Do we really have a Constitution?

A couple of weeks ago, I found myself stuck in a horrendous traffic jam on Qasr al-Aini street for over an hour. I had no idea what was causing the gridlock until I reached my destination and someone reminded me that Parliament was holding an extraordinary session to approve the constitutional amendments. That’s how little I care.

In November 2013, the 50-member constituent assembly tasked with drafting the Constitution stood by and watched as our protest was violently crushed outside. They failed to take any meaningful position, and when some members did speak out on our behalf, the court ignored their testimony. It became clear that the 2014 Constitution was not being written in order to be implemented, but to bestow formal legitimacy on the new arrangement of power.

As for the transfer of power, I frankly don’t believe anyone is naïve enough to think that a text can actually set term limits for a president coming out of the military establishment. Constitutions are only respected when they reflect compromises between influential state forces that have real social constituencies. The goal is for these forces to agree on the need to regulate the rules of politics and state administration in a way that respects and recognizes the weight of each party, while also allowing for flexibility in addressing future challenges.

In a country where the state is divorced from society and imposes its will from above, constitutions only regulate the relationship between state institutions that have genuine power. That’s why the 50-member committee was packed with representatives from judicial, religious and sovereign institutions. The real negotiation was between this archipelago of state interests.

With the exception of the eternal presidency — which is not in dispute within the state — the current amendments seem designed to find a new equilibrium that gives the military unprecedented influence and power at the expense of other state institutions, such as the judiciary.

As for us, the citizens, the Egyptian state has a long history of writing laws only to ignore them. It even writes laws on the assumption that we will ignore them as well. Any articles in the Constitution specifically concerning our rights are of limited value.

When the debate over the Constitution raged in 2011, I wrote about a different course of action: where the process of drafting the Constitution could itself create social forces able to defend, enforce and respect it. I invite you to reread that article — not to relive that moment, God forbid, but to compare the dominant rhetoric and discourse of that time with today’s. The thing that most offends me about the spectacle of the current amendments is not their content — which is a moot issue — but the scenes of utter debasement and obsequiousness that surround it, and the inability to act with any degree of discipline or dignity. Even the pathetic 50-member committee managed to preserve some modicum of self-respect. At least they didn’t join in as we were mauled at the gates of the Shura Council.

Who will write the Constitution?*

June 26, 1955, Kliptown, near Johannesburg: Thousands of people gather in a space much like our liberation squares, fanning out in a field to take part in the Congress of the People and to vote on the Freedom Charter. A revolutionary takes the stage to lyrically recite the charter. The packed square thunders with chants of “Africa! Africa!”

For two days, Kliptown was the site of the most important democratic experiment in history before it was put down by apartheid police forces. But as usual, the police arrived too late to suppress freedom. The charter was adopted and became the Constitution of the South African liberation movement. Four decades later, it was the principal reference for the new Constitution of a free South Africa.

“We, the people of South Africa, declare for all our country and the world to know,” the charter began, before laying out its core principles: “The people shall govern! … All national groups shall have equal rights! … The people shall share in the country’s wealth! … The land shall be shared among those who work it! … All shall be equal before the law! … All shall enjoy equal human rights! … There shall be work and security! … The doors of learning and of culture shall be opened! … There shall be houses, security and comfort! … There shall be peace and friendship! … These freedoms we will fight for, side by side, throughout our lives, until we have won our liberty.”

These articles were not written from the stage, and the thousands of people in the square did not superficially speak in the name of the people. Months of preparation preceded the Congress, during which some 50,000 volunteers crisscrossed the country to ask everyone they met a simple question: What kind of South Africa do you dream of?

The volunteers collected responses and sent them to elected committees in each region who then grouped them together to form a list of demands. These demands were then sent to other elected committees representing each province, which collated and summarized them before forwarding them to the committee drafting the Freedom Charter. The Congress was attended by all elected committee members, as well as representatives of trade unions, revolutionary parties and other grassroots organizations.

The people — all of them — wrote the charter and, in turn, the Constitution.

The idea arose when the African National Congress (ANC — Nelson Mandela’s party) found itself in a predicament. As participation in the anti-apartheid struggle was markedly declining, young party leaders decided to broaden their efforts by incorporating social and economic causes and launching a campaign for a fair minimum wage. They quickly became aware of the gulf separating them — political activists and elites — from the masses, so they decided to organize a congress and draft a charter that gave the grassroots a leading role. They believed in creating a political awareness campaign where the masses would be the teacher, and the politicians and activists the students.

The Congress of the People and the Freedom Charter radically transformed the party. Firstly, no one group could have organized such a massive undertaking; the sheer scale of the idea forced disparate groups to coordinate with one another. The various parties and anti-apartheid movements all came together across ideological, ethnic, class and religious lines, giving birth to a national liberation movement that was collective and inclusive.

Secondly, the Congress settled an ideological debate within the ANC between an African-centric vision that viewed the liberation of black South Africans as part of the larger fight against colonialism on the continent and a vision that viewed the solution as a common struggle for equality among everyone who lived in the nation regardless of ethnicity, including white South Africans. Thirdly, in terms of priorities, the Congress offered the first genuine opportunity for the political elite to become familiar with the problems and aspirations of farmers.

The adoption of the Charter changed history. In the minds of the masses, the regime fell that day, though it took another four decades to actually come down. After having been divided by the regime and by colonialism into separate ethnicities and tribes, the people were reborn as a unified entity with a single goal and vision that was passed down through generations — generations that were willing to pay the price of this vision in death, torture and imprisonment. The people protected the legitimacy of the Charter until the apartheid regime fell and only the people remained. The legitimacy of the square was embodied in a singular Constitution inspired by the Freedom Charter, and the people continued to protect their Charter and their Constitution.

Today, in another square, we are debating the writing of a new constitution for the Second Egyptian Republic driven by the logic that those who draft the constitution will represent the people. As a result, our debate is limited to questions about when the constitution should be drafted, or the best way to select our representatives. Naturally, the elites, who see representation as their destiny and right, at times confuse representation with tutelage; and frankly, there is no difference here between the constitution-first camp and the parliament-first camp. My fear is that they have already agreed that the role of the citizen ends at the ballot box.

It is widely assumed that agreement and consensus among various political forces means that all the people are represented, even though all evidence indicates that political forces in Egypt — including the most popular one, the Brotherhood — are divorced from the grassroots. This was made clear in the square, where political parties, movements and activists all found that they were a somewhat isolated minority, even though they took a leading role at times. If we don’t acknowledge this gulf, it will adversely affect the drafting of the constitution.

There is a lesson for us in the experience of so-called consensus-based committees. Popular participation leads to a revolutionary document that is composed in lyrical language and calls for the doors of culture and learning to be opened to all, whereas a closed-door meeting of experts ends with a prominent judicial figure suggesting that the ballots of educated voters be given more weight. Can anyone imagine such a proposal coming out of a national consensus that includes people who weren’t lucky enough to be educated? This is tutelage, not representation or consensus.

It is true that Mubarak tailored the old Constitution to his political order. But the truth is that many violations under his regime were committed in direct and flagrant violation of that Constitution. Even under the worst constitution, torture was never sanctioned. The Constitution itself did not protect us.

We should instead be asking: of what value is a constitution drafted without genuine popular participation? Even the most perfect text would be nothing more than ink on paper without a balance of power to enforce and defend it. The Freedom Charter was written by the people — it gave rise to a real social contract and became a part of a popular identity that was handed down through the generations. The people became the guardian of its constitutionality and revolutionary legitimacy.

Here we have the opposite. The drive for consensus has only produced catastrophic solutions to our predicament, such as enshrining the army as the guardian of the civil state, meaning that this “sovereign” institution with vast repressive capacities and a long record of violations and interference in governance, will not be subject to any oversight by an elected body.

Let us be more humble. Mandela and his comrades needed the public to educate them politically. Why do we assume that we are any better? Since we have agreed that the constitution is one of the most important goals of our ongoing revolution, why don’t we involve the grassroots of the revolution in its drafting?

Should we undertake a similar experiment as South Africa and build a collective project to sketch out the Egypt we all dream of? What would happen if tens of thousands of people from the grassroots were involved in assembling this dream? Maybe we will come to a genuine consensus and reunify our ranks. We might find priorities we have overlooked. Political parties, for example, typically ignore, or simply pay lip service to, environmental issues. But maybe if we listened to the fishermen on our lakes and heard their complaints about the destruction of fisheries by multinational corporations, we would discover how pressing this issue is, how it is linked to ideas of social justice and the needs for genuine constitutional protection. Maybe we need to give the people of Borollos, who have long fought for potable water, the chance to educate us about what it means to be denied fresh water, and to remind us that water is a basic human right.

Our current debate over the constitution should not be focused on content, but rather on how we select the constituent assembly. The constitutional amendments and the constitutional declaration are silent on this. We can agree, for example, on proportional representation for women, young people, and religious minorities, as well as representation for every governorate, professional syndicate, labor, farmers’ unions, activists, rights advocates, artists, and so on. But even more important is agreeing on how the constituent assembly will operate.

We need to abandon the idea that drafting a constitution is a simple matter, one that a few experts can make short work of by referring to existing constitutions. A single major issue — such as the question over having a presidential system versus a parliamentary one — requires extensive, perhaps weeks-long, debate. The discussions must be public and hearings should be held to allow citizens, civil society, and our movements on the ground to take part.

If we combine a popular document that reflects our shared aspirations and dreams, a constituent assembly with representation for all groups, elected by the people, directly or via Parliament, and operating mechanisms open to civil society, we will indeed establish a second republic based on a genuine social contract, real national consensus, and full constitutional, popular and revolutionary legitimacy. Then we can say that power truly rests with the people.

*Note: This section was originally published in Al-Shorouk on June 10, 2011.

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Alaa Abd El Fattah 
Alaa Abd El-Fattah is webmaster of Panorama, but is better known as an Egyptian blogger, software developer, and political activist. He is known for co-founding along with his wife Manal Hassan of the Egyptian blog aggregator "Manalaa" and "Omraneya", the first Arab blog aggregators that did not restrict inclusion based on the content of the blog.