Egypt’s Constitutional Endgame: Where Confusion Is the Rule

All the chaos going on in the middle east is frightening. . . what does this mean for us, the United States?

Egypt‘s constitutional endgame is upon us. And almost nobody in the country–including the document’s drafters–seems to be truly prepared.

On Nov. 22, when President Mohamed Morsi issued his stunning decree granting himself sweeping powers, one of the least publicized aspects of the declaration gave the country’s Constituent Assembly an extra two months to finish drafting the new constitution–extending the deadline into early 2013.

One week later, Morsi abruptly and mysteriously shifted tactics. Suddenly the constitution was ready for approval and a national referendum on the document is now scheduled for Dec. 15.

What followed was something approaching a live televised political farce. In a marathon Nov. 30 session lasting more than 16 hours and ending after 6 am Cairo time, the assembly’s overwhelmingly male and Islamist members sped through and approved each of the 230 articles as if they were desperately trying to meet a looming deadline.

The final document not only doesn’t represent any sort of national consensus; it doesn’t even seem to have benefited from proper proofreading.  There were words missing and grammatical mistakes. Language suddenly appeared that hadn’t been present in any of the multiple proposed drafts. At one point, one of Morsi’s own legal advisors Fouad Gadallah stood up to object to an apparent mistake in the text and was shouted down by the assembly’s head.

“They weren’t ready,” says Heba Morayef, head of the Human Rights Watch Egypt office, who estimated she watched 13 hours of the session. “They knew this document wasn’t ready and should not have gone forward.”

The approved text contains a number of aspects that alarm critics. The issue of equality for women is qualified by the stipulation that women must balance that with their duties to the home. Laws dealing with women’s rights must not contradict shari’a–Islamic jurisprudence. And Al Azhar, the highest seat of learning in Sunni Islam, now plays a vaguely defined role in vetting any laws that might touch on shari’a– raising the prospect of unelected religious authorities holding sway over democratically elected lawmakers.

On the plus side, there are new and solid protections against arbitrary detention and torture by the police. But a clause outlawing military trials for civilians was mysteriously watered down at the last minute and approved with minimal debate.

The effect of the apparent shotgun approval on Egypt’s already chaotic and unstable political scene has been dramatic. Even before the sudden constitutional stratagem, Tahrir Square had been filled for days with angry demonstrators protesting Morsi’s perceived dictatorial power grab. Egypt’s judges had already been up in arms over the decree–which robbed them of any oversight over the president’s decisions or the status of the constituent assembly.

The already intense street action has been driven up a level, with many protesters openly labeling the controversy the start of the second Egyptian revolution.  Several independent newspapers and satellite television channels went on strike Tuesday, ceasing publication or broadcasting blank screens. As of Tuesday evening in Cairo, several large protest marches from around the city were converging on the presidential palace–at one point fighting through barrages of tear gas fired by police.

Meanwhile the judges seem to be struggling to come to terms with Morsi’s power play. Several judicial districts have gone on strike and the Judges Club–an unofficial body–has sworn that its members will not act as monitors for the upcoming constitutional referendum. However the Supreme Judicial Council has publicly pledged that it would order judges and prosecutors to serve as electoral supervisors–raising the prospect of open fissures within the judiciary and possible disciplinary action for those judges who refuse to supervise the voting. A Dec. 2 session of the Supreme Constitutional Court was effectively sabotaged by crowds of Morsi supporters who surrounded the courthouse and prevented many of the judges from entering the building.

In a way, the constitution-drafting process has gone much the same way as the preceding 23 months since Hosni Mubarak was ousted by power in February 2011: lots of confusion, mixed signals and divisiveness–followed by rapid deadlines that leave no room for debate or consensus building.

That tone was first set back in March 2011 when the Muslim Brotherhood mobilized its cadres to approve a national referendum that set the country toward fast-track parliamentary elections before a constitution could be written. The tactic was immediately decried as a cynical Brotherhood ploy designed to give the Islamist group and its decades-old grassroots machine an electoral advantage over the newer post-revolutionary political forces.

That parliamentary election, one year ago, produced an overwhelming Islamist majority. The Parliament was dissolved in the summer of 2012 on a technicality by the Supreme Constitutional Court–sparking the current war between the Muslim Brotherhood and the judiciary. But the damage had been done, since the Parliament had already selected the members of the constituent assembly–stacking the body with Islamists.

By fast-tracking the constitution, Morsi and his supporters seem to be essentially giving up on the entire idea of national consensus. The constituent assembly had been plagued from the start by mass withdrawals from secularist and Christian members–saying their minority viewpoints were being ignored. Now a decision appears to have been made by the Brotherhood and their Salafist allies to simply forge ahead regardless.

The Islamists had the numbers within the constituent assembly to approve basically anything they wanted. And once the referendum comes, they feel they will be able to marshal more than enough votes to get the document approved. “There’s a sort of confident arrogance that comes with the certainty that they know they can mobilize voters,” said Morayef, of Human Rights Watch.

They might be right. Even Morsi’s most implacable opponents are pessimistic that they’ll be able to defeat this constitution in a national referendum. Morsi’s supporters are already persuasively framing the vote as a question of “chaos vs stability” since a defeat would set the country back to square one and prolong Egypt’s time without a constitution or a parliament.

Amr Darrag, a senior official with the Brotherhood’s Freedom and Justice Party and secretary general of the constituent assembly, says Morsi has proven he is in a hurry to finish the constitution and elect a new parliament–at which point he will go back to being a normally powered president. “You can’t call a man a dictator when he is trying to give up power,” Darrag says.

With voting for expatriate Egyptians looming on Dec. 8 and the national referendum one week later, the country seems to be careening towards for a chaotic and divisive confrontation. One indication of the fast-rising stakes: Mohammed El Baradei–the longtime reform advocate who generally avoids street politics–has uncharacteristically taken to leading multiple protest marches. In a Dec. 3 editorial in the Financial Times, El Baradei described Egypt’s short-term future in nearly apocalyptic terms. “After 23 months of struggling to bring democracy to Egypt, is this the best we can do? A president claiming dictatorial powers. A parliament packed with Islamists. And a draft constitution, hastily cobbled together without basic protections for women,Christians and all Egyptians,” El Baradei wrote. “And thus we are back in Tahrir Square. The situation is volatile: an Egypt bitterly divided between Islamists and the rest of the country, opening the door for scenarios such as army intervention, a revolt of the poor, or even civil war.”

As Egypt’s Islamists Cement Their Rule, Can Secularists Reclaim the Revolution?

Anti-Morsy protesters hold a large Egyptian flag and chant slogans in front of the presidential palace during a demonstration in Cairo, Aug. 24, 2012. 

 

It has not been a very good 18 months for Egypt’s secular revolutionary political forces. After standing at the forefront of an unprecedented and triumphant popular uprising last year, which led to the ousting of longtime dictator Hosni Mubarak, their star rapidly dimmed. In the wake of the revolution, Islamist groups such as the Muslim Brotherhood and the even-more-conservative Salafists used their existing grassroots networks to dominate parliamentary elections last winter while post-revolutionary secular parties struggled to catch up. Presidential elections earlier this summer were an even bigger disaster: the  non-Brotherhood pro-revolution camp divisively split itself between multiple candidates, producing a thoroughly Mubarak-era runoff choice between the Muslim Brotherhood candidate Mohamed Morsy and Mubarak’s former Prime Minister Ahmed Shafiq representing the military-backed deep state.

“What happened in the presidential election was a wakeup call to a lot of the players,” says Hussein Gohar, head of foreign affairs for the Social Democrat Party, one of the main post-revolutionary secularist parties.  “People panicked after Morsy became president and they’re still panicking.”

The Morsy-Shafiq choice left most of the secular revolutionaries out in the cold and thoroughly depressed. For the past several months, they have watched from the sidelines as Morsy and the Brotherhood faced off against the Supreme Council of the Armed Forces or SCAF—impotently hoping for a scenario where both sides lost.

Now Egypt faces a new crossroads. Morsy is firmly entrenched in the presidential palace; his power struggle with the military ended rather abruptly last month when he succeeded in outmaneuvering the SCAF—sending Mubarak-era Defense Minister Hussein Tantawi and his loyalists into early retirement. Most importantly, there’s a new parliamentary election looming after the previous parliament was dissolved via court order on a technicality. The exact timing of the new elections is uncertain; it’s tied to the ratification of a new constitution, which is still being drafted. Gohar said he expects the elections to come “any time between December and March.”

All of which begs the question: does Egypt’s secular opposition have enough time to make an impact this time around and can they learn from their tactical and organizational mistakes of the previous 18 months?

The looming deadline has touched off a flurry of political activity. The local press is now filled with daily updates on coalition negotiations between a host of post-revolutionary secular parties such as the Social Democrats and the Free Egyptian Party. This week a new political player emerged in the form of former International Atomic Energy Agency chief Mohammed ElBaradei, who officially launched his own Constitution Party.
 
“They’re just starting to realize that [elections] are fast approaching,” said secularist writer and analyst Bassem Sabry. “Everyone wants to get into some alliance or another. It’s a question of how and who approaches who and who’s in charge.”

Veteran socialist politician Hamdin Sabbahi–who finished a surprisingly strong third place in the presidential vote—is being courted by multiple parties to join forces. And longtime Egyptian diplomat Amr Moussa, despite a weak fifth place presidential showing, “remains a towering figure” on the secular scene and is being similarly courted, according to Sabry.

Fourth place finisher Abdel Moneim Aboul Fotouh, a former Muslim Brotherhood official who fashioned himself as a progressive  Islamist and an alternative to the Brotherhood, has so far remained distant from the more secular negotiations and is expected to form his own electoral bloc along with other centrist Islamist forces.

“The future of the Egyptian left is not as bleak as people think,” said Wael Nawara, a longtime progressive activist and a member of the Constitution Party. But Nawara acknowledges that whatever secular coalition emerges for the new parliamentary elections will still face an uphill battle to crack the combined Brotherhood-Salafist bloc that captured nearly 75 percent of the People’s Assembly, the lower house of Parliament.

“Financing, for starters, will be an issue. This is an area where the Muslim Brothers already have an advantage,” Nawara said. In addition to their own homegrown financing from disciplined loyalists, the Islamists are widely presumed to be benefiting from a river of overseas funding from Saudi Arabia and Qatar.

“These other parties will just have to rely on local donations—which is just not something people are used to here. They’re at a disadvantage,” Nawara said. There’s also a steep learning curve to be overcome on how to build the kind of grassroots mobilization machine that the Brotherhood spent decades crafting. To help speed that process, Gohar, the Social Democrat official, has turned to his European counterparts for help. A delegation from the Danish Social Democrat Party arrives in mid-September to conduct what Gohar calls “Democracy 101” training sessions, and the British Labor Party is planning to conduct similar training here.

There is, of course, a completely separate secularist opposition to Morsy that has been recently making its presence felt—the pro-military/pro-Shafiq crowd that viscerally hates the Brotherhood, but also deeply distrusts most of the secular revolutionaries.

On August 24, around 2000 people staged a defiant and decidedly angry protest outside the presidential palace, openly calling for a new revolution to purge the Brotherhood from power. The protest was most notable for the sense of pure paranoid rage coursing through the crowd. Several protesters told me that Morsy had stolen the presidential elections with the help of the U.S. government and the biased media. Two different television camera crews were attacked by the protesters.

“I’m here to bring down the Brotherhood. Their presence is illegitimate,” shouted Farida Mansour, a mid-50’s homemaker and one of many women there who wore the tradition Islamic hijab covering her hair. “Ahmed Shafiq won the election. Everybody knows that!”

Shafiq has been overseas, mostly in Dubai, since losing the election; Egyptian prosecutors issued a warrant for his arrest at the end of the last month on corruption charges if he returns. But he remains a polarizing force and focal point for the free-floating anti-Brotherhood anger that simmers in some corners of Egypt’s secular society. If he were to return, or even if he forms a party from de facto exile, it could capture a surprising amount of reactionary protest momentum, buoyed by support from the vestiges of the old Mubarak regime.

Put simply, the pro-Shafiq secularist opposition regards the more revolutionary contingent as dangerous radical hippies, while the revolutionary crowd regards the Shafiq supporters as retrograde counter-revolutionaries who seek to dial back the clock to the Mubarak era. They both share a common enemy, and some politicians have spoken of forging an alliance between the two camps, but other observers find that impossible to imagine. “There are those who are angry and want things to go back to the way they were. For these people Shafiq and company are a natural solution,” says Sabry. “The progressive bloc is unable to reach out to that crowd. There’s too much distrust on both sides.”

Army may be the real winner in Egypt

At the end of the first round of voting in Egypt's historic elections, Islamist parties appear headed for a decisive majority in the first freely elected parliament since the ouster of former dictator Hosni Mubarak.

So far, the Freedom and Justice Party operated by the Muslim Brotherhood, the country's largest and best organized political movement, has won nearly 40% of the vote, followed by the ultraconservative Salafist parties with another 25%.

The "Islamist tsunami," as some have dubbed it, has raised eyebrows in the West and raised concerns in Egypt over the future status of women, secular-minded Egyptians and the country's substantial Christian minority.

The Muslim Brotherhood is attempting to reassure anxious Egyptians and foreigners alike and are reframing their imminent victory as a win for Egypt's nascent democracy.

As one Brotherhood leader recently wrote in The Guardian, "There will be winners and losers. But the real -- and only -- victor is Egypt."

Indeed, many democracy advocates inside and outside Egypt had long seen the elections as the surest way to force the ruling military council to cede power to a civilian-led government. While a democratic outcome may still be possible in the long run, for now the real winners may be neither the Islamists nor the Egyptian people but the country's interim rulers, the Supreme Council for the Armed Forces (SCAF).

Once universally viewed as a pillar of stability for a country in transition, the SCAF's foot-dragging on basic reforms and its increasingly repressive tactics against all forms of dissent, including the trial of some 12,000 civilians before military tribunals and the use of deadly violence against young protesters in Tahrir Square in the lead-up to the elections, have convinced most Egyptians of the need to end military rule as quickly as possible.

SCAF has already violated its pledge to hand over power within six months and has made clear it wants to remain the power behind the power. The military says it will cede power to a civilian president by July 2012, but at the same time it seeks to preserve its myriad social, economic and political benefits, including its immunity from governmental oversight and its highly secretive shadow economy, estimated at around one-third of the national economy.

Despite SCAF's attempts to cast itself as politically neutral, it has aggressively manipulated the political scene throughout the transition process in a bid to protect its interests. Indeed, Egypt's military rulers have demonstrated a shrewd, almost Machiavellian, ability to keep the opposition weak and fractured, especially when it comes to exploiting decades-old animosities between Egypt's Islamist and secular forces.

After having promoted the Islamists throughout most of the transition period, the unlikely alliance finally broke down in the weeks leading up to elections over the military's attempts to usurp the incoming parliament's authority in appointing a constituent assembly to draft the country's next constitution. Up until then, both the Brotherhood and the Salafists had been relatively accommodating of the military, largely shunning mass protests and resisting calls for the military to cede power, which further helped inflame Islamist-secularist tensions.

The existing climate of social and political polarization is likely to be compounded by the unrepresentative nature of the new parliament, where liberal forces won only 18% of the vote.

The biggest losers in the electoral process have been the revolutionary youth groups that spearheaded the uprising in January and have been at the forefront of the democracy movement ever since. But they have largely shunned electoral politics in favor of continued street protests. In addition to the marginalization of the youth, much of it self-inflicted, a decisive Islamist majority will probably, as feared, leave groups such as women and Christians severely underrepresented as well.

All this comes at an especially sensitive moment in Egypt's transition.

The Brotherhood's electoral dominance cements its position as the chief power broker of the transitional period. In particular, the process of writing the country's first post-revolutionary constitution will require consensus-building among Egypt's disparate constituencies.

The Brotherhood's ability to forge an alliance with secular liberal parties, which it says it prefers, will prove difficult in light of the deep mistrust on both sides. At the same time, a coalition with the Salafists may prove equally unworkable, if only because it would embody the worst fears of many Egyptians and foreigners alike. An all-Islamist parliamentary alliance could force Egyptian liberals into the arms of SCAF while providing the military with the perfect pretext to put off civilian rule. Indeed, SCAF officials wasted no time in minimizing the outcome of the elections, even suggesting the parliament's role in writing the constitution would be severely curtailed.

Either way, the Brotherhood is likely to preside over a deeply divided parliament with vaguely defined powers. This is also to the advantage of SCAF, as any political stalemate, especially one marked by deepening social divisions, is likely to prolong military rule and forestall serious democratic reforms.

The Islamists' parliamentary victory will no doubt fuel fears of an "Islamist takeover." However, American and other Western policy makers should not lose sight of the big picture.

Although there may be reason to question the democratic credentials of Islamist groups, they have thus far played by the rules. The same cannot be said of Egypt's military rulers, however, whose growing repression and desire to remain above the law pose a far more real and tangible threat to Egyptian democracy. Rather than fretting over an outcome whose implications are not yet known, the United States should pressure the Supreme Council for the Armed Forces to disentangle itself from the political process, respect the outcome of the elections, and return to the barracks as soon as possible.