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IFES Briefing Paper | January 2011

Elections in Tunisia:
Key challenges for credible and competitive elections

Tunisia: Briefing Paper No. 1
International Foundation for Electoral Systems

1850 K Street, NW | Fifth Floor | Washington, C 20006 | www.IFES.org

January 25, 2011

Background

Elections in Tunisia: Key challenges for credible and competitive elections

Despite the challenges it faces in finding a cohesive consensus, the newly appointed Tunisian government has acknowledged it must address important transitional issues for democratic reform. Politically and constitutionally, one of its primary tasks will be to prepare for elections to determine the choice of a new president. There have also been calls that parliamentary elections, scheduled for 2014, should be sooner.1 While there has been a wealth of analysis in recent weeks on the political and democratic implications of the January events in Tunisia, there has been little focus on the key issues that may emerge in relation to the conduct of these next elections. This IFES briefing paper provides a preliminary overview of those issues.

Introduction

Previous elections, including the 2009 presidential and parliamentary elections, were held in a repressive environment and under a legal framework that was “tailor-made”2 by the then-ruling party to ensure its political dominance had a veneer of electoral legitimacy, ensuring participation of a number of tolerated ‘opposition’ parties and candidates. Despite the changes brought about by recent events, persons opposed to the previous regime may question the credibility of any election held under the current flawed framework or run by persons associated to the previous regime. Unless Tunisian authorities make an effort to show political will for improved opportunities for credible elections, the elections are likely to fail to meet public expectations and stakeholder demands of democratic change in Tunisia. Moreover, such circumstances may lead to boycotts and, possibly, election-related violence.

In their calls for elections to be credible and competitive, the U.S. Government and European institutions have indicated that the international community’s willingness to support elections. It is unclear, however, the extent to which Tunisian authorities and stakeholders are willing to accept international engagement in the electoral process. Several political leaders have called for international observation of the elections.

This briefing paper provides a preliminary assessment3 of the electoral framework in Tunisia and, in particular, identifies potentially problematic areas. However, IFES recognizes that credible elections can take place in countries that have flawed electoral frameworks if there is political will and public support for elections to succeed. The interim government’s announcement of the lifting of restrictions on civil and political rights are important steps in demonstrating political will to improve the democratic environment in Tunisia; although many activists are calling for more meaningful changes to be made, including replacement of all links to the previous regime. With this in mind, the briefing paper also seeks to identify other possible areas where Tunisian authorities could take steps to improve the electoral framework.

1 Tunisia has a bicameral parliament. Its lower house (the Chamber of Deputies / Majlis Al-Nuwab) is directly elected and has legislative powers. The upper house (the Chamber of Advisors / Majlis al-Mustasharin) is part-indirectly elected by municipal councilors and part-appointed by the President. In this briefing paper, the term ‘parliamentary election’ will apply only to elections to the Chamber of Deputies. 2 Human Rights Watch, Tunisia: Elections in an Atmosphere of Repression, October 23, 2009,

http://www.hrw.org/en/news/2009/10/23/tunisia-elections-atmosphere-repression

3 The assessment is based on versions of the Constitution, Electoral Code and other laws that are available in Arabic, English and French on the official Tunisian 2009 elections website www.elections2009.tn which may not be official versions of the texts. Attempts are being made to obtain (and, if necessary, translate) official versions of key legal and procedural texts from the Tunisian authorities.

Page 1 of 12
IFES

Election Timetable

In 2009, Tunisian presidential and parliamentary elections were held concurrently on 25 October 2009. Indirect elections to the Chamber of Advisors took place in August 2008.

(i) Presidential election

Article 57 of the Constitution requires that, in the case of a vacancy in the presidency, presidential elections should be held within 45 to 60 days of the appointment of an interim president. This means elections should be held by 16 March 2011. However, the new government has indicated it agreed to increase the timeframe to six months (i.e. by end of June 2011). A delay of this nature allows for the political and security situation to stabilize and for political groups to prepare their campaigns. In addition, since the bodies responsible for running elections – the Ministry of Interior and local governors – have been at the forefront of public attacks during the recent events, it is possible that additional time is needed to increase the technical capacity of the aforementioned bodies to prepare for the elections.4

The six-month timeframe envisaged by Tunisian stakeholders would not provide for the “systematic overhaul of

the country's electoral laws and practices” that some actors are calling for.5 Although it is very likely that, in the medium- to long-term, considerable efforts will be needed to bring the Tunisian framework for elections into line with international standards.

Once elected, the President will serve a five-year term of office.

Options for delaying presidential elections

It is unclear how Tunisian authorities will establish grounds for an extra-constitutional delay in holding presidential elections when there is a vacancy in the presidency. Article 57 of the Constitution places a number of restrictions on the interim president’s powers that appear to prevent him from taking such measures. However, there does appear to be a possible route under Article 39(2), which provides: “In the event it is impossible to organize elections on a timely basis, due to war or imminent peril, the President’s term of office may be extended by a law adopted by the Chamber of Deputies, until such time when elections can be organized.” Thus, it is possible that presidential elections could be delayed if there is a parliamentary vote to do so. Alternatively, in circumstances with broad consensus by all parties, an extra-constitutional delay may be considered politically acceptable and would not be challenged in court.

(ii) Parliamentary elections

Members of the Chamber of Deputies serve a five-year term; the next elections for this Chamber are due by October 2014. Members of the Chamber of Advisers serve a six-year term. Due to its system of rotational membership, some members of the Chamber of Advisers would be due for re-election in August 2011, while others face election in August 2014.

4 The Electoral Code envisages that elections should usually be called no later three months before the end of an elected body’s mandate to allow for preparations to be made.

5 “Tunisia's future hangs on electoral reform” (Meyer-Resende, O’Grady), The Guardian, January 22, 2009, http://www.guardian.co.uk/commentisfree/2011/jan/22/tunisia-electoral-reform-elections-democracy

Page 2 of 12
Elections in Tunisia: Key challenges for credible and competitive elections

Options for holding early parliamentary elections

A newly elected President has the right (under Articles 57 and 63 of the Constitution) to dissolve the Chamber of Deputies and call for new elections that must be held with 30 days. It is unclear whether a new President who wishes to call for early parliamentary elections must do so immediately after being elected or has the discretion to do so at a later date. Given public anger that the current Chamber of Deputies is dominated by representatives of the previous regime (the RCD, Democratic Constitutional Rally, holds 161 (75%) of the 214 seats), it is foreseeable that a new President (who may not be RCD-backed) could call for new parliamentary elections shortly after taking office to provide an opportunity for a newly elected parliament to be chosen.

While Tunisia is likely to hold two elections in 2011, it appears those presidential and legislative elections would not take place concurrently. Article 57 of the Constitution specifically excludes the Interim President from dissolving the lower house, which would be required before parliamentary elections can be called. Therefore, Tunisia is likely to see presidential elections by June 2011 and parliamentary elections by August 2011. Holding two separate elections within this timeframe will create additional challenges for the resources of the electoral administration and the capacity of political parties, media and civil society to participate.

Legal Framework for Elections

The right for “universal, free, direct and secret” parliamentary elections is guaranteed by the Constitution.6 The Electoral Code7 provides the framework for the conduct of all elections in Tunisia (presidency, Chamber of Deputies, Chamber of Advisors and municipalities). It is specified by the Constitution as an organic law, and requires an absolute majority of Deputies to be amended. There are also a number of additional laws and presidential decrees on election issues tied to voter registration and political parties and how elections are implemented, respectively.

The Electoral System

(i) Presidential election

Candidates for the President of Tunisia require an absolute majority of the valid votes cast in order to be elected. If no candidate receives an absolute majority, the two candidates with the highest number of votes take part in a second round, held two weeks later. There has been no occasion where previous presidential elections have required a second round.

(ii) Parliamentary elections

The number of seats in the Tunisian Chamber of Deputies is set by presidential decree based on a ‘number of inhabitants per seat’ formula established in the Electoral Code; 214 seats in 2009. These seats are then allocated among 26 districts based on Tunisia’s 24 governorates, using an ‘inhabitants per seat’ formula8; in 2009, there were 161 district seats. The number of seats per district ranged from 2 to 11 (see table below). The remaining seats are allocated to a single ‘national’ constituency; in 2009, there were 53 national seats.

6 Tunisia has ratified the International Covenant for Civil and Political Rights and other international treaties that establish international obligations on the way in which elections will be conducted. 7 Law 69-25, which was adopted in 1968, published in 1974 and amended in 1988, 2003 and 2009. 8 The governorates of Tunis and Sfax are each split into two electoral districts.

Page 3 of 12
IFES

Seat Allocation

Districts

Governorates

National Distribution

Total National Seats

53

Governorates

Tunis 1st Tunis 2nd Ariana

  • Seats
  • Seats

Governorates

Béja

Seats

877699866

Ben Arous Bizerte

  • 9
  • 5

4475722
8
11
3

Kef

  • Nabeul
  • Siliana

Manouba Kairouan Sousse
Zaghouan Kasserine Sidi Bouzid Gafsa
Jendouba Gabès

76

Medenine Tataouine Kebili
Monastir Mahdia

5

Tozeur

2

  • Sfax 1st
  • Sfax 2nd

8
Total District Seats: 161

Total Seats: 214

An important factor in the Tunisian electoral system is that, despite there being different ‘district/national’ contests, voters can only vote for their list of candidates for the district contest. All district seats are determined using the Party Block Vote system. This means whichever list of candidates in a district gets the highest number of votes that list wins all seats for that district.9 Lists which won no seats in the district seat contest are then eligible to take part in the allocation of national seats. Using a rather complex formula of seat allocation that mirrors a proportional representation system, the votes won by each list in a district are aggregated to determine how many national seats they will receive.

The current system is designed to ensure one party’s electoral dominance. It is likely to be highly unsatisfactory for any election in a more competitive environment; as one expected in Tunisia now. The Party Block Vote system is highly disproportional and can mean that parties with significant popular support may not win seats. The PR National Seats aspect of the election could provide some proportional balance, except that only parties that won no seats at a district level benefit. Thus, a party that wins 30% of the popular vote, but wins only eight district seats, would not be eligible to win national seats. This situation makes it likely that there will be opposition demands for reform of the electoral system before parliamentary elections are held in Tunisia.

The Tunisian electoral system has no mechanism for promoting or guaranteeing the election of women candidates. However, because of a ‘voluntary quota’ system adopted by the RCD in the 2009 elections, a comparatively high number of women (27%) were elected to the Chamber of Deputies. However, if the RCD and other parties choose not to follow a voluntary approach for the next elections, it is possible that there could be a significant reduction in the number of women elected.

9 This ‘winner takes all’ approach of the Party Block Vote explains why the RCD won all district seats in the 2009 election. Page 4 of 12
Elections in Tunisia: Key challenges for credible and competitive elections

Suffrage

All Tunisian citizens10 over 18 years of age are eligible to vote in Tunisian elections. There are some restrictions on persons who are not eligible to vote: all members of the military (except, possibly, conscripts), security officials and police.

One potential area for concern is that the Electoral Code disenfranchises all persons convicted of a crime or who have served a prison sentence. In light of the number of Tunisian political and civil society activists who have been imprisoned for opposition to the previous regime, this restriction could be used to prevent a number of high profile activists who have been imprisoned (including ministers in the current government) from being able to vote or from standing as candidates in the next elections.

Voter Registration

Voter registration in Tunisia is voluntary. The number of registered voters for the 2009 elections was 4,974,707.11 The population of Tunisia is estimated at 10,586,025,12 and while this includes a large number of youth, the fact that only 47% of the population is registered indicates that a significant proportion of the adult population (who are presumably eligible citizens) are not registered to vote. It is quite possible that there may be a surge in people wishing to register to vote for these next elections.

Although voluntary, the voter register is also ‘permanent’, in the sense that once a citizen has registered, they remain registered. Under the Electoral Code, newly eligible citizens may request to be added to the list of registered voters in their electoral district; registered voters may also ask to move between districts. The elected heads of municipalities are responsible for compiling and updating voter lists. The revision of voter lists takes place twice a year (31 December - 28 February and 30 June - 31 August) when the voter list is posted to allow citizens to check their registration status. Citizens cannot be added to the voter lists outside of these update periods. Persons excluded from being registered have a short timeframe when they may appeal to a Revision Committee and, from there, to a Court.

Therefore, Tunisia is currently in the midst of its voter registration update and, given recent events, it is unlikely that this process has proceeded without interruption. Thus, in the short-term, there is considerable risk that the current voter register will not be used for elections held prior to its next update period. This will be especially problematic if previously unregistered citizens now demand the right to vote in elections, and will be further aggravated if elections take place before there has been a chance for them to register.

In these circumstances, Tunisian authorities may have to consider re-opening the revision period before holding a presidential election. This is not envisaged within the Electoral Code. As the voter list update process requires at least eight weeks of activity, it will be important that this decision be taken immediately if elections are envisaged before June 2011.

Over the long-term, it is likely that Tunisia may need to revise its process for compiling voter lists in order to maximize opportunities for citizens to register and to minimize responsibilities of elected officials in the process.

10 Women received the right to vote in 1959. 11 Inter-Parliamentary Union data on the 2009 elections. http://www.ipu.org/parline-e/reports/2321_A.htm 12 https://www.cia.gov/library/publications/the-world-factbook/geos/ts.html

Page 5 of 12
IFES

Voter Cards

In order to vote, a registered voter must produce a voter card, which provides confirmation of his/her identity (although it does not appear to include a photograph, and thus is ineffective in that role). Any registered voters who turn up to vote without a voter card will be refused the vote, even if they have official national ID documents that prove their identity.

Voter cards are produced, issued and distributed by the elected head of the municipality in which a voter is registered at the time of an election. The last issuance of voter cards took place in May 2009, and these were envisaged to remain valid until May 2014. It is quite possible that some voters may need to be re-issued cards. Certainly, all voters registered after the 2009 elections must be provided with a new voter card. It is not known whether there may be logistical challenges in producing and distributing new voter cards to those who need them; if not, many registered voters could be effectively disenfranchised.

Election Management

(i) Ministry of Interior

The Ministry of Interior and Local Development (MOI) has primary de facto responsibility for the administration of elections, although the Electoral Code is almost silent on its role and the extent of its duties and powers. In practice, the detail regarding the Ministry’s role has been defined by presidential decrees. Other ministries, including those of Justice, Foreign Affairs and Finance, have also been given electoral responsibilities.

Reports relating to the 2004 and 2009 elections indicate that election management by the MOI was technically competent. During recent events, demonstrators expressed strong anger at the role played by the MOI under the previous regime. Efforts will certainly be needed for the incumbent Minister and senior officials to build public confidence that the MOI can conduct elections in an impartial manner that is free from political interference.13 It is not known the extent to which the MOI has the institutional capacity to run elections in 2011, or if that capacity has been affected by recent events.

(ii) Local authorities

The Electoral Code delegates any electoral duties – ranging from choosing polling staff to tallying district results – to governors. All current governors were appointed by President Ben Ali and there may be public concern as to whether they will perform these duties impartially. The elected heads of municipal councils are responsible for a number of relevant tasks related to voter registration. RCD has been equally as dominant in local and national elections. Again, there may be questions related to whether they will perform their task impartially.

(iii) The Constitutional Council

The nine-member Constitutional Council has responsibility for adjudicating on all issues relating to the results of presidential and parliamentary elections. It also plays the role of receiving and reviewing presidential nominations. Four of its members were appointed by the President and two by the Speaker of Parliament; the remainder are senior judges. In 2009, the Constitutional Council took a series of decisions on candidacy requirements that prevented several opposition presidential candidates and parliamentary lists from participating.

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  • TUNISIA Tunisia Is a Constitutional

    TUNISIA Tunisia Is a Constitutional

    TUNISIA Tunisia is a constitutional republic with a population of approximately 10 million, which during the year was dominated by a single political party, the Democratic Constitutional Rally (RCD). As of December 31, Zine El Abidine Ben Ali, the country's president since 1987, was still in office. In October 2009 President Ben Ali ran for reelection against three opposition candidates and was declared the winner with 89.6 percent of the popular vote to serve a fifth five-year term. In concurrent elections for the Chamber of Deputies, the RCD won 161 of 214 seats. Restrictions imposed upon candidates and various procedural aspects of the elections raised doubts about whether either the presidential or legislative elections were free and fair. In 2008 indirect elections for some seats in the Chamber of Advisors, the upper house of parliament, resulted in a heavily pro-RCD body. Security forces reported to civilian authorities. During the year there were significant limitations on citizens' right to change their government. There were reports of at least one arbitrary or unlawful killing. Local and international nongovernmental organizations (NGOs) reported that security forces tortured and physically abused prisoners and detainees and arbitrarily arrested and detained individuals. Security forces acted with impunity, sanctioned by high-ranking officials. There were also reports of lengthy pretrial and incommunicado detention. Severe government-imposed restrictions on freedoms of speech, press, and association worsened in the period leading to and following the October 2009 elections. The government remained intolerant of public criticism, and there were widespread reports it used intimidation, criminal investigations, the judicial system, arbitrary arrests, residential restrictions, and travel controls to discourage criticism.

  • Tunisia Page 1 of 18

    Tunisia Page 1 of 18 Tunisia Country Reports on Human Rights Practices - 2007 Released by the Bureau of Democracy, Human Rights, and Labor March 11, 2008 Tunisia is a constitutional republic with a population of approximately 10 million, dominated by a single political party, the Democratic Constitutional Rally (RCD). Zine El Abidine Ben Ali has been the president since 1987. In the 2004 presidential election, President Ben Ali ran against three opposition candidates and was declared the winner with approximately 94 percent of the popular vote. Official turnout was higher than 90 percent, although observers regarded these figures as substantially inflated. In concurrent parliamentary elections, the RCD gained 152 of the 189 seats. The 2005 indirect elections for the Chamber of Advisors, one of two legislative bodies, resulted in a heavily pro-RCD body. The civilian authorities generally maintained effective control of the security forces. There were significant limitations on citizens' right to change their government. Local and international nongovernmental organizations (NGOs) reported that security forces tortured and physically abused prisoners and detainees and arbitrarily arrested and detained individuals. Security forces acted with impunity sanctioned by high-ranking officials. Lengthy pretrial and incommunicado detention remained serious problems. The government infringed on citizens' privacy rights and continued to impose severe restrictions on freedoms of speech, press, assembly, and association. The government remained intolerant of public criticism and used intimidation, criminal investigations, the court system, arbitrary arrests, residential restrictions, and travel controls to discourage criticism by human rights and opposition activists. Corruption was a problem. RESPECT FOR HUMAN RIGHTS Section 1 Respect for the Integrity of the Person, Including Freedom From: a.
  • Tunisia Page 1 of 16

    Tunisia Page 1 of 16

    Tunisia Page 1 of 16 Tunisia Country Reports on Human Rights Practices - 2004 Released by the Bureau of Democracy, Human Rights, and Labor February 28, 2005 Tunisia is a constitutional republic dominated by a single political party, the Democratic Constitutional Rally (RCD). Zine El- Abidine Ben Ali has been the President since 1987. In the October 24 presidential and legislative elections, President Ben Ali ran against three opposition candidates and won 94.49 percent of the popular vote, with official turnout quoted as higher than 90 percent of registered voters, although there were indications that voter turnout figures were artificially inflated. By law, 20 percent of seats in the legislature (Chamber of Deputies) are reserved for opposition party candidates; as a result, 37 (out of 189) seats were divided between 5 of the 7 legal opposition parties in proportion to the number of votes they received. The RCD was allocated the remaining 152 seats. A coalition of three local independent nongovernmental organizations (NGOs) cited a lack of media access by opposition candidates during the campaign period and media bias in favor of the ruling party as serious problems. Opposition candidates and other observers cited voter intimidation and restrictions on disseminating campaign materials and organizing campaign events. The ruling party's domination of state institutions and political activity precluded credible and competitive electoral challenges from unsanctioned actors. A second legislative body, the Chamber of Advisors, was created in a 2002 referendum amending half the constitution, but has yet to be formed. President Ben Ali has said the chamber will open in the summer of 2005.