On Tuesday, Ahmed Gaid Salah, the Algerian deputy minister of national defense, chief of staff of the People’s National Army (ANP), called for Article 102 of the Algerian constitution to be invoked to declare a state of vacancy in line with the incapacity of the president in what he argued was the solution for the crisis facing the country.
This comes after President Abdelaziz Bouteflika announced over two weeks ago that he had decided to postpone the presidential election previously scheduled to take place April 18. While initial reports suggested that Algerians considered this a victory for the popular movement that erupted five weeks ago, they soon took to the streets again to express their continued disenchantment with what they considered an illegitimate move on Bouteflika’s part to extend his fourth term.
The army chief, who reportedly met with Bouteflika two weeks ago after the latter’s return from a hospital in Geneva, has delivered multiple speeches since the beginning of the protests. His previous statements celebrated the peaceful nature of the protests and warned against drifts toward chaos. In Tuesday’s speech, Gaid Salah asserted that the solution embodied in Article 102 “responds to the legitimate demands of the Algerian people, guarantees respect of the constitution and the continuum of the state’s sovereignty.” The army chief added: “The solution can bring all visions together and be accepted by all groups.” The president’s National Liberation Front (FLN) party has issued an official statement supporting the calls initiated by the army chief. An official response from the Algerian Constitutional Council, however, is yet to come.
The past and present of Article 102
Article 102 of the Algerian constitution affirms that a state of vacancy can be declared by the Constitutional Council if the president is in at state of “total incapacity to exercise his functions.” The incapacity, which in Bouteflika’s case is the deterioration of his health, needs to be confirmed by a unanimous vote of the council. Only then can the body propose its decision to the Parliament, which would need to meet with it two chambers and issue a two-thirds vote for the removal to take place.
In the event that Bouteflika is indeed removed, Parliament would need to appoint the president of the Council of the Nation — the upper house — for a maximum 45 days as interim head of state. The temporary president would need to exercise powers in accordance with the provisions of Article 104 of the constitution, which partly proclaims that for the entirety of the transitional period, the government cannot be dissolved. This last detail could prove problematic to those protesters who have been demanding that the entire regime “leave.”
In fact, the motion to remove Bouteflika by triggering Article 102 is one that has been called for many times, but the Constitutional Council remained silent despite multiple reports about the deterioration of the president’s health. The presidency exercises a clear constitutional advantage on the composition of the council, as Bouteflika appoints a third of the council’s members, including the president of the body.
An unconstitutional council
The Constitutional Council, which according to the Algerian constitution is “an autonomous body established to monitor the observance of the constitution,” has been under fire multiple times this year. Questions over the constitutionality of Bouteflika’s candidacy materialized from the start. Bouteflika’s campaign manager delivered the president’s candidacy submission to the Constitutional Council on March 3 while Bouteflika lay in a hospital bed in Geneva. The president of the High Independent Authority for Elections Monitoring, Abdelwahab Derbal, announced in a news conference held shortly after the Constitutional Council received Bouteflika’s candidacy submission that the candidate needed to submit in person. Derbal retracted his statement the next day.
The Constitutional Council has the power to eliminate any presidential candidate who does not meet the constitutional requirements to run for elections. However, the Algerian people never got to see how the council would rule in relation to the ailing Bouteflika, as he took it upon himself to cancel the election altogether two days before the council was to issue a list of the final approved candidates. The unconstitutionality of this move on Bouteflika’s part is one that the council has the power to denounce but failed to do so.
A protest by lawyers managed to find its way to the headquarters of the council more than two weeks ago, despite the security measures taken. The protesters demanded that the constitution be respected and denounced the council’s silence. Bouteflika’s decision to cancel the election and enact governmental changes could not be supported by any part of the Algerian constitution.
Some talk rose early on about the applicability of Article 107, which could be invoked only under a state of emergency, which to date has not been declared. The newly appointed prime minister was unable to defend the constitutionality of the move when asked by journalists in a news conference March 14.
This is not the first time Bouteflika’s decisions have raised constitutional questions. In 2008, a year before his second term ended, Bouteflika had Parliament pass a constitutional amendment to allow him to run for an indefinite number of terms. In 2016, halfway through his fourth term, constitutional reforms were passed again limiting presidential terms to two. This new clause was made unamendable — thus, Bouteflika irreversibly closed the door for anyone else but himself to preside over the country for more than two terms.
What’s to come
At this point, Algerians might opt to take what the popular movement has achieved so far, push for representatives of the movement to be involved and hope for fair elections under the Constitutional Council. Alternatively, they could continue to push for a radical overhaul of the regime, which runs the risk of summoning unwanted resistance.
The changes that protesters hope to see might not come into place even if the regime accedes to their demands. The regime’s clinging to rule underscores not only its rejection of the idea of handing over power to the people but mirrors a fear of rivals taking over as the shadow of a so-called deep state looms. What makes matters more complicated for Algerians is the fact that their movement remains unrepresented, making it quite challenging to push their demands past the two contesting camps of power. Removing the president of the country in response to demands made by a military figure furthers the proposition that the military still exercises unconstitutional political power. Although it’s unclear which path Algerians will choose and what their demands will be, protests are likely to reignite Friday.
Rayane Anser is a PhD student of Politics and International Studies at the University of Warwick in Britain.