On Sept. 22, Tunisia’s President Kais Saied issued Decision 117 — this effectively establishes a new constitutional order in which the president has granted himself extraordinary power, far in excess of anything Tunisia has experienced in its modern history. Decision 117 places itself above the existing constitutional order and essentially abolishes the entire system of government laid out in Tunisia’s 2014 constitution.
Decision 117 suspends much of the constitution adopted following the 2011 popular uprising against decades of dictatorial rule. This constitution was supposed to usher in a new form of democratic rule reducing the powers of the presidency, with parliament playing a more important role in governing the country.
Saied initially moved against the constitution on July 25, when he triggered Article 80, which relates to states of emergency. His decision and his speech on the day did not provide much detail about the nature of the emergency that he was acting against, but it was broadly understood that he was acting in response to the government’s inadequate response to the covid-19 pandemic.
What went wrong?
Despite the fact that the 2011 transition was triggered by an uprising of the poorest segments of society, the constitution and the officials who were responsible for implementing change paid little attention to endemic problems such as inequality and economic deprivation — as I describe in detail in my new book, Arab Constitutionalism: The Coming Revolution. Political leaders instead were consumed by petty rivalries, and were generally unable to deliver any meaningful economic relief to the population.
By 2021, parliament had become virtually irrelevant, with members engaging in posturing and even acts of violence against each other. There was widespread popular frustration with political paralysis and an ever-worsening economy. Saied ran for the presidency as an outsider attacking this constitutional system.
What does Decision 117 really do?
Saied’s moves do not follow the text of the 2014 constitution. For example, in July he announced that he was “freezing” parliament despite the fact that Article 80 clearly provides that parliament should remain in permanent session throughout any emergency. There was no way to reconcile the president’s decision with the terms of Article 80, but there was very little opposition to the move, given how unpopular parliament is.
The president has also granted himself unprecedented decision-making authority. According to Article 9 of Decision 117, the president now has sole responsibility for determining government policy on all issues (a function that a number of institutions previously shared). Under the new arrangement, the president must “consult” with the cabinet, but that stipulation is very unlikely to have any practical effect given that the president has granted himself sole control over the cabinet’s composition.
In addition, the president gave himself full legislative authority over 29 areas, many of which have no connection to the presumptive crisis. For example, the president now has legislative authority over inheritance law, citizenship rights, media freedoms, among many other areas. He also is solely responsible for interpreting the constitutional order, given that he can adopt legislation at will, and also given that he can amend Decision 117 through subsequent measures at any point.
Tunisia now has a president beyond oversight
As a result, judicial independence is now under serious threat. Decision 117 provides that only Chapters 1 and 2 of the 2014 constitution will be maintained — all other chapters are only in force insofar as they do not contradict the provisions of Decision 117. At the same time, Decision 117 provides that the president has full legislative authority over “the organization of justice and of the courts” (Article 5(2)). What this effectively means is that Chapter 5 of the 2014 constitution and all of the institutions that are supposed to protect judicial independence are now subject to change at will by the president.
In effect, the president has placed himself above all forms of oversight. By way of illustration, Article 21 dissolves the interim constitutional court, which means that there will not be any form of recourse for any of the legislation that might be adopted during the interim period.
More importantly, perhaps, Article 7 provides that presidential decrees are not subject to appeal, which suggests there won’t be any type of judicial oversight over the president. Opposition parties quickly denounced the president’s “absolute power monopoly.” To many Tunisians, this decision appeared to be both totally unnecessary and also unjustifiable. It is worth recalling that in 2012 Egyptian President Mohamed Morsi issued a similar decree, but was then forced to backtrack after heavy internal dissent and violent protests.
Where is Tunisia heading?
Decision 117 spells out that the president himself will be responsible for “drawing up draft amendments relating to political reforms” (Article 22). This would give the president full control over whatever amendments are proposed, without any guarantee that any consultations or debate will take place. If he wants to, the president could even organize a referendum at extremely short notice to stifle debate. Article 22 states that he will be assisted by a committee that he will himself compose, which guarantees that it will be populated by individuals who share his vision of what Tunisia’s government should look like.
Decision 117 is supposed to be temporary in nature — a point that is stated in the text itself. However, there is no indication of how long it might be in effect. The president clearly intends to adopt a new constitution and enact legislation in a number of key areas, including new electoral and political party laws.
Given that it took two months to draw up and adopt Decision 117, which is only two pages long, it could take many months or more to complete the transition that the president is planning. In the meantime, President Saied remains solely in charge of all political levers, which has caused many Tunisians to question whether their country is backsliding toward a new form of autocracy.
Zaid Al-Ali is an adviser on constitutional issues in the Arab region, and the author of Arab Constitutionalism: The Coming Revolution (Cambridge University Press, 2021).