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Constitutional Reform in North Africa

July 2011 Comprehensive Information on Complex Crises

Melodee M. Baines Mediterranean Basin Knowledge Manager

melodee.baines@cimicweb.org

Kendall M. Allen Assistant Knowledge Manager

mediterranean@cimicweb.org

This document examines the current constitutional reform efforts occurring across North Africa. Related information is available at www.cimicweb.org. Hyperlinks to source material are highlighted in blue and underlined in the text. A list of references for this report is available at the CimicWeb.

his report provides an overview of constitutional reform efforts currently in progress across North Africa. While electoral and other legal reforms are often part and parcel of constitutional reform, this report focuses specifically on the constitutional reform process. While relevant, the concurrent electoral and other legal reforms are outside of the scope of this report, which will highlight how the various playersthe electorate, political parties, interim leaders and othersare reacting to and contributing to constitutional reform. This report also details the trends and common threads across North Africa, as well as important changes and key outcomes of the current reform processes. Across North Africa, political change intensified since the beginning of the year. The Arab Spring, the Jasmine Revolution, the 20 February Movement, the Day of Ragethese are just some of the labels given to the many changes that have been occurring throughout North Africa since December 2010. The self-immolation of Tunisian fruit seller Tariq Mohammed Bouazizi on 17 December 2010 is largely considered the catalyst that triggered rapid change and upheaval across the region. In Tunisia and Egypt, the leaders fled early in 2011. In Libya, as of July 2011, the leader remains in power amid NATO intervention and armed opposition. Meanwhile scholars and practitioners have asked when or if Morocco and Algeria, will face the same challenges of regime change as Egypt, Tunisia or Libya. One of the only commonalities among the states of North Africa is the promise of political reformwhether ushered in by transitional governments or the sitting head of state. The following pages provide detailed explanations for each country in North Africa. The report concludes with a look at the common themes and concerns across the region. Egypt As of July 2011, Egypt is working from a provisional constitution that was instituted after a national referendum in March 2011. The interim government, political parties, presidential aspirants and activists have been suggesting reforms for the new constitution, but so far there is no specific timeframe set for when the new constitution will be ready. The major debate centres on whether constitutional reform should come before or after parliamentary elections. Decision-makers in Egypt began to review the constitution-making process as early as February with the intention of reforming the electoral process and reducing presidential powers. The new Egyptian constitution will be important not only for Egypt, but for the entire region. There is a long history of Egyptian jurists writing other Arab constitutions, and it is likely that they will do so again in the future.

Egypts Constitutional Declaration 2011

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The provisional constitution includes reduction of presidential terms from six years to four, a requirement for the president to choose a deputy within a month of election, and specifications on eligibility requirements for presidential candidates. The Supreme Council of the Armed Forces (SCAF), the interim military authority currently ruling the country, announced on 12 July that it will publish a new Constitutional Declaration containing the basic principles to be contained in the constitution. The new constitution will be produced by a 100-member constituent assembly that parliament will choose, according to criteria that will be codified in the new Constitutional Declaration. Constitutional reform in Egypt has been the subject of debate, according to Michele Dunne writing for the Carnegie Endowment. The debate centres on whether elections to replace SCAF should take precedence over drafting the new constitution in post-revolutionary Egypt. SCAF has been in place since Mubarak stepped down on 11 February 2011. One side of the debate promotes speedy elections to transition toward more representative government. On the other side, the Constitution First campaign is mobilized around delaying elections in order to focus on and hasten the drafting of a new constitution. The Constitution First campaign comprises 36 different youth and political groups working together to gather signatures to delay elections. Amr Moussa, secretary-general of the Arab League, disapproves of the Constitution First campaign, and the Wall Street Journal has labelled the campaign divisive. Nonetheless the campaign scheduled a demonstration on 08 July 2011 which appeared to include a broader cross-section of Egyptian society than in previous postuprising rallies. Leading up to the rally, the organisers changed the theme from Constitution First to Revolution First to encourage broader participation. In reaction to the protests, SCAF spokesperson General Mohsen El-Fangari announced on 12 July that SCAF is committed to a plan of holding parliamentary elections, then drafting a new constitution and holding presidential elections at a later point in time. The content and drafting method of the new constitution are both sources of concern for civil society groups and others. In addition,
Political groups are expressing at least three sets of fears: that military rule will persist, that the National Democratic Party (NDP) will re-emerge in some form, and that the Muslim Brotherhood will dominate. These concerns pull activists in different directions, creating a confused political scene and conflicting sets of priorities. Michele Dunne writing for the Carnegie Endowment

Members of the Constitution First campaign, the so-called Constitution-firsters, largely consist of liberals and leftists. They are concerned that the new constitution will dramatically reform government and electoral procedure, and possibly require new elections. The Constitution First campaign wants an independent constituent assembly, instead of the parliament, to write the new constitution. They contend that if the new constitution requires new elections, it is more logical to reform the constitution first rather than hold elections, reform the constitution, and then possibly hold new elections yet again within as little as a 12 months. Furthermore, if elections are to come first, whichever party holds the most seats will have the most say in forming the constitution. Indeed, the prime minister and several members of his cabinet have recently said publicly that they would prefer to see the constitution written first. On the other side, the so-called Election-firsters argue that the legitimacy of the new constitution depends on elections for several reasons. First, the referendum in March 2011 resulted in more than three-fourths of voters favouring parliamentary elections being held within six months; however, only 41.2 % of the 45 million eligible voters participated. Further, the current protocol requires that parliament designate the 100-member constituent assembly charged with drafting the new constitution. Afterward the new constitution would be put to popular referendum. Indeed military leaders have been encouraging constitutional reforms that grant sweeping powers to the military, including rights of intervention in political affairs in order to protect the public interest and the right to form the military budget without parliamentary monitoring. On 19 June, a civil society conference that included the participation of the military proposed constitutional reforms establishing the military as the protector of civilian institutions. Reformist judge Hesham el-Bastawisi, who intends to run for president, announced a draft of

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supra-constitutional principles for inclusion in the new constitution. These principles would solidify the power of the military to protect the democratic system. The National Council, a loose coalition of secular groups, likewise proposed a draft constitution that codified a special status for the military. The Basic Constitutional Provisions, a document written by 27 Egyptian human rights organizations, contains six articles and sets itself apart from other constitutional proposals in that it does not specify an explicit role for the SCAF. There are also concerns that the military will try to delay elections beyond September. There are many contenders for participating in the writing process, and so far the process has been opaque, according to Michele Dunne writing for the Carnegie Endowment. The current provisional constitution does not specify who is to draft the new constitution, how it ought to be written, or the precise process for designating the constituent assembly. There are rumours that individuals are working on drafts, including Deputy Prime Minister Yahya al-Gamal. Another, Mohammed ElBaradei (Nobel peace laureate and presidential hopeful), proposed a bill of rights with 17 articles including provisions to exclude the military from the formal political process and guarantee citizens fundamental rights. During the demonstration on 08 July 2011, the members of the ultraconservative Salafi school distributed draft copies of their suggested constitution. There are concerns about inclusion in the process. Some reformers are concerned about assuring that Egypt is a civil state, not a religious one. Nonetheless, some reformers recognize the utility of Islamist cooperation. The constitutional amendment committee that drafted the provisional constitution included members of the Muslim Brotherhood but excluded other political forces, raising concerns about the representative nature of the committee. In an effort to encourage broad participation, the Hisham Mubarak Law Center is another contender in the constitution writing process. Their initiative encourages a collective contribution and promotes citizen participation in the process in order to reflect the full diversity of Egyptian society, including religious and ethnic minorities. The inclusion of women is also a concern for rights groups. Arabic text in the provisional constitution specifies that the presidential candidate not be married to a non-Egyptian. In the Arabic text president is written as masculine and references in the text identify his spouse as female. The implication is that women could be excluded from running for president in the new Egypt. Tunisia Unlike Egypt, Tunisia has not adopted a provisional constitution. The Tunisian electorate will vote for candidates to sit on the Constituent Assembly, which will write the new constitution. While there is no debate about the order in which elections should occur (as in Egypt), the interim government haspostponed elections once already. According to the current timeline, the constitution is slated to be ready by early 2012. As the post-revolution governments emerge in Egypt and Tunisia, the two states will look to each other as the process unfolds. The constitutional reform process is important in Egypt, but likewise the same process in Tunisia is being keenly watched in Egypt. Established by the Union Gnrale Tunisienne du Travail (UGTT) trade union federation, independent lawyers, opposition parties including al-Nahda, and others, the Committee for the Protection of the Revolution movement launched the organised demand for constitutional reform. The process in Tunisia faces pressures, including disagreement between conservative and secular parties, the neighbouring conflict in Libya, and the hopes of reformists in Egypt and Morocco. The first step toward a new constitution in Tunisia will be the elections for the Constituent Assembly (also called Constituent Council). On 03 March 2011 the interim government announced that elections for the Constituent Assembly were to take place on 24 July 2011. However, in June, the interim government announced that elections for the Constituent Assembly were to be postponed to 23 October 2011. In addition to writing the constitution, the Constituent Assembly could also either appoint a new government or ask the caretaker executive to carry on until presidential and parliamentary elections. A committee of electoral monitors, comprising of the main political
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parties, was formed to prepare for the Constituent Assembly elections. The current ruling authority is headed by interim President Fouad Mebazza and Prime Minister Beji Caid Essebsi. On election day, the ballots for the Constituent Assembly will contain a list of candidates representing various political parties. Unlike in Egypt, Tunisia's liberal political atmosphere, especially on the issue of womens equality, has resulted in Tunisian authorities requiring that all participating [political] parties list as many women as men as candidates, and to alternate them on the ballots, to encourage a more even representation of women in the constituent assembly. Despite its conservative reputation, according to the New York Times, Islamist political party al-Nahda supports the idea. The partys ability to mobilise more women in rural areas than other parties has been a source of pride for al-Nahda. Rashid Al-Ghannoushi,1 formerly exiled in London, returned to Tunisia to head al-Nahda (Renaissance) party on 30 January 2011. Al-Nahda, according to university professor Muqtedar Khan writing for the Egyptian paper AlAhram, "is expected to be one of the major, if not the major, players in the Constituent Assembly". Al-Nahda is considered to be among the most liberal Islamist parties in the region, yet many secular intellectuals and politicians are concerned about al-Nahda seeking to reform Tunisia into an Islamic state. According to Mark Lynch writing for Foreign Policy, critics of al-Nahda distrust claims from the Islamist party that it will remain moderate once in power. Considered more conservative than al-Nahda, Salafi groups are among the challengers to the formerly banned party, and some Tunisians worry about Islamism in general. The leading liberal party of Tunisia is called the Progressive Democratic Party. Both al-Nahda and the Progressive Democratic Party have been cooperating to keep elections on track, according to the Guardian. Leading up to the elections, Tunisian political parties (there are more than 90 so far), intellectuals, activists and others are working on drafts of the constitution based on their various platforms and agendas. On 20 June, interim Prime Minister Beji Caid Essebsi declared that his government intends to adopt a new constitution by early 2012, within six months of the October vote. In preparation, electoral officials intend to draft updated lists of eligible voters, estimated at seven million out of a population of 10.7 million. On 06 July 2011, the United Nations announced its willingness to provide support in the organisation of Tunisias Constituent Assembly elections in October. This announcement followed the withdrawal of al-Nahda from the committee of electoral monitors on 27 June 2011 in response to the postponement of elections. According to Reuters, al-Nahda accuses secular parties within the committee of making decisions without first voting on them as a committee. The committee prepared a law on political party finance, but al-Nahda asserts that committee members have delayed forming a list of those loyal to former Tunisian President Ben Ali who will be banned from candidacy in the Constituent Assembly. It remains unclear how much authority the Constituent Assembly will have, or how much time the body will be granted to write the constitution. Regarding presidential elections, Tunisian political analyst Slaheddin Jourchi estimates that as many as two years may be necessary before the country is ready, and the fate of the current parliament is even more uncertain. Morocco Morocco is the only country in North Africa so far this year to put constitutional reforms to vote. The referendum treated the constitution as a whole, instead of allowing citizens to vote on an article-by-article basis. As with Tunisia and Egypt, Moroccan reforms are seen as possible inspiration for the region, though movement is considered slow. On 09 March 2011, the constitutional revision process began in Morocco, and 20 days later the king began 10 days of consultations with the Advisory Commission to Revise the Constitution. The Advisory Commission, appointed by the king, included
1

Rashid Al-Ghannoushi is no relation to former Tunisian Prime Minister Mohammed Ghannouchi

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several individuals from political parties and unions and was composed almost entirely of men and women whose loyalty was to him. The president of the Moroccan Association of Constitutional Law and advisor to the king, Abdellatif Mennouni, supervised the consultations. There was no provisional constitution, as in Egypt, and the body convened to draft it was not elected, as is the plan for Tunisia. Indeed, Zineb El Rhazoui, a journalist and human rights advocate, asserts that the new Moroccan constitution was cooked up in the hallways of the palace and other activists claim that the reforms involved little consultation with the rest of society. Business leaders throughout Morocco likewise expressed dissatisfaction about being left out of the process. In addition, the Advisory Commission refused to allow the heads of political parties to see the draft constitution, finally allowing them only 24 hours to prepare their remarks, according to the Guardian. In addition to the Advisory Commission, the Moroccan government established a consultative body referred to as the accompanying mechanism, according to civil society expert Marina Ottaway writing for the Carnegie Endowment. Mohammed Moatassim, another of the kings advisors, headed the body, which functioned as liaison between the drafters of the constitution and political parties, labor unions, businessmen associations, human rights organizations, and other groups or even individuals interested in having an input in the new constitution. There was no follow up or debate to any of the proposed drafts or suggestions, and at no point were participants presented with a written draft of the new constitution. Instead, on 08 June 2011, participants were able to listen to an oral presentation and then contribute to a discussion which lasted ten hours. Only on 16 June did members of the accompanying mechanism see a written draft, and on 17 June, the king presented the same document to Moroccans via a televised speech. The Council of Ministers (the kings cabinet) likewise voted on the draft on the same day of the kings announcement. On 01 July 2011, the Moroccan government reported that 73.46% of the Moroccan electorate participated in the referendum, and 98.5% of those voters approved the referendum to reform the constitution. There are, however, suspicions of voter fraud and violations of impartiality at the ballot box. Despite widespread dissatisfaction with the Moroccan government and the economy, the king remains popular and his announcement that he had transformed the country into a constitutional monarchy with the new [constitutional] reforms was widely welcomed, according to Associated Press. The reforms grant additional powers to the prime minister and the parliament and enshrine respect for human rights, gender equality and judicial independence into the constitution. However, the reforms do not challenge or change the kings nearly absolute power, including total control over the military and head of the executive branch. The king will still appoint the prime minister but must choose the candidate from among the members of party that has won the parliamentary majority. In Moroccos Constitution addition, the prime minister will appoint government ministers, with the kings 2011 approval. Ultimately, supporters of the new Constitution argue that moving slowly may be the surest way to achieve sustainable change, and analysts say that even baby steps may be enough to inspire others in the region to follow suit eventually. However, according to the Guardian, the new constitution does not adhere to the aspirations of the Moroccan people or to new regional context. Indeed, Moroccos 20 February movement rejected the new constitution before it was even announced. However, the movement is small and has no clearly defined leadership or structure, and thus has not been very successful in mobilising much support. In Western Sahara (disputed territory under Moroccan control since 1976), accusations of wrongdoings by Polisario Front (a politico-military organisation pursuing independence for Western Sahara) include arrests and checks involving the persecution of Sahrawis in possession of draft copies of the constitution. The Legal Watch Group on Western Sahara, a nonprofit group, submitted a letter to United Nations High Commissioner for Refugees (UNHCR) with concerns about Polisario forces acting aggressively against the Sahrawis who have tried to express theirinterest to [sic] the new draft of the constitution leading up to the referendum.

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Algeria Work on a new constitution for Algeria is expected to conclude before the start of Ramadan (01 August 2011). The constitutional commission has not made any formal announcements about the content of the reforms. In addition, there is no referendum to allow Algerians to vote on the new constitution. On 16 April 2011, President Abdelaziz Bouteflika announced his intention to reform the Algerian constitution to strengthen democracy. Included in his promises were assurances that a constitutional commission comprising active political currents and constitutional law experts will take charge of drafting amendments. The president specifically mentioned reforms of electoral law, social and economic policies, and socalled information law under which journalists have been incarcerated for criticizing the president. The proposal for reforms did not accompany any mention of deadlines or procedure. On 21 June 2011 the constitutional commission concluded its work, begun in May. Mohammed Ali Boughazi is the spokesperson for the constitutional commission, and Abdelkader Bensalah, who is also head of the lower house of parliament, leads the body, which consists of only three individuals. Two key opposition parties, the Front for Socialist Forces and the Rally for Culture and Democracy, abstained from participating in the consultation in protest against President Bouteflikas promises, which the groups do not trust. Despite criticisms, the three largest political parties in the ruling coalition have backed the process. The content of the commissions recommendations remain secret. However, certain broad outlines are known publicly, such as presidential term limits, division of power between the president and the prime minister, protecting the independence of the judiciary, liberating television and radio from state control and expediting economic reforms. Mauritania Protestors, predominantly groups of young people, have been clamouring for constitutional reform in Mauritania since February 2011. In March, the government responded with a wave of economic reforms, but there have not been any official movements toward constitutional reform. However, in June, the government passed new laws eliminating most prison sentences for jounalists, with some exceptions. In July the EU provided aid to facilitate reforms in the justice system. Libya On 11 July 2011, Algerian newspaper el Watan reported that Moammar Gaddafi's son, Seif El Islam, stated that the Gaddafi regime wants to organise elections and is ready to hold elections and draft a new constitution supervised by international organisations. The reason, according to El Islam, that such reforms were not moving forward is that the opposition forces in Libya refused to cooperate. Common Threads Across countries and reform processes, major issues include concerns about ethnicity, Islamism, gender equality, the depth and breadth of reforms, public participation and satisfaction, and in Egypt, whether elections or constitutional reform should happen first. The over-arching theme is inclusion. Inclusion is an important factor that concerns minority groups such as women, rural people, Amazigh, and non-Muslims. A constitution that has been drafted observing the principles of inclusivity, participation, and
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transparency will likely encourage legitimacy and the support of the electorate, according to the United States Institute for Peace. The indigenous peoples of Morocco, Tunisia, Algeria and Libya call themselves Amazigh. Tunisias Amazigh are calling for inclusion in the new constitution, and Kabyle activists in Algeria are hopeful, citing the success of Amazigh peoples in Morocco, where Amazigh has been recognized as a national identity and enshrined as an official language in the Moroccan constitution. In an effort to expand inclusion, the Moroccan constitution as replaced the Arab identity with an Islamic identity, a move that may provide for greater inclusion in for Amazigh peoples elsewhere in North Africa. This is the first time that any North African country has acknowledged the Amazigh identity at the constitutional level. In Algeria, recognition of the Amazigh population has been labelled second-rate formalisation because there is no practical application by the government. In Morocco, ethnicitybased political parties remain illegal. A propos to identity politics, political parties across the region have been working to establish themselves and their agendas in the atmosphere of reform and change. There is a tension between Islamist and Islamic parties and the counter-part, so-called civil parties. Civil parties are reluctant to adopt the label of secular because of the importance of Islam among a portion of the polity and implication of irreligiosity often associated with secularism. Similarly, civil parties are able to situate themselves next to Islamist parties and make them appear uncivil. Islamist parties in Egypt (the Muslim Brotherhood and Salafi groups) and Tunisia (al-Nahda and Salafi groups) tend to be better organised than civil parties, and remain a source of concern for some secularists. Across the region, civil society organisations and activists have been discussing how to ensure that gender equality and improving the status of women are key aspects of constitutional reforms. For example, in Egypt, the Egyptian Centre for Womens Rights (ECWR) has stated that the exclusion of women from participation, including failure to acknowledge participation that has occurred, will result in an unfinished revolution. Because former first lady Suzanne Mubarak promoted womens rights, there is a lingering discontent about feminism and improving the status of women in Egypt now that she is gone. The discontent comes from some male Egyptians and some Islamist parties that argue that some of the changes promoted by Suzanne Mubarak reduced mens rights or exceed the rights allotted by Islam. On the other side, some Egyptian feminists believe that Suzanne Mubarak was an obstacle to womens rights. In Tunisia the political atmosphere has been more inclusive of women, and some Islamist parties have facilitated an opening of the political space to more women. Constitutional reforms in Morocco, if implemented, will enshrine the equality of men and women and pave the way for additional legislative reform.

Box 1. Constitutional Reform in North Africa

Country Provisional Constitution no Intention to Reform Announced 16 April 2011 Method of Preparation after consultation with Constitutional Commission formed by sitting president either after or in lieu of parliamentary elections in late September 2011 no action to date after 10 days of consultations between the king and the Advisory Commission to revise the Constitution (formed by the king) by Constituent Assembly to be elected on 23 October 2011 (rescheduled from 24 July 2011) Expected Date of Constitutional Draft not specified but expected before Ramadan (August) 2011 depends on whether elections occur in September as planned N/A approved by 98 per cent of voters in referendum on 01 July 2011 early 2012

Algeria

Egypt Mauritania

yes no

February 2011 mid-February 2011 09 March 2011

Morocco

no

Tunisia

no

03 March 2011

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Concluding Remarks Egypts interim government adopted a provisional constitution on 20 March 2011 and the schedule for the new constitution is still under consideration. In Tunisia, elections for the Constituent Assembly, the body that will draft Tunisia's new constitution, are scheduled for 23 October 2011. The Algerian government hopes to have a new draft constitution ready by the observance of Ramadan in August 2011, while Moroccans approved a referendum for a new constitution on 01 July 2011. Meanwhile, Mauritanian protesters continue to demand constitutional reform without success. For more detailed information on producing constitutions, refer to the United States Institute for Peaces article, Egypt, Tunisia, and the Constitutional Movement.

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Recommended Reading Egyptian Constitutional Declaration 2011 Moroccan Constitution 2011 (in French) Preliminary Report on Election Monitoring for the 01 July 2011 Constitutional Referendum in Morocco (in French) Egypts Muslim Brotherhoods Official Website Tunisias Renaissance (al-Nahda) Partys Official Website Egypt, Tunisia, and the Constitutional Movement by the United States Institute for Peace References for this document are located at the CimicWeb.

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