Tunisia adopts a new constitution

28 January 2014

The new constitution comes into effect three years after the revolution

The document entrenches the freedom of expression and political activity and guarantees women half of all the seats in elected democratic institutions. It also confirms Islam as the national religion, however, sharia is not established as the basis of law.

The approval of the new democratic constitution marks a major step forward for the country where the overthrow of the dictatorial regime of President Zine El Abidine Ben Ali marked the start of the Arab Uprisings.

The document is one of the clearest assertions of democratic principles and civil liberties ever seen in the Middle East and North Africa region. It was only finalised after more than two years of debate and negotiation.

However, the final text commands support across a broad range of Tunisian political opinion, including both Islamist and secular parties. Members of the Constituent Assembly approved the constitution text – the Basic Law — by an overwhelming majority, with 200 voting in favour and only 12 against, with four abstentions, on 26 January.

UN Secretary-general Ban Ki-moon congratulated Tunisia on taking a “historic step” which was a “model for other peoples who aspire to reform”.

The vote was timed to coincide with the appointment of a new non-partisan government charged with piloting the country through the final months of transition and organising fresh elections. The new prime minister Mehdi Jomaa has formed a 35-member cabinet.

The constitution vote came six months and one day after the murder of the opposition politician Mohamed Brahmi, which plunged Tunisia into prolonged crisis, stirring up widespread public anger at the authorities’ failure to effectively tackle violent religious extremists.

This piled pressure on the country’s largest political force, the Islamist party Ennahda, which was in coalition government with the leftist secular Congres pour la Republique (CPR) and Ettakatol.

Amid continuing social unrest, and with the army battling jihadist militants in the Mont Chaambi mountains, the Tunisian political spring looked desperately fragile. The uncertainty was also damaging economic confidence.

Mediation by trade union and business leaders finally broke the political deadlock in late 2013. The Ennadha-led government agreed to make way for a fresh technocratic administration.

The mid-December agreement was reached on the nomination of outgoing industry minister Jomaa as prime minister designate – but it was decided he would only take over when the new constitution was adopted to ensure its completion.

After months of political infighting, assembly members hammered out the final text of the constitution in just a few weeks.

On 27 January, the document was formally signed by President Moncef Marzouki, outgoing prime minister Ali Larayedh and the speaker of the constituent assembly, Mustapha Ben Jaafar. It will come into force in stages, culminating in the election of a new parliament and president, which should happen within nine months.

There was no need for a referendum to approve the text as the members of the Constituent Assembly that drew up the text have democratic legitimacy, having been voted in a general election in October 2011.

The constitution is notable for the balance that it strikes between Islam and secular principles.

It states that Islam is Tunisia’s national religion, yet it defines the country as a civil state. It bans any attack on the sacred, but also guarantees freedom of belief and conscience.

Members of the Constituent Assembly – in which Islamist Ennadha is the biggest party – voted to reject a proposal that Islam, or the Quran and the Sunna (sayings, actions and judgments of the Prophet), should be stated as the basis of law. This was not a surprise because many months ago Ennadha had signalled its acceptance that sharia would not be the foundation of the legal system.

Fundamentalists staged protests against this, but it does seem to reflect the balance of public opinion. Although most Tunisians are Muslim, secular traditions have also been deeply entrenched since independence in 1956.

This mood was exemplified by the widespread anger toward militant Islamists following the murders of Brahmi and, in February 2013, of another leftist politician, Chokri Belaid.

And it is also reflected in a powerful defence against extremist hate-preaching that has been built into the constitution. The document explicitly makes it illegal to accuse a person of apostasy or to incite violence.

Civil liberties

But it is in the section on rights and liberties that the new Basic Law marks the greatest advance on Tunisia’s original 1959 constitution.

“The freedoms of opinion, of thought, of expression, of information and of publication are guaranteed,” the document states. Moreover, freedom in academic activity, research and artistic creation have also been guaranteed, despite complaints from Salafists.

The right to strike is also guaranteed, except for members of the armed forces.

Human rights activists point out that the extent of certain rights will in practice be defined by the courts, case by case, because the wording is vague or there might be a potential conflict between two principles – such as protection of “the sacred” and freedom of artistic expression.

However, the new Basic Law incorporates a powerful defence of political freedoms.

The 1959 constitution gave Tunisians many rights in theory, but also empowered the government to limit these through other measures – powers that were fully exploited by the country’s first president, Habib Bourguiba and his even more authoritarian successor, Ben Ali.

But the new constitution says that while other laws may limit the rights and freedoms that it guarantees, such laws must not attack the essence of these liberties.

The constitution guarantees “the right to life”, except in extreme cases defined by law. This leaves room for Tunisia to maintain the death penalty, in theory.

But, in fact, no executions have been carried out since 1991 and after the revolution the new transitional head of state, Moncef Marzouki, commuted the sentences of the 140 people on death row to life imprisonment. It seems likely that, for now at least, the country will stick with Ennadha’s view that Tunisia should keep the death penalty on the statute books, but not carry out any executions.

Women’s rights

Tunisia has a strong tradition of recognising the rights of women and the new Basic Law states that all Tunisians are equal and that the state must afford equal opportunities to women and men in all spheres.

In the 2011 elections to the Constituent Assembly, women were guaranteed half the places on the candidate list. But the new constitution goes further, stating that they should have half of all the seats in democratically elected institutions.

However, the constitution does not specifically tackle the implementation of equal rights in specific practical areas such as inheritance, where women have traditionally been accorded lesser property rights.

New government team

During the final nine months of the post-revolution transition, government is in the hands of the new premier, Mehdi Jomaa.

At Ennadha’s insistence Lotfi Ben Jeddou – regarded as close to the Islamists – remains as interior minister. However, to allay concerns about any risk of partisan influence over the security forces, all security matters will in fact be overseen by a deputy minister, Ridha Sfar, who will answer directly to Jomaa himself.

The new finance and economics minister is Hakim Ben Hammouda, formerly a special adviser at the African Development Bank (whose headquarters are in Tunis).

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