Arab constitutions therefore dedicate most of their attention to issues such as who is responsible for forming governments, in what circumstances parliament can be dissolved, who exercises oversight over security institutions, and other more detailed rules such as candidacy requirements for elections, among many others. More specifically, Algeria’s constitution dedicates 50 percent more space to parliamentary procedure than it does to the rights of citizens. It is also virtually silent as to whether the rights that it does offer are anything more than aspirational.
Constitutional reform in countries such as Algeria and Sudan present an opportunity to modify many of these rules to achieve a number of changes. These could include making concentration of power in the hands of specific institutions much harder, or increasing ways to hold those who abuse executive power accountable.
Reform attempts in Sudan and Algeria
Observers argue that the actual content of Arab constitutions does not matter because the people in charge ignore them. But extensive research shows regional governments actually do follow constitutional rules on governance. One example is that ruling authorities systematically modify term limits rather than openly violate them.
Sudanese and Algerian opposition forces argue that existing constitutions and political systems are unfit — and that they contribute to rising instability in both countries. In response, the military and other state institutions said their opposition to any major changes is ostensibly because they fear the type of instability that has beset Libya, Yemen and others after their own failed constitutional processes.
In Algeria, the military chief of staff, the constitutional council and the interim president all tried to preserve their existing system of government by organizing presidential elections in accordance with the current constitution. It did not work. No credible candidates presented their credentials to the relevant authorities by the legal deadline. The presidential elections are now postponed indefinitely.
In Sudan, the transitional military council sought to preserve military control over the state through the use of violence. However, the response by the international community — including the African Union, the European Union and the United States — was unified in condemning the actions of the ruling authorities. That forced the transitional military council to try to reopen negotiations with the principal civil society organizations that have been leading public protests.
Why constitutional reform matters
The result is that constitutional reform of some type or another is on the cards in both Algeria and Sudan mainly because alternative plans appear to be failing. The challenge that both countries are facing is how to design a process that will determine the extent of reform to placate the protesters.
Sudanese and Algerian political and civilian groups have yet to develop road maps for specific reforms. But with an absence of hard deadlines, this time could be used to build consensus around a plan of action that would rebuild both normative and popular legitimacy in both countries. Many opposition figures take for granted that such a plan should serve the basis for a constitutional reform process as well.
Lessons from the 2011 uprisings
Whatever that plan will be, it would also do well to build on lessons learned that were developed in countries such as Tunisia, Egypt, Yemen and other nations following the 2011 uprisings. First, all actors should be cognizant that debates and negotiations on a country’s constitution create important opportunities — a successful process can bring real benefits to state institutions, including security institutions, and the population at large.
They are also extremely complicated and fraught with risk. When things go wrong — as they have in Yemen — it leads to violent and prolonged conflict. Managing the negotiations so that a sufficient degree of consensus is reached on proposals is key.
Practically speaking, what this means is that significant thought will have to be dedicated to deciding how both countries will organize their transitions. One of the first questions will be whether constitutional reform should precede or follow elections.
That same question weighed heavily on policymakers in virtually all post-2011 transitions in the region, and a number of useful lessons learned have emerged. In countries that are hungry for democracy and that suffer from important democratic deficits, it is often unwise or even impossible to delay elections. At the same time, it would be a serious mistake to allow for a constitution’s content to be entirely determined by a single electoral outcome.
Sudan and Algeria: What comes next?
One solution would be to structure complex, multilayered processes combining negotiations on principles, elections, dialogue and other elements that would allow for elected bodies, experts, civil society groups and others to be involved at various points, through a process that is formally agreed upon by the parties. In addition, both processes should also be underpinned by pragmatism, so mechanisms can adapt to evolving circumstances on the ground, if necessary.
Algeria and Sudan are struggling to reconcile the familiar tension between the need for stability and reform. Both countries now appear to accept that neither of these objectives is possible without the other. That is a reason to be hopeful, even if there is still much that remains to be done to secure a better future for the people of both countries.
Zaid Al-Ali is a senior adviser at International IDEA, an intergovernmental organization working on electoral assistance and constitution building, and the author of “Arab Constitutionalism: The Coming Revolution” (Cambridge 2020).