Consent of the Governors

Citizens of an Arab country recently went to the polls to vote in a highly-touted referendum designed to turn the page on a violent and authoritarian past. The relatively progressive new constitution — which promised multiparty democracy, expanded freedoms, and even provided for unprecedented term limits on the president — was approved overwhelmingly, with 89 percent of people voting in favor and turnout hitting 57 percent. The architects of the initiative hoped that it would restore some legitimacy to a regime that had badly lost internal and foreign approval.

Of course, the Syrian constitutional referendum of February 2012 did no such thing. And who thought that it would? In the context of a bloody civil war and the enduring oppression of a brutal authoritarian single party regime, everyone — even, probably, the most vocal pro-Assad loyalists — understood that the words on paper meant nothing. 

It’s unlikely that many people thought of Syria’s farcical vote as they followed the news of Egyptians heading to the polls this week to vote on a new military-backed constitution. The official results showed that a whopping 98.1 percent of voters backed Egypt’s new charter — considerably more than in Syria’s referendum. Gen. Abdel Fattah al-Sisi’s Egypt is not Bashar al-Assad’s Syria, but the lessons from Damascus should not be lost on those seeking to parse the meaning of this referendum.

Syria’s swiftly forgotten bit of political theater helps to highlight what really matters about any constitutional referendum: Does the new document actually establish consensual and legitimate rules of the political game? That’s why Egypt’s political prisoners suffering for their political affiliation, peaceful protests, or journalism are a more crucial window into the real significance of the referendum than turnout or approval percentages. 

It is easy to understand and respect the deep desire of many Egyptians to simply move on and put the traumas of the last few years behind them. But Egypt’s current political trajectory is unlikely to grant them their wish. The core institutional problems surrounding the adoption of a new constitution following a military coup, during a full-bore state-led mobilization campaign, and amid a harsh wave of political repression simply do not offer any real hope that the new order will deliver stability or progress toward anything remotely democratic. 

The problem with Egypt’s new constitution has less to do with the text itself than with the broader political context. There are some positive new articles in the text, although as constitutional scholar Zaid al-Ali detailed recently in Foreign Policy, far too many political rights and freedoms are open to definition and restriction by legislation. Balancing the benefits of any gains on rights, both the military and the judiciary have been made less accountable and more powerful, giving great license to these politicized institutions to tailor the rules of the game to their political preferences. 

The primary value of a constitution in an unsettled political arena like that of Egypt is to provide predictability through stable, legitimate rules. Democratic politics rest upon the guarantee that all sides understand and agree upon these rules of the game: Without such predictability, politics is no more than an endless game of Calvinball, with powerful players changing the rules at a moment’s notice to suit their interests. Nobody knows from one day to the next whether their political activity, journalistic investigations, protest against injustice, or organizational membership will be a demonstration of democratic commitment or evidence of terrorism. This debilitating uncertainty helps to fuel polarization and dangerously raises the stakes of political conflict. 

For a constitution to be effective it must command general consent, however grudging, and be seen as likely to actually constrain and define the political game. Egypt’s 2012 constitution failed to deliver that stability in part because of ousted President Mohamed Morsi’s power grab, by which he forced through the document without the consent of significant portions of the state and society. That failure paved the way for the escalation of the crippling institutional conflicts between Morsi, the courts, and the military — as well as the popular support for the June 30 protests, another extra-constitutional political gambit which tossed out any sense of institutional stability. 

The July military coup magnifies the intensity of this problem, however, and may have made it almost impossible to overcome. The precedent has now been firmly established that the military will step in if it does not approve of the direction in which politics is heading. No promises to avoid future such interventions can possibly be made credible, regardless of what the constitution says. This effect will take decades to wear off, which means that the pathologies of uncertainty, unaccountability and unpredictability will continue to afflict Egyptian politics. Political actors will constantly have to be looking over their shoulders in fear of a military overthrow, which will be a defining context of their strategies and actions.

And that, of course, is even assuming that Sisi does not decide to run for president and thus remove even the façade of civilian rule. Does anybody really believe that a President Sisi would step down after two terms in office, just because the constitution says he must?

The military’s relentless "war on terror" against the Muslim Brotherhood and the campaign of arrests against journalists and activists makes Egypt’s future look even bleaker. The fight against the Muslim Brotherhood has been so far-reaching that virtually anyone who dissents from the current regime is at risk. Defining the Brotherhood as a terrorist organization has been an extremely useful mobilization tool and a core legitimating principle for the current regime. But it also generates a state of emergency that invalidates any freedoms or protections otherwise found in the new constitution.

The toxic political environment and legal black hole generated by this "anti-terrorist" witch hunt shapes the real impact of the referendum vote. The crushing of the Muslim Brotherhood, which is so popular with the group’s opponents, has legalized the suppression of any form of political challenge — regardless of what might be written into the new constitution.

Egypt’s new regime has proved all too willing to extend the terrorist label to any political opponent, whether it’s youth leader Ahmed Maher or Al Jazeera journalist and occasional FP contributor Mohamed Fadel Fahmy (a Canadian citizen whose government has proven unable to help). A prominent pro-regime Egyptian journalist, Mostafa Bakry, even took to the airwaves last week to announce that the United States had a plan to assassinate Sisi — which if completed, he warned, would cause Egyptians to "kill the Americans in the streets." And how can anyone take seriously the guarantees of rights in the new constitution when, barely a day after the results were announced, both the Salafi former presidential candidate Hazem Abu Ismail and liberal icon Amr Hamzawy face legal sanction for insulting judges — the latter for a year-old tweet?

I’m not even sure that I would risk going to Egypt these days, given how easily anyone can be imprisoned if accused of Brotherhood sympathies (which happens to me, like many other Western and Egyptian analysts, roughly 50 million times a day in the ongoing performance art of the Egyptian Twittersphere).

Egypt’s constitutional referendum could still, despite all of these problems, become a real turning point — but only if the Egyptian regime was willing to take this moment of celebration to dramatically change course. With the referendum now concluded, and the political insecurity of the regime perhaps somewhat alleviated, maybe now there is space to contemplate releasing political prisoners and stopping the campaign of arrests and persecution of political opponents. Egyptian officials could demonstrate their willing subordination to the new constitution by turning away from the "war on terror," and Gen. Sisi could commit to not seeking political office and instead insist upon the political neutrality of the military and the state.

All signs currently point in the other direction, unfortunately. And that’s why so few observers of Egypt see this week’s referendum as anything other than the next step in the country’s slow drift back into authoritarianism.