United States Institute of Peace • www.usip.org • Tel. 202.457.1700 • Fax. 202.429.6063

UNITED STates institute of peace

© USIP 2011 • All rights reserved.

“The Egyptian and Tunisian approaches, though 

different, suffer from the same 

core challenge: reformist 

parties oppose the transitional 

governments revising the 

constitution, but early elections favor established parties 

at the expense of the reformers who led the revolutions. 

Neither option—a prolonged 

transitional period or early 

elections—provides adequate 

assurance that the new 

political order will reflect 

the reformists’ democratic 

agenda. ”

April 29, 2011

Constitutional Reform in Transitional 

States: Challenges and Opportunities 

Facing Egypt and Tunisia

Summary

•	 Countries emerging from authoritarianism frequently face constitutional challenges, among 

them sequencing constitutional reform with a transition to democracy, designing a constitutional 

review process that is seen as legitimate, and addressing substantive constitutional concerns.

•	 Sequencing constitutional reform and elections begs the questions who should lead the constitutional reform and when should it be conducted. Constitutional reform prior to elections 

can leave stewardship over the constitution-making process to unelected and perhaps not 

wholly trusted transitional governments. Elections prior to constitutional reform may be tantamount to simply handing the machinery of authoritarianism to a new set of actors. Egypt and 

Tunisia offer different paths to transition and each face criticism. In the end, a less “democratic” 

solution might be the best one.

•	 Whatever the chosen process for constitutional reform, legitimacy must remain the sine 

non qua of a successful constitution-making moment. Adherence to guiding principles of 

inclusivity, participation, transparency, consensus and national ownership can legitimize the 

constitution-making process and the final document itself.

•	 Just as the history, society, culture, and preferences of every country is unique, so too is every 

constitution. Certain common issues, however, are likely to be front and center for countries 

transitioning from authoritarian rule to democracy. This Peace Brief offers a brief examination 

of many of these commonly recurring issues.

Introduction

The overthrow of the Mubarak and Ben Ali regimes were merely the beginning of the revolutions 

in Egypt and Tunisia respectively. The course the revolutions will take has yet to be charted, and 

the demands and aspirations of the tens of thousands of demonstrators have yet to be realized. 

In general, countries emerging from authoritarianism frequently identify constitutional reform as 

a priority—and Egypt and Tunisia have been no exception. How, when and by whom these and 

other countries transitioning from autocratic regimes revise their constitutions will substantially 

impact the democratic nature of the post-transition states. Procedural and substantive constitutional decisions made during the earliest hours of the revolution will inform, for better or worse, 

the path the revolution ultimately takes.

Jason Gluck

E-mail: jgluck@usip.org

Phone: 202.429.3886

peaceBrieF92
© USIP 2011 • All rights reserved.

Constitutional Reform in Transitional States: Challenges and 

Opportunities Facing Egypt and Tunisia page 2 • PB 92 • April 29, 2011

In unpacking the constitutional challenges presented in post-authoritarian regimes, three 

issues frequently emerge: (1) sequencing constitutional reform with a transition to democracy; (2) 

designing a constitutional review process that is seen as legitimate; and (3) addressing substantive 

constitutional concerns. 

Constitutional Reform and Elections: The Sequencing 

Challenge

Demands for constitutional reform are often at the forefront once transitions from authoritarianism begin. But who is to lead the reform? And when should it be conducted? If states seek to 

empower legitimate lawmakers under the existing constitutional framework, elections are likely 

to suffer from the same constitutional dysfunctions that kept the former regime in power. More 

ominous still, elections prior to constitutional reform may be tantamount to simply turning over 

the machinery of authoritarianism to a new set of actors. Timing matters, too. Early elections favor 

parties that flourished under the previous regime at the expense of the nascent or formally underground opposition. Such challenges argue in favor of a longer transitional period during which 

comprehensive and popularly-led constitutional reform can occur. On the other hand, longer 

transitional periods can entrench transitional actors, while insisting on constitutional reform prior 

to elections can leave stewardship over the constitution-making process to unelected and perhaps 

not wholly trusted transitional governments.

Egypt

The Catch-22 of sequencing elections and constitutional reform has come to the fore in Egypt’s 

debate over democratic transition. In February, the transitional government, led by the Supreme 

Council of the Armed Forces, suspended the constitution and conducted an expedited, secretive 

and limited constitutional review. The work was conducted in just 10 days, with only three weeks 

of public discussion before a March 12 referendum. The referendum passed with significant dissention from the opposition, which felt the reforms—amendments to nine articles that shortened 

the presidential term and created a two-term limit; expanded the field of eligible presidential 

candidates, restored judicial oversight of elections; limited the president’s emergency powers; 

and provided a roadmap for additional constitutional revision after the elections – did not go far 

enough to guarantee the goals of the revolution. Opposition groups claim the changes have “frustrated Egyptians’ hope that they would usher in a democratic transition or address the problematic 

electoral system before parliamentary and presidential elections,”1

 and that they actually allow the 

next government to repeat the sins of the former regime.2 In Cairo, nearly 40 percent of referendum voters rejected the amendments, with similar results in other major urban areas.3

 

Exacerbating these concerns, elections for the legislature are now scheduled for September, 

with presidential elections expected to follow in November. Members of opposition parties 

fear they will not be sufficiently organized to fairly compete. With the newly elected legislature 

expected to design and oversee the constitution-making process, exclusion from the legislature 

could mean a constitution “likely [to] entrench the same power relations and values which the 

January 25 revolution rose up against.”4

Tunisia

Tunisia has taken a different approach to Egypt, placing comprehensive constitutional reform 

ahead of elections for political office. The Tunisian Constitution also greatly privileges the former 

ruling party at the expense of the opposition, making free and fair elections simply impossible 
© USIP 2011 • All rights reserved.

Constitutional Reform in Transitional States: Challenges and 

Opportunities Facing Egypt and Tunisia page 3 • PB 92 • April 29, 2011

under the existing framework. At the same time, the constitution cannot legally be revised by the 

transitional government; it can only be amended after elections for a new president. The Tunisian 

solution has been the dissolution of the constitution and the formation of a national constituent 

assembly, to be elected on July 24, 2011, that will develop an entirely new constitution. According 

to the BBC, “[o]nce elected, the constitutional council could either appoint a new government or 

ask the current executive to carry on until presidential or parliamentary elections are held.”5 Like 

in Egypt, many Tunisians fear that the July elections, even for the limited purpose of constituting a 

constituent assembly, will occur too soon and will give an advantage to established parties.

The Egyptian and Tunisian approaches, though different, suffer from the same core challenge: 

reformist parties oppose the transitional governments revising the constitution, but early elections favor established parties at the expense of the reformers who led the revolutions. Neither 

option—a prolonged transitional period or early elections – provides adequate assurance that 

the new political order will reflect the reformists’ democratic agenda. At its heart, this presents a 

legitimacy problem for the new constitutions, and by extension, the new political order in Egypt 

and Tunisia. Ironically, the best solution may be a less democratic one.

While the impulse to create elected constitution-making bodies is natural, it is not mandatory. 

In fact, if legitimacy is the paramount objective, an appointed constitution-making body (for 

example, the “round table” employed by many former Central and Eastern European countries 

during the 1990s), or a partly-elected and partly-appointed constituent assembly (such as in Kenya 

or Eritrea) may result in a more legitimate outcome. Egyptians and Tunisians might benefit from 

a survey of their respective political, social, and economic communities and ask themselves what 

interests need to be included in the constitution-making body for it to be deemed legitimate. The 

states might then augment election results with appointed representatives of these communities 

and interests to achieve the legitimacy that is vital to any constitution-making process. Such an 

approach has already been proposed in Egypt, where a prominent local human rights nongovernmental organization has called for an “interim” president that would form a constituent assembly 

that includes “all the necessary professional expertise for the task and also genuinely reflects 

Egypt’s political, intellectual, religious, ethnic and racial diversity,” according to a news report in The 

Public Record.”6

First Principles of a Constitution-Making Process

The tension between constitutional reform and elections currently experienced in countries such 

as Egypt and Tunisia can be addressed in part by agreement on and application of fundamental 

principles designed to legitimize the constitution-making process and final document, including inclusivity, participation, transparency, consensus and national ownership. Together, these 

principles not only contribute to institutions and systems of governance that reflect the will of the 

people, but can spark a national dialogue and provide an opportunity to reach broader political 

and social goals, including:

•	 Transitioning to democracy from authoritarian rule;

•	 Providing a framework for negotiation and reconciliation among political forces and other 

communities of interest;

•	 Developing, strengthening and promoting national identity;

•	 Reaching consensus on the core values of the state;

•	 Educating citizens on the principles and practice of democracy through civic education and 

participation in the constitution-making process;
© USIP 2011 • All rights reserved.

Constitutional Reform in Transitional States: Challenges and 

Opportunities Facing Egypt and Tunisia page 4 • PB 92 • April 29, 2011

•	 Demonstrating a commitment by political leadership or government to democratic principles and processes;

•	 Addressing regional or ethnic issues through new institutional arrangements, rights or 

guarantees; and

•	 Identifying national priorities for development and a mechanism through which those can 

be achieved.

Inclusivity: Where the constitution-making body reflects the diversity of the nation so all voices 

are heard in the process. Such a body should include, among others, political parties, civil society 

organizations, women, youth, ethnic, linguistic and religious minorities, and the geographic areas 

of country. Each should be able to say it had a hand in the negotiation and drafting of the document and that each felt secure that it was a valued component of the new nation. 

Participation: A participatory constitution-making process is one in which the people are 

educated about the process and the choices being decided, and are given a free, fair and genuine 

opportunity to directly express their will in a secure forum that is facilitated by those tasked with 

analyzing and incorporating the people’s views into the final constitution. Importantly, such a 

process requires substantially more time than a closed, elite-drive, constitutional review—two 

years is not uncommon.

Transparency: A transparent constitution-making process is one where the public is aware of 

what is happening at each stage of the process. Such a process increases the accountability of the 

constitution-making body to the public and the public’s confidence that their voices have been 

heard. 

Consensus: Consensus driven decisions are reached by drafting and ratifying bodies based on 

discussion, negotiation, and persuasion, not by inflexible application of majority rules. Such a 

process requires time to develop, but can result in a constitution that is owned and respected by 

all parties, instead of one with “winners and losers.”

National Ownership: The constitution-making process should be defined, developed and led 

by national actors, and not international interests, donors or experts. A nationally owned process 

that also respects the principles of inclusivity, participation, transparency and consensus will 

best reflect the nation’s unique history, culture, and society, and in so doing reflect the needs and 

aspirations of the people. It can also galvanize ownership horizontally, across political forces, and 

vertically, from the political leadership to the communities and villages.

Greater adherence to these principles in the recently completed Egyptian process may have 

instilled greater confidence in the public and minimized opposition at referendum. The extent to 

which they are applied to future constitution-making processes could greatly determine the path 

Egypt, Tunisia and other countries in transition take.

Substantive Constitutional Issues

Just as the history, society, culture and preferences of every country is unique, so too is every 

constitution. Certain common issues, however, are likely to be front and center for countries 

transitioning from authoritarian rule to democracy. A summary checklist of central issues includes:

Separation and Balance of Powers: A discussion of separation and balance of powers will likely 

include debate over a presidential versus parliamentary system, with states emerging from highly 

centralized authoritarian rule often favoring a parliamentary system, where the chief executive 

traditionally comes from and is more accountable to the legislative body. Even parliamentary 

systems, however, can experience executive dominance of the legislative body, as has been the 
© USIP 2011 • All rights reserved.

Constitutional Reform in Transitional States: Challenges and 

Opportunities Facing Egypt and Tunisia page 5 • PB 92 • April 29, 2011

case in many new African governments. Therefore, more important than the system of government 

are necessary and appropriate checks on the executive power, including strong legislature oversight 

powers, presidential term limits, and an independent judiciary.

Emergency Powers: Akin to the balance of powers, one might also expect reform of the state of 

emergency laws (as has already happened in Egypt) with limitations on the circumstances under 

which the executive can declare a state of emergency and the powers and limitations that confer 

from it. Legislative oversight and delineation of nonderogable rights is essential.

Power and Wealth Sharing: Power-sharing schemes can be horizontal, for example, a chamber of 

the legislature that reserves seats for geographic or communal interests, and/or vertical, between 

national and sub-national government. Decentralization aims to more broadly distribute power 

in order to promote more effective and responsive government, improve access to basic services 

and economic resources, manage conflicts, particularly in diverse societies, and encourage greater 

public participation in government. It also creates multiple centers of power, thereby lessening the 

impact of a “winner take all” outcome at the national level. Wealth sharing guarantees revenue for 

lower levels of government and is vital to sub-national government effectively realizing the benefits 

of devolution. It can take the form of states retaining wealth generated in their localities and/or 

transfers of nationally collected revenue to the states.

Human Rights: Unlike the constitution of the United States, more recently adopted constitutions 

frequently enumerate dozens of fundamental human rights, including socioeconomic rights (i.e., the 

right to healthcare, housing, education and a clean environment). One might expect new constitutions in Egypt and Tunisia to follow this model. Often, however, the problem is not enumeration of 

rights but their implementation and enforcement. Institutions that enforce and guarantee these 

rights are critical to their realization. In addition, rights that are limited “in accordance with the law” 

can lead to an abuse of power. Such limitations should be narrowly tailored and permitted only if 

necessary to protect a compelling state interest. Finally, incorporation and enforceability of rights 

contained in international treaties and covenants to which countries are signatories can be an 

invaluable way of ensuring critical rights are captured and realized. 

Security Reform: Especially where the security apparatus has been co-opted and used to subjugate 

the people, constitutional provisions to secure the integrity and neutrality of the security forces 

are essential. Consideration might be given to enumerating certain security organs in the constitution, making others subordinate to legislation, and mandating that officers in the security services 

remain non-partisan. The military should be led by a civilian within the national government, with 

jurisdiction and responsibilities of the armed forces and police clearly delineated and with separate 

chains of command. Police units attached to local government may be empowered with local law 

and order responsibilities, thus vertically dispersing command over the security services. National 

intelligence units should be subject to national law and all security services should be overseen by a 

national or local legislature, as appropriate.

Founding Principles: Founding principles contain the essence of the character and identity of the 

state, and are often contested on both symbolic and practical grounds. Issues such as the democratic, republican and/or federal nature of the state as well as other core values will be delineated. 

The status of religion, national languages, national symbols and the definition of citizenship might 

also be covered. These provisions take on added importance in diverse or ethnically, religiously and 

linguistically divided societies and merit special scrutiny in the course of designing a constitution 

that will reflect the values, interests and identities of the entire nation.
© USIP 2011 • All rights reserved.

USIP provides the analysis, training and 

tools that prevent and end conflicts, 

promotes stability and professionalizes 

the field of peacebuilding.

For media inquiries, contact the office 

of Public Affairs and Communications, 

202.429.4725

2301 Constitution Ave., NW

Washington, D.C. 20037

Constitutional Reform in Transitional States: Challenges and 

Opportunities Facing Egypt and Tunisia page 6 • PB 92 • April 29, 2011

About This Brief

This Peace Brief, written in April 

2011, examines some of the 

challenges to constitutional reform 

in transitional states and offers 

mechanisms for increasing the 

legitimacy and democratizing 

effect of constitutional reform. 

The views expressed in it do not 

necessarily reflect the views of the 

United States Institute of Peace, 

which does not advocate specific 

policy positions. Excerpts of this 

brief are also published in “Traveling toward the Rule of Law in the 

Middle East and North Africa: 

Avenues and Obstacles.”

Endnotes

1. William Fisher. “Egypt: New Constitutional Roadblocks Complicate Transition to Democracy,” The 

Public Record. March 8, 2011. http://pubrecord.org/world/9007/egypt-constitutional-roadblocs/

2. BBC News. “Q&A: Egypt’s Constitutional Referendum.” March 17, 2011. http://www.bbc.co.uk/

news/world-middle-east-12763313

3. Ahram Online. March 22, 2011. http://english.ahram.org.eg/NewsContent/1/64/8279/Egypt/

Politics-/Breakdown-of-referendum-results.aspx

4. William Fisher. “Egypt: New Constitutional Roadblocks Complicate Transition to Democracy,” The 

Public Record. March 8, 2011. http://pubrecord.org/world/9007/egypt-constitutional-roadblocks/

5. BBC News. “Tunisia president Fouad Mebazaa calls election.” March 3, 2011. http://www.outsidethebeltway.com/a-new-constitution-for-tunisia

6. William Fisher. “Egypt: New Constitutional Roadblocks Complicate Transition to Democracy,” The 

Public Record. March 8, 2011. http://pubrecord.org/world/9007/egypt-constitutional-roadblocks/