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Article 28 of the Tunisian Constitution: A Problem Among Many Others

[A graphic circulated to celebrate National Women's Day in Tunisia. Arabic reads, [A graphic circulated to celebrate National Women's Day in Tunisia. Arabic reads, "She is Tunisia." Image from Tunisia-Live.]

Every year, Tunisians celebrate Women’s Day on 13 August with all due pomp and circumstance.  This year, however, seven thousand Tunisians — mostly women — took to Mohamed V Avenue in downtown Tunis to protest Article 28 proposed by the Constituent Assembly. Their demonstration reflects an increasing discontent that many Tunisians express over the wording of this article, which stipulates that women are "complimentary" to men. The word muwatinuun (citizens) stated early in the constitution makes all Tunisians (women and men) equal in the eyes of the law.  However, once we reach the 28th article, suddenly women become "complimentary" to men.  Does this take into account widows, single mothers, and any other woman who do not have a man to "compliment" their existence? The article, unfortunately, does not answer this question.

Drafting a new constitution in Tunisia is not an easy task. For one, constitutionalists must take into account the fact that the first article stipulates that Tunisia is an Arab and Muslim country which brings into question the secularity of the government.  Hence, the line separating "church and state" in the Tunisian case lacks clarity. Yet, Tunisian women continue to brag about their rights compared to other Arab women. In particular, they pride themselves because polygamy and repudiation are outlawed, and Tunisian women have enjoyed the right to divorce, the custody of their children, and to pensions as wives and divorcées since the 1960s.  I would have thought that a more constitutionally-relevant conversation might focus on changing the inheritance rights, allowing Tunisian mothers to pass on Tunisian citizenship to their children without the approval of a foreign father or better, making Tunisian women truly equal to men — legally and culturally.  Yet, my expectations are apparently too revolutionary for the post-January 14 Revolution era.

Although the proposed Article 28’s wording may displease, I hope that the constitutionalists in charge will lean toward a language of equality that honors previous articles stating that we are all Tunisian citizens (regardless of gender).  However, Tunisians’ troubles may in fact lie elsewhere, as there remain many questions that the current transitional government either refuses or is simply unable to answer.  The first one is when will the draft of the Tunisian constitution be completed?  There is no set date for its publication, although there are a few estimated ones. And the term "transitional government" may be inaccurate, since, according to Tunisian minister of Foreign Affairs Rafik Abdessalem in his 26 August 2012 speech at Hammam Sousse, “This government is going to stay in power for many years to come through democratic elections and the people’s will.” Mr. Abdessalem’s speech and his confident tone suggest that he must know what myself and eleven million Tunisians do not: the results of the upcoming (secret date) elections, after the new constitution is ratified (when?).

The second question concerns whether Tunisia has perhaps become an experiment of the able or perhaps the unable? The transitional government’s officers remind us frequently that Tunisians elected them democratically and that their transitional government does have legitimacy.  What they refuse to understand is that it is not their legitimacy that is questioned, but rather their competencies.  In his 26 August 2012 speech, Abdessalem defended the new government by claiming that, “we are not all born ministers”; we are on the “still learning.” He recognized that some mistakes had been made and that the tasks ahead are many and difficult. Yet, he chose to thank those who patiently support him and other ministers rather than confront the important issue of capacity. Has Tunisia become an experimental laboratory for an Arabo-Islamist style of democracy? 

I believe it is not only women who will suffer from the wording of Article 28. Rather, the entire Tunisian population will pay a heavy price for the lengthy drafting period of the new constitution when there already is a constitution in place.  And dare I ask a third critical question: what happens in Tunisia on 23 October 2012, the day the current Constituent Assembly loses its legitimacy?”

Some of us thought that by October we would be getting ready to have fresh elections, again.  After the 14 January Revolution, everyone felt euphoric over the new phenomenon called freedom of speech; however, now the euphoria is all gone. Anger and melancholy have taken over.  While the transitional government claims that it works “very hard” and is doing its “very best” to improve the country, the results disappoint many — citizens and observers alike. 

Clearly, political merit should not be measured by the number of years spent in solitary confinement as a political prisoner.  Many saw the most popular Tunisian Islamist party Ennahda’s success in the 2011 elections as a symbol of justice to all those wronged under Ben Ali and Bourguiba.  Many voted for the current representatives because they preferred someone “who fears God” to be the one who represents them in lieu of the Mafiosi Ben Ali and his tribal men.  Neither of the latter two have “feared God,” and they were immoral toward the Tunisian people.  While the new politicians of the free Tunisia may not be thieves, they are liars — because they are politicians. And so a mundane, yet pertinent question: Is not that what politicians do? Tell lies?

So much is at stake in Tunisia today and will be in the coming two months. Many are nervous about the looming day of 23 October because there is no clear plan of action in sight.  Debates over the various articles of the constitution only slow down and stall the process. They do not move us forward. And now to my final question wherein perhaps lies a solution to today’s impasse, why did we not return to the 1957 constitution and modify it instead of redrafting an entire constitution?  

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