There’s reason to believe that the fledgling democracy in the largest Arabic country in the world is in grave peril. Sadly, more than a year after the Egyptian people rose up in revolt and overthrew the kleptocratic regime of Hosni Mubarak, in a relatively peaceful revolution, the remnants of the old deeply corrupt establishment are coming back to haunt them.
In a highly suspect decision last week, the Constitutional Court of Egypt, packed with cronies of the former dictator, found that the current election law to be unconstitutional (based on which constitution?), ipso facto, making the entire election invalid and dissolving parliament. In a double whammy for the Muslim Brotherhood, who had previously held the majority, the court also ruled that Ahmed Shafiq, presidential candidate who had served as Prime Minister, among other things, under the Mubarak administration, was eligible for the office of president. As a result, new elections for the parliament will have to be organized.
Most troubling of all, amidst all this uncertainty, on Sunday Egyptians went to the polls yet again to elect their first president democratically. The dissolution of Parliament so hastily means that he could take office without any checks on his executive power. He would presumably still wield the tyrannical powers afforded the President under the old Republican constitution and have no independent and legitimate judiciary or functioning parliament to challenge his authority. As one respected elder statesman and dissident Mohamed El Baradei was quoted as saying: “The election of a president in the absence of a constitution and a parliament is the election of a president with powers that not even the most entrenched dictatorships have known.”
The provisional constitution (if it can be called that?) imposed by SCAF (the name of the military junta) basically gives the junta complete control over the institutions of government as well as power to nominate the Constituent Assembly tasked with writing the new democratic constitution and veto power over any provisions that it deems unconstitutional.
Why the architects of the revolution didn’t look to the South African model for making the transition democracy with a strong set of checks and balances, is beyond me. That country had no tradition of democracy either, and was forced to create all of its institutions from scratch, after the collapse of Apartheid in South Africa. The first lesson of South Africa is this: the framing of a democratic constitution should come first. And that this document will, in turn, serve as the basis for regulating all the other institutions that come afterward (i.e. parliament, judiciary, etc.).
In South Africa’s case, after the racist Apartheid regime was declared dead by the ruling government of the day, a bunch of political parties, including those that participated in the maintenance of the apartheid system, were invited to a constitutional negotiation in which they hammered out a temporary compromise constitution which would be binding on all parties until a permanent constitution could be enacted.
Subsequently, elections were held and the Constitutional Assembly that came to power were called upon to draw up another constitution that would respect and expand on the principles enshrined in the provisional constitution. As yet another precaution against dictatorship, the new constitution would have to be ratified by both the legislature and the constitutional court before coming into force. In 1996, it did just that, and then President Nelson Mandela signed the bill into law thus marking the beginning of a new era in South African politics based on the rule of law. The rest, as they say, is now history.
With democracy hanging in the balance, we’ve entered a critical phase of Egypt’s post-Mubarak history. It now seem all but certain that Muhammad Mursi, the moderate Islamist, will be declared the winner of Sundays presidential elections, despite his rival Shafiq’s claims to the contrary. But will he have the legal tools he needs to take on the power of the junta? It’s a pity that Egyptians put the cart before the horse, by electing an assembly before establishing the constitutional parameters of their new government.
Nelson Mandela photo courtesy South Africa The Good News, via Flickr