Will Algeria start 2016 with a new constitution? Long-awaited constitutional revision and the road to democratic transition
On 1 November 2015, the Algerian president announced that the country’s new constitution is ready. The new charter - awaited since the Arab Spring in 2011 - is promised to protect fundamental rights and reinforce democracy. Nevertheless, the process has lacked a sufficiently inclusive dialogue and transparency. It has been a year since the commission in charge of reviewing the latest constitutional draft submitted its report. The Secretary General of the ruling National Liberation Front (FLN), who has been the informal spokesperson of the president since his illness, had announced repeatedly this year that the vote on the constitution by the Parliament is imminent. In his last statement, Amar Saidani even claimed that “Algeria will start 2016 with a new constitution”. Even though presented as the top political priority of the president and prominent point of his reform, the constitutional project has after four years lost the interest of Algerians.
How did we get here?
The Arab region has experienced a wave of violence, which has negatively impacted the dynamics of change in Algeria and Algerians’ perception of the "Arab spring". This violence is exacerbated against the backdrop of the deep Algerian crisis after the unfinished democratic transition, which led to a civil war causing over 200,000 deaths from 1992 to 2000.
The current constitution (adopted in 1989) is the remnant of this unfinished democratic transition that occurred following a popular uprising in October 1988. Algerians were demanding more political and economic freedom in a country that was suffering from shortages and ruled by a single party controlling a strictly regulated economy dependent on oil and gas exportation. The 1989 constitution was revolutionary in its content and initiated a major democratic change. It enshrined freedom of expression and association, established a multiparty system, and promoted freedom of enterprise and decentralization. The democratic transition that followed lasted three years. During this period, hundreds of media outlets, political parties and associations have emerged. Free local and parliamentary elections were held. And in each election, the ruling party lost ground against the Islamists of the Islamic Salvation Front (FIS). The military decided to intervene and to stop the final round of the parliamentary elections - causing an institutional vacuum that lasted for years. Since then, the constitution was amended in 1996 creating a second parliamentary chamber moderating the action of the Assembly and giving more power to the head of state.
With the coming to power of president Bouteflika, a second series of amendments were passed in 2002 and 2008 that can be divided into three sets. The first has been welcomed by all political actors and included the strengthening of women’s and minority rights. The second reinforced the role of the president by removing the function of Head of Government and was received with skepticism. The last set of amendments was the most controversial since it abolished presidential term limits. This revision confirmed the trend of empowering the president - in his executive, legislative and even judiciary functions - with an open term limit, which established a system usually classified as “presidentialist”. A move that prompted the opposition to criticize the overwhelming prerogatives of the president that could lead to an autocratic rule. History has since proved that this concertation of power has indeed led to a quasi-locked system and a decline of democratic and civic rights. The right of creating political parties was restricted. Two important political parties are still not recognized, including The Democratic Front (of the Former Prime Minister Sid Ahmed Ghozali) and the Wafa Party (of Former Foreign Affairs Minister Ahmed Taleb Ibrahimi). The creation of national associations is also extremely restricted since 2008.
Benefiting from a successful reconciliation policy with armed Islamists and the rise of the oil price, Bouteflika could still maintain a stable regime and shape the political landscape and system around the figure of the Head of State backed by a large coalition of nationalists, liberals and moderate Islamists. This is yet another specificity of modern Algerian politics, where the division between the ruling parties and the opposition is not “ideological” in its classical sense, with both the presidential coalition and the opposition comprising nationalists, liberals and Islamists. The presidential coalition supports the president building on his undeniable popularity to maintain their majority in elections. At the other end of the political spectrum, the opposition tried to organize itself in various forms calling for early presidential elections followed by a new constitution building process. After a decade of status quo and centralized rule marked by weak political competition, the demand for change reached its peak, when the Arab spring started. The rise of food prices led to demonstrations as - concomitants with the events in Tunisia - protests swept across the country. The quick pull back of the government and the traumatized collective consciousness of Algerians after the bloody civil war prevented the escalation of violence.
The Constitutional Reform Process
Phase I: Two parallel dialogues
The immediate reaction of the government included the launch of a large – and for the first time public - dialogue and consultation to reform the political system. In one of his last speeches before his health troubles, the president lifted the state of emergency and announced that “the constitution will be amended through a process of dialogue including all political trends and with the participation of specialists of constitutional law.”
In May 2011, two consultation processes were initiated:
- The dialogue on development engaged the civil society in all the regions and lasted for six months, culminating in a meeting called “Etats généraux” of the civil society - a title strangely similar to an episode of the French revolution. This dialogue was well conducted by the Social and Economic Council (CNES). This consultative institution played its role of mediation and documented the dialogue in a dedicated website. The final report was released the same year but focused on local development rather than addressing the nation’s institutional concerns raised by the civil society. The final report also failed to reflect many recommendations regarding democratic governance, elections, fundamental rights and the role of the youth.
- Meanwhile a purely political dialogue also commenced. Conducted by the Head of the Council of Nation (the Senate) and composed of a special commission of advisors nominated by the president. The commission met with more than 250 political leaders and received dozens of reports and letters coming from prominent personalities. All the propositions that mainly concerned the type of regime and the new constitutional system were gathered in a report that was sent to the president but was never published. Many recommendations were known to concern the adoption of a different, either semi-presidential or semi-parliamentarian, system of government. The consulted leaders clearly demanded the limitation of the power allocated to the Head of State and the ruling party. Creating the position of a vice-president was also among the issues raised.
This phase of the consultation process was very innovative and could have been exploited in a better way to inform the constitution drafting. Reaching communities in remote areas and reporting their concerns was unique in Algerian history setting a good practice for the Arab region. However, the fact that the outcomes of the political dialogue were not publicized compromised its credibility. Using mass media for broadcasting live sessions or for reporting each meeting would have enabled the dialogue to reach the larger public. The ineffective use of the engagement of the civil society and political actors in the starting phase was the reason behind the limited results of the consultation process. With more transparency and openness, civil society and political leaders would have felt that their contributions were considered adequately. The consultation process could create a unique momentum of public debate allowing a wide-scale interaction between actors and building bridges and trust between political leaders, the government and the people. The fact that the political dialogue took place behind closed doors and that the recommendations were not public was discouraging for the opposition parties that had accepted to participate. This closed-door approach was perceived by these parties as a demonstration of the government’s lack of political commitment to change that eventually radicalized the opposition.
With the decreasing pressure on the Algerian government and the dramatic developments of the Arab spring in Libya, Egypt and Syria, the process started to slow down. The legislative reform that was supposed to prepare the constitutional review took place in 2012. Ten laws on such important political fields as elections, political parties, associations, information and decentralization were adopted by the Parliament. But this reform was controversial in its outcome. It was largely perceived as regressive compared to the progressive laws of the early 90s amended by this reform – with the exception for the law on women’s political participation that improved balancing representation in elected assemblies. For many, the path to a new constitution is not viewed as being paved with the best intentions.
Phase II: The Commission of Experts
In April 2013, a commission of five experts was established by the government to prepare the constitutional revision project based on the dialogue started in 2011. Professors Kerdoun, Benbadis, Lazhari, Mekamcha and Zouina had the mission of proposing amendments to the current articles and use their expertise with no limit except for the “fundamental principles of the Algerian society”. These principles refer to article 178 of the constitution, which restricts any constitutional revision and include republicanism, democracy, Islamic religion, Arabic language, human rights, the unity of the state, the national anthem and the flag.
The commission worked for a year until May 2014. Months later, the presidency published the draft that contained major improvements on human rights, including:
- The recognition of the right to peaceful demonstration. This is an improvement since demonstrating is strictly prohibited in the capital, Algiers, and is also restricted by article 87-bis of the Penal code that essentially deems any demonstration or blockade of public spaces to be an act of terrorism and subversion.
- The recognition of gender equality and women’s empowerment, as factors of social development, which could eventually improve the Family Code that is largely inspired by Sharia law.
- The recognition of freedom of religion, which could afford more tolerance to Baptist Christians, who do not enjoy the same liberty as Catholics due to the lack of official recognition of their Church.
- The recognition of freedom of expression and freedom of the press, including a limitation clause to protect the rights of others.
A large number of the proposed amendments related to the separation and equilibrium of powers. The presidential term limit was proposed to be reintroduced and restricted to only one term that could have major consequences for the long-term policy impact of a future president. The prime minister would have more “delegated” regulatory power. The Parliament would enjoy more oversight power and enable the opposition to play a more active role. However, no major amendment was proposed to reform the judiciary despite concerns over its independence.
Phase III: A second round of political consultation
Once this report was published, a second round of political dialogue started under the leadership of the head of the presidential cabinet in May 2014. The consultation targeted political leaders and national personalities. Invitations were sent to 150 stakeholders, including political parties, civil society organizations, and university professors. The majority of the opposition political parties refused to participate in this consultation contesting the credibility and transparency of the process. The fact that the former Chief of the Islamic Salvation Army (AIS) was among the invited personalities added to the criticisms of the new commission. The AIS was the biggest armed group involved in the civil war until they decided a unilateral ceasefire in 1997. But under the Charter of Peace and National Reconciliation voted by referendum in 2005, they should have been banned from any political activity.
As for the previous phases, the outcome of the dialogue has had very little publicity. The population has never considered the process to be an issue of national or public debate. This disinterest is clearly a consequence of the lack of trust between the majority of the population and the ruling government and more broadly the political parties and leaders. The constitutional review has remained a process led by the president, where the voice of the elite was heard.
Phase IV: Preparing the ground for the new constitution
2015 is promised to be the year of the “imminent adoption of the Algerian constitution”. This time, the questions of public dialogue and a referendum are off the table. It was made clear that the Parliament will decide whether to adopt the new constitution or not. Scheduled for the spring session of 2015 after a groundbreaking win for Bouteflika in the presidential elections, the vote on the constitution was again postponed. Announced again for the autumn parliamentary session, the vote is yet to be officially put in the Agenda. In a written address on the 1st November, the president stated that the new constitution is ready and will include a constitutional review mechanism in addition to the amendments proposed by the commission of experts. He did not mention the adoption mechanism since the current constitution allows for either a referendum or an adoption by a ¾ majority of the Parliament. Discussed for four years, drafted by experts and reviewed by the main political parties, the long-awaited draft is not public yet depriving the people of Algeria from expressing their views prior to its adoption.
2015 has also seen escalating tensions between the president and a part of the security community. A number of high-ranking officials were either forced to retire or imprisoned. The powerful intelligence services were restructured. The entourage of the president called this operation a project to establish a real “civilian state”. This could be a positive step and an important prerequisite for any real democratic transition in Algeria. This reform of the security sector could increase the chance of a peaceful democratic regime change to succeed, if the new structure stays under strict civilian control. The events in Egypt and the memory of the failed electoral process of 1992 are certainly in the mind of the rulers in today’s Algeria.
The Algerian constitution building process can be characterized in a number of ways: from a four-year long iterative process between the government and the elite, to the president’s personal project that he intends to leave as his legacy. What it has failed to become is a people-driven and people-owned process that would benefit from the inclusiveness and transparency that a democratic charter would require. Thus, it comes as no surprise that neither the population nor the wider political spectrum feels the new constitution to be its own. These are major challenges that could undermine the endurance and the implementation of the future constitution. The first draft shows a great improvement in its human rights framework, gender equality and anti-corruption mechanisms. However, the power is still highly concentrated in the hands of a president, who could not rule for more than five years. There are no signs of change in the type of regime nor in terms of effective decentralization. The judiciary and the elected lower house are still yet to be empowered and their exclusive functions guaranteed.
The constitutional review process indicates that Algeria is heading towards a limited institutional reform rather than a new constitution that could be different from the framework of the 1996 constitution. This revision could lead to a democratic transition, if new presidential elections would take place and a more extensive dialogue commence with a view to establishing checks and balances. This would guarantee the effective role of the three branches of government and improve democratic rights.
Wissam Benyettou is a political specialist in charge of the Constitution Building processes in the MENA region for International IDEA. Graduated from l’ENA in Algeria and Paris Sorbonne University, he served for the United Nations in Algeria between 2011 and 2015.
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