What impact will the death of President Essebsi have on Tunisia’s democratic reform process?
The death of President Beji Caid Essebsi on 25 July 2019 highlighted the institutional jam Tunisia has been facing for some time. According to the Tunisian Constitution, a presidential vacancy needs to be acknowledged by the Constitutional Court, but this court is not yet in place.
On the day of Essebsi’s death, swift action was taken following emergency discussions between the Prime Minister and the President of the Assembly of the Representatives of the People, which lead to the swearing in of the President of the Assembly as interim President of Tunisia. Early presidential elections will take place this Autumn.
How did we get here?
The Tunisian Constitutional Court is responsible for the protection of the country’s republican regime and for the respect for the Constitution. Although it was created by law in 2015, the court never became active because of the continued absence of consensus in the Assembly over the selection of four members of the court.
The Constitutional Court is responsible for checking the constitutionality of bills and in regulating how state institutions function, notably in times of crisis. A provisional organization, the Instance provisoire de contrôle de constitutionnalité des projets de loi (IPCCPL), was made responsible for checking the constitutionality of draft bills prepared by the legislature, but other important roles have been left unattended.
The lack of a Constitutional Court has had a damaging effect on political institutions in Tunisia, notably during the former president’s illness and subsequent death. While the measures taken by the Prime Minister and the President of the Assembly have enabled the country to overcome the gap, this clearly demonstrates the urgent need to find a long-term solution.
What are the next steps?
Legislative elections were initially planned for 6 October 2019, with presidential elections to follow on 17 November, but the death of President Essebsi led the election commission to move the first round of the presidential elections to 15 September.
The election commission highlighted that the results of the elections are likely to be determined outside of the 90-day interim period for the presidency stated in the Constitution, considering the delays built-in for judicial recourses after the first and second rounds. This delay, predicted to be 47 days or so, could be avoided by reducing the time for judicial recourses or unifying both rounds, according to the election commission.
Holding early presidential elections should not lead to a date change for the legislative elections, although having these two elections closer in time could burden the election commission. This could also burden administrative and accounts tribunals, as well as the audio-visual communication regulator.
What challenges remain to holding elections?
Electoral reform remains a contentious issue in Tunisia. Bill 2018/63 amending the electoral law was declared constitutional by the IPCCPL and was presented to the President before his death. According to the constitution, the president had three options:
- Approving and publishing the bill in the official gazette within four days of the bill’s approval by the IPCCPL;
- Sending the bill back to the Assembly for a second reading and adoption by three-fifths of legislators within five days of the bill’s approval by the IPCCPL;
- Submitting the bill to a popular referendum within five days of the bill’s approval by the IPCCPL.
The delay expired without the President choosing any of the three alternatives, as such the bill was not adopted and cannot be published in the official gazette.
This situation has led to differing opinions on adopting the bill. Some argue that the bill should be published into the official gazette in violation of the constitution, others that the interim President can still adopt the bill, while others believe that the bill cannot be published without its adoption.
It should be noted that the proposed bill introduces conditions for candidacies to the legislative and presidential elections. These conditions would notably exclude people involved in political communication or having led charitable organizations in the year preceding elections. If they come into force, these conditions would be applied retro-actively and considerably disturb the elections, the work of the election commission and the arbitration of judicial contestations.
How will this impact Tunisia’s democratic reform process?
The introduction of the proposed amendments to the electoral law a few weeks before the elections risks disturbing the democratic transition as it is in clear contradiction to best practices and international standards recommended by the Venice Commission of the Council of Europe, among others.
Rejected by a part of public opinion , many civil society groups and major labour unions such as the Union générale des travailleurs tunisiens (UGTT) and the Union tunisienne de l’industrie, du commerce et de l’artisanat (UTICA), argue the modifications to the electoral law would risk exacerbating political divisions and deteriorating the overall environment for the elections.
There needs to be a functional Constitutional Court for the country to finalize the implementation of its judiciary following the 2014 constitution. This is also crucial to establishing true rule of law in the country, one which respects human rights and is regulated by constitutional justice. It is now fairly certain that the new Constitutional Court will not be sworn in before the presidential and legislative elections. Finding a consensus to elect the final three members of the Constitutional Court will be a priority for the newly elected legislators. This should be followed by the selection of the remaining members of the Superior Council of the Judiciary, and the selection by the president of the remaining four members.
How is DRI responding?
DRI Tunisia will continue to monitor the evolution and implementation of the Constitutional Court in the upcoming months – indeed during 2020 as well. In addition, will continue training Tunisian lawyers on constitutional justice until 2022.
We will also provide technical support to civil society groups observing elections throughout the electoral cycle. This will include the preparation of practical guides on electoral disputes, on monitoring electoral disputes, on writing election reports and on writing reports on social media monitoring during elections.