The Draft Constitution of Tunisia – Promise of a New Dawn ?

By: Cecilie Hellestveit, International Law and Policy Institute (ILPI)

In August, the initial indications of what fruits the Arab Uprising carried in the cradle nation of Tunisia were laid bare with the presentation of the ’post-revolutionary’ draft Constitution. This is the first Constitutional Draft that in its entirety is a result of developments taking place after the “Arab Spring”. The Draft has been conceived during a process that has been impressively inclusive and largely transparent, even on a global scale.  The document reflects what compromises have so far been reached on the future of Tunisia. But the most controversial issues remain to be finally decided over the coming months.

A Constituent Assembly elected last year was entrusted with drafting a new Constitution, and with ruling the Tunisia until after the national elections scheduled for March 2013. These elections represent the final phase in the formal transitional period of Tunisia, as they will be based on the new and permanent ’post-revolutionary’ Constitution. Six committees have been appointed by the Constituent Assemply and their final Draft Constitution was published on August 8.

The Assembly reconvened in the first week of September, and will be discussing the Draft over the coming months. 2/3 of the Constituent Assembly must give its approval to the Final Draft, or it will have to be put to a national referendum.

The long awaited document may eventually serve as a model to other Arab nations seeking to accomodate the demands raised by the Arab Spring. The controversies arising in the next weeks and months will also be important indications of the dividing lines also in other Arab Muslim countries. The Tunisian deliberations and results will therefore be closely watched in the rest of the region.

The Constitutent Assembly is a politically diverse entity. Ennahda, the moderate islamist party under the leadership of Rashid Ghannouchi, won over 40% of the seats of the Assembly. Ennhada entered into coalision with two secular parties, the leftist Congress for the Republic, holding the Precidency (Moncef Marzouki), and the Ettakatol, which holds the Speaker of the Assembly (Mustapha Ben Jaafar).

However, the stakes are rising, and so are the tensions within the ruling coalition. Indications are already rife that the sense of common purpose and national unity prevalent over the past year will be put to a severe test over the comming months as fundamental issues of vital importance to the future of Tunisia will be on the table.

In particular three fundamental dilemmas concerning the final content of the Constitution will be discussed over the comming months :

Expressions of modernity or remnants of foreign (non-Muslim) influence

One overarching question will be what role should be given in the ’new Tunisia’ to that which secular parties view as expressions of modern Tunisia, and the islamists view as inventions by the old regime (and leftovers from the French). Women’s comparatively progressive status in Tunisia is perhaps the most controversial issue in this sense. Tunisian legislation has for long outlawed polygamy, provided women with a say in divorces and mandated equality of gender. Women have been prominent in medicine, government and in the security forces compared to other Arab countries. The Draft Constitution proposes a language that could potentially weaken this, and tension is rising, including within the ruling coalision. The President Moncef Marzouki recently described the Draft’s language as portraying women as “complementary” to men. Ben Jaafar has equally implied that a red line for his party in the Constitution will be over women’s equality.

Powersharing and how to counter-balance majority rule

Another issue relates to how Ennahda handles its powerful position in the Constitutional drafting process, and to what extent it is willing to excercise powersharing. The other coalition parties are increasingly accusing Ennahda for carrying the legacy of the former regime with them in their inclination to monopolize power.  The constitutional question that most directly corresponds to this sensitive issue is that of the strength of the Presidency. Ennahda seeks to vest power in the Prime Minister. A prime minister will be under the control of Ennahda, given its large presence in Parliament and its strong grass-rot movement. The seculars for their part seek to vest this power in a president directly elected by the people, in order to counter the strong powerbase of Ennahda.

The prominence of Islam

The third issue is the one that touches the very core of the Arab Spring, and partly encompasses the former two. What role should (and can) religion be given in the constitutional frameworks of the new Middle East? The postition and influence of Islam, its ideological expressions and interaction with politics are profoundy different from that which existed in the early 1990ies (or even in 2005), when many Arab States last reformed their Constitutions. Irrespective of what role Muslim political movements may have had during the uprisings, it is a matter of fact that they represent a powerful majority in most countries. In what form and with what implications should this be reflected in the new Constitutions ?

Tunisia, with relatively low communal tensions compared to many of its neighbours, and with no important religious minority, can largely afford to have this discussion. Ennahda and its leadership are also considered to be more rights-oriented and moderate than counterparts in neighbouring countires, and in June the party confirmed its nature as ‘center-oriented’ and ‘moderate’. What this means in concrete terms will become clear over the next months. The resulting document may nevertheless discourage (more secular) protagonists elsewhere to continue to push for radical changes associated with the demands of the Arab spring. Or perhaps not.

Will the Tunisian Constitution hold promises that will continue to spark mobilization for change in other Arab countries, or will the end-result of the Tunisian example that sparkled the Arab Spring in fact turn the tide and make other avenues for change more tempting ? The discussions taking place in the Constitutent Assembly of Tunis over the next months will be decisive in this regard.