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Egypt’s Constitutional Referendum

First Published on Vice January 16th 2014 

Inside one of Egypt’s polling stations. Photos by Amanda Mustard

For the past two days, Egyptians have been taking to the polls to officially pass judgment on thelatest iteration of the country’s constitution. As with most “yes” or “no” questions, there are only two outcomes. A “yes” majority would force interim President Adly Mansour to call for elections (either parliamentary or presidential) within a period of 30 to 90 days from the new constitution coming into effect. But, incredibly, there are no guiding procedures in the event of a “no” majority.

That might seem presumptuous, but, thankfully for the interim government, they have history on their side—there’s never been a “no” majority for any constitutional referendum in Egypt’s modern history.

The new constitution is widely perceived as an improvement on the 2012 version, which was drafted under ousted President Mohamed Morsi. But it’s not really all that different from its predecessor. Instead of starting from scratch, as was originally expected, amendments were made to contentious provisions in a long, drawn out process that finally ended with Mansour’s declaration of the referendum on December 12 of last year.

Despite the increased clarity about discrimination and violence against women, as well as a lengthened list of socio-economic rights, the draft still contains a number of articles that have worried analysts—like the one that could potentially weaken labor rights and freedoms—and maintains provisions that protect the continued use of military tribunals for civilians. Nevertheless, some are absolutely certain that the contents of the constitution are exactly what Egypt needs.

“I’ve read the entire constitution!” one man exclaimed proudly outside a polling station in the Cairo district of Shubra. “This is the constitution for Egypt. God bless Egypt and God bless [General Abdel Fattah el-] Sisi! I’ve written my favorite bits from the constitution here,” he smiled, showing off a piece of paper covered in writing.

The bomb-damaged front of the courthouse in Cairo’s Imbaba neighborhood

The opposition Anti Coup Alliance immediately declared their intentions to boycott the vote, worried that pushing for a “no” would somehow legitimize the incumbent powers and their new draft constitution. However, nothing resembling a boycott movement managed to work its way into the public consciousness. Instead, the “Vote Yes” campaign snapped up all the attention and advertising space.

By the first day of the vote, almost every lamppost along Cairo’s major bridges was adorned with a “Yes to the constitution!” poster. And giant billboards tenuously connect a “yes” vote to the 2011 revolution and the June 30 uprising that led to the fall of Islamist President Mohamed Morsi. The message was clear: this isn’t just a vote for a constitution, this is a vote for the revolution and the martyrs.

The first day got off to a bad start, when an explosive device went off outside a courthouse in Cairo’s Imbaba neighborhood, some two hours before the polling stations opened on Tuesday morning.  Although no one was killed in the blast, it prompted an increased security presence—the worry being that there were similar acts planned for throughout this referendum period.

Despite the violent start, voter turnout for the first day was relatively high, with Egypt’s minister of administrative development claiming that 28 percent of the country’s registered voters had cast their ballot that day alone. However, scattered fighting in various governorates turned deadly for some—the Interior Ministry put the death toll at 12 at the close of the first day’s voting, and 250 were arrested.

Crowds outside a Cairo polling station with a poster of General Abdel Fattah el-Sisi

On state TV, multiple feeds from polling stations all over Egypt showed long lines, with everyone smiling or waiting patiently.

Outside a school in the affluent neighborhood of Zamalek, a mother and her two teenagers strolled out of the polling station. Their fingers still wet with the voting ink, they responded to a question about how they had cast their votes. “Of course we all voted yes!” exclaimed the mother, Dina, apparently taken aback that there was even a possibility someone might vote no.

“This constitution is better than the one before. I didn’t vote in the referendum last year, but I knew it was my duty this time. It really is much, much better,” explained her son, Abdel Aziz, before she interjected: “There is justice here,” she said. “There is a future!” Her daughter Noor nodded in approval to what her brother and mother were saying. “We want everything to get better and this is the first step to that. No more fighting, a better economy, some stability,” she said.

“Stability” is a promise that seems to come back around during every voting period, and after three years of turmoil, death, coups and changing governments, the offer is more tantalizing now than ever. “The most important thing for Egypt right now is stability,” explained off-duty officer Mohamed Abdelmaher outside an Imbaba polling station. “Political stability, economic stability, social stability. Stability is absolutely the cure for all of Egypt’s problems.”

He held his young daughter’s hand tightly as he talked about the future of his country, repeatedly bringing up the need for stability and security. “I just voted ‘yes’ in the hope that there’s no more of that,” he said, pointing to the damaged facade of the courthouse. “God willing this is what the country needs.”

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Crisis Control: Morsi’s latest Non-Concession

“No ruler of any kind, qua ruler, exercises his authority, whatever its sphere, with his own interest in view, but that of the subject of his skill.  It is his subject and his subject’s proper interest to which he looks in all he says and does.” – The Republic

That Mohamed Morsi is partial to reading Plato in his spare time is unknown, but his management of the situation – since his ‘power-grabbing’ November 22nd Constitutional Decree until its annulment late on December 8th – suggests, at the very least, an affinity with Platonic sovereignty as well as a sly nod to Niccolo Machiavelli.

After a 9-hour ‘national dialogue meeting’ that excluded both Mohamed Morsi and the main opposition figures of the National Salvation Front (NSF), it was announced that the decree which had caused so much outrage was to be annulled.  International Media celebrated this ‘concession’ as a major breakthrough in the political impasse.

Morsi’s main defence on the appropriation of his vast powers was in a need to protect and speed up the process through which the country’s governmental foundations could be laid, and in so doing, allow Egypt’s real journey towards prosperity and justice to begin.

In other words, he deemed that due process and the concept of democracy outside of the ballot box – never mind public opinion – could take a backseat while he frogmarched the masses towards a future they didn’t even know they all wanted.  Within Morsi’s decree, the most important was the sudden unassailability of the contentious constituent assembly.

The deteriorating, and suddenly untouchable, constituent assembly – almost exclusively made up of old Islamist men – worked long hours to rush through a final draft before the Constitutional Court could pass a verdict on the Assembly’s representative legitimacy.

The question of legitimacy lay in the assembly’s make up: It’s 100-strong members had been proportionally drawn from the lower house of parliament; itself dissolved 5 months prior after it was discovered that independent seats had gone to party-affiliated candidates, such as the Muslim Brotherhood’s Freedom and Justice Party (FJP).

The actual contents of the final draft seemed to invoke criticism from nearly every group bar those affiliated with the FJP. “A constitution that eliminates rights and limits freedoms. No to Dictatorship” was a message printed in 11 independent newspapers.  The full front page of the Egypt Independent newspaper this week simply read, “We object to continued restrictions on media liberties, especially after hundreds of Egyptians gave their lives for freedom and dignity.”

FJP senior advisor Gehad El-Haddad was kinder in his analysis, “It’s not perfect, but I think it s a very good basis from which we can move forward” although even he lamented the “compromising language” in some of the articles.

Morsi and the Muslim Brotherhood appeared to have overestimated the political torpor of the Egyptian populace and overplayed their hand: a strangely naïve move that may be put down to a sudden surge in hubris after his praised role in the Gaza-Israel peace brokerage.

The masses came out as protests swept through the governorates. Opposition figureheads capitalised on the situation, uniting to create the ‘National Salvation Front’ (NSF) and gaining popular acceptance. In what is a symbiotic relationship, the people give the opposition figures the critical mass necessary to put demands to Morsi, while the protesters could now demonstrate under the political aegis of the NSF and avoid being easily labelled ‘heretical traitors’.

Meanwhile the Pro-Morsi side came out in support of the President.  The Muslim Brotherhood wanted to show the watching world that they too had numbers and outside Cairo University tens of thousands of pro-Morsi Egyptians showed up and duly answered the call.

Both sides rallied peacefully when separated, but the violence that eventually materialised 5 days ago in Heliopolis was inevitable.  The Muslim Brotherhood called on a march to where anti-Morsi protesters were demonstrating and the two-sides finally met – 8 people dying as a result.

The NSF said they would only enter into dialogue with Morsi after an annulment of his 22nd November decrees and a postponement on the referendum.  Morsi began borrowing from Mubarak’s playbook with paranoid conspiracy talk of “fifth columnists” before eventually succumbing to the pressure from the street and rescinding his decree of judicial immunity – but is this really a concession?

Those placated are the armed forces and the judges: Morsi had time to pass a law that grants the armed forces power of arrest and detainment of civilians (effective martial law); and the judges will be pleased that he is no longer above the law (a point that had them initially threatening to boycott supervision of the referendum, thus jeopardising its legitimacy).

The major point to note is that the referendum is still due to take place on December 15th.  What is arguably an illegitimate constitution has bypassed judicial scrutiny via Morsi’s initial decree and is now to be judged by the ballot box in 6 days time.

This is the reason why many in the opposition say there has been no concession.  The main point of contention was the validity of the assembly and any draft they released.  This point remains.  Instead, Morsi has rescinded his powers a week early (for it was due to expire after the voting anyway) and in so doing, offered a superficial misdirect while preserving the referendum.

Whereas the Muslim Brotherhood are, as an Egyptian journalist for Bloomberg put it to me, “very good at the ballot boxes”, the opposition are divided in whether to vote ‘no’, or to boycott what they see as an unreservedly illegitimate referendum.

In a press conference last night the NSF again announced their “total rejection” of the draft constitution and the referendum.  Never explicitly calling for a boycott or a vote saying ‘no’, they instead reiterated their call for peaceful protests to continue.

Therein lies the problem of the opposition forces, whether now or 20 months ago, they are in unison when objecting, but divided when it comes to offering answers, thereby giving the object of their ire more room for manoeuvre.  Room that, in this case, Morsi is fully capitalising on.

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Constitutional Crisis

Banner in Tahrir by Mohamed Mahmoud St reads "Muslim Brotherhood Forbidden Entry"

Banner in Tahrir by Mohamed Mahmoud St reads “Muslim Brotherhood Forbidden Entry”

President Mohamed Morsi’s opposition was given extra impetus today after the hugely controversial constituent assembly chose to ignore their two-month extension to rush through their final draft constitution.  The process was expedited in an uncharacteristic burst of energy from the assembly with more than 50 articles debated since Saturday.  Yesterday the assembly approved all 234 articles, one by one, after a marathon voting session that went on into the early hours of Friday morning.  Under Article 60 of the March 30th Constitutional Declaration, the referendum for the draft’s ratification is due to take place within 15 days.

Morsi has promised to renounce his extra powers once a constitution is in place and a lower house has been elected.  In what many see as yet more political strong-arming from Morsi and the Muslim Brotherhood, they see the choice offered them as lose-lose situation: vote no and continue to live with a President who holds ‘dictatorial powers’, or vote yes and have a constitution that many feel is unrepresentative and inadequate.

Mass walkouts and resignations from liberals, Christians and the journalist syndicate meant that only 74 of the original 100 members were at the final day’s proceedings, 51 of them from various Islamic groups.  Hossam al-Gheriany, the chairman of the assembly, started the day by adding 11 reserve members to the assembly’s members (the majority from the Muslim Brotherhood or Salafi Nour Party) bringing the total up to 85.  Of these 85, there was not a single Christian and only 4 women, all of them Islamists.

At the beginning of the day, the much-discussed article 2, that the principles of Islamic Sharia are the primary source of legislation, was passed unanimously.

There also appears to be inherent contradictions in several of the articles, especially pertaining to freedom of expression.  Article 31 prohibits “insulting the prophets”, article 44 prohibits disparaging the “dignity of the human” whilst article 43 somehow guarantees the freedom of expression.

A praiseworthy edit was made to article 36 with the explicit addition of “torture”.  It now stipulated that the torture and humiliation of detainees would not happen, adding that they must be held in a morally and ethically appropriate place.

In contrast, Article 198, on the military justice system, accepted the military trials of civilians “only in crimes that harm the armed forces”.  The military trial of civilians is a phenomenon many Egyptians hoped would be banished.

Heba Morayef, Human Rights Watch Egypt Director, pointed out that the highest number of objections came with regards to Article 219 defining the principles of Sharia.  The Salafis in the assembly wanted it moved to the front of the constitution as an addendum to article 2.  After some discussion it remained where it was.

Many of the articles drew fire from Morsi’s opposition, specifically with regard to the semantics.  But others were more lenient with regards to some of the more obtuse wording.  “Some of the language is compromising, which is unfortunate, but they are trying to appease everyone with this constitution,” says Gehad El-Haddad, Senior Advisor to the Muslim Brotherhood and the Freedom and Justice Party.  El-Haddad conceded that the constitution was not perfect but replied “look at the American or French constitution, were they perfect when first drawn up? How many amendments do they contain?  This constitution is a good basis from which we can move forward”.

Nobel Peace Laureate Mohamed ElBaradei seemed certain the constitution was destined to fail, “It will be a part of political folklore and will go to the rubbish bin of history” he said in an interview on private al-Nahar TV.  El-Haddad, meanwhile, remained “optimistic” of its chances in the referendum.

The schism between Morsi’s proponents and opponents was further highlighted when both sides called for two separate rallies to showcase their support.  The opposition inundated the square once again today.  ElBaradei and ex-presidential candidates Amr Moussa and Hamdeen Sabahi made an appearance and announced that they would be sleeping on Tahrir.  The Muslim Brotherhood plan to hold their million-man march outside Cairo University tomorrow.

Initially the plan was for the Brotherhood to come to Tahrir tomorrow, but the obvious clashes that would result meant that they had to make a late change in venue.  The Brotherhood had already been forced to call off a march to Tahrir last Tuesday in the face of the massive opposition rally that flooded the square.  Tahrir Square, the symbol of Egypt’s revolution, has denied the entry to the Muslim Brotherhood twice in a week.

Update: State TV has reported that Morsi went to Sharbatly mosque today for Friday prayers and was heckled.  The Imam attempted to bless the presidential decrees and reportedly compared Morsi to the Prophet, causing outrage in the mosque where Morsi was trapped for an unspecified time.

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Hundreds of Thousands Protest Morsi Decree

First published in the New Internationalist

A copt speaks from the stage

On Thursday 22nd November 2012, Egypt’s President Morsi issued new constitutional declarations; then all hell broke loose.

The stock market plunged a staggering 9.57 percentage points by Sunday.  The fighting between the CSF (Central Security Forces) and protesters intensified.  Judges around Egypt have gone on strike.  22 Egyptian Rights Organisations unequivocally rejected the declarations in a joint statement.  18 political parties and groups called on Morsi to rescind the declarations. Yet more members of the constituent assembly resigned.  3 protesters have died.  Today, demonstrations swept through the governorates as hundreds of thousands of Egyptians made it clear that they were not indifferent to the matter.

Morsi’s declarations resulted in: the removal of the despised prosecutor general; the retrial of anyone convicted, from the revolution to his appointment as president, with regards to protester deaths; the immunity of the Shura council (upper house of parliament) from dissolution; the immunity of the constituent assembly from dissolution; the authority for the President to take any measures he sees fit in order to “preserve and safeguard the revolution”; and the immunity of any decree made by the President from any body, judicial or otherwise.

From a man that already held executive and absolute legislative authority, this attack on the judiciary has raised eyebrows and a fair few tempers too.  “The balance and separation of powers in Egypt has been utterly demolished” say 22 Egyptian Rights Organisations in a joint statement released Saturday.  They assert that Morsi has contravened the goal of the revolution – democratisation – and that the arrogation of these unparalleled powers portends a “bleak future for Egyptian rights and liberties”.

Morsi defended his decision by saying he would give the powers back once a constitution and people’s assembly (lower house of parliament) was in place.  In a statement he reiterated “the temporary nature of those measures, which are not intended to concentrate power, but to avoid…attempts to undermine democratically elected bodies and preserve the impartiality of the judiciary”.  Many were less than convinced.  Mohamed ElBaradei, Nobel Peace Prize recipient and head of the Constitution Party, cautioned that Morsi had appointed himself “Egypt’s new pharaoh”.

18 political opposition parties and groups joined together to form a “National Front” tasked with opposing the declarations.  Among their members is ElBaradei, and ex-presidential candidates Hamdeen Sabahi and Amr Moussa.  On Monday, they called on Morsi to annul the declaration and refuse to have any dialogue with him until he has done so.  The opposition parties called for a massive demonstration to be held in Tahrir Square today and the people have duly delivered with the square as full as it has ever been.

Tents were set up in the middle of Tahrir Square as soon as Morsi’s declarations were made with people promising a sit-in protest until the decision was overturned.  One of the first to arrive was 79 year-old Khaled Hamza a play writer and outspoken communist – Hamza spent 5 years in prison during Nasser and Sadat’s premiership due to his activism.  “Mohamed Morsi-Mubarak is a dictator now, but he has even more power than a dictator” said Hamza, his insistence on referring to Morsi as ‘Morsi-Mubarak’ emphasised this view.

Beside banners saying “Egypt for all Egyptians” (perhaps an allusion to the Islamist-heavy make up of the controversial Constituent Assembly) and while the crowd chanted “One Hand” Hamza explained the aura of unity he felt, “Today we are united in our anger at Morsi-Mubarak, nobody would care if I told them I am a communist now”.

By evening the Square was completely packed, chants of the initial revolution were now being directed at their incumbent president, “Down with the regime”.  But there were newer ones too “Morsi is Mubarak”, “Morsi is the new Pharaoh”.

Fighting with the CSF has been constant in central Cairo since the 1-year anniversary of the Mohamed Mahmoud St clashes 8 days ago.  267 people have been detained in connection with the anniversary clashes and 3 have died during protests this last week.  Another large concrete wall has been erected – a not unusual sight in downtown Cairo – blocking off Kasr El Aini St. off Tahrir Square to stop the fighting; instead it has just moved to Simon Boulevard.

It’s very clear that Morsi has to deal with this soon, before it gets out of hand.  The masses are angry and the people are united.  They realise that even if Morsi is honestly trying to speed Egypt into a new era of freedom and democracy, using dictatorial powers seems a slightly perverse way to get there.

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Super Morsi

In the afternoon of Sunday 12th August, President Mohammed Morsi changed the landscape of Egyptian politics by sending a wrecking ball of rebalance crashing through the Supreme Council of the Armed Forces’ (SCAF) top brass.  A presidential spokesperson announced the changes on state media.  Once again, the protean nature of politics here meant that no one bar those involved in the close-door meetings had any idea what was about to be announced.  Once again, it was news straight out of left-field (this is so often the case that one wonders why we do not crane our necks in that direction more often).

First, the 17 June constitutional addendum posited by the SCAF were abrogated, thus giving Morsi the powers that the SCAF had assumed, including the rest of his executive powers, legislative powers (while the parliament remains dissolved) and power to appoint a new constitutional assembly in the event of failure with the current one.

Second, Field Marshall Hussein Tantawi, the Minister of Defence and General of the Armed Forces, and Sami Aman, the Army Chief of Staff, were fired, or “retired” as it was euphemistically put. In the place of the much-hated Tantawi, Morsi appointed Abdul-Fatah El-Sisi, who was the Head of Military Intelligence.  With a quick Google search it appears that El-Sisi has attempted to justify the ‘virginity tests’ that were used on Tahrir Square female protesters.  Oh Dear.

Third, there was to be a change in other Military personnel positions:
· Mohab Memish – Commander of the Navy was now head of the Suez Canal Authority
· Reda Hafez – Commander of the Air Force was now the Minister of Military Production
· Mohammed El-Assar – Head of Armaments was now Assistant to the new Minister of Defence.

Fourth, as his new Vice-President, Morsi appointed Mahmoud Mekki, who was deputy head of the Court of Cassation, and according to a few journalists and Egyptians on twitter, an old reformist judge who is well liked if not terribly well known.

In one fell swoop, Morsi finally showed his Egyptian people that he wasn’t as pusillanimous as he seemed.  He had been accused by many of being far too unctuous when addressing Tantawi, of being far too slow in implementing the vast reforms he had promised to deliver within his first 100 days.  Yet in one afternoon, through one press announcement, he managed to remove from their posts: the Minister of Defence and General of the Armed Forces; the Army Chief of Staff; the Commander of the Air Force; and the Commander of the Navy.  If any of us thought of Egypt as a military-run deep state, it looks as though that is no longer the case.

I applaud, through shock, the temerity of Morsi in attempting to wrestle the power back from the military.  I had watched his first 40 days as president with a sigh of resignation.  He seemed to be playing to the rules drawn up by the military and things looked to slump back to the same low plains of inertia and populous indifference of the Mubarak-era.

However, by removing from power the incredibly powerful and disobliging figure of Tantawi he seems to be showing his strength, and for once at the right time.  Whereas a month ago he attempted to reconvene the Parliament in direct opposition to the highest judicial ruling – and as such would be breaking the sacrosanct separation of powers – this time he had the authority and took his opportunity.

With the disaster in Northern-Sinai making the military look immensely impotent, I would not be surprised if this was what Morsi used to help consolidate the dislike many within the SCAF already harboured for Tantawi, and garner the away-support (if you will) necessary for his dismissal.  Either way, he is gone, as are the other four major players of the SCAF.  Hopefully, without the bipartisan struggle between the Government and the Army, Morsi can begin to address the major problems that are afflicting the country with a little more success.

In spite of these ‘victories’, one cant help but be a little disconcerted regarding the manner by which he managed his first ‘victory’ – the abrogation of the SCAF’s addendum and the implementation of his own.  The new constitutional declaration was made up of 4 points, but it is only the second and third that matter and they are as follows:

“2- Article 25, clause 2 of the 30 March 2011 Constitutional Declaration is to be replaced with the following text: “And he [the president] will undertake all his duties as stipulated by Article 56 of this declaration.” [Article 56 outlines the authorities of the Supreme Council of the Armed Forces and grants the latter full executive and legislative powers, now held by Morsi.]

3- If the Constituent Assembly [tasked with drafting a new constitution] is prevented from doing its duties, the president can draw up a new assembly representing the full spectrum of Egyptian society mandated with drafting a new national charter within three months of the assembly’s formation. The new draft constitution is to be put before a nationwide referendum within 30 days after it is written. Parliamentary elections are to be held within two months of the public’s approval of the draft constitution.” – via Ahram Online

Whereas in the original, clause 2 of Article 25 meant that Morsi would only take up the first clause of article 56, (which delimited his executive powers) now he has gained full executive and legislative powers and he has also taken the SCAF’s power with regards to the constituent assembly (point 3 in his constitutional declaration).

When the SCAF made their addendum on the 17 June, many called it a ‘power grab’ and a ‘soft coup’.  It seems Morsi has struck back at the supra-presidential military using their exact tactics.  The journalist Bel Trew pointed out that he even lifts the same sentences from the SCAF version “If the constituent assembly is prevented from doing his duties…”

Now, rather than the military holding some executive powers and all the legislative powers, Morsi holds all of both plus a latent constitutional authority.  Two of the three powers (Judicial remains intact and separate) are within his authority; all achieved via a constitutional declaration that was passed without referendum.  It may be the case that this was exactly what was needed to wake this country from its slumber but I still object to the passing of a new addendum without some form of plebiscite.  The arguments of Fredrick the Great’s Enlightened Despot never persuaded me of the credibility of such actions.

Either way, the constitutionality of his declaration can very easily be appealed and may end up being sent all the way to the High Constitutional Court (HCC) just as it had been when he attempted to reconvene parliament.  But it seems that with the successful beheading of the SCAF, there is a momentum behind today’s actions that make them unstoppable.  It is the immediate future up until parliamentary elections in September that one must remain wary.

Morsi gave a speech, not an hour ago, saying, “Our nation has been marginalised for too long.  Today, our nation is coming back again after a great revolution” before claiming, “my decision today is not targeted at anyone.  It is to pump new blood, new leaders to raise our flag”.  Although even the blind can see that he did specifically target the military, he was very cautious in not sidelining the minorities who fear that an Islamic state would marginalise them further and who might see today’s actions as a presage of future repression.  In a speech mostly about Ramadan, he still managed to try and stress that it was not a decision to further one group or target another, rather to revamp an ossifying situation.

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