January 08, 2014
Egyptians will begin 2014 by heading back to the
polls, this time to pass judgment on a new constitution. The draft, actually a
series of changes to the old constitution so numerous as to constitute an
entirely new document, will be put to a vote in mid-January.
In this Q&A, Nathan Brown argues that approval
of the referendum is a foregone conclusion, and the result is likely to resolve
little. Indeed, the constitution and the referendum are more likely to
exacerbate tensions and divisions in Egyptian politics than to form part of a
democratic transition.
Will voters approve the draft constitution?
Yes.
It is rare for a constitution to be rejected in a
referendum. Egyptian voters have never turned their rulers down, and
constitutional referenda in other countries almost always pass. In this case,
it is true that there are some political actors opposed to the
constitution—most notably the Muslim Brotherhood and its associated Freedom and
Justice Party (FJP), which was ousted from power in July.
But these actors are more likely to boycott the
referendum than to mobilize for a “no” vote. It is unlikely that the FJP would
be able to muster a majority against the constitution. What’s more, prevailing
feelings among FJP members—from what can be gleaned—lend themselves far more to
expressions of outrage than to cold electoral strategizing. The widespread
arrests of movement members, the regime’s violent crackdown to disperse
demonstrators, many of whom were FJP supporters, last summer, and more recent
attempts to ban the movement have left the Brotherhood and the FJP ill equipped
to strategize and in no mood to participate in the political system for now.
Will the election be free and fair?
No, but that won’t affect the outcome—the
referendum would probably pass even if the election were free and fair.
It is probably impossible to hold a free vote in
the current political environment. The FJP, which won more seats than any other
party in the country’s 2011 parliamentary elections, clings to legal existence
but is not able to operate freely. Islamic broadcasters have been shut down.
Opposition rallies of any size seem impossible in the current climate.
Journalists and activists report harassment and threats from security agencies,
and there have been many arrests. There have also been scattered reports that
even campaigning against the referendum has been treated as a threat to public
security.
And the referendum will not be fair because various
parts of the state apparatus are tipping the scale in favor of approval.
State-owned media, for example, treat the constitution as a breakthrough and
the referendum as a time for celebration, fostering an atmosphere in which the
campaign to oppose the referendum is at best anemic. Official encouragement
merely to vote is essentially tantamount to an appeal for approval.
While it is difficult to say with certainty, even a
free and fair election would still likely result in approval for the
constitution. Mobilized public opinion seems largely supportive of the current
political order, though pockets of strong Brotherhood support continue to
exist.
Is Egypt following the interim government’s plan
for its political transformation?
Not really, but its departures from this plan do
not seem to matter much to anybody.
On July 3, Defense Minister Abdel Fattah El-Sisi
laid out a road map for Egypt’s future. The new military-backed Egyptian regime
appointed two committees to amend the country’s constitution—a committee of
jurists began the work, suggesting a comprehensive set of changes, and a second
committee of officials, representatives of specified groups, and other
prominent individuals then drafted its own series of amendments.
But the country’s political actors seem to have
simply forgotten other elements of Sisi’s plan, such as a code of ethics for
the press, a reconciliation commission and a rapid review of the parliamentary
electoral law passed by the Brotherhood-dominated upper house of parliament.
Other elements of the road map have been changed
with only muted complaints. The entire transitional process has stretched out
longer than promised, with creative counting of days for each of the document’s
various deadlines. And one matter ostensibly settled by the road map, the
sequence of parliamentary and presidential elections, has been reopened by the
draft constitution.
But these changes seem to make no difference to all
actors’ evaluation of the political sequence. While there is considerable
jockeying now about the law for parliamentary elections and the sequence of
presidential and parliamentary elections, none of the key players are referring
back to the way these issues were handled in the July 3 statement. Instead,
they are treating them as matters for negotiation.
Will the new constitution be legally adopted if it
passes?
Yes, though the reasoning is a bit circular. The
new constitution and the referendum will make themselves legal. According to
the draft constitution itself, if the document is approved in a referendum it
becomes legally binding. If there was anything illegal done prior to that point
(such as the suspension of the constitution in July), that flaw becomes
irrelevant.
This reasoning may be strange, but it is both practical and based on political
realities and precedent.
Past Egyptian courts have treated referenda on
constitutional matters as beyond their reach, operating on the premise that
once the people have spoken in a constitutional voice, no court drawing its authority
from that constitution can overrule them. Such was the attitude of the
country’s Supreme Constitutional Court as recently as this past June when it
accepted the validity of the country’s controversial 2012 constitution.
Therefore, Egyptian courts will only view the current constitution as having
been overturned if a new one is approved in a referendum or a revolution occurs
and brings about a constitutional vacuum.
And all critical parts of the Egyptian state are
fully behind the new document, so the country’s most powerful political actors
are unlikely to seek any way to reverse it.
Will the constitution be legitimate?
That will depend on whom you ask. And that is
precisely the problem: Egypt has no tools accepted by the country’s main
political actors to settle political differences. Losers no longer regard
elections as binding, and there no processes in place that allow contending
parties to hammer out agreements.
In fact, the country’s new constitution might
entrench, rather than manage, Egypt’s deep political divisions. The
constitution will be approved and accepted by its supporters. But that will not
persuade its opponents.
The same thing happened in 2012, when Egyptians
were strongly divided over the draft constitution proposed by then president
Mohamed Morsi. Although the constitution was approved in a December 2012
referendum, sharp disagreements persisted and contributed to the political
crisis that ended in the overthrow of Morsi’s presidency.
This constitution will likely last longer than the
one it is replacing, but there are some worrying signs about its fate as a
viable document that provides for a stable system. Some of the constitution’s
defenders excuse its flaws by claiming that the document might not last more
than five or ten years anyway, a remarkably diffident attitude. And the
political process since the massive June 30 demonstrations against then
president Morsi has led to the creation of an increasingly embittered Islamist
minority (that does not seem to accept that it is the minority).
Much attention has therefore focused on turnout in
the referendum as an indicator of its legitimacy. Critics attacked the 2012
constitution since slightly less than one-third of eligible voters cast a
ballot. If supporters of this constitution cannot beat that mark, they will
suffer an embarrassment. But embarrassment is not a particularly strong factor
driving Egyptian politics, so they have no real cause for worry.
Is voter turnout expected to be strong?
Strong is a relative word. Egyptian elections have
always had low turnout, although those that have taken place since the 2011
revolution that overthrew then president Hosni Mubarak have been partial
exceptions to that rule. Even in those elections, though, turnout figures have
varied greatly—41 percent for the March 2011 referendum on constitutional
amendments, 62 percent for 2011 parliamentary elections; 15 percent for 2012
elections to the upper house of parliament; 52 percent for 2012 presidential
elections; and 32 percent for the 2012 constitutional referendum.
With the country exhausted and cynicism returning,
the upcoming referendum certainly faces an uphill battle. What is more, the new
regime’s attempts to discredit its opponents may backfire and reduce voter
turnout. The interim government has been trying to convince Egyptians that its
Islamist opposition consists of terrorists who will stop at nothing to disrupt
the referendum but also that it is perfectly safe to vote.
The country’s most successful electoral mobilizers
in the very recent past—the Brotherhood and the Salafis—have lost both their
interest in bringing voters to the polls and their ability to do so. One Salafi
group, the Nour Party, backs the draft constitution, but its base of support
among its past sympathizers remains unclear.
Various formulas have been used in the past to
raise turnout figures, but each has limitations.
First, Egyptian leaders made voting compulsory so
that those who failed to vote would be subject to fines. But that law has never
been enforced and hardly seems a tool for inducing popular acceptance of the
constitution.
Second, official vote totals have been inflated,
sometimes shamelessly. Such electoral manipulation was far easier in the past
when nobody took elections seriously. It may still be possible now depending on
how the election is managed.
Third, locally influential or wealthy figures have
mobilized their followers in cities and towns throughout the country to vote,
using a wide variety of inducements. This method characterized elections in
much of the twentieth century. Such influential political figures may be
reemerging, but they are far more likely to be interested in parliamentary
elections (in which they may gain a seat) than in a referendum without
candidates.
Finally, the entire state apparatus—including
public sector companies—has been mobilized to produce voters. The resulting
referenda, characteristic of the plebiscites of former Egyptian presidents
Gamal Abdel Nasser and Anwar al-Sadat, have been designed more to celebrate the
outcome than to determine it. In 2013, such an effort might do more harm than
good to the cause.
But this constitution’s fate likely depends little
on a healthy turnout. Because of the self-referential world of Egyptian
political debates, the reaction will likely be the same regardless of how many
actually vote: supporters will hail the decisive victory of Egypt’s best
constitution ever while its opponents outbid each other in decrying the
violation of everything good and Godly.
What are the next steps in Egypt’s political
transition?
After the constitution passes, there will be
parliamentary and presidential elections. The sequence and rules, originally
laid out in the road map but reopened by the constitutional drafting committee,
have not been announced.
Suspicions abound that the country’s interim rulers
have decided the rules of these elections and tailored them to ensure a
specific result but that they will not make the rules public until after the
constitution is approved. But my strong impression based on a recently
concluded visit is that these rules have not been decided. Virtually nobody is
ready for these elections, so there is no consensus about how to move forward.
The presidential race is dominated by the question
of whether or not Sisi will run. And on this question the indications are very
clear but completely contradictory.
The defense minister has strong reasons not to
run—his candidacy would expose him and the military politically, cement the
reputation of the regime as a military one, saddle him with responsibility for
Egypt’s insoluble problems, and in some ways constitute a demotion from his
position leading the Ministry of Defense. But at the same time, it will be very
difficult for him not to run: there is nobody to fill his shoes as a candidate,
and the military might not trust anyone else in the job. There is also concern
that the presidency, a critical institution in the Egyptian state, would be
weak in the hands of an inexperienced politician.
Parliamentary elections face perhaps an even more
daunting challenge: no party is ready for them. Various political actors are
focusing their attention on writing election rules in a way that promotes their
interests rather than building true national parties.
The sequence and procedures have therefore been
turned over to the taciturn acting president, Adly Mansour, who has given
little indication of how he plans to proceed. Egyptian newspapers are filled
not only with accounts of public consultation but also with speculation on what
is being thought and discussed privately.
But the process of consultation and decision-making
is only just beginning. And these decisions, while fateful, will hardly be the
end of Egypt’s political journey. The country’s deep political wounds are not
healing, calling into question whether it still makes sense to describe the
process, such as it is, as a political “transition.”
This article is reprinted with permission from the Carnegie
Endowment for International Peace. It can be accessed online at: http://egyptelections.carnegieendowment.org/2014/01/02/an-anticlimactic-referendum-in-egypt
Nathan Brown is a non-resident senior associate in the Middle East Program of
the Carnegie Endowment for International Peace, and a professor of political
science and international affairs at George Washington University.