Overshadowed by the European debt crisis, the elections in Egypt, and the continuing meltdown in Syria, Tunisia is, as I write, adopting a new constitution. Dubbed the “petite constitution” by the Tunisian press, the Constituent Assembly is debating the powers of the presidency, the prime minister, and the rules for the assembly.
What, you ask, isn’t that work supposed to take months, if not years? Yes, in fact, the Constituent Assembly was set up to do that very thing. The problem is that along with the election – the old constitution was thrown out. In fact, legally, ever since Ben Ali left power Tunisia has been in a constitutional gray area. The constitution under Ben Ali gave the president sweeping authorities; after January14, the political establishment came to an understanding that the government would operate without a constitution until the elections. With the courts, the military, and the government going along with it, it worked.
The only remaining vestige of the old power structure was the figure of Fouad Mebazaa, who assumed the presidency after Ben Ali fled the country. But from January 14 until October 23 (the date of the elections), real power was held by the ad-hoc Ben Achour Commission, made up of political party officials, civil society actors, and assorted activists. The Commission granted the Prime Minister’s office authority to legislate. Mohammed Ghannouchi followed by Beji Caid Essebsi filled this role until the October 23 elections.
Following the elections, when Ennahdha’s victory was clear, the victors proclaimed that with their 40 percent majority – they would take the position of prime minister – this before they had secured a working majority in parliament. But, lest we criticize them too much, they also held true to their promise of inviting any party into their government in order to form a majority. For the next three weeks, the leaders of the top three parties (excluding the enigmatic Aridha party) jockeyed for position. The CPR’s Moncef Marzouki claimed the presidency, while Ettakatol’s Mustapha Ben Jafaar claimed the speaker of the new assembly.
But one key question remained: what would these positions actually do?
Without a functional constitution, it was unclear whether the regime would be presidential, parliamentary, or some combination. It was only the internal debates between the so-called “Troika” of Ennahdha, CPR, and Ettakatol that would determine the kind of regime that would govern the country.
As the weeks went by, the election results were finalized, and the officials were seated in the first session of the assembly, it became more and more clear that the country was being run under no enumerated powers. Finally, legislation was introduced in the assembly to clearly establish the powers of the prime minister as the legislator and executive in chief. Sticking to their campaign position of forming a parliamentary regime, Ennahdha clearly wanted their man, Hamadi Jebali, to be calling the shots. The problem was that they completely excluded their governing partners – and Ennahdha didn’t have a majority to pass the bill!
Marzouki went nuts – threatening to pull out of the coalition. It seems that the legislation made the presidency – which he so coveted – a purely ceremonial post – with no real powers. Likewise, the Prime Minister could pass legislation without the assembly. The logic was that the assembly was there to draft the constitution and approve ministerial posts, and that’s it.
Two more weeks went by – with major upheavals in the country – including a massive strike in the restive region of Gafsa and another culture war involving Salafists and the wearing of the full face veil at an important university near Tunis. Finally, a breakthrough – it seems that the Troika reached a compromise last night over critical issues. Not only did they resolve the separation of powers issue more equitably, but they removed a controversial element in the draft law that required a two-thirds majority for a no-confidence vote in the assembly.
But while the Troika seemed to agree – they had not presented their ideas to anyone else in the assembly. The draft legislation arrived on legislators desks this morning – with a vote scheduled for….this morning. Debate continues into the evening here in Tunis on the bill, which is being voted on article by article. In essence – Tunisia is getting a new constitution today. Ultimately, the issue comes down to how much power Ennahdha deserves. While they are the undoubted victors in the elections, governing requires compromise, as Rached Ghannouchi recently put it. The Tunisian people – and political parties have grown a taste for challenging authority and political debate. This will test the nerves of Ennahdha, which on one hand needs to show results to its constituents, but remains vulnerable to charges of authoritarianism (particularly in a country with a history of dictatorship). One gets the impression that no matter what the outcome of the votes today, the issue of how much power Ennahdha can legitimately claim will be an ongoing issue in the months to come.
Secular parties, left for dead after their defeat in October, as well as Aridha, have used these events to their political advantage, demonstrating to a country fearful of a return to dictatorship the value of an effective opposition. They have staged protests at the parliament to voice their concerns over the legislation and show that while they may have lost the election, they will not be silenced. Dubbed “Occupy Bardo” for the name of the parliament, the demonstrations have brought together secularists and Islamists in a very public debate. A constant, if unconvincing refrain, is that while Ennahdha may have the seats in the assembly – they do not have a popular mandate – less than 20 percent of the voting age population voted for them.
Meanwhile, Ennahdha supporters have been divided. Many see the protests by secularists as needlessly slowing down the country, which is in need of getting back to normal. They see the protests as opportunistic and anti democratic (who won the elections after all?) Others share the fear of a return to dictatorship and want to see Ennahdha follow through on its campaign promise of working with all actors in the political spectrum.