National Dialogues as Constitutional Moments

Following years of sustained criticism over its human rights record from foreign governments, UN officials and human rights watchdogs, Egypt’s government has made a series of noteworthy decisions to address the situation over the last two years. It ended the nationwide state of emergency in force since 2017, launched a National Human Rights Strategy, appointed some reformists to the National Council for Human Rights, and reactivated the Presidential Pardon Committee which facilitated the release of several political prisoners. In April 2022, President Al-Sisi also announced a surprising call for a “political dialogue on national priorities during the current phase.” After a year-long wait, the National Dialogue launched on May 3. This post will explain why despite some promising features, it is unlikely to effectuate meaningful change, due to certain design flaws and the decision by its Board to preclude the possibility of constitutional change.

Why Now?

The President’s decision to initiate a national dialogue in Egypt was unexpected due to the consolidated nature of the regime. For years, the regime was able to navigate waves of international criticism and domestic dissent quite successfully, with opposition sidelined effectively inside the parliament, and neutralized from the street and digital space. As such, the initiative should not be understood as a political settlement, co-optation, or a mean legitimation of any sort, with no looming threat of domestic discord in sight. Instead, the timing of the dialogue appears to be driven by the unsettling economic and cost-of-living crisis, as evident by the surging of food inflation to 60% and the devaluation of the currency by 70% in one year, resulting from poor policy decisions and the aftermath of the Ukraine War. Holding a national dialogue, the government may hope, can attract new FDI and secure financing schemes from IMF decision makers. As a mechanism, it enables blame-sharing suggesting that the opposition are equal partners with a formal role in the political process, despite facts to the contrary.

A Controversial Process

The design of the process was subject to many controversies since its announcement. The National Training Academy (NTA), a subsidiary to the Presidency, was mandated to conduct the dialogue. The NTA’s selection of the General Coordinator (who is the chairman of another subsidiary body to the Presidency) and the Head of Secretariat to run the Dialogue raised concern about the lack of consultation with the remaining organized opposition group in Egypt, the Civil Democratic Movement (CDM). In July 2022, the General Coordinator announced the formation of a 19-member Board of Trustees tasked with administering the dialogue. The CDM had asked for half of the seats on the Board, however, in the end it only included 7 opposition figures and some independent academics.

A second controversy emerged during this stage regarding confidence-building measures. CDM insisted repeatedly on certain demands, including the release of all political prisoners prior to the start of the dialogue, as a condition for their participation. Although this demand was not met en masse in the end, the Board, in cooperation with the Pardon Committee and the Judiciary, secured the release of more than 1400 prisoner and detainees. Equally important, the atmosphere of the dialogue has created an impetus for reforming pre-trial detention. Once a taboo in Egyptian politics, there is a now a near consensus across the political spectrum on the need to end this practice. Several politicians, including Amr Mousa, the former Chairman of the 2014 constitution-making body and veteran Foreign Minister, and the General Coordinator of the Dialogue himself, have spoken during the Opening Session against it, making it a likely positive outcome of the Dialogue once it successfully concludes.

The Board has divided the dialogue into three dimensions: political, economic, and social, and to three respective committees. Each committee is divided into certain subcommittees, discussing a total of 113 issues. The Political Dimension Committee for example is divided into five subcommittees: Political Parties, Civil Society and Syndicates, Political Rights and Political Representation, Local Government, and Human Rights and Public Freedoms. The current process in Egypt has five problematic design features that distinguishes it from other national dialogues experiences, examined comparatively: agenda-setting, the role of the government and size of participation, timing, nature of the outcomes, and the voting methods.

Five Design Flaws

For one, the dialogue is not goal-oriented in that it lacks a clear normative objective such as a transition to democracy. Rather than setting up targeted negotiation around a particular goal, this unfocused approach renders the dialogue akin to a soap-opera-esque town hall meeting that jumps from one topic to the other. The inclusion of other economic and social issues from youth policy to national identity, departs from the original call of the president on the need of political reform, and further distracts participants from focusing on the reform of the fundamental rules of the game. According to the Board, of the 113 issues to be discussed in dialogue, 38% are to economic issues, 34% are social issues, and only 29% are devoted to political issues.

The second issue concerns the role of the government in the dialogue. In most national dialogues, governments participate as actors. In Egypt however, the government will only participate to observe and brief the participants and answer their questions. This creates an uneven power dynamic and positions the government as an above-politics body. It falsely frames the core of the political stagnation as between disagreeing political parties, and not between the government and the populace. When governments participate directly, this signals commitment and ensures that  agreed-upon proposals have the potential to possess real political impact.

The divergence from the original goal of the dialogue (feature one) and the lack of participation of the government (feature two), have produced another nuanced problem. As the dialogue shifted to a society-society conversation rather than a high-level political negotiation, it created both qualitative and quantitative challenges in justifying limits on participation. The first concern refers to the participation of social groups and actors with no partisan agenda or political background whereas the the dialogue may not be the most appropriate forum for their demands, and the second refers to the danger of excessive participation and the potential to exceed even large-scale dialogue initiatives like the 3000-delegate Somalia’s Djibouti Dialogue.

A further concern is the absence of clear time frame and an expected end date of the dialogue. Such open-endedness can undermine the effectiveness of the dialogue and its credibility amongst participants and observers. A similar problem concerns the seemingly non-binding nature of the Dialogue’s outcomes. In general, national dialogues culminate in an agreement that may be subject to parliamentary vote or popular referendum, to strengthen the legitimacy of the outcome. In Egypt however, the recommendations of the National Dialogue are not binding, and will be submitted to the president who may then refer them to the Cabinet or the Parliament. A final issue concerns the voting methods. The Board has decided that each committee will deliberate by unanimity rule, and in case disagreement prevailed, all opposing opinions will be reflected in the Committee’s final report, which will be submitted to the Board and the President. This deliberative model may lead to deadlocks, especially in the absence of deadlock-breaking mechanisms, and gives the president a broad margin of appreciation which could undermine reform efforts.

The Question of Exclusion

There are two additional issues concerning the eternal challenge of democratic participation and constitutional design i.e., the problem of exclusion. The Board decided earlier that two groups will be excluded from the National Dialogue. The first group is those who used or incited violence. President Al-Sisi himself stated that the dialogue is open to all political factions, except one group – in reference to the banned Muslim Brotherhood (MB) which has been designated as a terrorist organization in Egypt since 2013 following a popular revolution in the same year. Whether the decision to exclude the MB based on this violence criterion is justifiable or a mere association fallacy is a subject of contention. What is crucial to recognize is that every national dialogue must decide on the issue of exclusion carefully. Looking back at the implications of excluding Taliban and the Hizb-I Islami in the process laid out by the Bonn Agreement in Afghanistan, many consider it now an “original sin” and “strategic mistake”, as it planted the seed for their marginalization and eventual violent resurgence and comeback in August 2021. Counterfactually, the inclusion of a powerhouse like Taliban could have provided an opportunity to test the moderation thesis better in the context of constitution-building.

The second group to be excluded from the participation in the Dialogue, according to the Board in Egypt, are those who do not accept the legitimacy of the current 2014 Constitution. Although this in effect has no bearing on any other groups, as all groups, except the Muslim Brotherhood, do indeed recognize the legitimacy of the constitution, this condition highlights once again the limitation of political tolerance even in a dialogical site like this one.

An Aborted Constitutional Moment

The Board’s approach to the Dialogue has gone beyond excluding parties that do not acknowledge the legitimacy of the 2014 constitutional order. The Board has announced on multiple occasions that the constitution itself is off-the-table for discussion, along with defense and foreign policy. Their rationale was that official channels for amending the constitution are already there, and that the dialogue is not an alternative to state institutions. This argument by the Board can be easily dismissed since lawmaking as well is a prerogative of other state institutions, yet the Board was comfortable engaging in it while avoiding the tougher constitutional talk.

More fundamentally, however, the Board’s position ignores that national dialogues are constitutional moments by nature, and hence they arguably cannot, by design, rule out the possibility of a constitutional change. This does not mean that all national dialogues should practically have a clear constitution-making mandate or function as was the case in Yemen or Jordan’s experiment with them. Rather, national dialogues – understood as a conscious, broad, and deliberative process committed to profound change of issues of common concern-  are inherently moments of constitutional transformation, beyond formal amendment procedures.

National dialogues are capable of renewing and reviving the foundations of constitutional politics and even creating new governing norms and institutions. They represent the actualization of the social contract, not in its ahistorical sense, but stricto sensu. The Ackermanian view of the constitution understands it as a document that is continually shaped by the dynamism of engagement of citizens. National dialogues, although manufactured constitutional moments, still possess the potential to create inertia for profound constitutional transformation, as any other organic constitutional moment characterized by “popular mobilization, led by political elites urging fundamental transformation”.

Therefore, dismissing the possibility of a constitutional change in the context of a national dialogue process is both dangerous and misses the larger picture. It is dangerous because it reinforces the notion that the power to amend the constitution is de facto the domaine privé of the constitutional-maker-in-chief, which in Egypt is the president. Such a view is troubling in a country that has history of presidents tampering and meddling with term limits and judicial independence as was last seen with the controversial 2019 amendments. Additionally, the proposition fails to understand the intimate relationship between constitutional moments and national dialogues. Without diving into the placement of sovereignty versus precommitment in constitutional theory, the idea that higher lawmaking is reserved for official channels alone is flawed. In the Egyptian context, even when the prospects of a constitutional change are not available during the National Dialogue, a separate but organic constitutional moment is bound to emerge in response, albeit gradually.