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Egypt’s Constitutional Mess and Solutions From South Africa

Egypt’s generals should look to South Africa’s constitutional round table for a model constitution writing process.

Egypt’s latest constitutional plebiscite was so rigged, it inevitably will lead to another legitimation crisis for the Supreme Council of the Armed Forces government. When it does, the generals should look to South Africa’s constitutional round table for a model constitution writing process.

Of the many important lessons the Egyptian people might take away from their 2014 constitutional referendum, three certainly stand out in stark relief: first, that the military owns the product of the plebiscite and must also own the political consequences; second, that no constitution or government will enjoy true legitimacy without a national reconciliation effort; and third, that the pathway out of Egypt’s transitional morass might in fact begin at the other end of the continent in South Africa.

When the government of ousted Egyptian president Mohammed Morsi sent its constitution to a public referendum in December 2012, it would have been a tall order to find a more emblematic case study in how not to establish a democratically legitimate national charter. In a desperate effort to jam through a constitution that would ensconce its role in governance, the Brotherhood made several strategic blunders that virtually ensured the showdown that led to Morsi’s ouster, namely the use of strong-arm majoritarian tactics to dominate the process, engaging in an ugly legal and constitutional battle with the other powerful government institutions and rigging the constitution to ensconce Islamist control over the political system.

As in so many other instances in the past year, the Egyptian military has once again outdone the Brotherhood. Not to be surpassed in sheer ignorance or contempt for proper democratic process, the Supreme Council of the Armed Forces (SCAF) has taken the Morsi formula for flawed constitution making to new lows. Far from a democratically legitimate charter, the generals have given the Egyptian people a document written by unelected representatives, stained in the blood of the political opposition and finally rubber-stamped by a mere fraction of the public in a plebiscite that could hardly be termed free or fair.

The junta’s epic transitional fumble should come as no surprise. The SCAF has remained the country’s primary powerbroker and ruler-of-last-resort since the start of the revolution – and good governance has eluded it from the start. The first SCAF misfire was its constitutional declaration of March 2011. Intended as a sort of interim constitution to facilitate governance prior to parliamentary elections, the declaration was effectively the original sin from which so many transitional disasters (including the Brotherhood’s moment of misrule) have ensued. Had it had the nation’s best interest in mind, the SCAF may have listened to a broad array of political and revolutionary actors and instituted a pluralistic and transparent national dialogue to hash out an interim constitution and set of principles for an eventual permanent charter. Coalitions of such actors, including the so-called Egyptian National Council had, in fact, made attempts to institute such a process. Under the leadership of such figures as Tahany El Gebaly, a Supreme Constitutional Court justice, the short-lived National Council produced a comprehensive document containing 30 constitutional principles and a list of 21 “basic rights and freedoms” to be protected in addition to those already outlined in the 1971 constitution.

Despite its strengths, the National Council effort was hobbled in the end by lack of official engagement from the Muslim Brotherhood or the Supreme Council of the Armed Forces. Given their organizational superiority, the former preferred to hold elections before engaging in constitution making, whereas the generals appeared perfectly content to do what is typical of post-revolutionary power holders and rule by decree. Thus, far from a roadmap for democratic change, the SCAF’s “constitutional declaration” of March 2011 was effectively a resurrected version of the suspended Mubarak-era constitution gussied-up with a few amendments that had been crafted in a closed technocratic committee and rubberstamped in a plebiscite.

Minus a consensual constitutional roadmap, it is hardly surprising that the Brotherhood and its Islamist allies pursued a winner-takes-all, majoritarian approach to constitution writing following their big wins in the winter 2012 parliamentary elections. The Islamist domination of both the selection of the Constituent Assembly and its proceedings were a direct consequence of the failure of the military as stewards of the revolution to establish a transitional process that reflected pluralist values. Deepening polarization and tensions only continued to grow in the ensuing months as competing powers engaged in an escalating series of reprisals and counter-reprisals beginning with the disbanding of the Islamist parliament through court orders just prior to the election of Morsi. To shield his office and his Constituent Assembly from further attacks, Morsi drastically overcorrected, granting himself sweeping powers and touching off the “Tamarod” protest movement that eventually culminated with his July 2013 ouster.

Thus instead of providing a foundation for national unity, Egypt’s first round of constitution-making became a Rubicon of national division and sectarian hostility. Here a wise leadership may have seized on Morsi’s ouster as an opportunity to change course and pursue a path of national reconciliation, but not the SCAF. Instead, the generals and their interim government decided to double down on the old recipe for disaster and wage open war on the Brotherhood with bullets, draconian decrees and constitutional clauses. Regardless of one’s attitude toward the Brotherhood and its politics, its deep roots in Egyptian society and major electoral support remain undeniable political realities.

Accordingly, the military’s efforts to ban the movement as a terrorist threat and to establish a democratically legitimated constitution without Islamist support are nothing short of folly. Indeed, given that the democratic bonafides of the new Egyptian constitution are arguably more dubious than those of the Brotherhood’s charter, and that it was approved with only 39 percent of the electorate casting ballots, it is not at all unlikely that a future Egyptian government will have to contend with another major legitimation crisis like that which brought down Morsi. Should that occur, or should Egyptian authorities try to prevent it, a drastically different transitional approach is needed, and that’s where the South African model comes in.

Whereas the Egyptian experience has been panned as “a case study in how not to initiate a constitution-writing process,” the South African process has been widely lauded as an international democratic exemplar. Key to its success was its structure, as constitutional scholar Andrew Arato has illustrated:

This process was composed of two major stages, with a democratic election between them, involving the making of two constitutions, and with a multi-party negotiating forum or roundtable, a constitutional assembly and a constitutional court as its three main institutional agents.

This South African approach, which Arato refers to as the round table model, has indeed become so paradigmatic that it has now seemingly become a de facto normative framework according to which all major democratic transitions are expected to unfold. Yet, as Arato also points out, the Round Table’s usefulness in South Africa and elsewhere such as post-communist Hungary was also largely a function of very specific political circumstances that forestalled the alternative transitional approaches of revolution or reform. In the South African case, for example, the Apartheid government lacked the necessary legitimacy to enact successful reforms, whereas Mandela’s African National Congress and its allies lacked the ability to seize state power by revolutionary force. Inclusive, protracted, multiparty negotiations were thus the only viable path toward a stable democratic state.

Given that a revolutionary uprising was apparently a viable option for democratic forces in Egypt, one might object to the Round Table approach as an applicable option in Egypt. Yet, to reference Arato once more, the overarching virtue of the Round Table may be its usefulness as an effective tool for addressing major legitimacy deficits such as that facing Egypt. Moreover, one might argue that despite the critical role it has played in facilitating two revolutionary coups, the SCAF nevertheless remains a powerful remnant of the old order standing in the way of a new order. Seen in this light, the political situation in Egypt becomes not unlike that which necessitated the use of the Round Table model in South Africa. On the one hand, you have an establishment power (the military) that is seemingly incapable of advancing a reform process that could enjoy broad democratic legitimacy; and on the other hand, you have opposition forces that are incapable achieving a revolutionary overthrow of that establishment power. In other words, using force to seize state power directly from the military and control the transition process on its own terms are options that are not likely to become available to Egypt’s revolutionary actors.

Of course, given the passage of the military’s constitution, another major legitimation crisis would be required at this point before we could see the implementation of the round table model in a complete form. However, new elections are right around the corner. And should the next government come to appreciate the necessity of taking steps to shore up its constitutional legitimacy, it might seek to apply aspects of the round table process in the following way:

– Convene a multiparty forum to facilitate sectarian reconciliation and foster a national dialogue on constitutional reform. Inclusivity and pluralism would require unbanning the Brotherhood and bringing its members to the table alongside representatives of the SCAF, the judiciary, and a broad array of progressive opposition party and civil-society delegates. The importance of adequate representation by progressive voices in the constitution revision process is underscored by Zaid Al-Ali, who argues that the progressives are the only political force with a “convincing vision of the future” and the only force yet to get a crack at drafting a constitution.

– Arrange a public constitutional outreach and listening campaign to solicit broad-based feedback on the amendments and ensure that the outcome reflects the interests of all Egyptians. This type of effort was a key innovation employed in South Africa to ensure direct public consultation on the draft constitution, and is far more democratic than a mere plebiscite;

– Produce a set of amendments to the 2014 constitution based on the roundtable negotiations and public-listening tour. The amendments should be approved by something like a two-thirds majority of the forum members then sent to a public referendum in accordance with the military constitution’s amendment provisions.

As we’ve seen with South Africa’s own difficulties in living up to its early democratic promise, even the most exemplary constitution-making process and the world’s most advanced constitution cannot by themselves ensure that true systemic change occurs and injustice is uprooted. Nevertheless, a solid democracy requires a solid foundation, and consequently Egypt must strive to build one using the best practices available.

Now, considering the powers afforded to the military in the new constitution, its own obvious disinterest in accepting curbs on that power, and the fact that key political groups such as Tamarod and the National Salvation Front back military strongman General Abdul Al-Sisi as a presidential candidate, it might be overly optimistic to imagine a new government would proactively initiate such a process. As such, the Egyptian people may need to take matters into to their own hands yet again with another round of mass protests. Except this time, the protesters would need to make the institution of a round table transitional forum their primary demand and they would need to direct their demands at the military rather than the regime du jour.

It is perhaps a tall order given the authorities’ increasingly harsh crackdowns on dissent. But if there is one thing that the Egyptian people have taught us in the past few years, it is that we should never underestimate their courage and extraordinary power to effect change.

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