Police officers wearing face masks stand guard as demonstrators carry a national flag during an anti-government protest, following the coronavirus outbreak, in Algiers, Algeria March 6, 2020. REUTERS/Ramzi Boudina

Algeria Change within Continuity: The 2020 Constitutional Revision

In Arab Countries, International Advocacy Program by CIHRS

On 30 December 2020[1], after about two months of hospitalization in Germany, Algerian President Abdelmadjid Tebboune promulgated a constitutional revision initiated in January 2020, promoted as a “cornerstone for the building of a new Republic” and a response to the demands of the popular protest movement known as the Hirak. In a context of pandemic and crackdown on civic space, and following contested presidential elections in December 2019, authorities have advanced an undemocratic top-down constitutional revision that has lacked broad support across Algerian civil society and within the Hirak  popular protest movement.

The revised constitution, as published on 16 September 2020[2], was submitted to a referendum on 1st November. While officially 66.8% of voters approved the revision, the process appears to have been largely discredited by a historically low official turnout rate of 23.7%, with some observers suggesting the real turnout rate was as low as 10%. In addition, members of the army may have voted against the revision, suggesting a rejection from within the military institution in spite of its repeated advocacy in favor of the revision. Copies of fabricated ballot counts were also reportedly found by several citizens after polling centers were stormed ahead of the vote. According to the National Committee for the Release of Detainees (CNLD), at least fifty individuals were arrested or detained in the days preceding the vote, several of them in relation to marches or protests opposing the referendum.

The following briefing presents the context of crackdown on civic space in which the constitutional revision took place, and the major shortcomings of the revision process that spurred wide criticism across Algerian and international civil society, such as the lack of participation, inclusivity, transparency, and sovereignty. Lastly, the briefing lays out the most notable aspect of the text itself with regards to human rights, including the constitutionalization of the army’s political role, the presence of weak guarantees and dangerous restrictions on rights and freedoms, and the perpetuation of the executive authorities’ domination over all institutions.

1- A crackdown preventing safe political dialogue

Developments of the past year indicate that Algerian authorities have been taking advantage of the COVID-19 pandemic to further criminalize fundamental freedoms and therefore prevent any safe political dialogue from taking place on the constitutional revision or any other matter, as illustrated by the detention of three journalists in April based on their reporting of the coronavirus pandemic or the arbitrary detention of about 500 peaceful protesters on 19 June 2020.

⊛ Increased criminalization of freedom of expression and assembly

Over the last year, while pro-democracy Hirak activists voluntarily chose to halt their weekly protests in March 2020 due to COVID-19, Algerian authorities have accelerated the arbitrary prosecution and harassment of civil society and journalists, based on offline or online publications or on their alleged affiliation to the protest movement. Aside from undermining public freedoms, it has also endangered the health of individuals detained given the heightened risk of contracting COVID-19 in prison.

The case of Walid Kechida is particularly significant in this regard. Founder of the satirical Facebook page “Hirak Memes”, he was placed in custody on 27 April for “offense to a public body”, “offense to the President of the Republic” and “offense against the precepts of Islam”. He was sentenced to three years in prison on 4 January 2021 after more than eight months of pre-trial detention. Walid Kechida was also the subject of a hate campaign and incitement to murder on social media, which were not prosecuted.

As of 5 January 2021, there are at least 86 prisoners of conscience in detention according to the National Committee for the Release of Detainees (CNLD), a number that has doubled in the second half of 2020. According to lawyer Abderrahmane Salah, member of the Collective of Lawyers for the Prisoners of Conscience, there are about one thousand prosecutions against individuals stemming from the exercise of their free expression or assembly, including 63 on charges of offense to the President in the past year. According to Salah, the charge of offense to the President had previously only been used three or four times under the Bouteflika presidency.  

On 16 September 2020, the United Nations Special Procedures called on Algeria to “halt the arrest and detention of political activists, lawyers, journalists, and human rights defenders, as well as any person who expresses dissent or criticism of the government”.

⊛ Amendments of April 2020

The criminalization of fundamental freedoms is carried out using a Penal Code drafted in an imprecise way, contrary to the principle of legality, and applied by a judiciary structurally subject to executive authorities, as illustrated by the sanctioning of deputy prosecutor Mohamed Belhadi and the summoning of judge Saad Eddine Merzouk. Peaceful activists and journalists have been sentenced based on vague charges such as “weakening the morale of the army” (Article 75), “inciting an unarmed gathering” (Article 100), “undermining the integrity of the national territorial” (Article 79), “offending public bodies” (Article 144; 144bis and 146) or “offense against the precepts of Islam” (Article 144bis 2), all stemming from their exercise of the right to free speech or peaceful assembly.

In this context, on 28 April 2020, the Parliament passed vaguely worded amendments to the Penal Code (law 20-06) allowing for people exercising free speech to be charged with “spreading false news” susceptible to undermining security and “public order”, punishable by one to three years in prison for a first offense (Article 196bis). According to the state-owned agency APS, the amendments aim at incriminating “new forms of criminality” and filling a legal vacuum in the management of crisis, such  as the COVID-19 pandemic. Under Article 144, individuals can also be sentenced up to three years in prison for undermining the “honor, sensibility or respect” of a public official, by “words, gestures, threats, sending or delivery of an object, either in writing or drawing not made public”. In addition, Article 95bis provides for a prison sentence of five to seven years for the receipt of any form of funding, gift or advantage “to perform or incite acts likely to undermine State security, the stability and normal functioning of institutions, national unity, territorial integrity, the fundamental interests of Algeria, security and public order”. The sentence is doubled if the funds, gifts or advantages are received by an association. An additional five to ten years can be added if these actions are committed as part of a “concerted plan”.

In parallel, the Algerian Parliament passed law 20-05 on “preventing and combating discrimination and hate speech”, presented only seven days earlier by the Algerian Ministry of Justice. The law includes provisions punishing hate speech with three to seven years in prison (Article 32); punishing the apology, promotion or financing of activities inciting to hatred or discrimination with two to five years in prison (Article 33); and punishing “the creation, administration or supervision of an electronic site or account with a view to publish information to promote a program, ideas, information, drawings or photos susceptible to incite discrimination and hatred within society” with five to ten years in prison (Article 34). According to Article 4, “freedom of opinion and expression cannot be invoked to justify discrimination and the discourse of hatred”. The recourses to Article 34 of this law to prosecute Amazigh and Hirak activist Yacine Mebarki in October 2020, leading to a heavy sentence of ten years on first instance, suggests that an overly broad and abusive interpretation of “incitation to discrimination and hatred” may be used to repress fundamental freedoms, contrary to international law.

⊛ Clampdown on press freedom

At least ten media outlets‘ websites have been made unavailable on Algerian networks throughout 2020. The case of Algerian journalist Khaled Drareni, correspondent for TV5Monde and Reporters Without Borders (RSF) and Director of the Casbah Tribune, triggered international criticism as he was sentenced on 15 September 2020 to two years in prison for “undermining the integrity of the national territory” and “inciting to an unarmed gathering”. Similarly, reporter Abdelkrim Zeghileche, in detention since 23 June, was sentenced on appeal on 8 November to six months in prison on charges of “offending the President” and “undermining the integrity of the national territory”, and faced prosecutions in two other cases. Journalist Mustafa Bendjama, currently being prosecuted in at least three different cases while having been denied access to his legal file; journalist and human rights defender Jamila Loukil, potentially facing six months in prison, and journalist Said Boudour, sentenced on 24 November to one year in prison, should also be mentioned.

In this context, executive decree 20-332 was adopted on 22 November 2020 to establish a new legal framework for online media. The decree sets out a tighter control of executive authorities over digital media and what amounts to a regime of prior authorization.

2- An undemocratic top-down revision process

⊛ A revision dominated by the Presidency

According to a comparative study from Democracy Reporting International (DRI), among the range of possibilities in constitutional revision processes, the least inclusive is an expert-dominated procedure, in which the experts are appointed by elected representatives, with no direct involvement of citizens or civil society groups. If it is not complemented by other forms of popular participation, the process risks becoming completely closed. The study recommended the formation of a drafting committee by elected representatives themselves, or the direct election of a Constituent Assembly by the people. 

The International Covenant on Civil and Political Rights (ICCPR), ratified by Algeria, also establishes minimum obligations for participation in public affairs, including constitutional revisions. Citizens must be given the equal right to participate, either directly or through representatives. A 2009 Guidance Note of the UN Secretary General further advocated for the necessity of an inclusive, participatory, transparent and sovereign constitution-making process.

Algeria has had several constitutions since its independence in 1962. The current constitution was adopted in 1996 and underwent three revisions (in 2002, 2008, and 2016), all of which maintained a power imbalance benefitting the President of the Republic. The last revision in 2016 was initially announced by then-President Abdelaziz Bouteflika following the Arab Spring uprisings of 2011, and allowed for little debate, either among the general public or among parliamentarians themselves.

The constitutional revision initiated by President Abdelmadjid Tebboune in January 2020 has similarly lacked in inclusivity. Both its drafting and adoption have followed a top-down process dominated by the Presidency and an expert committee appointed by the Presidency; the former’s own legitimacy being called into question by the apparent popular rejection of the December 2019 presidential election, the increased criminalization of freedom of expression and association marring the presidential election campaign, and the low turnout for the vote itself.

While the Presidency initiated consultations with a number of political and religious figures, most of them who held office under Bouteflika or previous presidencies, they remained non-binding and their content unknown to the public. The draft constitutional revision, criticized by Amnesty International for its lack of transparency and inclusivity, was circulated on 7 May to a select number of individuals, but not officially published online. Another committee at the level of the Presidency was then put in charge of receiving proposals to produce “a consensual constitution”. An official at the Presidency, however, declared in a radio interview on 3 June that “there will only be a few slight changes”, and that the committee would take all proposals into consideration “provided that they do not concern the identity and nature of the regime”. These proposals were later published online.

The final revised constitution draft was adopted without debate on 10 September by the National Popular Assembly (lower chamber of Parliament), whose opaque election in 2017 was marred by serious deficiencies, and on 12 September 2020 by the Council of the Nation (upper chamber), a third of which is nominated by the President.

In a noteworthy development on 7 April, Fatsah Ouguergouz, former Vice-President of the African Court of Human and People’s Rights and one of its inaugural judges, announced his resignation from the expert committee, declaring that the revision represented a “continuity of the current constitution.” He deplored “a certain conservatism” in the examination of questions related to “the refoundation of our Republic”. Ouguergouz explained he did not share the view of the rest of the members about the meaning of “balance of power” and the degree of latitude they had. Based on a lack of transparency preventing Algerian citizens from taking part in a genuine consultation process and infringing upon the constitutionalized right to information, the convening of a Constituent Assembly is the only viable alternative, according to him.

⊛ A revision broadly rejected by independent civil society

Overall, the constitutional revision has been met with wide criticism from members of independent civil society and political opposition actors. The vice-president of the Algerian League of Defence of Human Rights (LADDH), Saïd Salhi, criticized what he called “a fait accompli referendum”.

Within the population, several movements such as Doustourna and the Citizen Committee of Tizi-Ouzou for a Constitutional Assembly have reiterated their rejection of the revision process and the December 2019 elections, and maintained their call for a Constitutional Assembly. The citizen initiative “Mechmoul” put forward on 30 June a draft constitution elaborated with about 450 citizens, which according to them would serve as a basis for a Constitutional Assembly. Initiative 22-2, a pro-Hirak coalition, rejected the constitutional revision process, calling the referendum a “sham”.

The Pact of the Democratic Alternative (PAD), a pro-Hirak coalition of civil society and political opposition groups[3], rejected the revision, stressing that “against the will of the majority of Algerians, the government has decided to roll out its roadmap in an exceptional context to exclude the Algerian people from choosing their future, once again”. The Rally for Culture and Democracy (RCD) rejected the approach while declaring that “the popular movement cannot be satisfied with skeletal reforms or face-lifting”. The Secretary-General of the Workers’ Party, Louisa Hanoune declared that the Algerian population “neither witnessed nor participated in the elaboration of the text”, and that only the people can “determine future institutions, through a broad democratic debate, with freedom of speech and of the press”. Lakhdar Benkhellaf, member of parliament from the Justice and Development Party, expressed his confusion as to why the revision went through the National Popular Assembly when officials have neither the right to debate its content nor the right to propose amendments.

Article 19 further warned that the non-participatory and unilateral process of revision would lead to an imposed constitution, stripped of any democratic basis.

3- A revision only serving to maintain authoritarianism and formalize the army’s political power

⊛ The revision constitutionalizes the political role of the army

The primary novelty of the 2020 constitutional revision is in the introduction of Article 30, 4: “the National People’s Army defends the vital and strategic interests of the country in accordance with the constitutional provisions”. This article represents a genuine reform in this revision, as it formalizes the political role exercised so far informally by the Algerian army. No previous Algerian constitution had explicitly enshrined the political role of the army, which was until then represented by the head of State, also head of the Army.

Defending “the vital and strategic interests of the country” are particularly unclear and imprecise notions left to the subjectivity of the army, which would allow it to intervene, potentially overthrowing other institutions, when these vital and strategic interests are threatened, according to its own interpretation, and to do so “in accordance with the constitutional provisions”, which remain ill-defined. This provision undermines the officially civilian character of the Algerian state and prevents effective civilian and democratic control over the military. It is therefore contrary to the African Charter on Democracy, Elections and Governance, which provides that “State Parties shall strengthen and institutionalize constitutional civilian control over the armed and security forces to ensure the consolidation of democracy and constitutional order.” (Article 14, 1). This new provision also goes against one of the major demands of the Algerian Hirak protest movement: “a civilian state, not a military state”.

The list of proposals made on the draft revision of May 2020 indicates that this formulation was directly inspired by the Ministry of Defense (proposal n°1321). The same document indicates that the Ministry of Defense opposed the creation of a position of Vice-President (proposal n°2870), who was to be nominated by the President to succeed him in case of incapacity, thereby preventing the institutional crisis that erupted following the stroke of former President Abdelaziz in 2013. It appears the Ministry refused this position on the grounds that the Vice-President “would have to ensure the destiny of the country for a certain time” without “the legitimacy of the ballot”, while at the same time ensuring that role could be played by the military.

In addition, the revised constitutional draft introduces new language according to which “within the framework of respect for the principles and objectives of the United Nations, the African Union and the League of Arab States, Algeria can participate in keeping the peace” (Article 31, paragraph 3). A new provision also now clearly states that the President can decide to send “army units abroad” after the approval of two-thirds of Parliament (Article 91). While this is not a radical change, it effectively constitutionalizes the opportunity given to the Algerian army to participate in external conflicts, which until recently was promoting a relatively isolationist doctrine, and may contribute to signaling to international partners and observers that it now has more freedom and legitimacy to do so.

⊛ The text maintains weak guarantees and dangerous restrictions on fundamental rights

The text appears to introduce positive provisions for the exercise of freedoms of assembly and association upon simple declaration and seems to constitutionalize freedom of the press without requiring prior control (Article 51-55). However, the concrete implications of this new language remain unclear because these newly constitutional rights are conditioned on national legislation instead of on clear constitutional safeguards. Freedoms of information and press must also be exercised in “respect of the fundamental religious, moral and cultural values of the nation” (Article 54) and must not infringe upon “the legitimate interests of institutions, and the requirements of national security” (Article 55). These references empty the constitutional language of its substance. It is all the more restrictive that national legislation in Algeria often undermines rights that appear constitutionalized, such as the particularly restrictive 2012 Law on Associations, law n°91-19 on Public Meetings and Demonstrations[4] which sets up a regime of prior authorization, the 2012 Information Law, the latest executive decree 20-332 on digital media, and the Penal Code.

Most importantly, Article 34 introduces criteria for restrictions that can be imposed on rights and freedoms, framing them in vague terms such as “public order”, “security” and “national constants”. The door is thus opened to arbitrary interpretation allowing for an infringement of fundamental rights, without the safeguards of necessity and proportionality mandated by international law.

In addition, the 2020 draft takes away the inviolability of freedom of conscience proclaimed in the 2016 constitution (Article 42) and preserves the inequality of status between Tamazight and Arabic, despite the inclusion of the former within “national constants” (Article 223).

⊛ The revision maintains the dominance of the Presidency over all institutions, including the judiciary

The President is the Supreme Chief of the Armed Forces and the President of the Supreme Judicial Council, and has extensive nomination powers, including over the Chairman of the National Independent Elections Authority and its members, and including within the judiciary. The text provides for the establishment of a Supreme Judicial Council (SJC) in charge of safeguarding judicial independence and sanctioning judges (Article181). While fifteen members out of twenty-seven are now elected by their peers, the text maintains excessive representation of the Executive branch, threatening its independence by allowing the President to nominate its president and two of its members directly, and at least two others indirectly.

It should be noted that under the 2016 constitution, the unanimity of the members of the Constitutional Council was required to recognize the incapacity of the President to assume duties, which contributed to the lasting institutional crisis following the stroke of former President Abdelaziz Bouteflika in 2013. This procedure now requires the support of three-quarters of the members of the Constitutional Court (Article 94). However, the Constitutional Court (previously the Constitutional Council) remains under strong influence from the President, who appoints its president and a third of its members.

The President retains these powers without any ministerial or parliamentary control, and without being subjected to any political or criminal responsibility. While limiting the possibility for the President to legislate by ordinance, the constitution still solely allows him to legislate through a referendum and through veto on laws passed by Parliament, as well as by appointing a third of the members of the Council of the Nation (upper house of Parliament) and dismissing the head of government and the National People’s Assembly (APN – lower chamber of Parliament) as many times as he wishes. The President also alone retains the power to initiate a revision of the constitution. Institutions such as the National Human Rights Council and National Civil Society Observatory are merely consultative.

The 2020 constitutional revision, promoted as a step forward for the building of a new republic, does not appear to advance any significant institutional changes aside from formalizing the political role of the army and therefore going against a core demand of the Hirak protest movement – a civilian, not military state. The revision, already criticized by civil society and the Hirak as little more than a pretense of reform in a context of crackdown on public freedoms, was further discredited by the historically low official turnout of the 1 November referendum. Back in September 2020, President Tebboune had announced the organization of early legislative elections following the referendum. On December 13, in his first public appearance since his hospitalization at the end of October, he announced that the drafting of a new electoral law would be accelerated to be ready within fifteen days. The new law, which has yet to be shared publicly, could be adopted shortly. In order to allow for institutional reform, authorities should ensure that any electoral process permits genuine political dialogue through the establishment of a free civic space and respect for basic guarantees of inclusivity and fair representation, including by ceasing the curtailing of public freedoms. Without these fundamental guarantees, no institutional process, whether a revision of the constitution or the electoral law, will bring about tangible reform.

[1] Official Journal n°82

[2] Official Journal n°54

[3] The PAD, formed in June 2019, includes the Algerian League of Defence of Human Rights (LADDH), the Socialist Forces Front (FFS), the Rally for Culture and Democracy (RCD), the Workers’ Party (PT), the Socialist Workers Party (PST), the Union for Progress and Change (UPC), the Democratic and Social Movement (MDS) and the Party for Secularism and Democracy (PLD).

[4] Law n°91-19 of 2 December 1991 modified and supplemented law n°89-28 on public meetings and demonstrations of 1989.

Photo: Police officers wearing face masks stand guard as demonstrators carry a national flag during an anti-government protest, following the coronavirus outbreak, in Algiers, Algeria March 6, 2020. REUTERS/Ramzi Boudina

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