Ahead of Algeria’s important referendum on its new constitution, Morocco World News investigates the promises and merits of the new document that promises a “new Algeria.” In a three-part series, MWN’s Issam Toutate, Perri Huggins and Jasper Hamann explore the implications of the controversial draft document.
By Jasper Hamann, Perri Huggins and Issam Toutate
Algeria’s government has repeatedly presented its new draft constitution as a direct response to the 2019 Hirak (movement) protests. Through lofty language the document addresses the concerns of many, yet legal clauses that invalidate any progress often follow. People in Algeria are facing a difficult choice ahead of the November 1 referendum.
From the very beginning of the draft constitution’s text, the document conditions readers to see a yes vote as paving the path towards a “new Algeria,” implying that voting against hampers progress. Amid continued oppression of journalists and government critics, it appears the government aims to create legitimacy to continue its practices by presenting them as progress.
Interestingly after the constitution discusses the rights of citizens, it sets “duties” for citizens that could allow for government exploitation. Vaguely described state permission will tightly constrain the rights of citizens, yet the duties set for citizens are universal and are drafted in ways to restrict the freedoms described below.
Fundamental rights and public freedoms
The text lays out the “fundamental rights and public freedoms” that Algerians would enjoy under the new constitution. In Articles 34 and 35, the government promises gender equality, no restrictions on freedoms, and free political participation. These statements cover a specific demand of the Hirak, but the following clauses immediately invalidate them.
![“Article 34: The constitutional provisions on fundamental rights and public freedoms and their guarantees bind all public authorities and bodies. Rights, freedoms and guarantees can not be restricted except by law, and for reasons related to maintaining public order and security, and preserving national values, as well as those necessary to protect other rights and freedoms guaranteed by the Constitution [emphasis added].”](https://www.moroccoworldnews.com/wp-content/uploads/2020/10/algeriachoice-article_34.jpg)
The constitution allows Algeria’s government to restrict citizens’ fundamental rights, in its own words, in order to maintain “public order and security, and preserving national values.” What this entails is entirely within the government’s prerogative, allowing for widespread misuse.
In essence the document promises a wide range of freedoms, yet they are tightly controlled by what the state will permit and how the government sees these freedoms relative to citizens’ duties. Strong restrictions on freedoms precede and follow promises to provide them.
The right to protest
One of the key concerns of the Hirak movement was the tight state control on political expression and the right to petition the government. The new constitution aims to address these concerns with promises of freedom of assembly while, in the same sentence, using legal language to restrict that right.
![“Article 52: Freedom of speech is guaranteed. Freedom of assembly and freedom of peaceful protest are guaranteed, and they can be exercised as soon as they are declared.The law defines the conditions and the modalities for exercising it [emphasis added].”](https://www.moroccoworldnews.com/wp-content/uploads/2020/10/algeriachoice-article_format-52.jpg)
Again Algeria’s new constitution issues guarantees while invalidating them through additional problematic legal clauses. To many the sentence appears to address Hirak demands for the freedom to protest, but demanding that civil society “declare” protests gives the state the power to frame any protest as illegal.
There can be no true freedom of assembly if the state has the power to approve protests before they take place. In essence the “guarantees” the draft constitution provides are, like today, heavily restricted by vaguely described government powers to pre-empt or stop demonstrations across Algeria. The government is likely to abuse concepts such as “national unity,” as it does today through the sufficiently vague “conditions and modalities” that restrict this freedom.
Freedom of the press
Algeria has routinely arrested and tried journalists for their participation or coverage of the Hirak protests. The case of Khaled Drareni in particular has provided an example of heavy state repression of dissent in the media. With Drareni and similar cases in mind, how does Algeria’s new draft constitution expand freedoms of the press? In short, it does not.
![“Article 54: Freedom of the press, print, audiovisual and electronic is guaranteed. Freedom of the press includes, in particular, the following:– Freedom of expression and creativity of journalists and press collaborators,– The right of the journalist to access information sources in the context of respect for the law,– The right to protect the journalist’s independence and professional secrecy,– The right to establish newspapers and pamphlets upon permission to do so.– The right to establish television and radio channels, websites and electronic newspapers, within the conditions specified by the law.– The freedom of the press cannot be used to prejudice the dignity, freedoms and rights of others.– Publishing discrimination and hate speech is prohibited.– Press misdemeanor cannot be subject to a freedom deprivation penalty.– The activity of newspapers, pamphlets, television, radio channels, websites, and electronic newspapers cannot be suspended except by virtue of a judicial decision [emphasis added].”](https://www.moroccoworldnews.com/wp-content/uploads/2020/10/algeriachoice-article_format-54-1-768x1024.jpg)
Nominally, Algeria’s draft constitution appears to stop the jailing of journalists for “press misdemeanors” yet the article is riddled with legal restrictions that allow the status quo to continue unabated. The duties set to citizens following the establishment of rights directly negate and/or confine these freedoms.
Duties such as determined in Article 79 of the proposed constitution show little effort to change current government practices in regard to jailing journalists and critics in Algeria. Article 79 says that “Every citizen must protect and preserve the independence of the country.” It makes it the duty of citizens to protect “the unity of its people and all the symbols of the state.”
Algeria currently does not jail journalists for “press misdemeanors,” but instead commonly accuses them of “endangering national unity.” The government can continue to use this justification in the “new Algeria” by imposing duties on citizens as a factor overriding granted freedoms. If this constitution were in place in Algeria today, Khaled Drareni’s prosecution would likely not have been any different.
