Amending Arab constitutions ignores lessons of history

The battle for amending the constitution will constitute a major test for Sisi’s presidency.
Thursday 03/01/2019
The entrance of the State Council’s building, Egypt’s highest administrative court, in Cairo. (AFP)
Tricky dilemma. The entrance of the State Council’s building, Egypt’s highest administrative court, in Cairo. (AFP)

The scenario is familiar in the Arab world. Popular demands call for the amendment of a country’s constitution to remove the limitation on presidential terms so the same old ruler can stay in power. The government acquiesces and a referendum on the proposed amendment is called amid noisy media campaigns talking about the necessity of the change, hope and deferred popular dreams.

The amendment passes with flying colours and the sitting president is set for life. This is democracy in action in some countries pretending to be democratic. Very often, however, the sitting president ends up not benefiting from the amendment to the great joy of his successor.

Something like this is happening in Algeria. In 2008, President Abdelaziz Bouteflika responded to ready-made calls to stay on as president from those surrounding him and the Algerian Constitution was amended accordingly. When the two-term limit was removed, Bouteflika ran for a third term, then for a fourth one despite his failing health. After about eight years from this amendment, the Algerian constitution was amended again but this time to bring back the two-term limit.

Let’s go to Sudan where, in early December, members of the parliament circulated a petition to have Article 57 of the 2005 Sudanese Constitution amended to enable Omar al-Bashir become president for life.

What is going on in Egypt is a perfect example of how easy it is for some to fiddle with the constitution in the service of the current ruler. Lately, there has been talk of amending the constitution to allow Egyptian President Abdel Fattah al-Sisi to run for a third term and perhaps a fourth and a fifth. We are witnessing concrete steps to have parliament discuss an amendment in this direction. One enthusiastic lawyer petitioned the Administrative Court to compel parliament to discuss the amending the presidential term in the constitution.

Article 140 of the Egyptian Constitution states: “The President of the Republic is elected for four calendar years, starting from the day following the expiration of the term of office of his predecessor and may be re-elected only once.”

The trouble with amending Article 140 is that it is almost impossible because of Article 226, a “supra-constitutional article,” that says that “in all cases, the texts relating to the re-election of the President of the Republic, or the principles of freedom, or to equality, may not be amended, except in the case where such an amendment will add more guarantees and defences.”

A survey of the history of constitutional amendments in Egypt reveals that each amendment introduced to serve the interests of specific power circles failed to achieve its objectives. The late President Anwar Sadat, for example, said at the beginning of his rule that the president should not exceed two terms in office. Each term was 6 years. The 1971 constitution stipulated that “the president shall have one term in office and may be elected for another term.”

However, shortly before the end of his two terms, Sadat’s close associates called for the amendment of the constitution, which changed the expression “another term” to “other terms.”

Sadat did not benefit from this amendment. He was assassinated on October 6, 1981. His successor, Hosni Mubarak, took full advantage of the amendment. Despite announcing at the beginning of his rule that the presidential term should be limited, Mubarak made sure that no such amendment was introduced.

Mubarak ran six times for president and was elected every single time. Of course, he was the only candidate each time. In 2004, however, he allowed the constitution to be amended so that other candidates can compete against him and some observers had thought that he was preparing the ground for his son, Gamal Mubarak, to take over. His dreams and schemes came crashing down, along with his regime, during the uprising of January 25, 2011.

Mubarak’s successor, the Muslim Brotherhood’s candidate, Muhammad Morsi, did not fare any better. He issued a constitutional declaration to shield his decisions from being questioned. We know the end of the drama there. Huge popular rallies and protests led to Morsi’s demise and he is now in jail.

Yahya Hussein Abdul Hadi, a spokesman for the opposition Democratic Civic Movement, said that whoever takes power quickly forgets his own assertions about his abstinence from power. He said: “The authors of the last Egyptian Constitution had put an article prohibiting any amendment during the term of the current president specifically and it was approved by the people and the president has sworn to uphold it.”

Some say Sisi does not wish to amend the constitution in his favour but it is rather the many circles around him who are pressing in this direction. These circles will not hesitate to find the necessary tricks for bringing about the change.

Abdul Hadi insisted that it is up to Sisi to take the initiative and declare his opposition to these shameful manoeuvres that are humiliating to the Egyptian people. Sisi should not try to deliberately ignore them, even if his intention is to take the pulse of public opinion regarding the issue. He has the last word on the question and he should say it to silence the pro-amendment voices.

On the other hand, those pushing for an amendment of the presidential terms in the constitution have a different logic. They see that the term of the presidency in the Egyptian Constitution is very short and does not afford the president enough time to carry out his programme of ambitious development projects. The current context of the war on terror requires the continuity of the power base, they say.

Jihad Odeh, professor of political science at Helwan University south of Cairo, said the current constitution “has amended the constitution set by the Muslim Brotherhood in 2012 and dropping it is necessary to complete the march of the June 30 revolution.” For him, this step should have been done right from the start, because all revolutions require the overthrow of the legacy of previous regimes.

Odeh said amending the constitution is strictly the business of Egyptians and that there will be no international objections to that. In any case, Europe is preoccupied with its internal problems and the United States has many problems under President Donald Trump. This means that conditions are quite favourable for a constitutional amendment in Egypt. Odeh’s opinion about a favourable international context is of course rejected by amendment opponents.

The battle for amending the constitution will constitute a major test for Sisi’s presidency. Despite the apparent calm among a large portion of Egyptian citizens, popular anger lurks below the surface, waiting for a spark to ignite it. Many fear that this issue of amending the constitution will be the last straw that will break the backs of many high officials.