North Africa, West Asia

How Algeria’s new regime won a referendum but lost legitimacy

Why did the 2020 constitutional amendment in Algeria fail to give Tebboune’s regime the legitimacy it desperately needs?

Rayane Anser
13 November 2020
Algerians vote to amend the constitution
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Picture by Billal Bensalem/NurPhoto/PA Images. All rights reserved

In a historically low turnout, breaking even the record set by the controversial presidential elections of December 2019, the 2020 referendum on the constitutional amendment in Algeria attracted less than 24% of the electorate. The amendment did pass with 66.8% of voters voting ‘Yes’, but the numbers are far from what the regime desires and certainly nowhere near what it needs to claim any form of legitimacy.

The constitution has long been a tool to solve issues incumbent presidents and their regimes face in Algeria. Whether it was a crisis of legitimacy, a threatening popular movement, or the president simply wished to exercise more powers, there was nothing a constitutional amendment could not fix. Or so it seemed.

Tebboune’s constitutional amendment of 2020 is no different from its predecessors’. Talk of such an amendment came on quite early and made up a big part of Tebboune’s presidential campaign, and in fact, that of other presidential candidates.

This goes to show how easy passing an amendment by an incumbent president is seen to be. The same rhetoric was used under the Bouteflika reign who was not stingy with amendments himself.

Bouteflika amended the constitution in 2002 in the face of popular unrest – the Kabyle Spring in 2001- then he amended it in 2008 to lift presidential term limits and allow himself a third and a fourth term, and finally in 2016, (although whether he personally was behind it is quite debatable considering his health conditions).

The 2016 amendment was a promise that Bouteflika had made in 2011 to contain popular discontent and prevent Algeria from joining the ‘Arab Spring’. Certainly, amending the constitution is not the last resort or the hard choice. In Algeria, it is the first thing to turn to in attempting to solve any dilemmas the regime faces.

Tebboune’s talk of a constitutional amendment was therefore no surprise considering the sensitive environment the presidential elections of December 2019 were being held in. The Algerian popular movement, better known as ‘Hirak’, was showing no signs of stopping. All five presidential candidates vowed they were there to offer change from the corruption of the Bouteflika regime, and that their first order of business would be to change the constitution to allow a ‘new republic’ to emerge.

It is a depressing rhetoric that a promise for change and progress in Algeria gets automatically labelled ‘the new republic’, or even worse, ‘the second republic’, in an outstandingly embarrassing mimicry of the French.

This time, however, amending the constitution failed to give the desirable outcome for the regime.

While the amendment does offer change, the real question is whether or not it is a significant and desirable change

For weeks, the regime in Algeria sought to mobilize voters to participate in the referendum on the new constitutional amendment of 2020 which was scheduled on 1 November. The date of the vote was chosen for its symbolic flair as it is the day the Algerian war of independence against France erupted in 1954. Banners calling out for people to vote in the referendum conveniently put the two dates side by side with a caption that reads: “November 1954 ‘November of liberation, November 2020 ‘November of change.’“

While the amendment does offer change, the real question is whether or not it is a significant and desirable change. A quick look at some of the proposed changes can help us make sense of why the referendum went so horribly for the regime.

Inclusive constitution making?

Before delving into the details of the proposed amendment, it might be insightful to look into the process of its making. To start off, the constitutional amendment was not only instigated by the new president himself, but he also appointed all the members of the constitutional committee tasked with drafting it.

Abdelmadjid Tebboune had promised constitutional change as part of his presidential campaign and soon after he was elected president, he put together a committee of constitutional law experts and assigned it with devising a draft along seven major lines. This step was relatively controversial as it is not only the same way constitutional amendments were designed previously under the rule of Bouteflika, but the appointed president of the committee, a University of Algiers Professor by the name of Ahmed Laraba, was himself behind Bouteflika’s constitutional amendment of 2016.

The first draft produced by the committee was published in May, five months after the committee was first set up. The door was then open to different political bodies and individuals to send in proposals and contributions. Indeed, the dedicated webpage on the presidency’s website asserts that the committee received a total of 610 files containing over five thousand changes proposed by a variety of civil society agents, political parties, national figures, academics and even ordinary citizens.

However, it was abundantly evident that the proposed changes were superficial and mostly preoccupied with language and phrasing at the expense of content and merit. Those proposals that did engage with pressing issues and suggested substantial alterations did not make the final text. This goes to show that the core of the draft, as anticipated, remained that put forward by the committee under the clear and direct instructions of the president.

Realities of change

Examining the amendment gives way to a number of major changes. The constitutional text witnessed a significant expansion in volume with the proposed amendment containing 240 articles against 218 in the 2016 constitution. This can be seen as a drawback since lengthy constitutions tend to be more vulnerable to future alterations and manipulation. Moreover, the scale of the change can be misleading. Many changes are merely cosmetic and demonstrate little to no response to the aspirations of the Algerian people.

Indeed, despite the initial promise of cultivating the principle of limitation and separation of powers, the amendment kept the overwhelming favouritism of the executive branch. Algerians had protested against a tyranny of a president who stayed in power for four consecutive terms because he was able to manipulate the constitution to allow it. The amendment preserved this kind of domineering power to the president with Article 219 stipulating that the president preserves the right to initiate constitutional change. Overall, the presidency kept all the major powers it enjoyed in the old constitution and was even assigned with new ones.

Journalists and activists of the very Hirak this amendment commemorates are being detained left and right

Similarly, the amendment established a constitutional court taking over from the constitutional council. The council had lost its credibility firstly when it failed to exercise the authority it had to declare Bouteflika unfit to rule in the aftermath of his stroke in 2013, and more outrageously, for going along with an unconstitutional fifth term until it was halted by popular unrest.

Whereas the council clearly operated under the heavy influence of the presidency, the constitutional court demonstrates a setback rather than an improvement on it. With the council, the president appointed one third of the members including the president of the council, whereas with the new court, the president appoints one third (4 members) and oversees the process of appointing half (6 members).

On the rights and liberties front, the changes advanced were artificial, and reality paints an even grimmer picture. Algerian journalists and activists marched to free the press and reclaim freedom of speech, and while Articles 51, 52 and 54 celebrate such rights, journalists and activists of the very Hirak this amendment commemorates are being detained left and right and given outrageous sentences for their involvement in the popular protests, for criticising the government or for expressing opposition. So even with the changes that look good on paper, the Algerian public has no faith the regime intends to implement and enforce them.

Perhaps the most problematic and controversial change the amendment put forward, a change that one struggles to see any support or endorsement of, is assigning the president with the prerogative to deploy the Algerian army abroad. This inexplicably bad move has probably cost the regime the most votes as even the most winnable of Algerian votes would not be happy to send off Algerian soldiers (significantly made up of conscripts) onto foreign endeavours.

The amendment fell incredibly short of the aspirations of the Algerians who marched in a weekly Hirak for over a year

It comes as no surprise then that the constitutional amendment was publicly denounced. What is worth noting is that the regime was willing to announce what seems like the real numbers, something that Algerians were not used to during the two decades of Bouteflika rule or even before. Algerian elections, presidential and referendums alike, are famous for putting forward absurd victory numbers which are undoubtedly fraudulent.

Bouteflika was re-elected all the three other times with an over 80% victory in presidential elections. Experts have long argued that as a rule of thumb, such numbers indicate an absence of free and fair elections and that such regimes are simply non-competitive. If the public had more faith the elections would actually be reflective of the will of the people, turnout could have been much higher, and the vote could have tilted towards an overwhelming rejection of the amendment.

To no real change, Tebboune carried on the tradition that has accompanied Algeria’s modern history whereby every president is bound to alter the constitutional text while in office. The amendment fell incredibly short of the aspirations of the Algerians who marched in a weekly Hirak for over a year. Despite the constitutional amendment passing, it is safe to say that it did not solve but further complicated things for Tebboune’s regime.

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