The deplorable and tragic assassination of Chokri Belaid last week has emboldened the lines of battle in Tunisian politics. Rallies and counter-rallies have fallen along partisan divisions, between the largely secular opponents and Islamist supporters of the Ennahda-led government. Some secularists accuse Ennahda of orchestrating the assassination despite unequivocal condemnations by Ennahda leaders, and some Islamists have resurrected a call to include Sharia in the constitution, an issue that Ennahda took off the table last year. It is unclear whether the deepened partisanship of the last week will dissipate with time or endure; this is particularly important as increased political divisiveness would impact the last stages of constitutional negotiations.
The assassination comes after the seeds were sown for a more inclusive constitution-making process, which was long characterized by a lack of public engagement. The first draft released in mid-August included several controversial references, which the National Constituent Assembly since amended in a second version published in mid-December. The issue that caused the greatest public outcry was a reference to women as men’s complement in society, which was removed. The current draft now includes the right to vote, no longer outlaws normalization with “Zionism” or “the Zionist entity,” and more clearly defines executive authority.
Perhaps inspired by the quality of public feedback, the National Constituent Assembly—with support from the United Nations Development Program—launched a two-month outreach campaign following the publication of the second draft. The campaign sent Assembly members and several chairs of each of the six constitutional committees to their constituencies for public sessions, which took place around the country each Sunday for about six weeks. Although domestic sessions have concluded, meetings with expatriate constituencies in Europe, the Americas, and Libya continue.
The public sessions were effectively organized and provide a model for other countries in transition, which will soon begin their own constitutional development process, including Libya and Yemen. In Tunisia turnout for the public sessions ranged from 50 to 500 participants; attendance was free, but registration was required to encourage participants to review the draft beforehand. One session in Bizerte on January 6 was seven hours long with six Assembly members and more than 300 participants in attendance. Some of the participants represented leading political parties and civil society organizations, while others had no affiliation. Among the topics of discussion were distributive justice, decentralization, obligations under international law, judicial and financial independence, human rights protections and lawful restrictions on rights, and the general linguistic quality of the text. At the end of the sessions Assembly members in attendance solicited amendments from the audience, with more than 10,000 collected so far.
The proposed constitution will also incorporate feedback from plenary debates in the Assembly, which began in late January. The rules of procedure, specifically which body will deliberate the proposed amendments based on feedback from the plenary and public sessions are also a matter of debate in the Assembly. The ruling Islamic party Ennahda argues that feedback be returned to the constitutional coordination committee, putting the future of the constitution in the hands of Habib Kheder, general rapporteur of the coordination committee and a member of Ennahda. Meanwhile, opposition groups favor returning the amendments to the appropriate constitutional committee, where Ennahda would have less influence.
The answers to the current procedural questions could have a significant impact on the final draft constitution. In addition to filtering the amendments, the guardian of the next stage will settle unanswered questions, most importantly on key powers of the executive and legislative branches. The draft currently calls for a directly elected president, but her/his prerogatives must be settled before the publication of a final draft.
Regardless of who runs the process from this point forward, the rules of procedure call for the coordination committee to compile a final draft to be submitted to plenary. The Assembly will then debate each article, which must be approved by majority vote. The Assembly could amend any arrangements negotiated in committee, which is not altogether unlikely given the fluidity of party allegiances and the high number of independent candidates. If a two-thirds majority approves the draft constitution, then it becomes the constitution of the republic; failing that, the draft constitution is submitted to public referendum.
Ennahda, with around 40 percent of seats in the Assembly and the staunchest party loyalty, is in the best position to secure majority votes on each article, although it may be forced to make concessions on executive powers to win a two-thirds majority. The rules provide little incentive for Ennahda members to compromise; they could give away a lot and guarantee a two-thirds majority, or they could give away too little and fail to reach two-thirds majority, sending the draft constitution to referendum. Some Ennahda members, assuming that the still-popular party could win a referendum that it supported, are beginning to wonder if they should compromise little and push for a referendum at the outset. This is unlikely given the party’s preference for coalition; nonetheless, Ennahda would be in a better negotiating position if it threatened to bring the constitution to referendum.
Barring a referendum, which Assembly members nearly unanimously believe is unlikely, the current public participation process will likely be the Tunisian population’s most meaningful attempt to engage with their elected representatives on the constitution-making process. It is unfortunate that the Assembly has waited until now to develop a mechanism for incorporating public views into the draft; session participants entered into a conversation that their elected representatives were having for months. They could not possibly change the mindset of Assembly members about structural questions, such as the system of government or the human-rights regime. The late effort should be applauded, but a better model would have introduced public participation in the constitution-making process much earlier.
Although the timeline to finalize the draft constitution is unclear, earlier pledges of elections by June are unrealistic. The process of amending the rules of procedure, sorting through the popular amendments, and staging article-by-article debates may take several months. This does not account for a daunting legislative agenda confronting the Assembly, including a cabinet reshuffle that was promised by January 14, but is stuck in negotiations between the three ruling coalition parties. Legislative and presidential elections under the new constitution may well be delayed until fall 2013, the second anniversary of the Assembly’s elections.
The partisanship of the past week, fueled by deeply held religious beliefs, threatens to tear the Tunisian constitution-making process at the seams. The intensified political climate could motivate hasty, ideological decision-making. The Assembly must commit to inclusion, deliberation, and compromise to secure the progress it has made thus far.