Algeria's Choice: Separation of Powers, Oppression in New Constitution

Algeria is presenting its proposed constitution as a direct response to demands of the 2019 Hirak (movement) protests. President Abdelmadjid Tebboune promised the new foundational document in his first national address following his inauguration in 2019.

Tebboune, who is currently receiving medical treatment in Germany, pledged that Algeria’s new constitution would limit the president’s powers and crack down on corruption. Algeria’s president stated that a new separation of powers through radical reform of the constitution would directly address protesters’ concerns.

The government’s motives came into question early, during the document’s drafting. Algeria kept important civil society actors in the dark, unable to see the document, while the government itself was able to amend the draft before publishing it.

Algeria’s new constitution nominally aims to limit presidential terms. However, the public knows little about the true consequences of its wording and whether it lives up to Tebboune’s promises as its November 1 referendum nears.

Preserving the status quo

Similar to the draft constitution’s articles on freedom of speech and press freedom, articles relevant to the current status quo in Algeria are mired in vague language. The document’s carefully crafted wording appears to be rife with the opportunity for future abuse by the powerful few who rule Algeria.

It seems the document fails to live up to the promises Tebboune made on separation of powers and adjustments to the practical functioning of Algeria’s government. What the government touted as a document to produce a “new Algeria” lacks the radical change that could produce a genuine step towards democracy.

An apt example of the failure to reform important elements of Algeria’s decades-old entrenched regime is Article 84 of Chapter 3 of the proposed constitution. Chapter 3 is meant to address the “organization and separation of powers,” yet it continues to enshrine much of the Algerian state’s power in the presidency. Problematically, it continues to define the role of the president as the primary protector of the state and the republic.

Article 84: The President of the Republic, the Head of State, embodies the unity of the nation, and in all circumstances, he watches over the unity of the national territory and national sovereignty.
He protects the constitution and ensures its respect.
He embodies the state inside and outside the country.
He addresses the Nation directly.

In the name of protecting national unity and the constitution, the document grants Algeria’s president far-reaching authority that fails to adequately separate the powers of state.

Presidential powers

Article 91 of the constitution expands the power of the president, both as head of Algeria’s army as well as in regard to the judiciary, the legislative branch, and international affairs.

Article 91: The President of the Republic, in addition to the powers that are expressly conferred upon him by other provisions of the Constitution, has the following powers and competences:
1) - He is the Supreme Commander of Algerian People's National Army, and assumes responsibility for national defense;
2) - decides to send troops of the People's National Army abroad after the approval of Parliament by a majority of two-thirds (2/3) of the members of each of the two houses of;
3) - determines and directs the foreign policy of the nation;
4) - presides over the Council of Ministers;
5) - appoints the Prime Minister or Head of Government, as the case may be, and terminates their duties;
6) - holds regulatory authority;
7) - sign presidential decrees;
8) - has the right to pardon, reduce, or replace penalties;
9) - can consult the people on every issue of national importance through a referendum;
10) - summons the elective body;
11) - can decide to hold early presidential elections;
12) - conclude and ratify international treaties;
13) - delivers state medals, badges, and honorary certificates.

The executive branch’s wide range of powers means the president will be able to overrule judges, decide when elections take place, and unilaterally sign international treaties and ratify them into law. If Algerian citizens approve the new constitution on November 1, Tebboune will wield tremendous power over the executive, legislative, and judicial branches of the state.

Having these powers concentrated in Algeria’s executive branch is a far cry from a genuine “separation of powers” as defined by the Trias Politica that requires branches to check each other’s authority.

Overruling Parliament

If the draft earns approval, the president will continue to have the right to appoint and remove the prime minister, which was the case in former presidencies. He will also be able to “summon” Parliament, indicating that the legislative branches of government will have little ability to rein in his executive decisions.

It appears that earlier references to “protecting the constitution” in reality support the president’s ability to protect the powers and competences he enjoys. This is clear in the president’s constitutional right in Article 149 that allows him to demand that Parliament reconsider any law the head of state deems inappropriate.

Furthermore, the president would have the right, as mentioned in Article 105, to “appoint the prime minister” as well as direct them to prepare an “action plan” for the functioning of the government, as a way to preserve the status quo. Algeria’s draft constitution is not promising when it comes to the separation of powers.

Article 105: If legislative elections result in a presidential majority, the President of the Republic shall appoint a Prime Minister and assign him to propose the formation of the government and to prepare an action plan to implement the presidential program that he presents to the Council of Ministers [emphasis added].

Final arbiter of the law

With the legislative branch firmly under the control of the president, the constitution also grants the head of state the position of final arbiter over judicial decisions.

The draft constitution’s judiciary reforms appear to be a mere rewording of previous practices enshrined in the constitution put forth under former President Abdelaziz Bouteflika’s regime. Article 180 continues to give the president the right to freely interfere in the judicial field. A far cry from an actual separation of powers, the judicial branch would continue to remain firmly under the control of Algeria’s president.

Article 180: The Supreme Judicial Council guarantees the independence of the judiciary.
The President of the Republic chairs the Supreme Judicial Council.
The President of the Republic may assign the First President of the Supreme Court to chair the Council.

The president would in essence be part of the judicial branch in the role of chair of the Supreme Judicial Council, making a mockery of the promise to “guarantee the independence” of the judiciary. Similar to Algeria under Bouteflika’s power, the new constitution would mean judges could do little to restrain or check the president’s actions, whatever they may be.

Corruption and oversight

One of the Hirak protests’ main demands was to put an end to the endemic corruption that is rife in Algeria. In order to address these concerns the new constitution institutes new oversight boards to monitor the use of funds for “conformity.”

Article 184: Constitutional institutions and oversight boards are charged with investigating the conformity of legislative and regulatory work to the constitution, and the methods of using and managing material means and public funds.

At the head of these “new” undefined “institutions and boards” is the already existent Constitutional Council. Yet again the top body controlling the new anti-corruption oversight would be at the behest of the president’s will.

If Algeria approves the constitution on Sunday, Tebboune will be able pick or influence the selection of nearly all of the members on the Constitutional Council that will control these new boards, including the court’s president.

Article 186: The Constitutional Court consists of twelve (12) members:
- Four (4) members appointed by the President of the Republic, including the President of the Court,
- One (1) member to be elected by the Supreme Court from among its members, and one (1) member to be elected by the Council of State from among its members,
- Six (6) members elected by universal suffrage from among the professors of constitutional law. The President of the Republic determines the conditions and methods of electing these members.

Again, the new constitution appears to fail to live up to the promises of the government. A true “new Algeria” would require a genuine approach to the separation of powers. Furthermore, the absence of strong anti-corruption measures and ambitious targets regarding its eradication suggest that the government has little true intent to stop the endemic practice.

Join us tomorrow for the conclusion of MWN’s analysis ahead of the referendum on Sunday.