Tunisia’s Forgotten Court: A Constitutional Oversight and the Rise of Authoritarianism

Anti-coup protest in Tunis, Tunisia, on October 10th, 2021. Photo courtesy of Dodos Photography.

Tunisia: An “anomaly”?

The self-immolation of street vendor Mohamed Bouazizi in January of 2011 acted as a catalyst for the Tunisian Revolution, which would eventually topple long-time despot Zine El Abidine Ben Ali and spark a wave of regional uprisings known as the Arab Spring. Since its post-Revolution democratization, Tunisia has been lauded by political analysts as an “Arab anomaly,” to echo Safwan Masri’s words, given its relatively peaceful democratic transition supported by a tradition of healthy civil society engagement. 

However, Tunisia has recently experienced considerable democratic backsliding. In July 2021, current President Kais Saied removed then Prime Minister Hichem Mechichi and suspended parliament amid an economic crisis worsened by COVID-19 and a politically incompetent legislature. Further, in 2022, Saied dissolved Parliament and drafted a new constitution with a small cohort of  “handpicked” experts and a public questionnaire on constitutional topics. Only 10% of citizens were eligible to respond to the latter. The document that ensued, replacing the 2014 Constitution in 2022, dangerously authorizes the president to unilaterally dissolve parliament and grants the president immunity during his or her mandate.

How did the region’s sole democracy tumble so swiftly under Saied’s presidency? One of the key, often overlooked, explanations lies within the 2014 Constitution. Article 118’s provision for an independent Constitutional Court was never realized. Without a Court, there would be no body to keep the branches of government in check and promote the enforcement of the Constitution in the spirit in which it was written. By incorporating this supra-constitutional body, the authors were continuing a long tradition of Tunisian constitutionalism; as per Francesco Tamburini, Tunisia was the first state in the Arab world “that had a constitutional chart [...] envisaging a form of constitutional control of laws.” Still, the democratic safeguards embedded in the constitution require implementation to be effective. But power’s “encroaching nature,” as James Madison wrote in Federalist No. 48, is not inhibited by textual commitments. 

What stood in Article 118’s way?

Article 118’s firm grounding in Tunisian constitutional history was gradually buried under the soil of political gridlock. In 2021, Rafaa Ben Achour, a judge of the African Court on Human and Peoples’ Rights, wrote that the Supreme Judicial Council (CSM)—an entity with the constitutional authority to select a third of the Court’s justices, aside from the president and the Assembly of the Representatives (ARP)—had not been formed. Even if the CSM were brought to life, Ben Achour warned that the partisanship which prevented the ARP from selecting potential Court justices from its shortlist would also exist in the Council. Granting the ARP the constitutional power to appoint four members of the Constitutional Court likely stemmed from an intention to democratize the judiciary. Unfortunately, the result was that political gridlock prevented the appointment of at least a third of the nominees. 

As a former constitutional law professor, President Saied’s approach was anything but passive—it was insidious. In April of 2021, Saied wrote a letter to the ARP remanding Law 2018-39, which established mechanisms for decreasing the number of votes in the ARP required to confirm a Court justice if the initial vote were to fail. Saied believed that legislation working to lower some of the political barriers to building the Court violated the 2014 Constitution, for Article 148 stipulates that the Constitutional Court had to be formed no later than one year after the first elections. Evidently, Saied believed that the Court’s formation became “caduque à partir du moment où les délais constitutionnels de sa mise en place n’ont pas été respectés” (obsolete from the moment when the constitutional deadlines for its establishment were not respected). There is ingenuity in Saied’s deliberate invocation of the very Constitution whose institutional buds he sought to undermine. The professor-turned-president understood exactly what he wanted and had given himself “Le droit exclusif d’interpréter la Constitution” (the exclusive right to interpret the Constitution). 

How did Saied consolidate power? 

When Saied suspended parliament in mid-July of 2021, he invoked Article 80 of the 2014 Constitution, which allows the president to act exceptionally in the case of “imminent danger threatening the institutions of the nation.” This decree, however, violated Article 80, which states that during the time of exceptionality the president “cannot dissolve the ARP” as it needs to be in a “state of continuous session.” There is a subtlety in the language: Saied did not “dissolve” the ARP—only officially suspended it. In practice, the fact that Saied had ordered the army to block the Parliament’s entrance from its members is, for any reasonable observer, a violation of the “continuous session” principle. 

Saied’s initial move to disrupt the lawmaking function of the ARP was expanded when he promulgated Presidential Decree 2021-117. Decree Article 20 protects the Constitution’s Preamble and subsequent two sections but makes it so that “other chapters will be respected only when they do not contravene the measures contained in the presidential decree.” Moreover, through Decree 2021-117, Saied essentially granted himself the authority to make laws in nearly every area of Tunisian electoral, economic, and political life. Decree Article 7 further consolidates presidential power—Saied’s, rather—in establishing that “decree laws are not subject to appeal for annulment.” In a couple of months, Saied contravened the 2014 Constitution to freeze the ARP and established a new law of the land—Decree 2021-117—through which he could control a myriad of political, judicial, and economic areas. James Madison was right in suggesting, almost two and a half centuries before, that “tyranny may well be apprehended, on some favorable emergency.” 

The question thus becomes whether Saied foresaw how his efforts to undermine the Constitutional Court’s defenses would later facilitate his rise to power.

What could the Constitutional Court have done, had it been formed?

Saied suspended Parliament in the midst of Tunisia’s political, economic, and COVID-19 crises, partly as a response to political tension between the president and Tunisia’s Ennahda Islamist party, which many Tunisians blamed for the dire political and economic situation. Article 101 of the 2014 Constitution grants the Constitutional Court the power to judicially resolve “disputes that arise regarding the respective powers of the president of the Republic and of the Head of Government,” the prime minister. At one point in April of 2021, Saied claimed that he had control of Interior Ministry Forces, while PM Mechichi responded by selecting a party member to lead intelligence. As such, the Court could have acted as a neutral arbiter for such conflicts and weakened Saied’s legitimacy in eventually removing Mechichi. 

Saied sacked his opponent, Prime Minister Mechichi, and proceeded to declare a state of emergency and suspend the ARP. However, the same constitutional provision (Article 80) the president invoked to do so states that he must inform the President of the Constitutional Court of this decision; of course, by then, he had ensured that there was no Court to inform. Moreover, Article 80 allows the ARP President or 30 of its members to call the Court to “rule on the maintenance of the state of emergency” after it has been in place for 30 days to prevent the abuse of emergency powers. Indeed, Saied extended the suspension of Parliament (an exceptional measure) beyond the 30 day period without the required oversight from the constitutional body he had rendered into oblivion, the Constitutional Court. 

The powers of the Constitutional Court could have slowed down Saied’s constitutional hijacking in two other instances. Presidential Decree 2021-117, subjecting the Constitution to presidential whims and undercutting Parliament’s authority, ignored Article 144 of the 2014 Constitution. This provision requires proposals for constitutional amendments to be sent to the Speaker of the ARP and, from there, to the Constitutional Court “to ensure that such propositions do not affect any [constitutional] provision that cannot be amended.” Without a Constitutional Court, there is no institutional body that can enforce explicit or implicit limitations on protected constitutional sections, allowing Saied’s Decree to curtail the provisions of Article 144.  

Finally, Article 88 of the 2014 Constitution authorizes the ARP (through majority vote) to pass a motion to “bring to an end the president of the Republic’s term for a grave violation of the Constitution.” If  passed, the Constitutional Court would then vote on the ARP’s motion, with a two-thirds majority required for the president’s removal. This procedure was likely not considered as a remedy to Saied’s abuses because of the lack of a Constitutional Court to make the final verdict and the suspension of Parliament that prevented the motion from being tabled.

From separation of powers to Saiedization… 

The Constitutional Court enshrined in Article 118 does not exist in a vacuum; it is a part of the intricate fabric of Tunisia’s system of checks and balances. The absence of the Constitutional Court creates a regime in which necessary linkages between government organs are rendered void, nullifying remedies to constitutional violations and creating exploitable loopholes for power-driven individuals or entities. 

Unrestrained by the state’s political infrastructure, Saied’s power grab threatens the long-term health of Tunisian democracy and open society. As of 2021, Freedom House no longer places Tunisia in the rank of “free” states. Saied has cracked down on political opposition—sentencing former President Moncef Marzouki to several years in prison for “incitement”—and restricted the freedom of the press. Among other worrying trends, he has also made violent comments targeting sub-Saharan African migrants. Without the 2014 Constitution as a doctrinal reminder of the anti-authoritarian revolution of 2011, Tunisia faces grave threats to its democratic safeguards. 

The prologue of Decree 2021-117 states that “sovereignty prevails over the provisions related to the exercise of sovereignty.” This message effectively summarizes Saied’s decoupling of the body politic from Tunisian constitutionalism—a feat accomplished through a carefully-crafted suffocation of the provision for a Constitutional Court. While a preoccupation with a Court that could have been can distract from Tunisia’s troubled reality, it nevertheless serves as a reminder that attacks on the seemingly mundane or procedural often go unnoticed. The Saiedization of power—a unilateral appropriation of sovereignty from the arms of constitutionalism and the people—must be closely scrutinized by vigilant political analysts and students of the region. Looking forward, what channels exist for distributing the sovereign power to the Tunisian people, and how robust are the newly formed barriers to democratization?

Luca Utterwulghe (GS ’25) is a third-year student in the Dual BA Program with Sciences Po Paris, majoring in politics & government and sustainable development. He is interested in the intersection of energy politics and conflict resolution in the Middle East and North Africa. In his free time, he enjoys playing soccer (football!) and searching for the best espresso.