Egyptians will begin 2014 by heading back to the polls, this time to pass judgment on a new constitution. The draft, actually a series of changes to the old constitution so numerous as to constitute an entirely new document, will be put to a vote in mid-January.

In this Q&A, Nathan Brown argues that approval of the referendum is a foregone conclusion, and the result is likely to resolve little. Indeed, the constitution and the referendum are more likely to exacerbate tensions and divisions in Egyptian politics than to form part of a democratic transition.

Will voters approve the draft constitution?

Nathan J. Brown
Brown, a professor of political science and international affairs at George Washington University, is a distinguished scholar and author of six well-received books on Arab politics.
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It is rare for a constitution to be rejected in a referendum. Egyptian voters have never turned their rulers down, and constitutional referenda in other countries almost always pass. In this case, it is true that there are some political actors opposed to the constitution—most notably the Muslim Brotherhood and its associated Freedom and Justice Party (FJP), which was ousted from power in July.

But these actors are more likely to boycott the referendum than to mobilize for a “no” vote. It is unlikely that the FJP would be able to muster a majority against the constitution. What’s more, prevailing feelings among FJP members—from what can be gleaned—lend themselves far more to expressions of outrage than to cold electoral strategizing. The widespread arrests of movement members, the regime’s violent crackdown to disperse demonstrators, many of whom were FJP supporters, last summer, and more recent attempts to ban the movement have left the Brotherhood and the FJP ill equipped to strategize and in no mood to participate in the political system for now.

Will the election be free and fair?

No, but that won’t affect the outcome—the referendum would probably pass even if the election were free and fair.

It is probably impossible to hold a free vote in the current political environment. The FJP, which won more seats than any other party in the country’s 2011 parliamentary elections, clings to legal existence but is not able to operate freely. Islamic broadcasters have been shut down. Opposition rallies of any size seem impossible in the current climate. Journalists and activists report harassment and threats from security agencies, and there have been many arrests. There have also been scattered reports that even campaigning against the referendum has been treated as a threat to public security.

And the referendum will not be fair because various parts of the state apparatus are tipping the scale in favor of approval. State-owned media, for example, treat the constitution as a breakthrough and the referendum as a time for celebration, fostering an atmosphere in which the campaign to oppose the referendum is at best anemic. Official encouragement merely to vote is essentially tantamount to an appeal for approval.

While it is difficult to say with certainty, even a free and fair election would still likely result in approval for the constitution. Mobilized public opinion seems largely supportive of the current political order, though pockets of strong Brotherhood support continue to exist.

Is Egypt following the interim government’s plan for its political transformation?

Not really, but its departures from this plan do not seem to matter much to anybody.

On July 3, Defense Minister Abdel Fattah el-Sisi laid out a road map for Egypt’s future. The new military-backed Egyptian regime appointed two committees to amend the country’s constitution—a committee of jurists began the work, suggesting a comprehensive set of changes, and a second committee of officials, representatives of specified groups, and other prominent individuals then drafted its own series of amendments.

But the country’s political actors seem to have simply forgotten other elements of Sisi’s plan, such as a code of ethics for the press, a reconciliation commission and a rapid review of the parliamentary electoral law passed by the Brotherhood-dominated upper house of parliament.

Other elements of the road map have been changed with only muted complaints. The entire transitional process has stretched out longer than promised, with creative counting of days for each of the document’s various deadlines. And one matter ostensibly settled by the road map, the sequence of parliamentary and presidential elections, has been reopened by the draft constitution.

But these changes seem to make no difference to all actors’ evaluation of the political sequence. While there is considerable jockeying now about the law for parliamentary elections and the sequence of presidential and parliamentary elections, none of the key players are referring back to the way these issues were handled in the July 3 statement. Instead, they are treating them as matters for negotiation.

Will the new constitution be legally adopted if it passes?

Yes, though the reasoning is a bit circular. The new constitution and the referendum will make themselves legal. According to the draft constitution itself, if the document is approved in a referendum it becomes legally binding. If there was anything illegal done prior to that point (such as the suspension of the constitution in July), that flaw becomes irrelevant.

This reasoning may be strange, but it is both practical and based on political realities and precedent.

Past Egyptian courts have treated referenda on constitutional matters as beyond their reach, operating on the premise that once the people have spoken in a constitutional voice, no court drawing its authority from that constitution can overrule them. Such was the attitude of the country’s Supreme Constitutional Court as recently as this past June when it accepted the validity of the country’s controversial 2012 constitution. Therefore, Egyptian courts will only view the current constitution as having been overturned if a new one is approved in a referendum or a revolution occurs and brings about a constitutional vacuum.

And all critical parts of the Egyptian state are fully behind the new document, so the country’s most powerful political actors are unlikely to seek any way to reverse it.

Will the constitution be legitimate?

That will depend on whom you ask. And that is precisely the problem: Egypt has no tools accepted by the country’s main political actors to settle political differences. Losers no longer regard elections as binding, and there no processes in place that allow contending parties to hammer out agreements.

In fact, the country’s new constitution might entrench, rather than manage, Egypt’s deep political divisions. The constitution will be approved and accepted by its supporters. But that will not persuade its opponents.

The same thing happened in 2012, when Egyptians were strongly divided over the draft constitution proposed by then president Mohamed Morsi. Although the constitution was approved in a December 2012 referendum, sharp disagreements persisted and contributed to the political crisis that ended in the overthrow of Morsi’s presidency.

This constitution will likely last longer than the one it is replacing, but there are some worrying signs about its fate as a viable document that provides for a stable system. Some of the constitution’s defenders excuse its flaws by claiming that the document might not last more than five or ten years anyway, a remarkably diffident attitude. And the political process since the massive June 30 demonstrations against then president Morsi has led to the creation of an increasingly embittered Islamist minority (that does not seem to accept that it is the minority).

Much attention has therefore focused on turnout in the referendum as an indicator of its legitimacy. Critics attacked the 2012 constitution since slightly less than one-third of eligible voters cast a ballot. If supporters of this constitution cannot beat that mark, they will suffer an embarrassment. But embarrassment is not a particularly strong factor driving Egyptian politics, so they have no real cause for worry.

Is voter turnout expected to be strong?

Strong is a relative word. Egyptian elections have always had low turnout, although those that have taken place since the 2011 revolution that overthrew then president Hosni Mubarak have been partial exceptions to that rule. Even in those elections, though, turnout figures have varied greatly—41 percent for the March 2011 referendum on constitutional amendments, 62 percent for 2011 parliamentary elections; 15 percent for 2012 elections to the upper house of parliament; 52 percent for 2012 presidential elections; and 32 percent for the 2012 constitutional referendum.

With the country exhausted and cynicism returning, the upcoming referendum certainly faces an uphill battle. What is more, the new regime’s attempts to discredit its opponents may backfire and reduce voter turnout. The interim government has been trying to convince Egyptians that its Islamist opposition consists of terrorists who will stop at nothing to disrupt the referendum but also that it is perfectly safe to vote.

The country’s most successful electoral mobilizers in the very recent past—the Brotherhood and the Salafis—have lost both their interest in bringing voters to the polls and their ability to do so. One Salafi group, the Nour Party, backs the draft constitution, but its base of support among its past sympathizers remains unclear.

Various formulas have been used in the past to raise turnout figures, but each has limitations.

First, Egyptian leaders made voting compulsory so that those who failed to vote would be subject to fines. But that law has never been enforced and hardly seems a tool for inducing popular acceptance of the constitution.

Second, official vote totals have been inflated, sometimes shamelessly. Such electoral manipulation was far easier in the past when nobody took elections seriously. It may still be possible now depending on how the election is managed.

Third, locally influential or wealthy figures have mobilized their followers in cities and towns throughout the country to vote, using a wide variety of inducements. This method characterized elections in much of the twentieth century. Such influential political figures may be reemerging, but they are far more likely to be interested in parliamentary elections (in which they may gain a seat) than in a referendum without candidates.

Finally, the entire state apparatus—including public sector companies—has been mobilized to produce voters. The resulting referenda, characteristic of the plebiscites of former Egyptian presidents Gamal Abdel Nasser and Anwar al-Sadat, have been designed more to celebrate the outcome than to determine it. In 2013, such an effort might do more harm than good to the cause.

But this constitution’s fate likely depends little on a healthy turnout. Because of the self-referential world of Egyptian political debates, the reaction will likely be the same regardless of how many actually vote: supporters will hail the decisive victory of Egypt’s best constitution ever while its opponents outbid each other in decrying the violation of everything good and Godly.

What are the next steps in Egypt’s political transition?

After the constitution passes, there will be parliamentary and presidential elections. The sequence and rules, originally laid out in the road map but reopened by the constitutional drafting committee, have not been announced.

Suspicions abound that the country’s interim rulers have decided the rules of these elections and tailored them to ensure a specific result but that they will not make the rules public until after the constitution is approved. But my strong impression based on a recently concluded visit is that these rules have not been decided. Virtually nobody is ready for these elections, so there is no consensus about how to move forward.

The presidential race is dominated by the question of whether or not Sisi will run. And on this question the indications are very clear but completely contradictory.

The defense minister has strong reasons not to run—his candidacy would expose him and the military politically, cement the reputation of the regime as a military one, saddle him with responsibility for Egypt’s insoluble problems, and in some ways constitute a demotion from his position leading the Ministry of Defense. But at the same time, it will be very difficult for him not to run: there is nobody to fill his shoes as a candidate, and the military might not trust anyone else in the job. There is also concern that the presidency, a critical institution in the Egyptian state, would be weak in the hands of an inexperienced politician.

Parliamentary elections face perhaps an even more daunting challenge: no party is ready for them. Various political actors are focusing their attention on writing election rules in a way that promotes their interests rather than building true national parties.

The sequence and procedures have therefore been turned over to the taciturn acting president, Adly Mansour, who has given little indication of how he plans to proceed. Egyptian newspapers are filled not only with accounts of public consultation but also with speculation on what is being thought and discussed privately.

But the process of consultation and decisionmaking is only just beginning. And these decisions, while fateful, will hardly be the end of Egypt’s political journey. The country’s deep political wounds are not healing, calling into question whether it still makes sense to describe the process, such as it is, as a political “transition.”