One of the lessons the 21st century is bringing home is that the winners of elections can gradually kill democracies. Healthy democracies have institutional checks and balances which act as a restraint on elected governments. The key institutions include parliament and independent judicial systems.
But when power gradually concentrates in the executive, it disturbs this delicate balance. There is a growing trend of autocrats using the rules - constitutional formalities - to cover up their power grabs. Taking power "constitutionally" makes it look as if they are doing things in the interests of citizens. It makes it harder to challenge the autocrat. I've used the expression "constitutional authoritarian populism" to describe such regimes.
Venezuela could be considered a poster child of how a presidency can concentrate power. It has achieved this through emergency decrees, constitutional modification processes, and rulings by constitutional courts. All these measures have been accompanied by populist rhetoric.
Tunisia is the most recent example of the trend. The 2011 revolution paved the way for a democratic transition in Tunisia. A new constitution in 2014 then instituted a system of checks and balances, with power-sharing agreements between the legislative and the executive. Tunisia was considered a remarkable example of democratic transition in the aftermath of the Arab Spring, avoiding the fate of Egypt.
It wasn't an instant fix for the country's problems. People's mistrust in the government lingered. When President Kais Saied was elected in 2019, it was on the promise of restoring that trust and increasing accountability. Instead the former constitutional law professor went on to dismantle the checks and balances system.
On 24 July 2021, Saied dismissed the prime minister and suspended parliament for 30 days (blocking access to the parliament building with tanks). Based on decrees, he also assumed the legislative function. Amid social unrest, Saied said those measures were adopted
until social peace returns to Tunisia and until we save the state.
Tunisia's democratic backslide shows why it is necessary to adopt a human rights perspective to interpret constitutional decisions. And that is what the African Court on Human and Peoples' Rights did. It ruled on 22 September 2022 that the decisions adopted by Saied violated human rights. The court ordered that the presidential decrees be repealed to restore the supremacy of the constitution.
A human rights approach is the best antidote to constitutional authoritarian populism. Because autocrats will manipulate the law to justify authoritarian measures, it is necessary to go back to the classical legal tradition and recall that an unjust law cannot be deemed binding.
Constitutional pretence
President Saied invoked the constitution to adopt authoritarian measures based on the extraordinary powers vested in the presidency by the 2014 constitution.
The exceptional powers enjoyed by the president are intended to be used to protect the constitution in extraordinary circumstances. They were not designed to dismantle the constitutional order - as Saied did when he dismissed the prime minister and suspended the parliament. In practical terms, the extraordinary powers abolished the 2014 constitution, concentrating power in the presidency.
But those authoritarian measures were justified as a means of protecting the people from the alleged inefficiency of the prime minister. Saied drafted a new constitution and tried to make it look like a popular decision by holding a referendum on 25 July 2022.
In my view, the referendum was rigged. It was conducted in violation of basic electoral integrity conditions. These include particularly the lack of an independent electoral management body.
The authoritarian measures have continued with the modification of the electoral rules. It won't be possible to hold free and fair elections using these rules.
Saied has masked his authoritarian measures with a constitutional veneer to avoid challenges, mainly from the international community. Piercing this constitutional veil reveals the authoritarian essence of the measures adopted since 2021.
Masters of legality
Why do modern authoritarians love constitutional formalities? This is not a novelty. As the German political philosopher Heinrich Rommen observed, modern dictators "are masters of legality". More recently, the Venezuelan journalist and writer Moisés Naím has referred to the "pseudo-law" to describe how autocrats like to hide behind legal formalities.
Several reasons explain why autocrats are masters of constitutionality. First, constitutions are not only legal institutions but also instruments that can bring legitimacy. Using them as a veneer could protect the autocrat's legitimacy. And the veneer makes it easier for autocrats to say they are protecting "the people".
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The second reason is more legal. When authoritarian measures have a veneer of constitutionality, there's not much the international community can do. The non-intervention principle protects domestic disputes.
Tunisia's democracy can be saved. But the first step is to put human rights at the centre, following the ruling of the African Court.
The human rights perspective
As the African Charter recalls,
fundamental human rights stem from the attributes of human beings.
Therefore, any measure adopted through constitutional formalities that violate human rights is, in essence, unconstitutional. Following the painful experiences of the second world war, the German doctrine explained why constitutional provisions could be unconstitutional, for instance, if they denied human dignity.
Similarly, the new constitution approved by President Saied is unconstitutional and cannot overrule the 2014 constitution. Also, any election conducted under the current conditions - including the announced parliamentary election for December 2022 - should not be deemed free and fair.
José Ignacio Hernández G., Fellow, Harvard Kennedy School, Harvard Kennedy School
