El-Sisi accompanies Egypt into the post-constitutional era

Egyptian President Abdel Fattah El-Sisi, Source: thepolitic.org

On April 20th, Egyptians woke up to a surprise: it was referendum day! Just a few days earlier, talks of the referendum on constitutional changes were just vague rumors lacking any credibility. Yet, in a few hours, a draft of the changes that would vastly expand the powers of Abdelfattah El-Sisi, Egypt’s president since 2014, and allow him to run for president for 10 more years was approved by Parliament and put out to popular vote almost immediately.

The questionable hurry in the procedure is neither the result of overenthusiasm by members of parliament, nor of the urgency of those changes. President El-Sisi still has 3 years of his term remaining before a term extension is necessary and has, thus far, not faced any hurdles whenever he decided that the powers granted to him by the - already generous - constitution were not enough. Yet many speculate that Egypt’s government this week identified a sweet spot in public mood, right before it gets affected by the planned fuel subsidy cuts and the usual inflation to reflect the high levels of consumption in Ramadan; both factors may have had a negative influence on the referendum outcome. Moreover, the political pace is about to be slowed down by Easter break, followed immediately by the holy month of Ramadan, in which fasting Egyptians are tired and unlikely to queue for a referendum, and after which Egyptians escape Cairo’s summer heat for coastal cities and Parliament goes on its summer break.

El-Sisi’s express referendum did not only come at the cost of the government’s image in global press coverage, it also came at the cost of breaches of the constitution and voting laws. Article 157 of Egypt’s 2014 constitution obliges the President to call for a national referendum on each article that is to be amended in the Constitution individually, in order to permit citizens to accept or reject individual parts of the reform. This was not the case as Egyptians cast their ballots this week, possibly in an effort to hide specific parts of the changes. In addition to that, laws governing the voting procedures required that Egyptians living abroad cast their ballots before voting in Egypt starts. Due to the hurried nature of preparations, this was not possible this time.

One could get the impression that El-Sisi’s government has something to hide. In fact, the changes left legal experts wondering if El-Sisi is at all interested in presenting himself as a president that respects the judiciary system. A major component of the constitutional changes was the proposed reforms on the relationship between the executive and the judiciary systems. An amendment of Article 185 would give the President the right to appoint all chief judges, including that of the Supreme Court. Meanwhile, article 189 would be amended to allow the president to appoint the Attorney General, a power formerly held by the independent High Judiciary Council.

Another major reform concerns the relationship between the Army and the government, which is to be interpreted in light of the coup d’état of 2013, in which El-Sisi himself toppled former President Mohamed Morsi. Already looking ahead, this year’s reforms amend Article 200 of the Constitution, giving the Army the right to protect the democratic and secular nature of the State; a right that is not to be taken lightly following the 2013 coup d’état.

Unequivocally the most important amendment of all, however, is the amendment of Article 241, which governs the term limit of the President. The new amendment of Article 241 changes the presidential term from 4 years to 6 years retroactively, while exceptionally granting El-Sisi the right to run for a third term, instead of the set term limit of two terms. Before the amendments, El-Sisi would have had to leave office in 2022, meanwhile he can theoretically stay until 2032 given the amendments. This amendment is also a clear breach of Article 226 of the 2014 Constitution, which governs constitutional amendments. Article 226 explicitly forbids the amendment of the presidential term duration and term limit. Other amendments include the establishment of another House of Parliament (Article 248) and the introduction of a 25% women quota in both houses of Parliament and a “consideration” for the inclusion of farmers and the working class in the House of Representatives.

The (predictable) results of the referendum have been published less than 24 hours after polling stations closed, noting that no electronic polling system is in place for the 61mn voters. El-Sisi’s constitutional amendments passed by a whopping 88.83% with a voter turnout of 44%, one of the highest in the country’s history. Anyone on the ground can report that neither the turnout nor the percentage of approvals is realistic, but this does not seem to bother the government. Looking at the bigger picture, one can conclude that El-Sisi has taken Egypt to the post-constitutional era. It is simply no longer of interest to the government to appear internationally as if it respects the Constitution or local laws. Breaches of election law and clear breaches of two articles of the Constitution leave us wondering whether El-Sisi can get away with extending his own term duration and term limit, as well as holding elections that do not comply with the relevant regulations. This is a new and very dangerous level of military dictatorship, and it is vital that the international community holds El-Sisi accountable for this.