Tunisia’s new constitution

On 25 July 2022, Tunisia held a referendum on the revised constitution put forward by the President Kais Saied in the process of establishing a new republic. The President dismissed the government, declared himself as the head of the executive branch and the Public Prosecutor Office, suspended the country’s legislature (the Assembly of the People’s Representatives, ARP), and stripped the ARP’s members of their parliamentary immunities. Kais Saied’s declaration followed other arbitrary, repressive moves on his part, including those that he undertook as the Tunisian Armed Forces’ commander-in-chief, such as when he conferred on them the responsibility of managing the COVID-19 crisis and when he condoned the use of military courts to put critics on trial.

Tunisian President Kais Saied is on the threshold of establishing the new Presidential republic.  The incumbent president Kais Saied held this position since 23 October 2019 following the death of Beji Caid Essebsi on 25 July 2019. The constitutional referendum passed turned Tunisia into a presidential republic, giving the president sweeping powers while largely limiting the role of the parliament.

  • • The electoral law reduces powers of the Parliament, but not ending the role of political parties.
  • • The constitution also, does not offer the judiciary the necessary safeguards to operate with full independence and impartiality and removes oversight mechanisms used to hold the authorities to account.
  • • Article 96 of the draft Constitution also does not offer the safeguards required to protect human rights under a state of emergency.
  • • Article 5 of the draft constitution states that Tunisia “belongs to the Islamic Ummah” and says the state is required to “achieve the purposes of Islam in preserving [people’s] souls, money, religion, and liberty.”

This language could allow state leaders, lawmakers, and the courts to refer to ‘purposes of Islam’ as a basis for undermining human rights, especially when reviewing laws related to gender equality or individual rights and freedoms, on the grounds that they are alleged to contradict religious principles. If passed, Article 5 could also provide a mandate to discriminate against other religious groups.

Under the new law, voters will choose candidates in the December 17 election individually rather than by selecting a single party list. The previous democratic constitution from 2014 enshrined a major role for parliament, giving it the main responsibility of forming governments, while the president had less direct power.

Saied, a political independent was a constitutional law lecturer before running for president in 2019. Saied personally rewrote the initial draft of the constitution submitted by an expert panel he himself set up, which led to a situation idolising dictatorship undermining the democratic achievements of its last decade. Since Saied suspended parliament in July 2021 in justification, as a response to the Country’s economic and covid-19 crises. The revision of the constitution comes at a time when Tunisia’s economy is in a parlous condition, requiring international support to prevent a debt crisis and even a default.

European community expressed concerns that in this time of crisis in Tunisia, the judiciary should act as a check on the arbitrary exercise of power by the President and other branches of government, in particular by ensuring that any measures adopted to address the crisis comply with the rule of law and human rights.

The President invoked Article 80 of the Constitution on exceptional circumstances to justify his decisions.

“Article 80 of the Tunisian constitution states that “The President of the Republic, in a state of imminent danger threatening the integrity of the country and the country’s security and independence, is entitled to take the measures necessitated by this exceptional situation, after consulting the Prime Minister and the Speaker of the Cabinet.”

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