What is the future of legitimacy in Yemen? The question of what would happen if President Abed Rabbo Mansour Hadi were to die has been an unspoken concern for the past several years. Hadi has been in exile since 2015 and he rarely appears in public. Rumors about his health abound, as does speculation that he is under house arrest in Saudi Arabia. Where does legitimacy lie in a country that has been divided, so far, between three separate actors: the Houthi movement (officially known as Ansarallah), backed by Iran, in Sanaa and the North; the Southern Transitional Council (STC), backed by the UAE, in Aden; and President Hadi’s legitimate government, backed by Saudi Arabia, in some of the western governorates, Marib, and Shabwa.

It is important to address the question of legitimacy after Hadi because the constitutional rules on how to transfer his authority to a successor and how to avoid a presidential vacuum are impractical given the ongoing conflict. It is impossible to hold presidential and parliamentary elections at the moment. Hadi came to power as a result of a unique combination of events: a political agreement, constitutional rules, and a public referendum. Even those who challenge his legitimacy have recognized it at some point. Therefore, Hadi is still the only internationally recognized president and represents what is left of legitimacy in Yemen. Hadi’s successor would not have the same credentials.

This is not only about Hadi passing away, but also about legality and the rule of law more broadly. It is unacceptable to grant Hadi or his successor a blank check to remain in office as president for an unspecified period of time without any accountability under the justification of war. Insisting on maintaining this situation and ignoring the legal questions simply drives another nail into the coffin of government legitimacy in Yemen.

Legitimacy as the cornerstone

Legitimacy is the cornerstone of any political system. It enables government institutions to rule, enforce the law, and have a representative at the UN. Therefore, each side in the Yemeni conflict declares themselves to be the only legitimate authority and attacks the others in order to have moral and legal cover for their movement and gain more support. Hadi and the Saudis, on the one hand, have referred to this war as the “battle of legitimacy” to restore the state’s legitimate institutions captured by the Houthis in 2014. The Houthis, on the other hand, have referred to their “revolutionary legitimacy” in the face of aggression from the Saudi-led coalition and the STC’s efforts to restore the southern state.

In Yemen Hadi is the keystone of the legitimate government. He has more legitimate credentials compared to the legislative and judicial institutions: the Parliament has long since exceeded its constitutional term and may not have a quorum; the Supreme Judiciary Council has also been divided and derives its legitimacy from the president as its members are appointed by him according to Yemeni law.[1] Hadi was endorsed by the Gulf Cooperation Council (GCC) Initiative, the UN, the political agreement between the Yemeni parties, and the 2012 public referendum. The president is the most powerful authority, according to the Article 119 of the Yemeni constitution, and nominates his deputy, the prime minister, and senior government officials, including high military commanders.

Legitimacy framework

Legitimacy is a very complicated concept comprising legal, political, and social aspects.[2] It is impossible to analyze legitimacy in Yemen without understanding the local and historical context. The Republic of Yemen is a representative democracy where the people are the source of legitimacy. The people directly elect the president and the Parliament (Majlis al-Nuwaab). According to Article 4 of the constitution, “The people of Yemen are the possessor and the source of power, which they exercise directly through public referendums and elections, or indirectly through the legislative, executive, and judicial authorities, as well as through elected local councils.” Moreover, Article 5 states, “The political system of the Republic of Yemen is based on political and partisan pluralism.” Even the Houthis don’t question the democratic system, at least not publicly.

Following its signing in 2011, the GCC Initiative — a political agreement between then President Ali Abdullah Saleh and Yemen’s opposition parties that transferred power to Vice President Hadi and laid out a roadmap for a political transition — became, alongside the Constitution of Yemen, the country’s legal framework. Article 4 of the GCC Initiative states, “The GCC Initiative and the Mechanism shall supersede any current constitutional or legal arrangements. They may not be challenged before the institutions of the State.”[3] The GCC Initiative gave itself preeminence over the constitution by stipulating the authority of the president, his government, and the Parliament. It included a four-step political transition: the national dialogue, the drafting of a new constitution, a constitutional referendum, and a general election. The National Dialogue Conference (NDC) was formed of 565 members representing most of the political and social spectrum. It was meant to draw a roadmap for a new social contract that was to be based on the rule of law, justice, and democracy.Since Parliament’s term in office was first extended in 2009, political actors in Yemen have promoted the idea of “consensual legitimacy” — a new political term — as an alternative to constitutional legitimacy.

Sole candidate

The 2011 GCC Initiative, endorsed by the UN, was designed to transfer presidential power to the vice president according to the constitution. In the 2012 election, however, Hadi was the sole presidential candidate as the GCC Initiative prevented the political parties from nominating anyone else.[4] The absence of a competitive presidential election was counter to democratic norms and the provisions of the 2001 constitution. However, on Feb. 21, 2012, nearly 7 million out of the 10 million registered voters voted for Hadi for president. Although the Yemeni people knew it was not a genuine election, they voted for Hadi based on a short-term transitional period and in the hopes of avoiding a civil war. According to the GCC Initiative, Hadi’s presidential term was set to run for two years, ending in 2014. However, the interim government and the NDC could not fulfill the requirements of the GCC Initiative on time.

The UN secretary-general’s special envoy to Yemen at the time, Jamal Benomar, had his own interpretation, which was that the GCC Initiative was based on “a mission rather than a time period.”[5] Ultimately, the General People’s Congress (GPC) party and Yemen’s opposition alliance, the Joint Meeting Parties (JMP), including the Houthis, reached a settlement and agreed to grant Hadi one more year in office. However, Hadi's opponents, former President Saleh and the Houthis, questioned the legitimacy of the move, ignoring the fact that they were responsible for the failure of the interim government and the delay in the implementation of the GCC Initiative. Because the extension of Hadi’s presidency went against what was laid out in the GCC Initiative, Hadi and the interim government began a campaign to promote their concept of “consensual legitimacy” on television, billboards, and newspapers.

On Sept. 21, 2014, the Houthis seized Yemen’s capital, Sanaa. On the evening of Jan. 22, 2015, Hadi, who had been put under house arrest by the Houthis, resigned. The Houthis preferred to retain him as president to legitimize their own actions and to avoid the perception of a coup, but within a month, Hadi had fled to Aden, withdrew his resignation, and nullified any decrees or appointments issued by the Houthis. The following day, Saleh held a meeting with the GPC and said Hadi could not withdraw his resignation. It had been argued that for Hadi’s resignation to be valid, the majority of the Parliament, according to Article 115 of the constitution, had to accept it. If they did not, he could resubmit his resignation within three months, at which point the Parliament would be obliged to accept it. Because of the instability, the Parliament could not hold any such session, so Hadi’s resignation was neither formally accepted, nor resubmitted, as laid out in the constitution. Therefore, Hadi still retains a thin thread of political legitimacy based on the 2012 election, consensual legitimacy in the period after, and international recognition of his government.
 

Yemen's President Abed Rabbo Mansour Hadi (C) speaks during the closing ceremony of a National Dialogue Conference aimed at drafting a new constitution and establishing a federal state on January 25, 2014 in Sanaa. (Photo by MOHAMMED HUWAIS/AFP/Getty Images)
President Hadi speaks during the closing ceremony of a National Dialogue Conference aimed at drafting a new constitution and establishing a federal state on January 25, 2014 in Sanaa. (Photo by MOHAMMED HUWAIS/AFP/Getty Images)

 

Longest parliament in Yemen’s history

The last parliamentary elections in Yemen were held in 2003, which resulted in a comfortable majority of 238 seats for the GPC, out of a total of 301 seats, leaving only 59 seats for all opposition parties (and four for non-partisans). Disputes over the register of voters maintained by Yemen’s Supreme Commission for Elections and Referendums delayed the parliamentary elections scheduled for 2009. Saleh was accused by his opponents of manipulating voter records. In the end, Saleh and the opposition agreed to reform the register of voters, and together they passed a bill to extend the term of current members of Parliament for two years. This political agreement to extend parliamentary terms rather than hold new elections was referred to locally as “consensual legitimacy.” In 2011, parliamentary elections were again delayed pursuant to the GCC Initiative, for another two years. All political parties participated to undermine legitimacy by going beyond the constitution. Moreover, the GCC Initiative bypassed Parliament’s authority and the body was retained only to maintain a veneer of legitimacy for the initiative. The last majority session was held on Dec. 18, 2014, after the Houthis took over the capital, to unanimously give a vote of confidence to the new cabinet formed by then Prime Minister Khaled Bahah. In February 2015, the Houthis issued a constitutional declaration and dismissed the body.[6] They later resumed parliamentary sessions in 2016.

The conflict has divided the legislative institution and created two parallel parliamentary entities, one in Sanaa under the Houthis’ de facto authority, and one in exile supporting the legitimate government. It took five years after the war broke out in 2014 for the legitimate government to convene the first parliamentary session. The session was held in Seyun, the capital of Hadramawt governorate, in April 2019 and elected Sultan al- Barakani as speaker.[7] Both Parliaments are facing legal challenges, including having the required quorum,[8] as about 35 members have already passed away.[9] According to Article 72 of the constitution, “For the meetings of the Parliament to be valid, it is necessary for more than half of its members to attend, excluding those whose seats were declared vacant.”

Constitutional scenarios

According to the Constitution of Yemen, Article 116 establishes legal procedures for several possible scenarios in the event that the presidency becomes vacant or the president is permanently incapacitated. In the first scenario, the vice president would temporarily take over the functions of president for a period of no more than 60 days. In the second scenario, if both the positions of president and vice president become vacant, then the Presiding Board of the Parliament shall temporarily take over the functions of the president. In the third scenario, if the positions of president and vice president become vacant and the Parliament is dissolved, then the government shall temporarily take over the functions of the president. The election of the president shall take place within no more than 60 days from the first session of the new Parliament.

According to these constitutional scenarios, there are three current possible people who could serve as the acting interim president, respectively: Ali Mohsen al-Ahmar, the vice president; Sultan al-Barakani, the speaker of the Parliament; and Dr. Maeen AbdulMalik, the prime minister. In all these scenarios, the acting president should not serve for more than 60 days. Then what? According to Article 114, an exception can be made "if the country is in a state of war or suffering a natural disaster or another emergency situation." However, the article not clear if that requires parliamentary approval. The Parliament, regardless of the issues with its legitimacy, is divided and may not have enough voting members.

Consensual legitimacy

The main political actors justified bypassing the constitution for the sake of maintaining political consensus and avoiding armed conflict. Unfortunately, that did not succeed. From a practical perspective, those same political forces may not agree to any one of the three officials mentioned in the constitution. There is an unwritten formula of political power in Yemen that is more complicated. It considers the North-South representation, well as political and tribal alliances and regional support, mainly by Saudi Arabia.

However, this time around it would be even more challenging to reach a political consensus. The country is already divided, facing one of the world’s worst humanitarian crises and a bloody, five-year-long war. The Houthis are not the only challenge for the internationally recognized government: there is also the STC, backed by the UAE. Though the STC signed the Saudi-brokered Riyadh Agreement in November 2019 to prevent future confrontations, there are no signs that the deal has been a success. Most recently, on April 26, the STC declared a state of emergency and self-rule over the South. Saudi Arabia rejected the declaration.[10] It should be noted that the existing framework for legitimacy is based on both a consensual political agreement and the constitution.

What can be done?

Facing this constitutional dilemma, the legitimate government must study the political options for post-Hadi scenarios to avoid a potential presidential vacuum. This issue should be discussed now while Hadi is still alive, and the discussion should consider the legal aspects.

The biggest problem with Hadi’s legitimacy is the fact that it is derived from the actions of the political elites and lacks popular support. From the perspective of ordinary people, his government has performed poorly and been unable to carry out even the minimum of its responsibilities. As a result, they may see legitimacy differently. A legitimate authority may be one that can provide salaries, basic services, and security, not one acting from exile for a long period of time. The legitimate government also depends for its survival to a great extent on international recognition and support, mainly from Saudi Arabia, which comes at the expense of its sovereignty.

The question of legitimacy in Yemen is not only about what would happen if Hadi passed away, but also how to restore legitimacy while he is still alive. The war may well drag on and a mechanism for transferring power and ensuring the rule of law needs to be found. It is important to emphasize that the legitimacy of a government is linked to the extent to which it is law-abiding.[11] Every time Hadi and his government bypass the law they undermine their own legitimacy. The legitimate government should explore the legal options for power sharing — such as a presidential council, for example — even while Hadi is still alive.[12] A basic principle of the law is that it does not depend on personal authority, but rather on the “impersonal norm.”[13]

Being an internationally recognized president gave Hadi the authority under international law, namely Article 51 of the UN Charter, to call for a foreign military intervention.[14] However, international recognition is not a blank check. Following the crisis from the beginning until today, there has been a clear decline in international support as the government’s legitimacy at home has ebbed and it has proven unable to win the conflict. It should be noted that the legal criticism of the internationally recognized government does not in any way strengthen the legitimacy of the Houthis’ de facto authority in Sanaa, nor that of the STC in Aden.

Hadi and his government must return to exercise their authorities and carry out their duties from inside Yemen, in any of the growing number of stable governates — Marib and Shabwa, for instance, if not Aden — and involve more local communities.

Legitimacy is the ultimate foundation of authority that confers on the government the right to enforce the law.[15] If Hadi and his government continue on their current path, their legitimacy will vanish. Were that to happen, the people of Yemen would find themselves in a very complicated situation, facing the dilemma of how to agree on a new framework for legitimacy and plunging the country into yet more conflict.

 

Mohammed Alshuwaiter is a legal consultant specialized in international law, human rights, and Yemeni law. The views expressed in this piece are his own.

Photo by AHMAD AL-BASHA/AFP via Getty Images

 


Endnotes 

[1] Mohammed Alshuwaiter and Emelie Kozak, The Judiciary in Yemen: The Status Quo, Current Challenges and Post-Conflict Considerations (Deeproot. European Union, November 25, 2019). https://www.deeproot.consulting/single-post/2019/11/25/The-Judiciary-in…
 

[2] Scott Shapiro, Legality (Cambridge: The Belknap Press of Harvard University Press, 2011), 155.
 

[3] Agreement on the Implementation Mechanism for the Transition Process in Yemen in Accordance with the Initiative of the Gulf Cooperation Council (GCC), May 12, 2011, UN. https://peacemaker.un.org/yemen-transition-mechanism2011
 

[4] Ibid.
 

[5] Charles Schmitz, Yemen’s National Dialogue (Middle East Institute, 2014), 3. https://www.mei.edu/sites/default/files/publications/Charles%20Schmitz%20Policy%20Paper.pdf
 

[6] “Yemen's Houthis dissolve parliament” Middle East Monitor, February 6, 2015, Accessed May 5, 2020. https://www.middleeastmonitor.com/20150206-yemens-houthis-dissolve-parliament-form-transitional-body/
 

[7] Mohammed Hatem. “Yemen Parliament Members Loyal to Hadi Hold First Meeting,” Bloomberg, April 19, 2019, Accessed May 11, 2020. https://www.bloomberg.com/news/articles/2019-04-13/yemen-parliament-members-loyal-to-hadi-convene-for-first-meeting
 

[8] The author could not find any source with the names of the representatives who attended the Parliament session in Hadramawt. The author also reached out to some of the representatives to confirm the number of attendees, but they either didn’t know or avoided responding.  
 

[9] Hatem, “Yemen Parliament Members Loyal to Hadi Hold First Meeting.”
 

[10] Lyse Doucet, “Yemen War: Separatists Declare Autonomous Rule in South,” BBC, April 26, 2020, Accessed May 11, 2020. https://www.bbc.com/news/world-middle-east-52428998.  
 

[11] Alexander P. d'Entrèves, "Legality and Legitimacy," The Review of Metaphysics 16, no. 4 (1963): 687-702. Accessed May 13, 2020. www.jstor.org/stable/20123969.
 

[12] Abdulghani Al-Iryani, “Yemen Needs a Presidential Council.” Sana’a Center, April 15, 2020. Accessed May 13, 2020. https://sanaacenter.org/publications/analysis/9708
 

[13] D'Entrèves, “Legality and Legitimacy,” 690.
 

[14] Mohammed Alshuwaiter, “Need for a New Convention on Non-International Armed Conflict: The Agreement on Detainees Between Warring Parties,” Middle East Review, Issue No. 3, November 2019. (4-12), 8.
 

[15] D'Entrèves, “Legality and Legitimacy,” 688.