The Birth of Modern Yemen - Chapter 4

An e-book by Brian Whitaker exploring the unification of north and south Yemen in 1990, and its aftermath

4. Mechanisms of unification

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SURPRISINGLY, in view of the momentous nature of Yemeni unification, there was no grand, historic document proclaiming the advent of a new era. In its place was an untidy accretion of signed agreements, draft agreements, reports, communiqués and statements of principle accumulated over a period of 18 years, some of which partly superseded others or contradicted them. The foundations upon which this rather unsteady structure rested were the Cairo and Tripoli agreements of 1972 which, in the eyes of many observers, had never seriously been intended as a means for achieving unification but as the means for ending a north-south war. 

The Cairo agreement had established eight expert committees to consider various aspects of unification, including one to prepare a draft constitution, but offered only the most general guidance: the new state’s system of government would be “republican, national and democratic” and the constitution would guarantee all personal and political freedoms. It added, somewhat optimistically, that the new state would guarantee “all the gains which the two revolutions of September and October [i.e. south and north] have realised”. The subsequent Tripoli agreement had added some details: the Sharia would be “the main source” of legislation and the state would aim to achieve “socialism of the Arab Islamic style”. There would also come into being “a unified political organisation” which would include “all productive groups of citizens”. Thus the new state would be all things to all people, combining Islam with socialism, democracy and political freedom with what sounded like a one-party system, and preserving all the achievements of two separate revolutions, regardless of any aspects that might be mutually incompatible.

This was the starting point when unification activity resumed in the late 1980s: to “continue the unity steps and the implementation of what has previously been agreed” [1].  Unification, of course, was not just a matter of creating a single constitution and a single government: it required integration at many levels – social, economic, administrative, and so on. To that end, the expert committees established by the Cairo agreement were revived and discussions ranged over most areas of state activity from integration of basic services to approving the words for a new national anthem. Several preliminary steps had been taken earlier with the establishment of the joint investment venture between Ma’rib province and Shabwa, the formation of a joint oil company, the lifting of travel restrictions between north and south, and a plan to link the two electricity grids.

Because of time constraints in the final weeks before unification, the working parties came under great pressure to complete their work quickly – and did so with varying degrees of success. In general, the level of success was inversely proportional to the complexity of the task. Thus the least contentious matters were covered by the most detailed agreements while more controversial issues were either masked in broad statements of principle or set aside to be dealt with later. The most important agreements reached in the run-up to unification covered finance, basic infrastructure, the civil service, political parties, security and the media:

Finance: 
The northern and southern currencies would become legal tender in all parts of Yemen at an exchange rate of 26 riyals to one dinar, with effect from May 4, 1990. The two finance ministers were instructed to prepare a unified budget covering the period from the declaration of unification until the end of the year [2].
Infrastructure: A basis was agreed for merging the two airlines and the telecommunications authorities [3]. There was also some progress on plans to merge water services and link the electricity grids [4].

Civil service:
Most civil servants working in Aden would transfer to Sana’a, but as a consolatory gesture towards Aden, ministerial branch offices in the city would have greater privileges than those in other provinces and would “perform part of the duties” of central government. A framework for salary scales in the unified civil service was also approved. To avoid job losses as a result of unification, it was agreed that all current employees should be absorbed into existing institutions. The life of civil servants in Yemen had never been a particularly busy one, and the effect of this was to create a vast amount of surplus manpower or duplication of duties. The archives of the southern civil service were also to be moved to Sana’a, including “all agreements, treaties and commitments of the unity state, as well as others that will result”. The secret archive and similar documents would be sealed with red wax and transferred to the unity state’s capital. “They must not be opened afterwards except by decision of the unity state’s cabinet in keeping with the need to use them.” [5]

Political parties: 
Basic elements of a law on political organisations and parties were agreed, together with a proposal to restrict political activity in security and military institutions. There was also a draft agreement on “joint action” between the GPC and YSP, as well as the formation of a committee to hold dialogue with other political parties, organisations and public figures.

Security: 
President Salih and Ali Salim al-Baid agreed “that the higher national interest requires the withdrawal of the armed forces from the capital, Sana’a, and the economic capital, Aden, to military areas to be agreed by the Staff Command within military zones of the Yemeni state.” [6] The agreement went on to comment that it was not in the public interest to stockpile weapons in the capitals, lest it gave rebels “the opportunity to cause a catastrophe, directly or indirectly, God forbid”. This later became a highly contentious issue: the YSP felt threatened by the presence of northern forces in Aden, while the president was reluctant to withdraw them from Sana’a for fear of riots or insurrection. The precise wording of the agreement should be noted, especially the phrase “the higher national interest requires” (which implied desirability without making any specific commitment to withdraw forces), and the lack of any timetable for a withdrawal.

Information and culture: 
The information ministers of both states signed a draft law on press and publications which provided for a free press, though with a limited a degree of government control [see Chapter 6]. They also agreed to merge the two state-run broadcasting institutions into the Yemen Radio and Television General Corporation, as well as to establish a General Cinema and Theatre Corporation [7]. Other agreements covered minor issues such as the state emblem and national anthem. The colours of the new flag were stipulated by the draft constitution [8].

Special measures in the south: 
The southern parliament took various steps towards harmonising its system with that of the north. It repealed Law No 38 (1976) regarding the buying and selling of qat on weekdays and Law No 15 (1981) which had restricted qat cultivation. It also approved action to standardise the taxes on qat in both parts of the country. Two further measures sought to compensate land and property owners for losses they had incurred through “incorrect application” of laws regarding private ownership [9]. There were also symbolic changes in the south aimed at preparing the political climate for unity. Two days before unification the Presidium of the Supreme People’s Council formally rehabilitated “the militants liquidated, deported or subjected to fear or suffering due to political conflicts and differences or differences in ideology and opinion” – except those who had been “convicted by a competent court or had engaged in hostile acts against the homeland”. Those specifically exonerated included the country’s first president, Qahtan Muhammad al-Sha’bi (who had died in detention), and his prime minister, Faysal Abd al-Latif al-Sha’bi (who had been killed), and Salim Rubayya Ali, another former president (who had been accused of usurping power and executed in 1978). But there was no mention of Ali Nasser Muhammad, the president who was overthrown and fled to the north when al-Baid and his faction won power in 1986 [10]. Simultaneously, the YSP central committee announced it was absorbing into its ranks the Popular Unionist Party, a group that had called for armed struggle against the north in the 1970s. Statues of Marx and Lenin were removed from public squares and YSP slogans, such as “No voice can be louder than the voice of the party”, were taken down from government buildings [11].

Positive though these developments were, they represented only a preliminary step towards harmonising the two systems. Even allowing for the relative simplicity of the Yemeni states compared with those of the European Community, for example, and the fact that the arrangements concerned the standardisation of two systems rather than many, the resulting agreements were in sharp contrast to the slow, meticulous process undergone in Europe: they were rarely more than the minimum necessary for unification to become effective and in several important areas were considerably less. On the questions of monetary union, the civil service and the armed forces, for instance, there was no agreement on a mechanism for proceeding beyond the interim stage, let alone a timetable for doing so. Several of the other “agreements” amounted to little more than declarations of intent.

A particular difficulty arose over the different legal codes of north and south, since there was plainly insufficient time to standardise them before unification. The new constitution attempted to avoid the issue by stipulating that laws which were in effect in each part of the country before unification would continue to apply until they were amended [12]. This appeared to be a reasonable solution until it was pointed out that the new constitution could render some of the old laws unconstitutional. The Presidential Council then issued what it described as a “clarification”, stating that pre-existing laws could not be enforced if they contradicted the constitution and its spirit [13]. Rather than clarifying the issue, this merely confused it, since there was no ruling on which laws, or parts of them, were considered unenforceable.

It would be a exaggeration, however, to claim (as al-Baid did in 1994) that “unity did not exist except in the form of a flag and national anthem, and nothing else” [14]. United Yemen in May 1990 had one government and one constitution but it still had two currencies (both interchangeable), two sets of laws and two armies. The unification process has been much criticised for concentrating on political issues before economic ones and allowing too little time for structural integration and the development of mutual co-operation and trust. It is necessary, though, to consider the circumstances in which unification took place. The impulse towards Yemeni unity was political rather than economic, so it made sense to address the issue in political terms. Politically, neither part of Yemen could afford the drawn-out process of standardisation and harmonisation witnessed in the European Community; in 1990 there was a strong sense that the moment for unity had arrived, and that if not seized immediately it might be missed. The fact that the unified state came into being with a minimal degree of integration did not mean this approach was intrinsically flawed, provided that a means could be found for completing the process later.

The Yemeni approach also delivered some immediate benefits, though these were mainly of interest to the political elite. Unification provided a means of survival for the southern leadership at a time when Marxist or ex-Marxist regimes elsewhere were facing extinction, and enhanced the prestige of the northern regime – at least for a while. For the populace at large, the new-found freedoms were not accompanied by economic benefits, and in the south the social benefits of the Marxist era began to fade away. Once formal unification had been achieved, the need for further integration lost its urgency and the new political institutions proved inadequate for the task. Instead of proceeding with consolidating the union, both sides settled down to contemplate their outstanding differences at leisure. And since each side still yearned to dominate the other, those differences provided ample fuel for the ensuing power struggle.
  

THE CENTRAL CORE around which the unification arrangements revolved was the mechanism for transferring legitimate authority from the two old states to the new one, and here three separate documents applied. The first was the Aden Accord of 1989 (discussed in Chapter 2), the second the Sana’a Accord of April 1990 which partly superseded it, and the third was the draft constitution of the new republic.

The Aden Accord envisaged a three-stage process of unification:

1. Approval of the draft constitution by both parliaments within six months;

2. A referendum on the constitution;

3. Election of a unified parliament under the new constitution.

It is interesting to note, in the light of Yemen’s new interest in democracy, that there was no suggestion of a referendum on the union itself. The official attitude was to treat this as a logical impossibility; in the words of the former northern prime minister, Abd al-Aziz Abd al-Ghani, it would be “like asking Yemenis if they were Yemeni” [15]. A more practical explanation is that both sides wanted to push unification through and feared that a referendum would be tantamount to inviting trouble – not because it might be rejected but because it would reopen debate about the terms [16].

Although the Aden Accord had set no time limit for the constitutional referendum or parliamentary elections, the document stated that these would be arranged by “the president of both parts” – the words “both parts” implying that they would be completed before unification [17]. The formidable organisational difficulties involved in a referendum and parliamentary elections (under the rules of the new constitution rather than the old ones) were perhaps not fully appreciated at the time, but they meant that at best union would be delayed and at worst unforeseen circumstances might blow the process off course. 

Consequently al-Baid and Salih met in Sana’a on April 22, 1990, and accepted a revised set of proposals entitled “Proclamation of the Yemeni Republic and arrangements for the transitional period” (known as the Sana’a Accord) [18]. To speed up the process, they agreed that approval of the Sana’a Accord, together with the draft constitution, by both parliaments would be sufficient to achieve formal unification [19]. The effect of the Sana’a Accord was to dispense with the YSP’s proposal for a “transitional period” leading to unification – which the north regarded as a half-measure and a delaying tactic. Instead, unification would take place first and be followed by a transitional period of 30 months, during which the referendum and parliamentary elections would be held. The new constitution would become operative from the moment of unification, pending the referendum, but with certain temporary modifications:

1. From the day of unification until the elections, Yemen would have a “transitional” parliament comprising all members of the existing northern and southern parliaments. There would also be 31 members representing “nationalist forces” appointed by the Presidential Council (mainly to include southern opposition elements which had previously been excluded) [20].

2. The Presidential Council for the transitional period would be elected by a special commission drawn from both parliaments.

3. The Presidential Council would elect from among themselves a chairman and vice-chairman, i.e. the president and vice-president. (This was the first mention of the vice-presidency – a role for which the constitution had made no provision).

4. Upon its election, the Presidential Council would assume all the prerogatives granted to it by the constitution, as well as all the powers granted to the government by the constitution. The Presidential Council would then convene parliament to seek a vote of confidence and ratification of its decrees. (Although it appeared from this that the Presidential Council was empowered to act as government for the duration of the transitional period, in fact a government was formed almost immediately after unification.)

5. The referendum on the constitution would be held not later than November 20, 1990.

Apart from allowing unification to be brought forward, one of the most important effects of the introduction of a transitional period after unification was that it provided a lifeline for the southern YSP. Postponing the elections and merging the two parliaments to form a unified transitional parliament gave the YSP disporportionately large representation in the meantime. The new House of Representatives comprised 159 members from the north, 111 from the south, and 31 appointees (mainly from the south). Given that the northern population outnumbered that of the south by a ratio of about four to one, the YSP had far more seats in the transitional parliament than it could reasonably expect to win in freely-contested elections – a factor which became highly significant as the transitional period drew to an end.

The unified constitution

The constitution adopted in 1990 had, in the main, been completed 10 years earlier. Contrary to what the 1972 Cairo and Tripoli agreements implied, it did nothing to institutionalise socialism or a one-party system and placed considerable emphasis on individual rights and liberties. Hussein Ali al-Hubaishi, who chaired the constitutional committee, described it later as “a genuine attempt to guard against theocracy and absolutism … Those who laid down its basic tenets and rules knew that to guarantee the efficacy of the constitution, they had to pay regard not only to democracy as the governing principle of our political life, but also to human rights. Hence, principles were inserted to deal with basic rights of citizens, the separation of powers, the prescribed referendum and the steps that need to be followed if the House of Representatives is to be dissolved under dire circumstances, the basis for amending the constitution, and other safeguards such as in the judicial sphere.” [21]

In its most important aspects, the unified constitution was very similar to that adopted by the YAR in 1971. Both documents, for example, provided for a single-chamber parliament and a Presidential Council. Comparison of the two documents shows that the drafting committee used the northern constitution as their model, amending, adding and deleting where necessary. The resemblance was particularly close in the sections dealing with the organisation of government, though elsewhere there were a few small gestures towards the south, including a brief chapter on the social and cultural foundations of the state. There were also subtle but significant differences between the opening paragraphs of the old northern and southern constitutions and the new one. Article 1 of the new constitution emphasised the unity and territorial integrity of Yemen in a way that neither of the earlier constitutions was able to do, and in the process made separatism an infringement of one of the fundamental tenets of the new state [22]. One should also note that there was no place in the new constitution for the Marxist verbiage of the old south, or for the old northern idea that a parliament was merely “consultative” (see Table 1).

The reference to Islam in Article 1 was also subtly changed: the north had previously declared itself an “Islamic state” (implying strict application of Islamic law) but the new state would simply be "part of the Arab Nation and the Islamic World". The next two clauses in the new constitution established Islam as the religion of the state and Islamic law as the “principal” source of legislation (see Table 2). Although Islam had also been considered the religion of the state in  the PDRY, this had not been a matter of prime importance – hence its relegation to Article 47 and the additional statement that other religions were allowed. Islamic (Sharia) law had not been mentioned in the PDRY constitution and Article 3 of the unified constitution seemed to be an attempt to compromise between the relative secularism of the south and the idea prevalent in the north that the Sharia should be the source of all laws. The form of words chosen for this article of the unified constitution is used by several other Arab states (Egypt, for example) and means that legislators can at times draw on laws and legal concepts from non-Islamic states. The form previously used by the YAR – omitting the word “principal” – tends to weaken democratic processes because it gives considerable power to unelected religious scholars and can sometimes amount to the right of veto if they decide that a proposed law is not based on Islamic teaching. Without doubt, the new Article 3 was the most controversial sentence in the entire constitution [23].

The contrasting approaches of north and south can also be seen in the text of their respective laws, which in the north conventionally began with the bismillah formula (“In the name of God”) while those of the south began: “In the name of the people”. As a compromise, after unification, neither phrase was used. Similarly, the religious requirement for membership of the Presidential Council, to be “well conversant with affairs related to the Sharia, of good behaviour and conduct, upholding Islamic rites” was removed [24]. A new form of constitutional oath was also adopted (see Table 3).

Parliament

As in the former YAR, the new constitution provided for a single-chamber parliament with a fixed term of four years. Whereas the previous northern parliament had been composed of 159 members “freely and democratically elected” plus up to 20% appointed, the new parliament had 301 members [25], all of whom were to be elected “in a secret, free and equal vote”.
The change of name from Consultative Council (Majlis al-Shura) [26] to House of Representatives (Majlis al-Nuwwab) was significant, indicating that the new parliament was to be much more than a consultative or advisory body: “It shall enact laws, outline general state policy, and the socio-economic development plan, and approve the government budgets and final accounts.” [27] Examination of the corresponding articles in the YAR and unified constitutions illustrates the change that had taken place. Parliament was no longer “the supreme legislative body” (implying the existence of others) but “the legislative authority”. Such terms as “supervise” and “recommend” were replaced by “direct” and “control”; the government was no longer merely permitted to seek a vote of confidence from parliament for its policies, but obliged to do so (see Table 4).

The power of the president to amend or block draft legislation was severely curtailed. Under the YAR system, the president (as chairman of the Republican Council) was entitled to return bills to parliament with an “explanatory note” requesting changes. Parliament was then obliged to hold a second debate and the unamended bill could not become law unless approved by two-thirds of the members [28]. Under the new constitution the Presidential Council (not its chairman acting alone) could seek a review of legislation approved by parliament, but if parliament approved it a second time by a simple majority, the bill would automatically become law [29].

The parliaments of both the YAR and the unified state enjoyed a number of privileges intended to ensure their independence. The house was entitled to make its own procedural rules, within the limits of the constitution [30]; it was entitled to meet two weeks after the declaration of election results, whether convened by the president or not [31]; members could not be penalised for their voting patterns or any matters they raised in the house (except in the case of defamation) [32]; they could not be investigated, arrested, imprisoned or punished without permission from the house, unless caught in the act of committing a crime [33]. In the unified state, however, other privileges which had existed under the YAR constitution were reinforced and some new ones were added. In the YAR, for example, the president (as chairman of the Republican Council), had been empowered to dissolve parliament “by passing a resolution explaining the reasons for such action” and setting a date for fresh elections. The only safeguards in this process were that (a) parliament could not be dissolved a second time for the same reasons, (b) it could not be dissolved during the first 12 months after an election or during the last six months of the term of the Republican Council and (c) a dissolved parliament could resume its business if elections had not taken place by the date set [34]. Under the unified constitution the procedures were so restricted as to make dissolution of parliament virtually impossible:

The Presidential Council may not dissolve the House of Representatives except under dire circumstances and only after holding a national referendum on the reasons for the dissolution. The decision to dissolve the House of Representatives must simultaneously call voters to elect a new House of Representatives within sixty days of the referendum date. If the Presidential Council’s decision to dissolve the House of Representatives does not call for elections, or if such elections are not carried out within sixty days, the Presidential Council’s decision is considered null and void, and the dissolved House of Representatives shall resume its responsibilities by the force of the constitution. If elections are held, the new House of Representatives must hold its first session within ten days of the declaration of the election results. The government must resign before such elections are held, and a provisional government will take its place until the first meeting of the new House of Representatives. Once the House of Representatives is dissolved, the new House of Representatives may not be dissolved for the same reason. In all cases, the House of Representatives may not be dissolved in its first legislative period. (Article 78)

Other new provisions introduced in 1990 included:

1. The exclusive right of parliament to determine the legitimacy of membership in case of contested election results. (Article 46) 

2. The exclusive right of parliament to maintain order and security within the House, by means of a special guard force under the command of the Speaker. No other armed force was allowed to enter the House or take positions near its entrances except at the request of the Speaker. (Article 47) 

3. Protection of members of parliament from cancellation of their membership, except where disqualified by the membership conditions stipulated in the constitution. (Article 66) 

4. The right of parliament to establish a special committee to investigate any issue which is contrary to the general interest or to investigate the actions of any ministry, government agency, board, public/mixed corporation, or local council. All executive and special authorities were obliged to provide any information or documents required by the committee for this purpose. (Article 70) 
5. The right of every member to pose questions to the prime minister and other ministers on any matters falling within their responsibilities, and an obligation on the part of ministers to provide answers (Article 73). Beyond this, every member had the right to interpellation of ministers. (Article 75) 

The government

The Cabinet, described as “the government of the republic” and “the highest executive and administrative authority of the state” [35], was answerable to both parliament and the Presidential Council [36]. In theory, the prime minister had a greater degree of independence from the Presidential Council than previously in the YAR, since his choice of ministers no longer required the council’s approval (see Table 5).

However, it appeared that approval of the Presidential Council might be needed before the Prime Minister could dismiss a minister:

If the Prime Minister finds that it has become impossible for him to co-operate with a member of the Cabinet, he may present the matter to the Presidential Council to decide the appropriate action. (Article 113) 

The Presidential Council also had the power (not previously granted by the YAR constitution) to suspend the Prime Minister or other ministers and place them under investigation because of crimes or offences committed by them in discharging their duties. This could be at the instigation of the council itself or of parliament, after a two-thirds vote [37]. A collective resignation of the entire government would be brought about if (a) parliament withdrew its confidence, (b) the Prime Minister became unable to perform his duties, or (c) more than half the ministers resigned (Articles 114, 115).

In terms of its functions, the cabinet was “responsible for the execution of the overall state policies in the political, economic, social, cultural and defence fields, according to the laws and regulations”. The following were also specified:

a) In conjunction with the Presidential Council, to participate in preparing the broad outlines of internal and external policies.

b) To prepare drafts of the national economic plan, and the annual budget, and to organise and execute them, and to prepare the government’s final statement of accounts.

c) To prepare the drafts of the laws and regulations for presentation to the House of Representatives or the Presidential Council according to the responsibilities of each.

d) To approve agreements and pacts before presenting them to the House of Representatives or the Presidential Council according to the responsibilities of each.

e) To take the necessary measures to guard the internal and external security of the state, and to protect the rights of citizens.

f) To guide, co-ordinate and review the activities of the ministries, the administrative apparatus, the corporations and boards, and the public and mixed sectors according to the law.

g) To appoint/dismiss senior government officials according to the law, and to define and execute the policies that aim to develop the technical manpower in the government organisations, and to train/qualify personnel according to the need of the country within the framework of the economic plan.

h) To follow up the execution of laws, and to guard the state funds.

i) To supervise, organise, and administer the monetary, credit and insurance systems.

j) To contract in/out loans within the overall policies of the state, and within the limits of the constitution. (Article 109)

Local authority

The constitution provided for a system of local administrative units with governors accountable to (and controlled by) the cabinet [38]. The previous YAR constitution had stated that these “administrative units shall have local councils in which the affairs of the regions shall be administered in a democratic manner” [39]. The ambiguity of “a democratic manner” was clarified in the new constitution, which said:

Administrative units shall have elected local councils. The law stipulates the duties, authorities, power and rights of the local councils. The law further stipulates the procedures for electing local councils, their functional systems and financial resources, and their roles in preparing and executing the development plans. (Article 118)

In fact this was a declaration of intent rather than a statement of reality, since no law setting out the procedures for local elections existed and during the first few years of unity no local elections took place.

The presidency

Collective presidency (at least in theory) was a familiar concept in both north and south Yemen before unification. In the north, the presidency had been held collectively by the Republican Council, “responsible for specifying the state’s general policy and for supervising its execution” [40]. Under the 1971 constitution the council consisted of between three and five members, elected by parliament [41]. The members of the Republican Council then elected a chairman from among themselves, who became president of the state and Commander-in-Chief of the armed forces [42]. Although the constitution described the chairmanship as “rotating” [43], it provided no mechanism for this, and in practice there was no rotation.

Between 1974 and 1978, the south had a similar body, the Presidential Council, consisting of between three and six members. These usually included the President (who acted as its chairman), the Prime Minister, and the Secretary-General of the party. As with the northern Republican Council, it had considerable powers, which included proposing laws and initiating parliamentary debates, fixing dates for elections and nominating members of the cabinet, as well as controlling military, judicial and senior civil service appointments [44]. In 1978 the PDRY's Presidential Council had been abolished, and replaced by the 11-member Presidium of the Supreme People’s Council. As before, the chairman of this body was the head of state. The Presidium's importance, however, was much diminished as state power shifted towards the president and cabinet.

The structure adopted for the unified state was similar to that abandoned by the PDRY in 1978, and almost identical to the one which had existed in the YAR since 1971. There was to be a five-member Presidential Council elected, as before, by parliament for a period of five years. To remove the possibility of candidates being elected on a minority vote, a new balloting system was introduced which required a two-thirds majority in the first round of voting or an absolute majority in subsequent rounds. For a nomination to succeed, candidates had to have the support of 25% of the House [45]. A further innovation was that members of the Presidential Council were forbidden from engaging in any business activity during their term of office, whether directly or indirectly, nor were they allowed to buy or rent state property, or to sell or lease their own property to the state [46].

As in the old YAR, the members of the Presidential Council were to elect a chairman from among their number, but an effort was made to restrict his power. The statement in the 1971 constitution that “the chairman of the council is the president of the state and commander-in-chief of the armed forces” was omitted from the new one. 

It is significant that nowhere in the new constitution was the chairman of the Presidential Council referred to as head of state. The chairman of the council could be correctly referred to in English as its president, since the Arabic term – ra’is – covers both “chairman” and “president”. However, there was nothing in the constitution to suggest that the person who chaired (or presided over) the Presidential Council could claim to be President of the Republic; technically, the council as a whole was head of state. This was a subtle distinction, perhaps, but one that proved important in the squabbles that followed. 

Regarding control of the armed forces, Article 24 of the constitution specified that the chairman of the Presidential Council would head the National Defence Council – which was somewhat different from calling him commander-in-chief. He was empowered to proclaim a general mobilisation of forces, but only “according to the law” and “following the approval of the House of Representatives” (Article 23). Other powers of the chairman were subtly modified (see Table 6).

In general, all this suggested an effort to introduce checks and balances, and to avoid a concentration of power around the personage of one man as seen in most of the other Arab countries. However, as will be seen later, that was not how it turned out in practice. Additionally – and this became a source of conflict later – there was no provision in the new constitution (or, indeed, the old one) for the post of deputy chairman of the Presidential Council. The fact that this title was conferred on Ali Salim al-Baid was purely a matter of consent; it had been agreed under the Sana’a accord but there was no constitutional basis for it whatever.

The powers of the Republican Council in the old YAR had been defined mainly in general terms as “specifying the state’s general policy and supervising its execution” [48]. The three specific powers assigned to it were (i) to appoint senior civil servants and military officials “as prescribed by law and in accordance with the nomination by the appropriate quarters” [49]; (ii) to accredit foreign diplomats [50] and (iii) to confirm death sentences or commute others in cases not involving sharia punishments [51]. Under the unified constitution, the Presidential Council’s powers were more specific and numerous, but also more restricted. The list bore a striking resemblance to the powers assigned to the Presidential Council of the PDRY in 1970, suggesting that on this point at least the southern view prevailed (see Table 7).

The power to deal with emergencies at any time by issuing decrees, which had been granted to the Presidential Council of the YAR, was restricted under the new constitution to periods of parliamentary recess or dissolution. In both cases, subsequent ratification by parliament was necessary [52]. The arrangements under which the Presidential Council could declare a state of emergency were also clarified (see Table 8).

 
IN MANY WAYS the 1990 constitution was a well-intentioned document. It sought to inhibit autocratic power and to provide a framework for the development of a modern, liberal, democratic state. Moreover, it did so in a Yemeni context, by building on existing, familiar institutions without the need to import foreign ideas. In the process, as the foregoing analysis shows, it borrowed heavily from the old northern constitution – especially in terms of the new state’s structure and functional relationships. The south made a contribution in less crucial areas, for example, in some aspects of the document’s social vision. A stronger northern influence was probably inevitable, since the old southern constitution embodied concepts which, with the abandonment of Marxism, had become out-dated. Potentially that benefited the northern leaders in that they had a better grasp from the start of how the new constitution might work in practice – though there is no evidence that its effect was particularly significant.

That raises the question of whether the unification settlement, taken as a whole, unduly favoured one side or the other. YSP leaders later claimed that it did, blaming their plight on northern “hegemony”. This touches on the fundamental problem of how power can be fairly apportioned when two sovereign states voluntarily merge into one, and how the apportionment can be achieved democratically in the face of such huge disparities in population between the two partners.

At one extreme there is the purist democratic view that the will of the majority must prevail – which in this case would have allowed the north to become dominant by virtue of the overwhelming size of its population. The disadvantage of that is that a minority partner is unlikely to enter such an arrangement voluntarily if it knows what the outcome will be. Thus “pure” democracy could be counter-productive in terms of achieving unity. Alternatively, one might propose sacrificing the will of the majority and acknowledging that each partner has rights which must be preserved in order to make unification acceptable to the minority – though not to the extent that it then becomes unacceptable to the majority. 

What actually happened in Yemen lay somewhere between these two. The union began as an almost (but not quite) equal partnership which treated the south generously but allowed the north to maintain the upper hand by a slender margin. Thus the Presidential Council was apportioned 3-2 in favour of the north/GPC with Salih holding the presidency and al-Baid the vice-presidency – a post created specifically to placate southern interests. In the 34-member cabinet, half the seats were allocated to the north (16 for the GPC, one for the Ba’ath), and half to the south and the YSP. The northern chairmanship of the Presidential Council was compensated, to some extent, by the appointment of the former southern president, Haidar abu-Bakr al-Attas, as prime minister. Several key ministries, including defence and petroleum, also went to the YSP. At a slightly lower level, balance was achieved by assigning southern deputies to northern ministers and vice versa.

The effect of this was to reassure the south and create a 30-month breathing space for political adjustment in which the YSP could either merge with the GPC or remain as a separate party and seek to extend its organisation in the north. In the latter case, if the YSP failed to make a political breakthrough in the north, the first parliamentary elections fought under constituency boundaries defined on a population basis would see the YSP shrunken to the permanent status of a minority party. The GPC, on the other hand, could afford to be generous because it knew these arrangements were temporary and would probably not outlast the transitional period. Although the GPC’s advantage at this stage was only a small one, it was well placed to tilt the balance later – decisively in its favour. In the meantime, the GPC made prudent dispositions in all the most strategic areas of state to ensure that in the event of conflict it could rapidly assert control over the northern part of Yemen, if not the whole.

© Copyright Brian Whitaker 2009