“The place of the Army in North African Constitutions: A Comparative Study in Law comparing Algeria, Egypt, Libya, Morocco and Tunisia”

“The place of the Army in North African Constitutions: A Comparative Study in Law comparing Algeria, Egypt, Libya, Morocco and Tunisia”

In North Africa, the last four years have been marked by Egypt’s 2019 Constitutional amendments that conferred on its army the task of “safeguarding the constitution and democracy, maintaining the foundations of the state and its civilian nature, the gains of the people, and the rights and freedoms of the individual”, Algeria’s 2020 constitutional amendment which entrusted to the army the mission of preserving “the vital and strategic interests of the country” (art. 30, 4), and the new Tunisian Constitution of 2022 which does not mention anymore the obligation of absolute neutrality by which the armed forces had been been bound.

Those recent changes mark a clean break from the democratic demand for a “civilian, not a military state” that had resonated in North Africa as well as in the Middle East. The opinion of the military is not an opinion like any other because if they “can express their opinion and seek to enforce it, it would be at the expense of forgetting that if they do so, they will break all opposition and the State itself: because they are armed.”[1] The subordination of armed forces to civilian authority was already a source of concern to the Romans, who demilitarised Italy within the boundaries of the Rubicon so that “arms yield to the toga”,[2] whereas with the advent of modern constitutionalism, and in order to prevent the resurgence of Caesarism, the 1780 Massachusetts Constitution proclaimed that “the military power shall always be held in an exact subordination to the civil authority and be governed by it” (art. 17).[3] More recently, and on an international level, the UN Human Rights Committee considered that “the military should remain accountable to relevant national civilian authorities”[4] whereas on a regional level, the 2007 African Charter on Democracy, Elections and Governance ratified by Algeria[5] stipulates that “State Parties shall strengthen and institutionalize constitutional civilian control over the armed and security forces to ensure the consolidation of democracy and constitutional order” (art. 14, § 1).

Yet, the army holds a prominent place in the Algerian and Egyptian Constitutions, as  can be seen in the preambles to both documents through the abundant historical references to the revolutionary legitimacy of the army and its role in the national construction of both countries. In the wake of the 2013 military coup led by general Abdel Fattah al-Sissi to overthrow the civilian president Mohamed Morsi, the praemble to the 2014 paid a tribute to Mehmet Ali who “founded the modern Egyptian state with a national army as its pillar”[6] and then to “the leader Gamal Abdel Nasser while celebrating “the July 23, 1952 revolution”, that is  the coup carried out by the Free Officers against the dynasty of Albanian descent which had ruled the country until then, a coup which had established the Free Officers at the head of the state since then. If the 2012 Constitution  abandoned reference to July 23, as if in an attempt to turn the page on the military dictatorship it had given birth to, the 1956, 1964 and 1971 Constitutions had referred to it, but by presenting it, in the first two, as the result of the people’s will and, in the third one, as the offspring of “the alliance of the working forces of our perevering people” (1952, “Preamble”, art. 2; 1964; “Preamble”, parag. 1; and 1971, “Preamble”, parag. 9). However, the 2014 Constitution now invokes Nasser’s direction, that is that of a military according to whom the army had played on that day the role of the avant-garde,[7] the people appearing simply in the background as a support to the revolution.  The preamble also glorifies the manner in which Egypt’s “patriotic army delivered victory to the overwhelming popular will in the “Jan 25 – June 30” Revolution” (2019, preamble, art. 10), thus referring to both the 2011 revolution that had put an end to the presidency of General Hosni Mubarak and the 2013 counter-revolution that had brought to an end the short period of democratic openness marked by the access to power through the ballot box of the Muslim Brotherhood. The 2019 constitutional amendment, of legislative initiative, made it possible to go further, by making the army the guardian of the Constitution (art. 200, parag. 1).[8]

In Algeria, those historical references already appear in the 1963 and the 1976 Constitutions, in which the National Popular Army (NPA) is described as the inheritor of the National Liberation Army (1963, preamble, parag. 10; 1976, art. 82) thus basing its legitimacy on the war for independence (1954-1962).[9] This legitimacy thus secured, the country witnessed in 1962 a coup  led by the Chief of General Staff colonel Houari Boumediene,  head of the frontier army, against the Provisional Government of the Algerian Republic and the NLA of the interior wilayas, a coup that was constitutionalised in the Fundamental Law of 1976 as a “historical redress” (preamble, parag. 3). The army nonetheless went through a depoliticisation in the 1980s which the 1989 Constitution provisioned for by suppressing all historical references to the NLA and to the 1965 coup. However, it is the 2016 Constitution which, one quarter of a century after the military intervention that had interrupted the 1992 electoral process in order to dismiss the Islamic Salvation Front (ISF), made reference again to the NLA by making of the PNA its “successor” (2020; preamble, parag.  20)[10]. Since this amendment, the preamble now mentions the “quintessential role” of the PNA in the fight against “the plague of terrorism” (Preamble, 20) or what came to be called the Black Decade of the 1990s which had caused between 100000 and 200000 deaths, while also consecrating “the Peace and National Reconciliation” (2020, parag. 8) which confers impunity upon state agents involved in the “national tragedy”[11]. As to the 2020 constitutional amendment,[12] born out of a presidential initiative, it was the opportunity for the Ministry of National Defence to reject an amendment proposed in the preliminary draft of May 2020 according to which the Hirak of February 22, 2019 had acted “in full cohesion with its People’s National Army”[13]. The September final draft, adopted by referendum on November 1, 2020, opted for the use of the expression “the original popular Hirak” (preamble; 10), as if to better distinguish the movement that was simply opposed to President Abdelaziz Bouteflika from the one which more generally demanded “a radical change of the system”, notably by means of a “civilian, not military state”.

Elsewhere, the Libyan, Moroccan and Tunisian Constitutions have never made reference to the historical role of their armies. In Morocco, the reason for such an omission is that the army is subordinate to the military authority of the King. The future King Hassan II asserted as early as 1957 that “political neutrality must be the dogma of military morality”[14], a neutrality “at the service of the Throne against the parties”[15]. The Moroccan monarchy would indeed succeed in asserting itself, both against the NLA after Algeria’s independence and against the Royal Armed Forces (RAF) after the failure of the attempted coups of July 10, 1971 and August 16, 1972. The occupation of the Western Sahara, starting with the November 6, 1975 “Green march”, helped divert the army’s attention towards a conflict that has since opposed Morocco to the Polisario Front. The most recent plebiscitary Constitution of 2011,[16] initiated by the King, is thus but a consolidation of the status quo.

In Tunisia, the independence was marked by the political figure of Habib Bourguiba, a lawyer by trade, whose October 14, 1965 speech lays out the rejection of the politicisation of the army because “when involved in electoral controversies and campaigns, the military let themselves be carried away by their own views on the government’s policy and end up being involved in the struggle over power and, under the impression of serving the good and fighting evil, would use their weapons to impose solutions of their choice”[17]. Even if it was eventually a general, Zine el-Abidine Ben Ali, who overthrew Bourguiba by recourse to a “medical” coup on November 7, 1987, the transition was essentially to the advantage of security forces. The marginalisation of the army thus propelled it to popularity during the 2011 revolution about which General Rachid Ammar declared that the army would stand as its guarantor.[18] The Tunisian army would nonetheless be used by President Kais Said in his July 25, 2021 coup[19] against the Parliament and the 2014 Constitution ratified by the National Constituent Assembly elected in 2011[20].  One year later, on July 25, 2022, Said ratified through referendum his own constitution project[21] in which the presidential initiative shows itself in the concentration of the prerogatives relative to national defence in the hands of the President.

As for Libya, the coup carried out by the “Free Officers” on September 1, 1969 and the ensuing dictatorship of Muammar Kadhafi that would last until 2011 did not result in reverence for of the army, neither in the 1969 Constitutional Proclamation, nor in the Green Book. Under the Libyan guide, the regular army was overshadowed by a general militarisation of society and the “emergence of a military-tribal complex”[22]. Colonel Kadhafi went indeed as far as to declare the dissolution of the army in 1995 – a decision that has nonetheless remained without effect.[23] If his fall in 2011 made possible the election of an ad hoc Constituent Assembly, the draft Constitution the latter produced in 2017 has still not been put to effect.[24]

Therefore, notwithstanding the symbolic dispositions mentioned above, what is the place of the army in the Constitutions of North African countries, namely Algeria, Egypt, Libya, Morocco and Tunisia, notably in the relations between military and civilian authorities?

In order to bring this study to completion, it is necessary to study military interventions in the political affairs of the aforementioned countries (I) by interrogating relations of subordination the armies of the region have towards civilian authorities.

[1]Maurice Duverger, De la dictature, Paris, Julliard, 1961, p. 89.

[2]“But as the gown is the emblem of peace and tranquillity, and arms on the contrary are a token of disturbance and war, speaking after the manner of poets, I wished this to be understood that war and tumult were to yield to peace and tranquillity.” Cicero, Against Piso, XXX.

[3]While in the France of 1791 Mirabeau’s project for the Declaration on Human rights provided that “the military [shall] be subordinate to the civil power of the State” (art. 19), which found its translation in the 1791 Constitution in a provision according to which “The public force is essentially obedient; no armed body may deliberate” (Title IV, art. 12)

[4]HRC, Resolution 19/36, “Human rights, democracy and the rule of law”, April 19, 2012, A/HRC/RES/19/36, 16; VI.

[5]Algeria is the only country of the region to have ratified the charter: Presidential Decree 16-255, September 27, 2016 relative to the ratification of African Charter on Democracy, Elections and Governance adopted by the Chiefs of States and Governments of the African Union, Adis Abeba (Ethipoia); January 30, 2007, JORA n. 59, October 9, 2016, pp. 4-12.

[6]In the same vein, see an article published in the journal of the Ministry of National Defence in Algeria, according to which “as it is known, all the armies of the world are considered as the backbones of their States. If they fall, the nations are destroyed and condemned to disappear. The history of humanity since ancient times provide tens of examples that testify to this fact”: “Réalité de ‘Madania machi aâskaria’”, El-Djeich, n. 692, March 2011.

[7]Gamal Abdel Nasser, The Philosophy of the Revolution, Cairo, Mondiale Press, p. 19.

[8]V. Nathalie Bernard-Maugiron, “Les amendements constitutionnels de 2019 en Egypte: vers une consécration de la dérive autoritaire du régime” [“The 2019 constitutional amendments in Egypt: Towards a Consecration of the Regime’s Authoritarian Drift”], RFDC, vol. 121, n. 1, 2020, pp. 3-19, and ICI, Egypt Constitutional Amendments: Unaccountable Military, Unchecked President and a Subordinated Judiciary, Ap 2019, p. 8.

[9]In fact, accordingi the leaders of the post-Independence army, “by filiation, the PNA inherited the features of the NLA; hence, it could not constitute a separate body from the party; as an avant-garde force, it would be a component of the party”: Michel Camau,  La notion de démocratie dans la pensée des dirigeants maghrébins”, preface by Charles Debbasch, Paris, CNRS, 1971, p. 338.

[10]This is how Lakhdar Bouregaa, former commander of the NLA in Wilaya IV during the national liberation war was placed under custody at the age of 86 for having said, in a speech given in June 2019, that the NPA was the heir to the NLA and that in order for it to become popular, it had to join the Hirak. He was eventually charged with “offence to a public body” and sentenced to pay a fine of  100000 dinars (Penal Code, art. 144 bis & 146): T. Bir Mourad Rais, Lakhdar Bouregaa, May 7, 2020, n. 20/00004. The presidential decree 22-217 of June 8, 2022 came later, to to consecrate August  4 as the ‘National Popular Army Day” (art. 1, parag. 1), thus commemorating the “date of reconversion of the National Liberation Army into the People’s National Army” (art. 1, parag. 2): JORA n. 39, June 8, 2022, p.5.

[11]Decree 2006-01 of February 2006 implementing the Charter for Peace and National Reconciliation, JORA n. 11 of February 28, 2006, pp. 3-7. See Mouloud Boumghar, “’Concorde civile’ et ‘Réconciliation Nationale’ sous le sceau de l’impunité: le traitement par le droit algérien des violations graves des droits de l’homme durant la guerr civile des années 1990” [“ ‘Civil concord’ and ‘National Reconciliation’ sealed with impunity: the treatment by Algerian law of the serious violations of human rights committed during the civil war of the 1990s”], RIDC, vol. 67, n. 2; 2015; pp. 349-407.

[12]Presidential Decree 20-442 of December 2020 relative to the promulgation in the official gazette of the Democratic and Popular Republic of Algeria of the constitutional revision adopted the November 1, 2020 referendum, JORA n. 82, December 30, 2020, pp. 2-49. See V. Messensen Cherbi, “La révision constitutionnelle de 2020 en Algérie: un ultra-présidentialisme militarisé de jure” [“The 2020 Constitutional Amendment in Algeria: A de jure militarised Ultra-Presidentialisation”], ISSR, April 2021, p. 9, & ICJ, Flawed and Inadequate. Algeria’s Constitutional Amendment Process. A Briefing Paper, October 2020, p. 9.

[13]Proposition 181: An expert committee in charge of drafting propositions for a constitutional amendment, Propositions présentées dans le cadre du débat général autour du projet de révision de la Constitution [Propositions presented in the framework of the general debate around the constitutional amendment draft], September 5, 2020, pp. 42-43.

[14]Jean-Jacques Régnier & Jean-Claude Santucci, “Armée, pouvoir et légitimité au Maroc”, Elites, pouvoir et légitimité au Maghreb, Paris, CNRS, 1973, p. 169.

[15]Michel Camau, op. Cit., pp. 351-359.

[16]Dahir 1-11-91 of July 29, 2011, relative to the promulgation of the text of the Constitution, Bulletin Officiel of July 30, 2011, pp. 1902-1928. See Saidy Brahim, “La structure des relations civilo-militaires au Maroc”, La Constitution marocaine de 2011. Analyses et commentaires, Paris, L.G.D.J, 2012, pp. 139-170.

[17]Nicole Grimaud, La Tunisie à la recherche de sa sécurité, Paris, PUF, 1995, p. 96.

[18]“L’armée ‘garante de la révolution, fidèle à la Constitution’” [“The army, ‘guarantor of the revolution and faithful to the Constitution’”], La Dépêche, January 24, 2011.

[19]See CADHP, Ibrahim Ben Mohamed Ben Ibrahim Belghuith c. République Tunisienne, September 22, 2022, n. 0017/2021 & LCI, “Tunisia: President’s power grab is an assault on the rule of law”, July 26, 2021.

[20]Constitution de la République Tunisienne, JORT [Constitution of the Republic of Tunisia, Official Gazette], February 10; 2014, pp. 363-367. See also Rafaa Ben Achour, “La Constitution tunisienne du 27 janvier 2014”, RFDC, vol. 100, n. 4, 2014, pp. 783-801.

[21]Constitution of the Republic of Tunisia, JORT numéro spécial [Constitution of the Republic of Tunisia, Official Gazette of the Republic of Tunisia, special number], August 18, 2022, pp. 2474-2491? See also Rafaa Ben Achour, “Tunisie: le retour au pouvoir autocratique” [“Tunisia: The Return to Autocratic Power”], RFDC, vol. 132, n. 4, 2022, pp. 1001-1018 & ICJ, “Codifying Autocracy: The Proposed Tunisian Constitution in Light of International Law and Standards”, July 2022, p. 11.

[22]Said Haddad, “Aux sources du paradoxe libyen: militarisation de la société et marginalisatoni de l’armée” [“At the Sources of the Libyan Paradox: Militarisation of Society and Marginalisation of the Army”] in Les armées dans les révolutions arabes: positions et rôles, Rennes, PUR, 2015, p. 101.

[23]Ibid. p. 102.

[24]See Nedra Cherif, “Libya’s Constitution: Between Conflict and Compromise”, European University Institutei, March 2021, p. 24; also ICJ, The Draft Libyan Constitution: Procedural Deficiencies, Substantive Flaws, December 2015, p. 90; & Sara Zanotta, “Constitution-Making in Libya after the Fall of Gaddafi: the Role of National Bodies and International Actors”, Nuovi Autoritarismi e Democrazie, vol. 3, n. 2, 2021, pp. 56-48.