Two important question on Egypt's referendum
Issandr El AmraniUpdate: The results are in, 77% yes — more here.
While we wait for the results to be announced, it's worth taking stock of two aspects of yesterday's referendum — quite aside from the massive participation that is worth celebrating. But I'd like to explore some aspects of the referendum that I perhaps overlooked in my previous long post (I am sick and jet-lagged, so perhaps that omission can be forgiven) after some discussions I had today and looking through the comments on past posts.
1. Was the referendum fair?
I highlighted before that this was probably the fairest election Egypt has held in decades — from what I saw anyway. You did not appear to have the mass, widespread abuses of past polls — something that Jonathan Wright, with whom I was yesterday, also thought. Of course, it takes time for reports of fraud to spread. Some have surfaced, such as the claim that the ink is easily washable (although it appeared to be the same ink as past elections, where this was not so much of an issue). In some places ballots were not properly stamped, although this appeared to be more out of bad organization than malice. A report has emerged alleging that Boship Kirollos, a Coptic dignatary in Naga Hammadi, the site of the murder of seven Christians and a Muslim outside a church last January, said that Copts were prevented from voting because local officials feared they would choose no. The Egyptian Organization for Human Rights details multiple infractions across the country. It's still too soon to see whether Egypt's civil society, as a whole, will see the referendum as fraudulent or not, and judge the fraud to have been perpetrated as part of an organized campaign by the regime as past elections and referenda were. Activists and tweeps are listing some fraud on Twitter under the #egyunfair hashtag.
There is a fundamental problem with how easy it is to vote multiple times, a problem that plagued previous polls. The phosphoric ink can be easily washed off, and there are no centralized databases of who voted, so people can vote multiple times at different polling stations. I'm not saying this happened yesterday, but the possibility is there and debating whether the referendum should have been held under such conditions is a legitimate question. There is a difficult problem that the voter lists are in dire need of overhaul, which is why voting took place only with a national ID card. I thought yesterday a good solution might, rather than expensive computers and a national online database, to have a system whereby voting officials can SMS the ID number of a voter to register it with a central database to check if he/she has voted before — before allowing the person to vote, the official would wait for an OK message from the central server. It would be relatively cheap to implement and use phones that everyone has (you would just need to give the officials credit and set up the database). In the end, the public's perception might simply be that the referendum was fair enough in times of national emergency.
2. Was the referendum framed correctly?
Perhaps the stronger argument is that the manner in which the referendum was held, even if fair, left much to be desired. In no particular order:
- The commission that drafted the amendments, despite being headed by the respected jurist Tariq al-Bishri, came under criticism for its composition and for some of the amendments it proposed, notably on the national requirements of presidential candidates.
- Eager to move things along, the Supreme Council of the Armed Forces left little time for any campaigning (and actively discouraged the no campaigning) or for a national debate on the choice presented to be had. Many expected the referendum to be postponed until a few days ago. This allowed Salafists, the Muslim Brotherhood and regime elements to spread disinformation, such as that at stake was Article 2 of the constitution, which makes Sharia the basis of legislation in Egypt. The military could have allowed an extra week or two, but appeared to be moving fast because the no sentiment was rising in the media.
- More generally, the MB and Salafists' objective alliance with the military left a sour taste in many's mouths. It was not illegal as such, but smacked of behind-the-scenes deal-making.
- As one friend put it, the choice presented in the referendum was in some sense between no and no: "no to the current constitution but we'll amend it and then see about a new one", or "no to the current constitution even if amended." A better choice might have been between, "yes to the current constitution if it's amended" and "no to an amended constitution, let's start over with a new one." Many voters were understandably confused about what they were voting for, and there were multiple reasons to vote no and multiple reasons to vote yes — which is why you can't just say the noes were "anti-army" or "reformists". It's more complicated than that.
- The post-referendum process is too uncertain: why elect a parliament rather than a president constituent assembly, why elect a Shura Council that's likely to be abolished, why have elections in one order rather than another, etc. The military's announced plan to have parliamentary elections in June is again too abrupt, why not have both elections in mid-September?
All this being said — I'm not hedging my bets here, just reflecting how difficult this question is — many of the recent referenda in the EU (Lisbon, Maastricht, Nice, etc.) have also had their ridiculous side, especially when one has to read a phonebook of legalese to (not) understand what one is voting on. I'm not about to hold Egypt to a higher standard than Europe. Drafting an entirely new constitution could have been a process that takes too long, particularly with the army in charge in the interim. There is something positive about getting back to civilian rule as quickly as possible.
Yet, even so, this could have been done better. I'm not inclined to think that the army has an elaborate secret plan here, what it reflects is a slapdash, make-it-up-as-you-go-along approach and, perhaps most crucially, concern about moving fast to avoid having divergent trends emerge within the military on how to proceed.
Reader Comments (12)
Hello
Thank you for the good analysis.
What's your take on the Article 2 controversy with particular regard to religious freedom and apostasy?
Under Article 2 apostasy from Islam means civil death and legally enforced discrimination against non-Muslims.
According to an opinion poll over 80 % even support capital punishment for apostasy.
Do you think that this broad support for intolerance is likely to be more entrenched now that the majority can legitimize sharia in a free and fair election?
Religious freedom and apostasy is the elephant in the room no one dares to speak about.
In the beginning I celebrated the overthrow of the regime, but if the only change is that the majority now can vote for sharia, and have its wishes legitimized
by democratic consensus, what's there to celebrate?
The apostasy question might also come back to haunt us in Libya. When we overthrew the Taliban, what we got was another Islamic Republic with the popular
mandate to kill apostates.
Article 2 had only meant sharia in family law. And even then not fully implemented.
Thanks for this incredibly helpful and thoughtful reflection on the referendum process. I really appreciate your careful delineation of what went well, as well as what could have gone better, and what the broader stakes are for political change in Egypt. Great post.
The basis of Sharia law is a source of law, emphasis on "a" here.
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Actually, it strikes me that the "yes" vote was the more truly anti-army vote, given that at least part of the rationale used by the Muslim Brotherhood and many others is "We want the military out of politics ASAP". Even Ahmed Seif explicitly said that.
Also, you cite disinformation on the part of the "yes" camp... what about disinformation on the other side, such as repeated attempts to convince people that voting "Yes" contained no guarantee of a new constitution, and that it would be up to parliament and the president to decide if one was needed?
Um, article 2 was not supposed to apply only to family law - it was meant to upgrade the inclusion of sharia from "a" source of legislation to "a chief" source of legislation. This forced the SCC to start applying sharia in cases brought to it. These cases have admittedly been primarily about gender and family issues but not always - there are hisba suits that have been settled under art 2 as well. See Nathan Brown, Bauduoin Dupret and Bernard Botiveau on this, if you'll excuse my pedantry.
Cosmic, you make fair points. But the yes side had more reach.
Wait, Cosmic - Am I victim of misinformation? I thought the text on the constitutional assembly said "invited to", but then Al-Bishiry was in the Guardian saying (in translation) required to.
I don't have a horse in this race, BTW. I'm not sure how I would have voted if I could have - I can see really good arguments on both sides. I might have a been a shaky "no" on the argument that amending the constitution brings it back, thereby making the SCAF unconstitutional again. But then again, we're already in an unconstitutional state. What practical difference if it's twice unconstitutional?
The “yes” side ultimately proved to have more reach… but it was hard to tell from the media coverage, which seemed to give way more coverage to the “no” camp, although much of that can perhaps be explained by the fact that a) the “yes” camp lacked a charismatic, popular champion, whereas the “no” camp had about a million of them, and b) the “no” camp included civil society organizations, online activists and the like, who are fairly media-savvy.
Tim – I don’t have the article in front of me, but I read it fairly closely. The first part of article 189 describes the mechanism for a situation for an “optional” redrafting of a constitution—presumably to cover their bases if the new constitution is rejected in a referendum. But the second part OBLIGATES the drafting of a new constitution. The wording as I recall it was along the lines of “The elected members of the first parliament elected after the referendum on the constitutional amendments (i.e. Saturday) SHALL within six months meet to select a constituent assembly charged with drafting a new constitution.”
But you had judges going on TV to say it contains nothing that would make the drafting mandatory, despite the fact that the clear and stated intent of the drafters was to insert a mechanism to force the drafting of a new constitution.
Here's the Ministry of Information's translation. I read this as saying that the Constituent Assembly shall redraft the constitution within a six month deadline from the time the MPs elect them. I share the judges' view that there is nothing here requiring a new constitution.
(Article 189) last para added:
The president of the republic has the powers, after the approval of the Cabinet, and also half of the People's Assembly and Shura Council have the powers to ask for issuing a new constitution. A Constituent Assembly of 100 members, to be mostly elected by the two houses of parliament at a joint meeting, undertakes outlining the new constitution at a period of time not more than six months since its formation. The blueprint is referred by the president of the republic within 15 days of its drawing to the people for referendum. The new constitution is applicable as of the date of approval by the people in the referendum.
(Article 189) bis
Non-appointed members of the first People's Assembly and Shura Council convene to announce the results of the referendum on constitutional amendments for choosing the constituent assembly in charge of outlining the new constitution within six months of their election. This all comes in line with the last para of article 189.
(Article 189) bis (I)
The first Shura Council exercises its powers after announcing the results of the referendum on constitutional amendments.
The president of the republic takes over, immediately after his election, completing the formation of the Council with appointing one third of its members. The appointment should be for completing the term of the Council according to the law.
Hi Tim... that translation is inaccurate.
يجتمع الأعضاء غير المعينين لأول مجلسى شعب وشورى تاليين لإعلان نتيجة الإستفتاء على تعديل الدستور لإختيار الجمعية التأسيسية المنوط بها إعداد مشروع الدستور الجديد خلال ستة أشهر من إنتخابهم ، وذلك كله وفقا لأحكام الفقرة الأخيرة من المادة 189 .
I would translate it as:
The non-appointed members of the first parliament and shura council after the announcement of the results of the constitutional amendments shall convene to select a constituent assembly charged with preparing the new constitution within six months of their election, and all this shall take place in accordance with the last paragraph of article 189.
That's the only logical way it can be read. Email me directly if you want to discuss further: cosmic.maelstrom@gmail.com