak to each other, except by letters, which often add fuel to the fire instead of appeasing the tensions. The President’s last letter of April 3, 2021 to the Speaker of Parliament, where he extensively presented both political and constitutional arguments to explain his refusal to ratify the draft law on the Constitutional Court, shows no sign of breaking Tunisia’s political deadlock.
A national dialogue is needed
Experts and media in Tunisia wonder about the President's strategy and political goals. He is purposely putting the political actors on notice for their acts and deeds, by pulling on the edges between the street and political parties. In doing so, he is not helping the government to foster its projects and reform initiatives. In February’s letter to the Prime Minister, he does not only imply that the democratic transition has become an “illusion”, but also maintains: "in truth it is a transition from a single party to a single corrupt group.”
As a result, the State institutions, including the administration, and the power holders are unable to react and envisage a scenario in which all the political actors coexist. Thus, expecting them to be open to radical changes in leadership, set a new political order, and enact the needed constitutional changes to put things on the right track seems out of the reach for the time being.
Political bickering stalls the national dialogue calls launched by many political leaders and national organizations to resolve a severe political, economic, and social crisis. On November 30, 2020 the Tunisian General Labor Union (UGTT) presented an initiative to the President of the Republic to hold a National Dialogue to introduce necessary economic, political and social reforms. However, there is still disagreement with the President on the modalities and parties to the dialogue, which explain his reluctance to convene such a dialogue, even when it is the only way out of the storm.
If not resolved in the noticeably short future through sincere dialogue among the most influential political decision-makers in the country, the power struggle stemming from a wider disagreement with the presidency over the form of the political system and the distribution of powers among its various branches (presidency, government and parliament) would most likely lead to a violent escalation and breakdown of a rather fragile social peace. With the health situation resulting from Covid-19, the overall public feeling has culminated into fear and distrust in the capacity of the politicians to overcome their egos and sincerely acknowledge their failures.
Never more than before, the power holders need to sit together and consent to concessions to get the country out of the current stagnation. The continuing stalemate threatens the entire social order. Politicians should agree about the rules of the political and economic game for the next three years and stick to new institutional arrangements.
In brief, a true “constitutional resurrection” is expected.
Formally, this should lead to the conclusion of a political settlement between power holders that shall define a new transitional period leading to the next general elections of 2024.
New political settlement should tackle the real problems
A new political settlement should provide for alternative constitutional arrangements in terms of balance of powers among the key pillars of the system that should be different from the existing ones. Additionally, there should be a change in the electoral law before 2024.
Regardless how the political system would be adjusted, what really matters is bridging the partisan divide and showing a deep commitment to move toward a new political order that shall consolidate the democratic process in Tunisia. This would entail agreements on how to structure major political issues, with clear definitions and limits of powers distribution among the executive branch and how to cooperate with each other; drawing the lines between the government and the parliament so that the former does not become, as is the case today, hostage of swiping political alliances; and finding solutions for the unresolved question of establishing the Constitutional Court, as well as rationalizing control powers.
In the meantime, everyone involved in the dialogue should agree on a procedure to incorporate the new political arrangements into the Constitution, whether the Constitutional Court is established or not. This could be done through a referendum.
After ten years of a tumbling democratic transition, the time has come to realize and accept that the current system of government has failed to function and to deliver. A total reshuffling of the system is needed to reach a cohesive and working government that is designed to reflect the peoples’ needs and expectations and not to exhaust the country’s shrinking assets and human resources.
Secondly, it has become essential to admit that the entire political class that has taken turns at the power responsibilities has failed on all fronts. The mistrust in political leadership has reached unprecedented levels. If polarization is stronger than ever now, it is not only because it is between ideology (religion) and established forms of populism, but also, and because, the political reality in the country is becoming more and more complex and divisive. The “them and us” rhetoric has added a thicker layer of the official political discourse, where the social and economic ties to politics and the system of government are being defined in a cleaving rather than in a unifying way.
The current constitutional deadlock has revealed the state of the political denial among the political elite. The political process in Tunisia is distorted by sentiments of helplessness and perceptions of immorality of most of the political class, conservatism of the religion-based political movements, as well as anger against a persistent social injustice. It is thus easy to exploit these emotions by those who do not believe in democracy.
There is a real crisis of legitimacy in Tunisia, which also hides another dilemma. On one hand, the policymakers of the post-2011 order are still unable to mutually accept each other and to work all together for the benefit of the country. Reliance upon consensus and a search for some accommodation of decisions often prevail over the public interest and the role of the institutions.
On the other hand, there is a growing young generation, aged 18-25, who do not recognize themselves in the current situation, but master what most of the politicians lack, i.e. the ability to debate and to agree against a particular contention and the opportunity to build a better country. This emerging generation is opposing the post 2011 political order and willing to build an alternative social and economic order. Sooner or later, they will untie the system’s burdens if they are denied their role in future political settlements.
It is thus the responsibility of the power holders in both political and social organizations to sit with this growing generation, to listen to them, and to agree on a more inclusive and cohesive governance system.
A decade after the Tunisian revolution, people are still fighting for change and striving for a better life. In fact, Tunisia looks more like a country emerging from a post-conflict situation, where the only way to normalize the situation is the conclusion of a comprehensive political agreement that would propose a political approach to economic power-sharing, which should give the regions an opportunity to access growth while building long-term political processes.