One year after the Egyptian military bowed to the demands of the Tahrir Square crowds and forced President Mubarak from office, Egypt is still struggling to complete the first phase of the transition process. The country is caught in a vicious circle that risks derailing its move toward democracy, leading to more uncertainty and violence. The fundamental lack of agreement on the appropriate steps of a transition process and the constant changes introduced by the military or demanded by protesters and political parties are emerging as the real stumbling blocks to the formation of a new government and legitimate institutions.

As the U.S. Congress threatens to withhold aid from the Egyptian military because of the treatment of American NGOs and their personnel, it is important to keep in mind that the progress the United States wants to see in Egypt does not depend on foreign assistance but on agreement among Egyptians about the next steps.

Marina Ottaway
Before joining the Endowment, Ottaway carried out research in Africa and in the Middle East for many years and taught at the University of Addis Ababa, the University of Zambia, the American University in Cairo, and the University of the Witwatersrand in South Africa.
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Egyptians agree on the need to accomplish three tasks in short order: completing the parliamentary elections; electing a president and transferring executive power from the military back to a civilian government, with the Supreme Council of the Armed Forces (SCAF) presumably reverting to its original role as a council that discusses military matters under the chairmanship of the president; and writing a new constitution. What they strongly disagree about is the sequencing of the three tasks.

Parliamentary elections are half complete: the lower house of parliament, the People’s Assembly, is now seated. It has elected its officials and chosen the committee heads. The legislative body is preparing to debate new laws and it strongly opposes the propensity of the SCAF to continue issuing decrees. Not everybody is happy about the choice of officials and committee heads—some of the smaller secular parties walked out of a parliamentary session after receiving no posts. And the military is unhappy that parliament is already trying to flex its muscles by challenging the legality of the presidential election law the SCAF decreed in mid-January, and weighing in on the timing of presidential elections.

Paradoxically, while the People’s Assembly is now ready to act and gives all signs of wanting to be a strong and combative institution rather than the rubber stamp Egyptian parliaments have been in the past, the transition is pretty much on hold while elections for the upper house, the Shura Council, take place. The council has always been a powerless institution—de jure as well as de facto—and accordingly, few Egyptians are bothering to vote. Regardless of the election, the upper house will be a truncated organization for the foreseeable future: only two-thirds of its members are elected and the rest appointed by the president, but the courts have decided the SCAF cannot make these appointments. In the meantime, drafting the constitution has been delayed until after the election.

The absurdity of elections for the Shura Council—an institution many believe should be abolished and one that may not be able to function until a president appoints its remaining members—highlights the difficulties of the present situation. The transition steps are not well designed and their sequence is flawed. The parliament is being elected to a five year-term, but the constitution will be revised shortly, possibly in only a matter of weeks according to some proposals.

Rather than addressing the chicken-and-egg problem faced in all transitions—that you cannot elect new institutions until there is a constitution, but that you cannot have a constitution without electing a body to discuss and approve it—Egypt decided to ignore the challenge, electing institutions for the long term while their powers are likely to be altered in the short term. By contrast, Tunisia addressed the same problem in the time-honored way of electing a constituent assembly with a one-year mandate, to be replaced at the end of the period by a parliament elected under the new constitution.

The problem of electing officials for the long term when the rules are about to change is particularly acute with regard to the presidency. The new constitution may make some changes to the powers of the parliament, but there will always be a parliament making laws. There will also always be a president, but his power may change dramatically.

Three possibilities have been suggested for the presidency: maintaining a system with a strong executive president; moving to a parliamentary system, with a figurehead president and a strong prime minister chosen by and responsible to the parliament; and adopting a mixed system similar to the French one, in which executive power is shared by a president elected by the voters and a prime minster chosen by the parliament. The Freedom and Justice Party, which controls 43 percent of the seats in the new People’s Assembly, has called for this type of mixed system in the short term, with plans to switch to a parliamentary system in the long term. Accordingly, it is not impossible that the role of the president will greatly change under a new constitution and that a newly elected president will see his powers drastically curtailed after only a few months.

The solution proposed by some, that the president elected now would be grandfathered in to serve the remainder of his term under the old constitution, would create an even more untenable situation, particularly since the 1971 constitution was abrogated. Egypt currently functions under a “constitutional proclamation” the SCAF cobbled together from pieces of the old constitution, amendments approved in a referendum in March 2011, and additional changes introduced by the SCAF in further proclamations.

Egypt cannot wait for long before holding presidential elections, however, as the country is getting restive under military rule. In November, the SCAF responded to public pressure and announced presidential elections in June, revising its earlier, more leisurely time table that envisioned the drafting a new constitution first, followed by presidential elections in early 2013. Protesters and various presidential hopefuls have called for even earlier elections. A bill tabled in the People’s Assembly calls for presidential elections on April 15, with the registration of candidates starting on March 1.

The desire of many Egyptians for the SCAF to surrender power as quickly as possible is justified. After a year at the helm, the military has achieved little, failing to steer a quick and viable transition process or to tackle major policy issues. But the present path to quick presidential elections spells disaster, leaving no time for the adoption of a new constitution, let alone one adequately discussed and supported by a broad consensus. The first meeting of the People’s Assembly and the Shura Council will not take place until mid-March. Even assuming that the parliament could agree swiftly about the composition of the 100-member constitutional commission it must form—an extremely unrealistic assumption—this leaves a ridiculously short period to write a constitution and submit it to a popular referendum before the presidential elections are held.

Some Egyptians claim the country has good constitutions that can be dusted off quickly. But none of those previous documents call for the parliamentary or mixed systems favored by the Freedom and Justice Party. And even Egyptians advocating the return to earlier documents admit that Egypt’s best constitutions on paper were never implemented in practice, a strong reminder that the writing of a successful constitution is not a technical exercise, but a consensus-building process.

This is the vicious circle Egyptians need to quickly stop in order to salvage a deeply flawed transition process. On paper, the solution is simple: Egypt needs to complete the parliamentary election process because that train has already left the station. It is now impossible to shorten or revoke the mandate of the elected parliament. A president needs to be elected as soon as possible for a one-year term while starting work on the new constitution immediately. Once the constitution has been enacted, new presidential elections must be held. Certainly, what is simple on paper is never simple in the reality of political life, but Egypt has no choice but to accept the necessity of electing a transitional president.

If there is anything the United States can do to help Egypt in this difficult period, it is not to equate progress toward democracy with accepting the presence of American NGOs. Rather, the United States and the international community should encourage all political actors to realistically address the conundrum into which the SCAF and the parties vying for their own advantage have plunged the country. Egypt’s actions toward American NGOs are problematic, but the threats to the Egyptian transition are much more serious, and this is what needs to be addressed.