Introduction
It seems that the Ground-Up Building project is the ultimatum of change that President Kais Saied wants. Although he did not mention it as a president so far, as a candidate, he referred to it briefly, and he did not receive a reaction from the political and intellectual sphere at the time, mainly because of the state of separation that this sphere is going through with regard to its surroundings, which led to ignoring the possibility of a similar project finding its way towards implementation. Perhaps this is the reason behind the support many expressed towards Kais Saied, believing that he is unable to change the rules of the political game, which until recently were in the hands of certain parties, converging and diverging according to their positions and interests.
The project has its own features, nature, and specific elements that have gradually revealed and imposed themselves. Today, it became a determining element in the political equation and the upcoming changes. The preliminary decisions and actions that have been taken can be seen as preparatory moments for the project; they count on putting down initiatives, crippling the opposition and rallying everyone around the project. The latter, in essence, overturned the pyramid of power and abolished the role of the elite and intermediary organizations, according to a specific conception of legitimacy and legitimation.
The Ground-Up Building Project: The revolution from within the paradigm of legitimacy
Subjective and objective circumstances led to the crystallization of the Ground-Up Building Project which became a major element in all procedures, decisions and discourses to express what it considers “revolutionary” within the frameworks of legitimacy that it seeks to renew. It presents itself as a “revolutionary” exception that crosses the path of the democratic transition, the law, and the constitution since July 25, leading to the translation of the project and its mechanisms.
The Explanatory Campaign: From the Revolution to the State
The explanatory campaign is an unusual electoral campaign; from the beginning, it sought to break away from the structured political space with the aim of becoming an alternative to it. The campaign rejected public and private funding from businessmen. It had no official spokesmen and no visible structure, which gave it a horizontal character. Activists in the campaign relied on virtual networking through Facebook groups and pages, part of which was mentioned in the Court of Accounts report, in addition to simplified field activity. Candidate Kais Saied also refused to appear in the traditional media, emphasizing that it was considered as a medium of information transmission, and discourse and opinion shaping.
The campaign succeeded in disrupting the democratic mode of communication that relies on the multiplicity of media. Over the past ten years, the media community tried to break free from centers of political and financial decision-making. Official and civil committees have also been created to support this effort, but the public opinion and the popular mood are still rejecting it or being skeptical about it. Within these contexts, the symbolism of Kais Saied rose, bearing a separatist load distinguishing it from everything that had been built.
Kais Saied and the supporters of Ground-Up Building decided not to run for the 2014 elections and wait for the 2019 elections which “was the moment [they] have been waiting for since 2011,” in Ridha Lenin’s words[1]. It is the moment at which the democratic transition reached its climax, in parallel with a deepening economic and social crisis. Since 2019, President Kais Saied has become a troubling element in the political equation. He was not a candidate for political power, but for the revolution, as he saw it, and for the state, as he saw it.
This duality was repeatedly translated in most of his speeches and reflected in his political positions, starting with the crisis of prerogatives between the different powers and the interpretation of the constitution, to refusing to partake in the oath-taking ceremonies of ministers around whom there are suspicions of corruption[2]. Within this context, President Kais Saied announced the decisions of July 25th that were built around the same background: the revolutionary, the patriotic, and the popular, that is, the background of the historical exception that must be translated into reality.
The Decisions of July 25: The Trans-legal Exception
Legal comments and explanations regarding the exceptional case of July 25th have been frequent and recurrent, but the most important exception was the exception created by the strategy of focusing on the project of a new constitution. It is the political exception in which the President of the Republic (as the project’s supporters assert) has the freedom of choice and methods of implementation, according to a covenant between himself and the project’s supporters, within the framework of the cumulative revolutionary path.
In his July 25th speech, President Kais Saied conceived of the imminent danger as stemming from state institutions, especially the Parliament and the Head of Government, considering them as the reason for the disruption of the wheels of the state and even a threat to its unity and existence.
Saied declared his respect for the constitution and his intention to work with it without suspending it: “It is not a suspension of the constitution and it is not a departure from legitimacy. We are working within the framework of the law, but if the law turns into a tool for settling accounts, or to empower thieves who looted the funds of the state and the money of the impoverished people, if these texts are this way, then they are not laws that express the will of the people, but rather tools to rob the people of its will. Here we bear our responsibility before God, before the people, and before history…”[3]
The will of the people represents a central element in the conception of the new building project; it represents a historical and an ethical responsibility. It means first of all preventing profiteers from misusing the law, starting with Parliament and the executive. In interpreting Article 80, the president demonstrated radicalism in order to ensure the legitimacy of his decisions, especially that he represents the only body of interpretation in the absence of the Constitutional Court. Since reform under the new draft remains the main objective, what remains of the constitution represents, according to Saied, the will of the people, translated into his measures and his own decisions.
The presidential decree No. 117 of September 22[4], 2021 came as the first step of transition to the new constitution and law, as envisioned by the project. This, in addition to starting to talk about the “Project’s People,” to move from the identification of the people to the leader, from a populist perspective, to an identification with the very vision of the Ground-Up Building project, which will ensure the uniformity of legitimacy and legitimation.
This stage began with the aggregation of powers according to a reformist vision managed by the President of the Republic alone. Accordingly, the president became the body of implementation and legislation, while the judiciary remained relatively independent. Therefore, the conflict gradually emerged between the President of the Republic and the Supreme Judicial Council. It is a dispute that affects many files, especially judicial reforms and human rights issues.
Because of the closure of the president’s reform path, there is no common work between him and the judges’ representatives (the Judges Association, for example…), which leads to assume that the president will resort in the future to use all powers (accordingly to the paradigm of the state of exception) to create a solution. This is what is being discussed about the possibility of dissolving the Supreme Judicial Council.
Decree No. 117: A smooth exit beyond the Constitution of 2014
In practice, this decree is considered a temporary organization of public authorities (a mini-constitution)[5]. Content wise, it includes the organization of the legislative and executive powers. This decree establishes the political exception that permeates the decisions, procedures, and decrees issued by the President of the Republic during this period.
This decree reaffirms the sovereignty of the people and the mechanisms related to its exercise. The term “imminent danger” is used as a first step to implement the project; it is the moment of July 25th that ended the role of the legislative power and the government, in the context of putting an end to the forms and procedures that contradict the principle of the people’s sovereignty. It is useful to recall that the project and its supporters, as stated by President Kais Saied, conceive of the transitional process system as completely incompatible with the revolutionary path and its accumulations, including the 2014 constitution. It seems that the latter is only present to be gradually wiped out; only Chapter 80, the preamble, and chapters one and two are left. For example, the provisions pertaining to its amendment, which are outlined in Chapter VIII, have been bypassed. Even what is left of it can be modified, revised or canceled. This allows to say that the reason for keeping it is the political exception and the necessities associated with its realization.
Decree No. 117 laid out the next stages for the implementation of the political project. To ensure disruption-free progress, two immunity guarantees were adopted. First, the President of the Republic monopolizes the legislative prerogatives in the areas of electoral law, the press, media and publishing, as well as other areas of legislation, and presidential decrees are issued in this regard. In order to further fortify these decrees, the High Committee for Monitoring the Constitutionality of Bills was abolished, although the law regulating it does not grant it the power to monitor decrees[6].
The text only emphasizes what is self-evident; that the matter pertains to the “legislator” (the President of the Republic) within a political rather than a purely legal vision.
The second aspect of immunity in Decree No.117 pertains to political reforms. This is stated in Article 22: “The President of the Republic prepares draft amendments related to political reforms, with the help of a committee put in place through a presidential decree. The drafts of these amendments must aim at establishing a real democratic regime in which the people is in fact the holder of sovereignty, exercising it through elected representatives or through a referendum. This regime must also be based on the separation of powers and the actual balance between them, while consecrating the rule of law, guaranteeing public and individual rights and freedoms, and achieving the goals of the December 17, 2010 revolution regarding work, freedom, and national dignity. These amendments are then submitted by the President of the Republic for ratification by a referendum.”
The second paragraph reaffirmed the sovereignty of the people and the task of establishing a “real democratic regime.” The article placed this task exclusively in the hands of the President of the Republic, who is in charge of drafting amendments pertaining to political reforms; it is also he who submits them for ratification by a referendum. The aspect of immunization here is the inability to control referendum laws. This leads to the immunization of all the laws that the Presidency of the Republic will put in place unilaterally, while endowing the Committee with an auxiliary role only.
The option of resorting to a referendum is also provided for in Article 15 of Decree No.117, whereby the president may submit any draft decree to a referendum. This is supposed to be the case for the electoral law that was promoted by the project’s supporters during the previous period; some of its details were presented in a previous paper[7].
Decree No. 117 confirmed that the exception transgressing the process of democratic transition and that of the law has already begun to cross institutions in order to pave the way for the mechanisms of concretizing the alternative.
December 13th Decisions: Mechanisms to concretize the Project
President Kais Saied anticipated December 17th by announcing new decisions[8] that set a timetable, to say the least, representing a road map for the new building project, in order to “correct the course of history and correct the course of the revolution”. It aims mainly to ensure that the people express their will within the framework of “legislative legitimacy” as stated in the speech of the President[9].
Starting from January to March 20, 2022, a national consultation will take place. A digital platform will be adopted for this purpose, in addition to consultations in the delegations. This recalls the explanatory campaign strategies and the new building project’s focus on localities.
Subsequently, the Committee of Decree No.117 will synthesize the outcomes of the digital and local consultations to outline the features of upcoming political reforms. The date of July 25th returns again with its symbolism to become the date of the referendum pertaining to those reforms. The date of December 17th, which officially became the revolution’s national holiday instead of January 14th[10], also comes back with its symbolism to become the day on which the legislative elections would take place according to the new electoral law.
In recent interviews given by Ridha Chiheb El-Makki[11], it can be noted that the existing proximity between the president, political parties, and unions had specific conditions; the potential common ground was almost entirely related to the Ground-Up Building Project or its major headlines. The option of an open and participatory dialogue that includes all parties and organizations has receded in favor of the unilateral approach led by the president and his supporters.
On the other hand, the option of consultations seems closed and confused, especially that the questions outlined on the platform did not receive a public discussion or a participatory and representative contribution to their development. In addition, some of them are technical and require a minimum level of legal and political knowledge (parliamentary/presidential system…) which contributes to the prevailing populist mood.
From a technical point of view, the process of preparing and launching the National Consultation Platform witnessed many shortcomings and delays. The civil society was not widely present during the mock operations. This was confirmed by a statement issued by I-Watch Organization[12]. The referendum is expected to go through the same hardships. It would not be necessarily democratic, and it would not be an affirmative expression of the people’s sovereignty. Orienting a referendum towards one direction or the other is very possible, especially if its topic is extensive or related to comprehensive legal texts. It is worth mentioning that the consultations and the work of the committee finishes by the end of June, according to what the president said. There will be 25 days left for the referendum to take place, which is a relatively short period.
The referendum is a non-deliberative tool, as it resolves controversial issues in the name of direct democracy, but it is useful for deliberative democracy[13]. This means that it must be preceded by wide dialogue and deliberation among citizens in order to ensure the free and voluntary formation of choices. Otherwise, fraud can happen, which leads to the compromising of democracy.
The outcomes of the Ground-Up Building project: Any remedial opportunities?
Although the project is vigorously present, both discursively and practically, remedial opportunities still exist, and they are mainly related to what President Kais Saied and the rest of the stakeholders, including political parties, unions, civil society organizations, and the media, initiated. It is true that the project and its initial institutional implementation (appointments at the central and axial levels) and texts ignore these media, but it still works through its role as a mediator, as it also seeks to express the reality and the will of individuals, while putting forward their representations and indulging in their reduction, as is the case with all media in society.
However, its inability to actually be the only responsible element for defending patriotic choices both internally and externally remains the main challenge, especially in light of the crisis that the country is experiencing, and in light of the interactions and conflicts (within state institutions and agencies) that require it and its representatives to overcome closure and rejection of dialogue with other political currents and organizations. In order to avoid the most difficult scenarios in the future, patriotic choices cannot be crystallized in light of a unilateral path that monopolizes the revolution, the people, and the state.
The consultations and the referendum: the stake of legitimation and reshaping the political scene
In light of the populist and popular momentum, Kais Saied has always been an expression of legitimation, especially since July 25th, which reflected a broad rejection of the situation as it had been and a desire for change. Through the consultations and the referendum, the president seeks to construct the legitimation that goes beyond his persona to the general public.
The process of July 25th was based on a disengagement between legitimacy and legitimation in the constitution of 2014; it is the argument that has always been present before and after the 25th. The aforementioned disengagement was justified by the approved interpretation of Article 80 and the declaration of the state of exception, which removed an interpretation in favor of another. The article assumes that with the end of the exceptional state, a return to what had been before it is reverted, but this loses meaning, with the interpretation of the imminent danger as residing in institutions and structures.
With this interpretation, the consistency of the constitution becomes obsolete, as legitimation is expressed via the tools of legitimacy as mentioned in the constitution itself. What is left of the 2014 constitution is only the form, the general framework to transition to a new legitimacy (elections/institutions) that guarantees the expression of a new legitimation. The decisions that have been made and the actions that have been taken, in addition to the populist context, set conditions for the formation of legitimation. Yet, the choice remains to challenge these frameworks towards influencing the consultations and the outcome of the referendum by competing with the president and his supporters for legitimation, despite the fact that amending the constitution and carrying out reforms under the exceptional state is legally and politically defective.
This appears to be a great challenge for organizations and political parties that live in a state of dispersion and that face a rejection that is reinforced by the president himself. However, this has an opposite effect. These parties do not have to bet on the failure of the president and his supporters, especially regarding the economic and social issues, but it is necessary for them to work on restructuring and reorganizing in line with the current situation, which one of its positives features is the president’s restoration of the moral record in politics and the need to renew the political scene for the sake of national stakes[14].
The second challenge lies in the unfolding of the digital and local consultations. The explanatory campaign, that continues to this day, has attempted to gain the ground by intensifying its activity in the recent period. This means that there is a bet on building and ensuring popular support. However, the latter is not necessarily guaranteed.
A counter-campaign that is also explanatory and that competes with the traditional campaign over its revolutionary and political discourse and legitimation can open a window for renewing political and union action; those who are concerned should start working on it before the referendum. Understanding the path and keeping pace with it, despite its defects, can be an opportunity to correct it. This is actually an opportunity to renew the political scene and its leaders, as a patriotic choice, in principle, that is also realistically imposed.
Above all, President Kais Saied bears a moral and political responsibility; its breach would be decisive. The president calls for expressing the will of the people with one condition: legitimacy should be linked to legitimation. This makes any directive and dominance over consultations and the referendum a counter-argument that affects the credibility of the process of July 25th and the Ground-Up Building Project, especially since its very supporters affirm that the people is the ultimate decision-maker who has the final word.
Practically, the political scene has started to change since July 25th, especially with the divisions endured by Ennahda movement that led to the resignation of several of its historical leaders[15]. Those who resigned on the 100 list blamed the movement for political isolation, and they explicitly described it as responsible for what the country has become after ten years of rule. Ennahdha is facing serious charges related to assassinations and terrorism, while other officials, in addition to several administrators, were pushed to resign without prior announcement; these charges are awaiting judicial decision. On the other hand, the Tunisian Labor Union (UGTTUnion générale tunisienne du travail ) is working on playing a balancing role in creating new options on a national level. This move is still somewhat limited[16], but the union, along with other national organizations, can strengthen its national role in a socially and economically sensitive period.
The Tunisian General Labor Union UGTTUnion générale tunisienne du travail maintained a critical distance with the president, yet without siding with his opponents, to allow the challenge to be located in re-positioning and in imposing on the president and his supporters a correction of the unilateral path.
The Civil Society and the Stakes of Rights and Freedoms
President Kais Saied insisted on guaranteeing all rights and freedoms and refusing to concede them, while putting emphasis on the right to protest and the freedom of speech in several ministerial councils. Despite this, one cannot ignore the deterioration of the situation of rights and freedoms in the recent period. This puts the civil society at the forefront of confronting violations and any possible regression, in light of covering them up with the economic and social issues and linking them to the political and legal process. In addition, statements issued by several organizations referred to the dominant state of populism.
The National Syndicate of Tunisian Journalists (SNJT) previously referred to this in a statement issued on October 06, 2021[17]. It affirmed its absolute rejection of military trials of civilians against the backdrop of their opinions, positions and publications, considering this a setback for freedom of expression and a blow to democracy and the right to difference.
The statement also rejected the state of populism manifested in hypothetical trials targeting all opposing parties as “ self-presented supporters of the President of the Republic.” In this regard, the president and his supporters bear a share of the responsibility, considering the prevalence of the populist character that surrounds the president and his choices. It has caused the creation of a state of division and an exacerbation of accusations of treachery.
The Human Rights Watch statement[18] also stated that the adopted policies nullify rights, especially in light of arbitrary procedures, including house arrest decisions that ended up being lifted after being endured by nearly 50 citizens.
There are also reports of arrests and trials of activists and politicians[19], which have known procedural breaches, with the re-exploitation of accusations of “undermining a public official” as a cover for police practices. Activist Maryam Bribri faced a sentence of 4 months and a fine of 500 dinars for exposing police practices in a video she had posted on Facebook. According to Amnesty International, this is the continuation of a usual practice in Tunisia that threatens freedom of expression[20].
Meanwhile, the Tunisian media continues to try to penetrate the communication policy of the Presidency of the Republic. This policy is considered a violation of the right to information, as there are no press conferences in Carthage Palace, and instead, videos are published on the Presidency’s official Facebook and YouTube pages. This is a reminder of the president’s stance regarding media as essentially corrupt. In addition, the restrictions and the attacks against journalists persist, according to the organization ‘Article 19′[21].
The balanced positions of the civil society contribute to avoiding the exploitation of human rights related files, especially politically. Yet, they conceive of the current approach of the presidency as a mistake that could lead to major crises if continued. This is raised in relation to issues of terrorism, monitored travel, foreign financing, and lobbying.
These files are linked to international powers that sought to interfere in national affairs at a certain period. Confronting any future intervention requires the unification of the internal national front with the civil society and other parties, in addition to the reformation of the judiciary within a participatory process in which the legal and institutional tool adjucate these sensitive files.
The International Context: Between national sovereignty and dependence on others
The international context was not absent in all the previous changes. The reassurances articulated by the president since July 25 expired upon facing the reality of the economic crisis, the role of international powers, and the lending financial institutions.
The demand for a deadline for the exceptional state was continuously present in all the statements issued by the international powers, while ensuring a balanced discourse that referred the issue to internal affairs. However, the current context, especially the public budget balance and the impasse of economic decline, contributed to the development of the road map that responds to the major headlines demanded by the international and national communities, yet without clear content, especially that the digital and local consultations still lack in terms of details. This allows the consultations to remain open. However, they can only include what is promoted about the project and its broad headlines as outlined in Kais Saied’s decisions and speeches.
The G7 statement[22] preceded the December 13 decisions; it demanded a clear time limit for exceptional measures. It also stressed the need to involve everyone, including the different voices from political parties, national organizations, and civil society organizations. What is noted is that the statement was written around a form of conditional future as it stated that this would “help ensure widespread and lasting support for Tunisia’s future progress.”
Apart from diplomatic statements, it seems that international positions will keep closely following the next steps that Tunisia will take. This was clarified in a statement of the Parliamentary Assembly of NATO[23], while several other Arab countries, besides Turkey, continue to position themselves according to the changes that have occurred since July 25. In fact, Tunisia found itself on the lines of pressing regional and international alliances, despite President Tebboune’s recent visit[24], which represented a single and relative mitigating factor.
Rebuilding the domestic house represents the only opportunity to protect Tunisia’s regional and international interests, with the need to reform and review Tunisian diplomacy.
Recommendations
The Presidency of the Republic:
- Providing real guarantees that the national consultations and the committee in charge of constitutional reforms will not be monitored towards a specific direction, in addition to ensuring that the referendum is not used as a tool to vote on the legitimacy of the President’s choices and projects.
- Ensuring the involvement of political parties, organizations and the private and public media in the political, economic and social process in a broad participatory way.
- Ensuring the civil society’s role pertaining to oversight and accountability
- Endowing files related to rights and freedoms with the importance they deserve, in light of the frequent cases of attacks on journalists and activists, and the malicious follow-up against them, while ensuring that civilians are not tried before military courts.
Political Parties and National Organizations:
- Restructuring, reorganizing, renewing, and rejuvenating leaders under the perspective of national interest
- Assuming the political and moral responsibility and reviewing their roles in light of the current situation and the stakes of the announced timetable
The Civil Society
- Networking and communicating in order to defend rights and freedoms and to exercise its role of oversight.
- Preparing to play the role of oversight over the announced procedures for the coming year.
[1]Asma Baccouche, an exclusive interview with “Ridha Lenine” and Sonia Charbti. “Who is behind Kais Saied’s Campaign?” Ultra-Voice, September 19, 2019. See: https://bit.ly/3t5cpYO [2] Oussema Boudhrioua, “The Roots of the Current Political Crisis in Tunisia,” July 30, 2021. See: https://bit.ly/3JNLfeD [3]The speech of the President of the Republic on July 25, 2021. See: https://bit.ly/3zF2Gtl [4] Presidential Decree No. 117 of 2021 issued on September 22, 2021 regarding exceptional measures. See: https://bit.ly/3q0KpU8 [5] Presidential Decree No. 117 of 2021 issued on September 22, 2021 regarding exceptional measures. See: https://legislation-securite.tn/law/105067 [6]Kamel Ben Messaoud: Appealing decrees before the constitutionality monitoring body contradicts the constitution. See the following link: https://bit.ly/3HPG3Fl [7]Khalil Arbi, “The Ground-Up Building project: a dream or an illusion within the processes of revolution and democracy.” Houloul Platform. See: https://cutt.ly/aUKNDYQ [8] The President of the Republic’s speech to the Tunisian people, December 13, 2021. See: https://bit.ly/3q3yt4a [9] The President of the Republic’s speech, December 13, 2021. See: https://bit.ly/3qNOWIM [10]About changing the date of the Revolution’s National Holiday. See: https://cutt.ly/cUK3b6m [11]Interview with Ridha Chiheb El-Mekki. ShemsFM. See: https://bit.ly/3qWGZBa [12]“The National Consultation Portal: Between Confusion and Unpreparedness.” IWatch Organization, January 1, 2022. See : https://www.iwatch.tn/ar/article/904 [13] Maoletti Marion, Morel Laurence, “The referendum: a procedure contrary to deliberation, useful to deliberative democracy”, in: Loïc Blondiaux ed., The Deliberative Turn of Democracy. Paris, Sciences Po Press, 2021, p. 201-223. [14]Sadok Hammami, “Reflections on Tunisian democracy and its consequences,” Al-Maghreb newspaper. See: https://cutt.ly/KHIneqb [15]The resignation of more than 100 leaders from the Tunisian Movement Ennahda, Al-Araby Al-Jadeed newspaper, September 25, 2021. See: https://cutt.ly/pUK6hvi [16] Ossema Boudhrioua, “The Political Will makes Fighting Corruption Possible,” October 25, 2021. See: https://bit.ly/3f0GobU [17] SNJT’s statement. See: https://bit.ly/3HFfByf [18] Tunisia: The President’s Repressive Policies Repeal Rights, Human Rights Watch. September 11, 2021. See: https://bit.ly/31xZ5kh [19]About the latest cases of violations. See: https://bit.ly/3qP0xHw [20] “Tunisia: Criminal Prosecutions for Online Expression: Outdated and Flawed Laws Used to Restrict Speech in Tunisia.” Amnesty International, November 9, 2021. See: https://bit.ly/3zvZ6BE [21] Tunisia – A dangerous step in the wrong direction. Article19 Organization. August 12, 2021. See: https://bit.ly/3qXxcKW [22] The G7 calls on Tunisia to set a “clear time limit” for the return of the functioning of democratic institutions, France 24, 11 December 2021. See: https://bit.ly/3qTsMF4 [23] NATO PA President: return to functioning democratic institutions in Tunisia must be priority. See: https://bit.ly/3pZzLNk [24] Imen Awimer, Tebboun, hosted by Saeid…Diplomatic support, financial supply and economic cooperation, December 16, 2021. See : https://bit.ly/3HKwyqT
