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IFES White Paper Series on Electoral Fraud 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, DC 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
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