Tunisia legal expert: The coup was 2 years in the making

Sana Ben Achour is a Tunisian academic, lawyer, activist and specialist in public law. She is a professor of public law at the Faculty of Legal, Political and Social Sciences at the University of Carthage.

She has campaigned for gender equality and human rights and is the former president of the Tunisian Association of Democratic Women (ATFD), a member of the Higher Committee for Human Rights and Fundamental Freedoms and a founding member of the National Council for Liberties in Tunisia.

Ben Achour was among a number of Tunisian constitutional law experts to criticise the announcements of President Kais Saied on 25 July, 2021, branding them clearly unconstitutional and a coup d’état. As a result, she has been subjected to a vicious online harassment and defamation campaign denounced by the ATFD.

Below are extracts from an interview with Ben Achour, published by Acharaa Al-Magharibi newspaper (Issue no. 273, 17-23 August, 2021).

Saied’s vision of politics

“The image of 13 August, 2021, (Tunisian National Women’s Day) is a revamped old image because Zine El Abidine Ben Ali also used to celebrate with working women and rural women. It’s not a new image. I see it as a process of searching for legitimacy to look like a saviour. What I criticise about Kais Saied is his vision of political practice. There is no political practice without institutions. He rejects institutions and intermediaries. He is the saviour, the guide. He speaks in the name of the people, and whoever disagrees with him is not one of the people. They are marginalised, excluded, denounced.”

The dangers of Saied’s discourse

Do you agree with critics of the president’s discourse, which according to them, contains verbal violence, since you accuse him of exclusion and denunciation?

“There is severe verbal violence in his discourse; there is disgracing of the other. The problem with Kais Saied is rupture. He denounces, curses, speaks as he wishes, which causes fear because, today, he holds all powers in the absence of any oversight or counter-balance. There is only civil society. I don’t deny that the president of the republic possesses several traits such as decency and honesty, but he’s not the only honest person. Many actors in the public sphere are also honest. There is no harm in someone honest who wishes to clean up [the system]. We would support him absolutely, but using institutions. It is not possible for me as a human rights activist and a law lecturer to accept granting him absolute power.”

Tunisia: Former health minister sues newspaper accusing him of smuggling weapons to Libya

The role of civil society may end soon, based on what we know about the content of Kais Saied’s project. Can he succeed in that?

“Here too, there are contradictory stances. After invoking Article 80, Kais Saied received a number of organisations and civil society associations, which means that at the same time, he uses/exploits civil society to gain a certain legitimacy while at the same time possessing a negative and degrading view of civil society. Kais Saied is an unknown politician – he talks about others and not about himself. These are the things for which I criticise him. He has not revealed to us his intentions and what he wishes to do.”

Was 25 July a coup?

You have been subjected to a campaign due to your position on the 25 July measures. Has it affected you?

“I never expected to be subjected to such a campaign. When I was asked about my opinion on the 25 July measures, I expressed it as an academic. I gave a constitutional reading. It is not possible for me to present a different reading if I really respect myself and my students. What does a coup mean? It means reversing a particular order. Not every coup has blood; not every coup uses tanks; not every coup happens from outside through a military or security institution, as we saw, for instance, with Ben Ali. The terms are contradictory because there cannot be a coup by the Constitution, for instance. Bonaparte said I left equality to find the law. He has left constitutionality. Article 80 is an exceptional case. In constitutional law, we have many exceptional cases. There is the state of siege, Article 80, constitutional circumstances- all these cases are regulated and have specific measures and their forms and processes. If we leave these forms and processes, it is clear that we are not in an exceptional case, but rather a coup d’état. That is the difference.”

A coup two years in the making

Why do you insist that what happened is a coup, while the president affirms that he has not contravened the Constitution?

“In addition to the explanation I have given regarding the coup, there is another matter which is planning.”

Do you believe that Kais Saied had planned for a coup?

“Indeed, it is a complete and planned operation.”

What evidence do you have?

“Kais Saied’s discourse had not been taken seriously, but it was clear from the first day. He rejects representative democracy; he talks about a new edifice, which he said from the first day. State functions have stopped, and it must be said that the president has contributed to stopping and obstructing the functioning of the state. The nomination of Hichem Mechichi was a choice outside the nominees from all parties. Those who won the elections by themselves toppled Jemli, and things turned against them. It is clear that Kais Saied knew what he was doing. There is indeed a lack of balance between authorities in the current constitutional framework, which I have said at universities and to the public. This framework formed an assembly-based system that – in addition to the lack of balance between constitutional institutions – does not respond to crises. It is filled with landmines and contains no exits from political crises. That is true, but planning to invoke Article 80 was also clear – from the rejection of the ministerial reshuffle, refusal to sign the amended constitutional court law. All this means that invoking Article 80 cannot be divorced from a complete process/path that began in 2019. I have spoken to supporters of Kais Saied; they’re lovely youth one can talk to. They consider 25 July to represent the only chance for the impoverished, marginalised people, the margins, to have the possibility of playing a role in public affairs.”

So 25 July is a coup that had been planned since 2019?

“Planning through obstruction. It’s not a spontaneous operation.”

Future scenarios

Do you support the view that 25 July was the end of electoral legitimacy for Kais Saied?

“That is clear. It seems that we are moving towards suspension of working according to this Constitution.”

Through which mechanisms?

“We don’t really know. The Assembly of the Representatives of the People might dissolve itself as had happened in 2011.”

Is that possible? In 2011, that was during the revolution?

“Indeed. This Parliament might be dissolved – either by invalidating lists and thus losing members of Parliament, leading it to become an empty shell. Or, as indicated by Dr Slim Laghmani, the president of the republic might present a government that does not receive the assembly’s confidence which leads to dissolving Parliament – or maybe through some other way – we are waiting for him to present to us his road map.”

Tunisia: President Saied attacks constitution article guaranteeing freedom of conscience and belief