On 16 January 2021, Tunisian Prime Minister Hichem Mechichi announced a cabinet reshuffle which included 11 ministerial portfolios, including the ministries of justice and the interior. Afterwards, the country fell into a constitutional-political crisis after President Qais Saied refused to receive the new ministers who were chosen by Mechichi to take the oath after gaining Parliament’s confidence on 26 January 2021, on the grounds of suspicions of corruption and conflict of interests hovering around some of them. The Tunisian President also announced his objection to the measures that accompanied the reshuffle because, in his opinion, they lack a constitutional basis.
This paper sheds light on the current crisis in Tunisia by looking into its causes and roots, and tries to list a number of possible scenarios for its future development.
Indicators and roots of the crisis
Since the fall of 2019, the date of the legislative and presidential elections, Tunisia has been suffering from a state of "permanent crisis" on all fronts whose social and economic impact was compounded by the Covid-19 pandemic. However, the main crisis is political par excellence, and reflects the results produced by the ballot boxes, which brought to Parliament political actors with contradictory programmes and orientations, and did not give to any of them the majority to rule. As a result, the country has seen three governments in less than a year after the elections.
This fragmented political scene has resulted in three major axes of the conflict:
In the light of this deep political division between the various actors and the unprecedented fragmentation of power in Tunisia, the ruling class in the country has got involved in a conflict of competing powers that was manifested in the following:
It appears from the conflict map and the actors therein that the constitutional crisis being experienced in Tunisia is one of the manifestations of the deep structural crisis of the political system, even if it carries constitutional and legal manifestations. This system, which was established by the 2014 Constitution and which divides power between three presidencies, namely Parliament Speakership, the Premiership and the Presidency of the Republic, in a "hybrid system" that is neither purely presidential nor purely parliamentary, has ultimately led to a state of conflict of powers between Qais Saied, Hichem Mechichi and Rached Ghannouchi. However, the Constitution itself was not decisive in defining the powers and their limits, as many points were left to the mechanism of consultation between the head of state and the head of government, especially regarding the issue of appointments to the highest positions of the state.
The absence of the Constitutional Court establishment has deepened the differences between the three presidencies. This judicial institution was given by the 2014 Constitution the power to interpret the Constitution and adjudicate disputes over the constitutionality of laws and procedures related to power. The political trends represented in Parliament since 2014 have failed to agree on the members of the Court because its composition is subject to quotas between the President of the Republic, Parliament and the Supreme Judicial Council. Article 72 of the Constitution stipulates that the President of the Republic is the only one authorised to interpret the Constitution in the absence of the Constitutional Court, which gives Qais Saied a constitutional advantage in the light of the ongoing conflict.
The nature of the electoral law that relies on the proportional voting system has also led to the creation of a dispersed political scene in Parliament, given that the electoral system does not allow any party to win an absolute majority of votes in Parliament (109 seats), which makes it imperative for the party that wins the largest number of seats to search for other political alliances to form a government or pass bills.
In the light of the present political stalemate, which has turned into a constitutional crisis in Tunisia, it appears that the outcomes of the crisis continue to be unclear, both in the short term with regard to the fate of Hichem Mechichi’s government and the new ministers included in the government reshuffle, and in the long term with regard to the nature of the political system and its suitability to run the country. A number of possible future scenarios can be presented here, the first of which relates to the government and its status, and the second relates to the future of the Tunisian political system in general.
First: government-related scenarios
The Tunisian Constitution stipulates in its Article 89 that in the event that any government obtains confidence from Parliament, it would be presented to the President of the Republic to invite it to take the constitutional oath before him in the presidential palace. Given the President's refusal to receive the new ministers to take the oath after gaining Parliament’s confidence, the government of Hichem Mechichi found itself in a dilemma that would lead it to several possible scenarios during the coming days:
1. The scenario of leaving out the new ministers accused of suspicions of corruption, through a decision issued by the Prime Minister Hichem Mechichi, or through their decision to relinquish the position. Thus, President Saied’s argument in his rejection of the content of the government reshuffle and the issue of taking the oath would be invalidated.
2. The scenario whereby Mechichi would impose the decisions to appoint the new ministers: this scenario assumes that the Prime Minister would circumvent the protocol of taking the constitutional oath for the new ministers and proceed directly to publishing the appointment decisions in the Official Gazette. This would be considered a serious precedent in Tunisia’s political history and could have serious consequences, the least of which being the complete disruption of coordination between the Presidency of the State and the Premiership.
3. The scenario of forming a small government: this is one of the solutions proposed among the parties that support the government. It provides for the formation of a mini-government and the inclusion of the proposed ministers as advisers to the Prime Minister in charge of major reforms and files, thus avoiding the issue of taking the oath before the President.
4. The scenario of withdrawing confidence from the current government: the pro-government tripartite alliance (Ennahda - Heart of Tunisia - Karama) could be forced to withdraw confidence from the Mechichi government and put forward another candidate from the majority party in Parliament in order to form a political government.
5. The scenario of the President's intervention: the President could intervene requesting that the government seek a vote of confidence in Parliament to continue its activities, based on Article 99 of the Constitution, which stipulates that “[t]he President of the Republic may ask the Assembly of the Representatives of the People to conduct a vote of confidence in the government on a maximum of two occasions during the entire presidential term. Confidence is voted by the absolute majority of members of the Assembly of the Representatives of the People. In the case of non-renewal of confidence, the government is considered to have resigned. In this case the President of the Republic asks the person deemed most capable to form a government in a period not exceeding thirty days”. However, this scenario remains weak or impossible due to the nature of the balances of power in Parliament, all of which are in favour of Hichem Mechichi.
6. The scenario of the resignation of the Prime Minister: it is based on Hichem Mechichi’s submission of his resignation. In that case, his resignation would amount to the resignation of the whole government, and then President Qais Saied would have the right to choose once again the most capable person to head the government, according to what is stipulated in Article 98 of the Tunisian Constitution. However, this possibility seems weak amid the adherence by Mechichi to his positions after applying to the Administrative Court to request advice in the dispute between himself and the President.
7. The scenario of backing down by the President: this scenario assumes that the President of the Republic Qais Saied would back down from his decision to refuse the constitutional oath procedure, and receive the ministers whom he accused of corruption. This possibility appears weak as well as it would cause political harm to President Saied and may lead to the collapse of his popularity.
8. The scenario of activating the constitutional procedures in the case of "imminent danger": in its Article 80, the Tunisian Constitution allows the President to take exceptional measures in the event of imminent danger threatening the state and hampering its normal functioning. The Article states in detail that: "[i]n the event of imminent danger threatening the nation’s institutions or the security or independence of the country, and hampering the normal functioning of the state, the President of the Republic may take any measures necessitated by the exceptional circumstances, after consultation with the Head of Government and the Speaker of the Assembly of the Representatives of the People and informing the President of the Constitutional Court. The President shall announce the measures in a statement to the people". This gives President Saied wide discretionary power in the absence of the Constitutional Court.
The scenario of leaving out the new ministers accused of suspicions of corruption or their decision to relinquish their positions seems the closest to materialisation, given that it is the least detrimental to all parties. However, what is more difficult is to predict the political behaviour of President Saied who comes from outside the traditional political class, and who was not expected by anybody to abstain from the procedures of taking the constitutional oath.
Second: scenarios related to the political system
Regardless of the fate of Hichem Mechichi’s government and the conflict between the President and the Prime Minister, this crisis has put the entire political system established by the 2014 Constitution in a position of questioning, criticism and calls for overriding even by the parties that participated in drafting it and supported its development. It seems that Tunisia will witness, in the medium to long terms, radical political transformations, which could be reflected in the following four possible scenarios:
The first scenario: amending the political system towards a purely presidential system, that is, returning to the old system that prevailed between 1959 and 2011, where the Head of State has wide powers and is the head of the government that is run through a prime minister and is monitored by Parliament, as is the case in France and the US.
The second scenario: amending the political system towards a purely parliamentary system in which the head of government is the one with the authority that he derives from the parliamentary majority. Thus, the matter of state management belongs to the party that wins the legislative elections while the President’s position is a symbolic position, as is the case in Germany and Italy. The Ennahda Movement seems to be the most enthusiastic party to this amendment because it enables it to gain control of power.
The third scenario: President Qais Saied succeeds in persuading the political class and the people (through the referendum mechanism) to dispense with the party system and adopt a direct democratic system through voting on individuals from the localities upwards to the states and then at the national level. This vision, which was put forward by the President during his election campaign, is still not completely clear, and some fear that it would lead to an assembly chaos similar to what happened in the Libyan Jamahiriya system between 1976 and 2011. President Saied said in July 2020 that "the time has come to review the legitimacy".
The fourth scenario: preserving the current hybrid political system, which combines the presidential and parliamentary systems in an intertwined manner, which implies preserving the roots of the crisis that can be renewed all the time, especially if the election results are completely contradictory between the presidential and the legislative ones, bringing to power political parties constituting political and ideological opposites, as happened in 2019. This seems to lead to a complete paralysis of the state apparatus.
All in all, the choice to maintain the current political system in Tunisia would be a great risk that could perpetuate the state of crisis in the country. On the other hand, the results of the choice of President Qais Saied to adopt a system of direct democracy will not be guaranteed. However, the most likely scenario is that the political class will decide to amend the political system in favour of a purely parliamentary or presidential system. This would be the subject of an electoral battle that would be settled by popular referendum.
 The government of Habib Jemli, which failed to gain Parliament’s confidence, the government of Elyes Fakhfakh, which was overthrown after accusations of corruption, and the government of Hichem Mechichi, which obtained Parliament’s confidence at the beginning of September 2020.
 The reshuffle included 11 ministerial portfolios, namely: Youssef Zouaghi for the Ministry of Justice, Walid Al-Dhahbi for the Ministry of the Interior, Abdellatif Missaoui for the Ministry of State Property and Land Affairs, Ridha Ben Mosbah for the Ministry of Industry and Small and Medium Enterprises, Sofiene Ben Tounes for the Ministry of Energy and Mines, Chiheb Ben Ahmed for the Ministry of Local Affairs and the Environment, Youssef Fennira for the Ministry of Vocational Training and Employment, Zakarya Bel Khouja for the Ministry of Youth and Sports, and Oussama Khriji for the Ministry of Agriculture, Fishing and Water Resources.
 “Qais Saied: Tunisia has one President who represents it at home and abroad”, Sky News Arabia, 24 May 2020. Available at: https://bit.ly/3aKLIxO
 “Tunisia: differences between Ghannouchi and Saied began to escalate”, Sky News Arabia, 26 July 2020. Available at: https://bit.ly/2Ob8gQr
 Article 118 of the Tunisian Constitution stipulates that “[t]he Constitutional Court is an independent judicial body, composed of 12 competent members, three-quarters of whom are legal experts with at least 20 years of experience. The President of the Republic, the Assembly of the Representatives of the People, and the Supreme Judicial Council shall each appoint four members, three quarters of whom must be legal specialists. The nomination is for a single nine-year term”. See: https://bit.ly/3bto5tW
 The full text of the Tunisian Basic Law on Elections and Referendums. Available at: https://bit.ly/37wLARy
 The political actors supporting Prime Minister Hichem Mechichi have proposed the idea of applying the "theory of impossible procedure" that is adopted in administrative law in the absence of a constitutional exit. It is more like the de facto situation.
 An adviser to the Speaker of the Tunisian Parliament Rached Ghannouchi said in a statement to the German news agency that was published in early February 2021 that this scenario is on the table for discussion. See: https://bit.ly/2YXTK0v
 Tunisian President Qais Saied said during his meeting with Tunisian General Labour Union Secretary-General Noureddine Taboubi, on 3 February 2021: “We are ready for all solutions, but I am not ready to back down from principles. Let them look at the nature of the oath over the Quran in Islam ... I have pledged before my Lord to be at the service of the people, and not at the service of those who seek to overthrow the state”. See: https://bit.ly/3rI8Zax
 At the end of January 2021, the President of the Ennahda Movement Rached Ghannouchi called for the establishment of a "complete parliamentary system" to overcome any problems that may arise due to the "combination between the presidential and parliamentary systems" currently in force in the country. Ghannouchi acknowledged that "the problem in Tunisia today is the combination of the presidential and parliamentary systems, and we assume in a parliamentary system the role of the head of state is symbolic and not constitutive". He considered that "the lesson that we conclude is the necessity to establish a full parliamentary system in which there is a real separation of powers, and the executive authority is in the hands of the party that wins the elections. It is that party that would put forward a prime minister”. See: https://bit.ly/3q400Qw
EPC | 13 Sep 2021
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