The Emir Giveth, the Emir Taketh Away

Kuwait, a democratic outlier in a hopelessly authoritarian Gulf, is facing a constitutional crisis under its new Emir who is intolerant of his country’s never-ending political gridlocks.  In February 2024, the Emir dissolved the parliament for “violating established constitutional principles”. On May 10th, and after a snap election brought back a replica of the dissolved parliament, the Emir took it upon himself to violate the constitution this time, by both suspending parliamentary life altogether and articles of the constitution, claiming that he will not “allow democracy to be used to destroy the state“.

Over the next four years, expect a constitutional overhaul. Instead of emulating the Kais Saied model, which would scrap the entire democratic experiment, the new constitution should address the key flaws in a six-decade-old political system that has been plagued by persistent stalemates between the government and parliament.

Kuwait’s Democratic Experiment

Kuwait’s democracy, unlike its Arab neighbors, predates the Arab Spring. It was shaped by immediate post-independence threats from Iraq in the 1960s and elite bargaining during Sadam’s invasion at the 1990 Jeddah Conference. The Emir, as head of state, appoints the prime minister and cabinet without parliamentary approval, and cabinet ministers serve as ex-officio members alongside the 50 elected MPs. Kuwait’s parliament is a veto player: it doesn’t rubber-stamp legislations, it “grills” ministers and topples cabinets, and it discusses sensitive issues like state torture. Elections are free and fair with a high turnout, representing diverse segments of society, including tribes, Ikhwans (outlawed in many states), Salafis (who traditionally boycott politics elsewhere), and Shia components. Over the years, Kuwait’s parliamentary politics have led to substantial reforms, including granting political rights to naturalized citizens (1994) and women suffrage (2005) and establishing direct access to the Constitutional Court (2014).

However, the existing design of the relationship between the executive and parliament feeds frequent standoffs, and has invited Emirs to side with their prime ministers while playing their favorite sport: parliamentary dissolutions.

The February 2024 Parliamentary Dissolution

In his December 2023 inaugural speech, Kuwait’s new ruler, Emir Mishal Al-Sabah, held no punches attacking both the government and the parliament for “harming the interests of the people and the country”. He openly expressed discontent with policies of his predecessor, including an amnesty for former MPs convicted of storming the parliament in 2011. This led his Cabinet in January to send back a bill, approved by 48 of the 50 elected MPs, aimed at restoring the political rights of these former political prisoners.

In February 2024, the Speaker instructed the deletion of a remark directed against the Emir’s speech by one of the MPs from the legislative record. When the Parliament voted to override the Speaker’s decision, the Emir ordered the dissolution of the Parliament as it violated his ‘inviolable status as the head of the state’.

One Jump Ahead of the Lawman

Article 170 of the Constitution instructs a new election within two months after any dissolution, or the dissolved parliament is reinstated. The time between the February dissolution and the April election was a tumultuous interbellum. The Constitutional Court dismissed a challenge to the election’s constitutionality for lack of standing. The Administrative Court sustained a number of decisions by the government to bar certain candidates from running, based on a 1998 Law that prohibits tribal primary elections (an internal filtration practice of tribes). The government revoked the citizenship of  26 members of a particular Kuwaiti tribe, and controversially established a hotline to report dual citizens, citing the need to protect “identity and national interest” – a divisive topic, perceived as faux concern to discredit tribes.

The new election saw a 62% turnout, with 39 members retaining their seats out of 50. The new parliament hit a rough patch with the Emir who used Article 106 of the Constitution to postpone the inaugural session from April 17th to May 14th. Despite the postponement, on April 21st, the parliament convened a session attended by 40 MPs to “ward off any constitutional suspicions“. Minutes after it started, the session was adjourned as the government was not present, which is a constitutional requirement (in one reading at least, but a parliamentary tradition of precedential value nonetheless). Another controversy arose regarding the formation of the cabinet where MPs attempted to influence its formation, before MPs were even sworn in. The constitution requires at least one MP to join the Cabinet for the latter to be constitutional. Speculations arose that the PM struggled to secure any MP for his new cabinet which prompted some scholars to explore possible avenues to overcome this constitutional conundrum.

The Emir’s Suspension of Parliamentary Life

Because of these incidents, four days before the scheduled session, the Emir ended the saga by suspending parliamentary life in addition to a number of constitutional provisions for four years.

The Emiri decision is blatantly unconstitutional, but not unprecedented. This is the 13th instance of parliamentary dissolution either by a royal decree or a court order, but the third instance of an unconstitutional suspension of parliamentary life since 1976 (restored in 1981) and in 1986 (restored in 1992). In both cases, the government did not honor the two-month window for reelection in Article 170 and suspended several constitutional articles. While the Constitutional Court could never rule on this matter (see 2/1995), it is widely accepted that both instances were unconstitutional. Throughout similar crises, the political class, including MPs (2023), the legal community and civil society (2008-2009), and even the former Emir (2006), consistently and categorically rejected these populist baits against the parliament.

The May 10th Suspension Decision also included unilateral, selective, and unconstitutional suspensions of several constitutional articles, including those mandating a new election within two months and one prohibiting the suspension of any provision of the constitution except when martial law is in force. The Emir now effectively rules by decree, as he has already appointed a cabinet and crown prince without required parliamentary approvals. The next constitutional amendment, if any, will likely also be carried out by the Emir and his entourage alone.

Cherchez la Constitution!

During the four-year suspension, the Emir has promised to review aspects of the democratic experiment. This signals a forthcoming constitutional amendment aimed at reshaping the relationship between the political branches and the Emir. Kuwait could mirror Tunisia’s President Kais Said’s 2021 self-coup – which, under the pretext of addressing gridlock, has undone democracy in the last bastion of the Arab Spring – by consolidating power in the hands of the head of state. This can take the shape of a closed-door process, with a hand-picked constitution-making body that produces an Emir-friendly constitution with a Gulf-style, toothless consultative council which might prioritize constituent service over government oversight.

Instead, Kuwait should devise a system that alleviates tensions stemming from the current constitutional design without resorting to authoritarianism. Three solutions present themselves to address the constant gridlocks, evidenced by 46 cabinets and 21 elections in just 62 years.

Ministers, Off the Floor

The Kuwaiti Constitution creates a cabinet with no parliamentary representation (except for one minister, colloquially referred to as Muhallel – signifying legalistic legitimation) and a parliament with full cabinet representation. Article 52(2) mandates the appointment of cabinet members from “amongst the members of the National Assembly and from others”. Although the framer’s intent was likely to appoint a cabinet primarily from the parliament, it is in the best interest of the Emir to select ministers from outside the parliament. This is primarily because cabinet ministers serve as ex-officio members alongside the 50 elected members of the parliament, hence selecting non-MPs for cabinet positions rewards the Emir with 15 seats inside the parliament. Ex-officios have the same voting rights as the elected 50 members (except for no confidence). This makes the cabinet inside the parliament the most uniformed and powerful voting bloc in contrast to the rest of the atomized factions inside the Parliament, considering the absence of Party Law.

Cabinet members, in their government capacity, have been known to frequently opt out of attending parliamentary sessions, whenever they are in disagreement with MPs. This often presses the Speaker to adjourn sessions. An ambitious amendment would strip cabinet ministers from their green seats in the parliament, which will also help ideological cleavages to organically grow. Additionally, it will enable the establishment of more cabinet roles, as ministers currently juggle multiple portfolios to maintain the one-third ratio relative to parliament, stipulated in the Constitution.

A Cabinet By the People

The institutional setup between both branches is destabilizing. The main reason is the absence of a parliamentary role in cabinet selection. This dynamic occasionally prompts MPs to resort to constitutionally suspect moves to pressure the Emiri-appointed Prime Minister on cabinet composition. A significant factor in the April 2024 crisis has been reports of MPs threatening to interpellate the prospective Interior Minister, despite their appointments not yet being effective (an unconstitutional practice, 8/2004). MPs also decline cabinet appointments due to the low-profile of the positions offered and potential harm to reelection campaigns by associating with unpopular decisions. The lack of parliamentary input markedly results in ideological clashes between the pro-finance reform government and the anti-austerity-measures parliament. The selection process and ideological differences lead MPs to use interpellations (a formal question to a minister, possibly leading to their impeachment)  to compensate for their lack of influence over agenda-setting, often resulting in cabinet resignations over the “arbitrary use of interpellations”. A key solution is to allow the majority party to select the PM with the Emir’s consent. The Emir would appoint major cabinet portfolios, while the Prime Minister would handle the remainder. To preserve the integrity of the parliament and accountability of the cabinet, appointments should be made outside parliament and the royal family. This design should prioritize the majority party or coalition, rather than the parliament as a whole, to streamline and stabilize the process.

Stricter Criteria for Interpellations and Dissolutions

Kuwait can fix its disruptive “oversight overreach” while avoiding pitfalls seen in the Egyptian parliament’s failure (for technical or political reasons) to table interpellations. A viable Gulf-homegrown proposal suggests implementing a filtration system for interpellations, as seen in Bahrain. This involves forming an ad hoc committee of designated parliamentary leaders to assess the seriousness of each interpellation before scheduling it for the general session. The final intervention should aim to restrict the dissolution power. First, dissolutions should only be for legitimate reasons. The new qualifier is important since parliaments historically have been dissolved for generic reasons including ‘regional challenges’ in 2013. Article 170 as it stands prohibits only repeated reasons. A better design would focus on frequency e.g. prohibiting the dissolution of parliaments formed through snap elections. Parliamentary dissolutions should also trigger an automatic constitutional court review. Many constitutions, including Portugal’s, mandate the consultation of many actors including courts. However, an automatic review is arguably preferable over a consultation requirement, considering both prevalence of dissolutions and the Court’s history of siding with the government.

Receptions and Prospects

Reactions to the May 2024 crisis have been concerning. Some disingenuous explanations blame the Muslim Brotherhood –despite the group retaining only two seats in the April election. Despite the bad-faith, militant democracy undertone of “protecting the state”, the parliament did not exceed its constitutional prerogative. Allegations to the contrary could have been resolved through constitutional means e.g. the Constitutional Court or legal dissolution.

Internally, there have not been massive popular or elite reactions against the Emiri decree. This is unusual compared to similar events in the region as well as Kuwait’s own history. The context of this crisis is different however: the Emir’s security background, the absence of existential threats that requires democratization and national dialogue, the rise of Kuwait populism, regional democratic regression, and support from official and unofficial Gulf actors, all indicates a move towards resilient backsliding. This comes in addition to cynicism over democracy amongst Kuwaitis, drawing parallels from responses to the Gaza War in the West and the appeal of the Gulf economic model vis-à-vis Kuwait’s democracy.

The silence should not be seen as acquiescence. Kuwaitis should adopt technical solutions to their political crisis during the next amendment process, rather than letting lucrative authoritarianism slip into their constitution. Kuwait’s new constitution, as others, will require some militant democracy investment against those who seek to disrupt democracy using legal means. But as this case demonstrates, anti-democrats are not political parties but state authorities that fall outside the triangular branching of government.