IFES Briefing Paper | February 2011

Steps towards elections in 2011
Tunisia: Briefing Paper No. 2

Elections in Tunisia:

International Foundation for Electoral Systems February 5, 2011

1850 K Street, NW | Fifth Floor | Washington, DC 20006 | www.IFES.org

Elections in Tunisia: Steps towards elections in 2011

Introduction
The momentous events of Tunisia’s ‘Jasmine Revolution’ have moved forward with surprising speed. The appointment of a new Transitional Government on 24 January followed loud public protest because the newly formed cabinet remained dominated by political figures from the previous regime and President Ben Ali’s Constitutional Democratic Rally party (the RCD). While Prime Minister Mohammed Gannouchi remains in position, a cabinet reshuffle ensured an increased role for opposition leaders and figures without tainted political reputations. Although some protests continue and security incidents remain of concern, there appears to be a greater level of public confidence in the new Transitional Government. Overall, the rapid stabilization of the situation is being described as the ‘new normalcy.’ Fundamental changes are apparent: the role of a free and active media, unrestricted access to information and regular industrial action and other group protests enjoying new freedoms of association and expression. Moreover, several steps have been taken to remove representatives of the previous regime from appointed office, in particular at the Ministry of Interior and in local government. The issue of new elections remains at the forefront of public discussion. In taking office at the head of the new Transitional Government, Prime Minister Ghannouchi made a series of commitments that elections will take place within six months and under a reformed framework which will include the establishment of an independent election commission and an invitation for international observation. A pivotal role towards achieving this agenda will be played by the High Commission for Political Reform (HCPR), one of three independent bodies established by the Transitional Government. 1 The HCPR’s mandate is to lead and prepare initiatives for constitutional and electoral reform. There appears to be broad support for the HCPR and its President, Professor Yadh Ben Achour, an academic with a credible and independent reputation. 2 In public statements, Professor Achour declared the HCPR will prioritize the preparation of a new electoral code; in meetings with interlocutors, he indicated a new draft law will address many of the areas of concern in the current electoral code. However, there remains uncertainty on when elections will take place and electoral sequencing, specifically whether presidential elections should precede parliamentary elections. Interlocutors have also been debating the steps needed towards adopting a new Constitution, including the possibility of having a Constituent Assembly to prepare a new framework, followed by a referendum to decide on its adoption. This briefing paper outlines key developments over the period 24 January to 4 February 2011 related to the prospects for holding new elections in Tunisia. It is based on the work of an IFES Assessment Team present in Tunis since late January. IFES’ preliminary assessment of the broader issues related to the electoral framework of Tunisia, can be found in: “Elections in Tunisia: key challenges for credible and competitive elections” (IFES Briefing Paper, January 25, 2011).

1

In addition, there is a Fact-finding Commission on Human Rights Abuses focused on the recent events and a Commission on cases of embezzlement and corruption. 2 The HCPR is composed of twelve persons, mostly academics and jurists.
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IFES Briefing Paper February 2011

Election Timetable
All stakeholders recognize the constitutional timetable for conducting a presidential election within 60 days of the appointment of an interim president is unrealistic given the current circumstances and should not be adhered to. There is broad consensus that the government’s indications that elections should be scheduled within six months (i.e. by July 2011) is justified and that time is needed for the preparation of a new and reformed political, legal and administrative framework. However, there has yet to be an official decision on a likely election date; to do so will establish the first formal divergence from the current Constitution. When the decision is made, authorities will likely claim that force majeure applies in the case of any challenge to the constitutionality of the postponement. 3 Nevertheless, there does appear to be the beginnings of frustration that the electoral sequence of the transitional process remains uncertain, especially in relation to questions over the sequencing of parliamentary elections, as well as elections for a possible Constituent Assembly to prepare a new Constitution and a referendum on whether to adopt the new Constitution. There is also recognition that the process of preparing a new election law must be done in a consultative and inclusive manner, meaning the process should not be rushed. The impracticality of holding elections during the summer tourist season and the holy month of Ramadan in August has caused some speculation that presidential election may have to be scheduled for October 2011 with parliamentary elections held concurrently. Stakeholders have encouraged authorities to ensure transparency when explaining any delay to holding elections.

Legal Framework for Elections
The HCPR has assumed responsibilities for the “elaboration of texts organizing the elections and the amendment of the electoral code to […] guarantee the organization of free and credible election, in accordance with the objectives of the people's revolution including freedom, equality, democracy and the rule of law.” 4 The HCPR has indicated that its members will seek to prepare a draft law within six weeks and, at the same time, undertake open consultations with stakeholders on the issues to be addressed by a new law followed by public consultation of the new draft text. The HCPR President has indicated that the new electoral legislation will be submitted to the Transitional Government and will be adopted by a Governmental or Presidential decree 5 and will not seek to engage the current Parliament, which he described as “an authority that has neither credibility nor legitimacy.” 6 It is not clear if the Transitional Government considers itself bound to adopt any draft prepared by HCPR or whether it considers itself to have the authority to amend the draft it receives.
3

Article 39(2), which provides: “In the event it is impossible to organize elections on a timely basis, due to war or imminent peril, the President’s term of office may be extended by a law adopted by the Chamber of Deputies, until such time when elections can be organized.” 4 Statement attributed to Professor Yadh Ben Achour, HCPR President, at a press conference on January 29, 2011; see http://www.tunisiaonlinenews.com/news-conference-of-heads-of-national-commissions/ 5 This mechanism is provided for under Constitution Article 28 “for a set period and for a specific purpose”; the decrees issued under Article 28 require eventual ratification by parliament. 6 Ibid.

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Elections in Tunisia: Steps towards elections in 2011

The Electoral System
The HCPR has indicated its intention to propose a new electoral system for parliamentary elections to ensure a more proportional and representative system. Debate has begun on the different possibilities available for choosing a new Parliament, including issues related to mechanisms for promoting the number of women who will be elected. A map of the current electoral districts used for parliamentary elections in Tunisia is annexed below.

Suffrage
It is not clear whether the Amnesty Law, adopted by a decree issued by the first Transitional Government on 20 January, provides a sufficient basis to allow those persons who have been convicted of political crimes to now be eligible to register to vote or to stand for elected office. 7

Voter Registration
All interlocutors have expressed concern at the quality and accuracy of the current voter register. In particular, it appears that the voter register may contain the names of many deceased persons, and an official audit of the current voter register appears necessary in order to remove ineligible or erroneous names. Moreover, some actors have mentioned that since the current system is a voluntary registration process, many eligible citizens chose not to register as voters on political grounds. To address these issues, the HCPR has stated its intention to seek the introduction of a new voter registration process, perhaps drawing the names of eligible voters from the civil register database where all Tunisians are recorded. However, the feasibility of doing this has not yet been tested. In the meantime, groups have called for the authorities to allow an additional period for eligible citizens to have the opportunity to register to vote. The period for people to ask to be added to the current voter register, resulting in the right to vote in July 2011, ended on 31 January. The HCPR has also indicated its intention to allow citizens to vote using their national identification documents as proof of their identity and eligibility. Thus, the role of voter cards (issued by municipalities and prone to political interference) is likely to be abolished.

Election Management
The Transitional Government has made a commitment that a new independent election body will be established for the next elections. It is unclear whether the new body will play a comprehensive management role or be a more supervisory body, overseeing the work of governmental agencies tasked with the organization of elections. It appears likely, however, that the dominant role previously played by the Ministry of Interior in the management of elections will be significantly diminished or reduced. It is also noted that newly appointed Minister of Interior Farhat Rajhi recently took steps to restructure the Ministry and appointment new officials in key administrative and security posts (including a
7

The current Electoral Code disenfranchises all persons convicted of a crime or who have served a prison sentence.
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IFES Briefing Paper February 2011

complete reshuffle of the 24 district governors) in an attempt to gain public confidence in the work of the Ministry. The restructuring the Ministry of the Interior included a decision of the Transitional Government to transfer specific developmental responsibilities to a new Ministry of Local Development, currently headed by Ahmed Nejib Chebbi of the Progressive Democratic Party. Responsibility for election management may also be transferred to the Local Development Ministry according to some speculations. With possible exceptions of the three new commissions, Tunisia has limited experience with establishing truly independent bodies with formal administrative responsibilities and an effective management structure. While all interlocutors have so far supported the concept of an independent body, some have raised questions about how its composition will be determined and whether its establishment is feasible in the envisaged timeframe. There have been no calls for a continued role for the National Observatory for Presidential and Parliamentary Elections, a quasi-independent body established under the previous regime to monitor electoral compliance and which appears to have had little public credibility.

Candidate Eligibility and Registration
The HCPR has noted its intention to reform the candidate registration process for presidential candidates and remove the requirement that candidates must have the support of 30 members of the Chamber of Deputies or elected municipal heads. It is unclear whether the Constitutional Council, or a new body, would have responsibility for determining the eligibility of presidential candidates.

Campaigning Regulations
The HCPR has indicated its intention to reform regulations for electoral campaigning, including lengthening the period of the official campaign from two to four weeks. The recent lifting of media regulations in Tunisia has led to a newly vibrant media, prepared to take a critical perspective on political developments. As yet, there is no indication about how the Electoral Code and other legislation, such as the Media Code, will be amended to balance media freedoms and the regulation of electoral campaigns, including coverage of campaigns and political advertising.

Civil Society
As with media, lifting restrictions on civil and political freedoms has had an impressive and dynamic impact on the role of civil society. Numerous existing and new organizations and activists have immediately begun to develop their engagement and contribute towards the transitional process in determining the direction for political and constitutional reform, including the issue of electoral reform. Notably, the HCPR has specifically committed itself to a series of open, inclusive events with civil society to discuss the preparation of new election legislation while civil society groups have already initiated roundtables to discuss developing a common approach to lobbying for specific reform priorities.8
8

The HCPR consultations are scheduled to start on February 5. A civil society gathering, led by Conseil national des liberties en Tunisie took place on February 4.

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Elections in Tunisia: Steps towards elections in 2011

Political Parties and Candidates
The seismic change to the political party landscape of Tunisia caused by the removal from power of the RCD has meant that it remains impossible to gauge accurately the current strengths or electoral direction of those parties that previously operated in Tunisia or those that have been banned, in ‘standby’ or in exile during the previous regime. Considerable focus has been paid to the re-emergence, as a legal political party, of the Islamist Al-Nadhar movement and the return from exile of its leader, Rachid Gannouchi. Other parties, especially those with Ministerial positions, have sought to identify measures to strengthen their networks of support. Analysts have noted the likelihood of new parties emerging, especially from within the ranks of the RCD membership.

Conclusion
As Tunisians focus much of their attention on events unfurling across the region, there remains political commitment and activity towards ensuring progress with democratic transition through political reform and the conduct of new elections. Although there remains some uncertainty as to what steps to take first, the momentum for electoral reform seems to have been given powerful impetus through the commitments of the Transitional Government and the establishment of the HCPR. Their mandate to be the lead on identifying next steps for transforming the declared intentions into an effective and reforming framework is challenging, especially given the timeframe provided to them. Over coming weeks, the HCPR’s work on draft new legislation will benefit from its consultation with stakeholders as well as the introduction of a new level of transparency for governance in Tunisia that should set important precedents and levels of public confidence for the way in which the next elections will be conducted. The chart opposite provides an overview of some of the key steps that now need to be taken by the HCPR and others towards the holding of presidential elections.

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IFES Briefing Paper February 2011

Annex A: Electoral Map of Tunisia (based on 2009 electoral districts)

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