What role for the AU ahead of Tunisia’s elections?

Amid concerns about democratic backsliding, the 17 December polls are an important test for the country and the African Union.

Published on 15 December 2022 in ISS Today

By

Maram Mahdi
Researcher, African Peace and Security Governance, ISS

Tunisia has witnessed several key political developments over the past 18 months that could threaten its status as the Arab Spring’s only successful democratic transition. In July 2021, President Kais Saied dismissed his prime minister, who was criticised for poorly managing the country’s economic crisis, and suspended Parliament in the wake of protests over socio-economic grievances.

In addition to setting aside the 2014 Constitution, Saied promulgated several presidential decrees that critics argue have stopped the democratic process and strengthened his powers. These measures could allow him an additional two terms until 2035. Some experts, however, say the economic crisis and continued bickering in Parliament necessitated these measures, and this doesn’t mean Tunisia is doomed to democratic backsliding.

In July 2022, a year after sacking his prime minister, Saied led a referendum for a new Constitution that was largely boycotted by Tunisian civil society and political parties. Voter turnout was lower than 30%. The referendum left many Tunisians with serious questions about whether the process was genuine, participatory and fair, given the outcome.

Critics argue that Saied’s promulgation of decrees and other recent actions were unconstitutional

Despite these concerns, the new constitution will come into effect after parliamentary elections scheduled for 17 December. These elections will enable regional actors to play a larger role in ensuring a genuinely deliberative, participatory and democratic process.

Critics argue that Saied’s promulgation of decrees and other actions in recent times was unconstitutional. They say the president tampered with the structure, function and essence of his country’s parliamentary system. This he did by unlawfully terminating the functions of the head and several members of government, and suspending the powers of Parliament and the 2014 Constitution.

This was compounded by the termination of judges’ appointments, opposition and civil society leaders’ arrests and the stifling of public debate. These, detractors claim, are the signs of Tunisia’s drift from the ideals of good governance espoused in the African Charter on Democracy, Elections and Governance (ACDEG) towards authoritarianism. Tunisia signed the ACDEG in 2013 but is yet to ratify it.

Since the events that led to the Arab Spring in 2011, the AU has grappled with how to react to unconstitutional changes of government (UCGs) not resulting from military coups. A conundrum yet to be resolved is the outcome of popular protests such as those in Algeria in 2019. They led to the ousting of former president Abdelaziz Bouteflika and the election of a new president, with just 9% of the electorate voting.

Whether or not the actions of Tunisia’s president constitute an unconstitutional change of government, events over the past 18 months raise concerns that call for greater African Union (AU) attention and early warning. While the Peace and Security Council (PSC) has maintained its silence on Tunisia, the African Court on Human and Peoples’ Rights voted on 22 September that Saied’s decisions violated human rights. The court further ordered Tunisia to repeal all presidential decrees and return to constitutional democracy within two years.

Tunisia’s elections enable regional actors to play a larger role to ensure a participatory and democratic process

The AU has done well to establish itself as an organisation that rejects military coups. Sanctions against Burkina Faso, Guinea, Sudan and Mali over recent years have reinforced its role in and capacity for correcting deviation from agreed norms, values and principles. With a spate of unconstitutional changes likely to spill over into 2023, a nuanced understanding of the AU’s approach and response to UCGs is required.

Five ACDEG scenarios constitute an unconstitutional change of government and should draw AU sanctions. The first three relate to removing an elected government through either a putsch or coup d’état by mercenaries or armed rebels and dissidents.

The fourth occurs when an incumbent government refuses to relinquish power to the winning party or candidate after free, fair and regular elections. Lastly, as previously stated, any amendment or revision to the constitution or legal instruments that infringes on the principles of democratic change of government is considered a UCG.

In the past two decades, the AU has applied sanctions or suspension 20 times against 15 member states for UCGs. Although the AU has established itself as a pacesetter, sanctions have been used mainly in one type of unconstitutional change of government – coups d’état. The AU is yet to sanction any member state for an amendment or revision of a constitution or legal instruments deemed to contravene a country’s laws.

This raises three salient issues. First, what is the use of AU instruments to root out different forms of UCGs when the focus is largely on military coups? Second, how does the AU define and respond to Article 23(5) of the ACDEG? Is any illegal amendment of a constitution seen as a UCG?

Third, in defining constitutional amendments as UCGs, do regional policy frameworks take precedence over domestic concerns to prevent democratic backsliding? The overarching question is: does the AU need to revise the legal and normative frameworks underpinning its conceptualisation of and response to UCGs?

The AU is yet to sanction a member state for a constitutional amendment that contravenes the country's laws

As Tunisia is a PSC member until March 2024, voted in for two years during the 2022 February AU summit, there’s little chance that the council will vote to sanction it. Nonetheless, discussions on Tunisia’s constitutional reforms and consolidation of power in the executive should be on the PSC agenda.

As it is mandated with the prevention, management and resolution of all conflicts, the PSC is increasingly positioned to respond to UCGs. While the AU would have to contend with sovereignty issues should it act in such a situation, continued dereliction doesn’t auger well for its pursuit of a principled position against UCGs.

The AU Commission is developing guidelines to amend national constitutions, an important first step to elucidating a legal non-coup reading of UCGs for the AU, PSC and member states. Activating the PSC sanctions committee would also help clarify the AU’s conceptualisation of UCGs through greater consistency and implementation of sanctions.

What could the AU realistically do now in Tunisia? It could send an observer mission to monitor the parliamentary elections and engage in preventive diplomacy with incumbents, opposition groups and civil society to prevent escalation of the situation. Also, its Office of Legal Counsel could advise the PSC and provide assistance to clarify the interpretation of legal instruments such as the ACDEG.

Maram Mahdi, Researcher, Africa Peace and Security Governance, ISS Addis Ababa

This article was first published in the ISS PSC Report.

Image: Congress of local and regional authorities/Flickr

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