Kuwait’s 16th National Assembly: Rapid Deadlock

The opening session of Kuwait’s 16th National Assembly on December 15, 2020 seemed like déjà vu. The all too familiar dynamic of an opposition bloc meeting prior to the opening session, charting priorities, and “coordinating” their votes for speaker failed in 2020 much as it did in 2016. This occurred despite the many meetings by the opposition aimed at ensuring that the speaker of the National Assembly, Marzouq al-Ghanem did not regain his post this time around. Ghanem has been a key figure in aligning the legislative branch in deference to the ruling family-led executive since 2013, even going so far as to oppose a law pardoning exiled members of the parliamentary opposition.

Nor did it make any difference that this election took place during the new era in Kuwait, or “al-ahd al-jadeed,” a term that has been used since the death of Emir Sabah al-Ahmed al-Sabah in September 2020. This was the first election under Emir Nawaf al-Ahmed al-Sabah, the brother of the late emir. Yet the new emir still opted to retain the same prime minister, Sabah al-Khaled al-Sabah, first appointed to his post in November 2019 and reappointed in December 2020. The opposition has criticized Sabah al-Khaled for the government’s handling of the coronavirus pandemic, his Cabinet’s support for Ghanem, and initially retaining the minister of interior, Anas al-Saleh, in his Cabinet despite the reservations of some members of parliament.

Many expected that the new National Assembly would be difficult for the Kuwaiti leadership to manage, as it features several figures known for their fiery anti-government rhetoric. Yet none of the analysis predicted that executive-legislative relations would deadlock quite so instantly. Thirty-six members of the National Assembly expressed their support for a parliamentary grilling of the prime minister put forth by firebrand opposition members of parliament Bader al-Dahoom, Thamir al-Suwayyit, and Khalid al-Otaibi. The interpellation specifically cited the events surrounding the election of the speaker of the National Assembly and the parliamentary committee selection process. In response, the government resigned on January 13, after the two opening sessions of the National Assembly, making this the second shortest-lived Cabinet in the history of Kuwait.

It has now been seven weeks since the government resigned, and the emir invoked Article 106 of the constitution to postpone the National Assembly’s plenary sessions for a month. To provide a bit of historical perspective on the current parliamentary crisis, the only other time this occurred was in 2012. This was followed by a Constitutional Court order that deemed the February 2012 elections void, resulting in the de facto dissolution of the February 2012 parliament. This marked the eighth time in Kuwait’s history that the National Assembly was dissolved since 1963 (10 out of 18 assemblies have been dissolved in Kuwait’s history).

Collision Over Policy and Rule

The history of Kuwait’s executive-legislative relations is not one of linear progress. The executive’s attempts to contain the opposition in the legislature have gone through several distinct phases, starting with blatantly unconstitutional attempts from 1963-91. Since the reinstatement of the parliament with U.S. encouragement after Kuwait’s liberation in 1991, the country’s leaders have foregone that approach, instead liberally using their constitution-given power to dissolve the National Assembly and call for new elections. Since 2009 the government has been increasingly exploiting vague articles in the constitution, and the National Assembly’s internal rules of procedure to block or delay legislation and oversight by the National Assembly, causing battles over the interpretation of the articles with the opposition. The Constitutional Court then often resolves these battles in favor of the government.

The current crisis is a manifestation of this third phase, which combines conflict over policy with disputes over the rules of the game. Moreover, the opposition’s frustration with its inability to legislate has led it to an overzealous utilization of oversight tools, such as the repeated questioning of ministers followed by votes of no confidence, which can result in their removal. These strategies threaten to overturn an already delicate balance that exists in Kuwait.

How this dynamic functioned in Kuwait’s 15th assembly, which was elected in 2016 and sat for its full term until 2020, offers insight into the specific roots of the current crisis.

The 2016 elections took place after a decision by much of the opposition to end its boycott of the National Assembly. This resulted in a reasonable showing for the opposition as well as a host of young candidates who represented the reformist Hirak movement. This strong showing helped the opposition to capture some crucial committees in the National Assembly, including the powerful Legislative and Legal Affairs Committee, which it controlled in 2017 and 2018. Yet the opposition’s frustration with its limited ability to legislate, especially on issues of political and civil rights, soon set in.

The opposition, for example, tried to push a general amnesty law proposal through the Legislative and Legal Affairs Committee in 2020 to cover all of those convicted of breaking into the National Assembly in 2011. This attempt was thwarted by the merger of this proposal with two other controversial amnesty cases: the Abdali cell and that of a former Shia member of parliament, Abdulhamid Dashti. In the former case, 25 Kuwaiti nationals and an Iranian – all Shia – were convicted of stockpiling weapons and spying for Iran and Lebanese Hezbollah. Dashti was convicted of insulting Saudi Arabia and Bahrain and criticizing the judiciary in Kuwait.

The amnesty legislation then fell apart over differing interpretations over internal National Assembly rules of procedure governing such draft laws. This illustrates the increasingly complicated dynamic in the National Assembly, where conflict over the rules of the game often intersects with conflict over policy. More often than not, the interpretation of the rules – either through the Constitutional Court or the speaker of the National Assembly – tilts in favor of the ruling family-led government, and as a consequence, legislation is stalled.

The reaction to this dynamic has been an overzealous utilization of oversight tools, in particular interpellations of ministers. Interpellations are particularly easy to put forth in the National Assembly, with only one member needed to invoke this right. There were 32 interpellations during the 15th assembly, an average of eight per year, and most were brought forth by the opposition. One of the leading opposition figures in the 15th assembly, Al-Humaidi al-Subai described the dynamic: “When you don’t have a majority in the assembly and your attempts to legislate are frustrated … you have no choice but interpellate, interpellate, interpellate.” In addition to interpellations being a manifestation of frustration over the inability to legislate, they can be driven by personal rivalries, blackmail in retaliation against political enemies or in exchange for personal favors, and even a show of strength to constituencies.

Interpellations, especially if directed toward the prime minister, have had significant impact. Given how consequential interpellations can be, the government has become adept at exploiting gray areas in the Kuwaiti Constitution and the internal rules of the National Assembly to weaken or nullify them. The referral of the prime minister’s 2018 interpellation to the Legislative and Legal Affairs Committee is one clear example.

Combined, these factors have led to a situation in which executive-legislative deadlock has become endemic in Kuwait.

Moreover, the opposition suffers from a chronic inability to coordinate on legislation and oversight. Part of the reason for this lack of cohesion derives from the Kuwaiti electoral system, which is based on the single nontransferable vote; this encourages individual competition and creates considerable barriers to coalition formation. Although its name implies the existence of a bloc, the opposition can be better described as a loose coalition of tribal candidates, Islamists, and pro-democracy activists who agree on some issues and disagree on others. Moreover, the fact that no political parties officially exist in Kuwait further complicates coordination efforts among what are at the end of the day loose political and parliamentary blocs. Examples of the opposition’s lack of coordination abound, such as the aforementioned defection over the amnesty law and the inability to coordinate on the removal of the minister of economic and social affairs, Hind al-Sabeeh, in January 2018.

Pathways to Avoiding Failure

The disputes over rules and failures of coordination have been present in the early days of the new assembly, painting a discouraging picture for productive executive-legislative relations. The  opposition accuses the government of interfering in favor of Ghanem’s successful bid for speaker of the National Assembly, with some also claiming he interfered in the internal elections to the National Assembly’s committees, limiting the opposition’s leadership and representation, despite its reasonable showing.

Meanwhile, the opposition has splintered into two groups. The more maximalist group consists of around eight to 11 members and is led by tribal opposition member of parliament Bader al-Dahoom. The second group, led by Hasan Johar, consists of 16 members from the National Bloc, Hadas, and the Mutair tribe coalition. The government’s strategy so far has been to negotiate with the second group. While this negotiation has led to the creation of a joint government-member of parliament committee, the move has created a rift within the opposition, leading to heated strife over social media between the two groups.

The formation of a new Cabinet under Sabah al-Khaled on March 2 was initially seen as a positive outcome of this coordination, given that it was formed well before the end of the 1-month suspension of the plenary sessions of the National Assembly, cited above. Yet the success of the current National Assembly will depend largely on the government’s goodwill and the opposition’s willingness to halt the barrage of interpellations. If the government opts to frustrate attempts to legislate by the opposition using loopholes in the rules of procedure, aided by the National Assembly’s speaker, then the intractable conflicts over policy and rules are likely to continue. Some members of parliament associated with the group of 16 have openly threatened to return to interpellations should the government fail to enact agreed upon legislation.

In addition, and in a show of strength by the opposition, Johar and another member of the group of 16 announced their desire to interpellate Basel al-Sabah, the minister of health, over the handling of the coronavirus pandemic and the decision to impose a public health-related curfew for a month beginning on March 7. Moreover, Dahoom and another member of the more maximalist opposition put forth an interpellation of the prime minister over the Interior Ministry’s decision to report the participants of a rally that Dahoom held to the general prosecutor’s office given that the rally violated coronavirus health codes.

The stasis that epitomizes Kuwait’s political development is not likely to be resolved unless the country embarks on serious reforms. First, the National Assembly’s rules of procedure should be amended to be clearer and more detailed, learning from past constitutional crises. The loopholes in the rules that are often exploited by the government leading to constitutional crises seriously undermine the legitimacy of both the National Assembly and Constitutional Court. Legislation should not hinge solely on the desire and goodwill of the executive. Second, there is a serious need to reform the Constitutional Court to include members appointed in consultation with, or with the approval of, the National Assembly. In this manner, conflict between the National Assembly and the executive branch over the constitution and the rules of procedure would be resolved via an impartial, independent, and balanced Constitutional Court, instead of the rulings always coming out in favor of the executive and lacking the legitimacy needed to be helpful in resolving such disputes. Finally, the electoral law in Kuwait should be amended to encourage effective group dynamics and discourage individualistic tendencies among the members of parliament. While this may create a more unified opposition bloc to stymie particular government legislative initiatives, it could better define the political constituencies with which the government could effectively negotiate to achieve legislative objectives and progress.