Introduction and Background

After a referendum marked by a low voter turnout (30.5%) and a boycott from opposition parties, Tunisia is all set to adopt a new Constitution, replacing that of 2014. It will come into effect once published in the official gazette of the country. The draft of the Constitution was made available to the public for voting and received 94% of the votes in its favor. This comes after a series of undemocratic measures taken by President Kais Saied including dissolution of the Parliament, suspension of provisions of the 2014 Constitution, and the passing of arbitrary decrees. The 2014 Constitution was drafted by the National Constituent Assembly in a transparent and democratic manner, while the draft of the new Constitution came out without proper consultation and lack of a representative mechanism to ensure adequate participation in the drafting process itself. Two elements of the new Constitution are particularly problematic: unchecked presidential power and extended emergency powers.

Unchecked Presidential Power

The new Constitution effectively abolishes all safeguards against arbitrary use of power by the President. Article 88 of the 2014 Constitution provided for the removal of the President for a grave violation of the Constitution by way of presenting a motion in the Parliament by majority of its members. However, this provision has been removed from the new Constitution and there is no way to impeach the President. Furthermore, Article 101 of the 2014 Constitution, which gave powers to the Constitutional Court to adjudicate upon disputes regarding powers of the President, has also been dropped. This makes any dispute regarding powers of the President immune to judicial review and passes the interpretative powers to the executive authority.

Therefore, the two limbs of the Government which had the power to keep a check on arbitrary use of power by the President under the 2014 Constitution, are now powerless in this regard. These changes are fundamentally incompatible with non-arbitrary government, which is fundamental to the rule of law. The new Constitution thus removes domestic safeguards to the rule of law. Furthermore, in Republic of Guinea v. Democratic Republic of Congo the International Court of Justice held that “protection against arbitrary treatment lies at the heart of the rights guaranteed by the international norms protecting human rights”, thereby establishing a clear link between human rights and non-arbitrariness. The regime of arbitrariness envisaged by the new Constitution is likely to be dangerous for human rights.

Extended Emergency Powers

Article 80 of the 2014 Constitution provided for an important safeguard during a national emergency: thirty days after the entry into force of the emergency, the Assembly of the Representatives of the People or thirty of its members could apply to the Constitutional Court with a view to verify whether the circumstances based on which an emergency was declared remain ‘exceptional’. The Constitutional Court would adjudicate the matter within fifteen days.

This has now been replaced by Article 96 of the new Constitution. Neither the Parliament nor the Constitutional Court have the power to check whether the circumstances still remain ‘exceptional’. This essentially gives the President the power to impose a national emergency based on their own satisfaction, without any check on such a wide power.

This is incompatible with Article 4 of the ICCPR (International Covenant on Civil and Political Rights), which Tunisia has ratified. General Comment no. 29 on Article 4 of the ICCPR states that while an emergency could be justified on certain grounds, indefinite states of emergency are incompatible with Article 4. The new Constitution leaves the potential for an indefinite emergency to be imposed.

Conclusion

The new Constitution aims to effectively undo all the safeguards against arbitrary use of Presidential Power in the country. The unconstrained powers will lead to a regime based on arbitrary decision-making in discharging public functions. Not only will this undo the progress made as a result of the Tunisian Revolution, but also further curtail civil liberties and human rights in Tunisia.

The law contains key elements from the United Nations Handbook for Legislation on Violence against Women. The law aims to combat violence against women in a range of ways, including restraining orders, which UN Women considers as one of the most effective legal measures to protect women. Shelters are also to be provided for women in danger and it will be an offence for authorities to put pressure on women to abandon their complaints. Another key feature is that the law repeals the clause from article 227 from the Tunisian Penal Code that gave rapists impunity if they married their victims. This is a significant stride towards protecting women from further violence, as previously women were pressured into marriage to avoid familial ‘shame’.  The significance of this lies in the fact that the law makes violence against women no longer just a familial or local matter – something that is particularly an issue in rural areas, where it is viewed as a something beyond the remit of the state – but instead situates the growing issue within the ‘social sphere’, making people publicly accountable and subject to prosecution for such crimes.

The amendment to the constitution after the collapse of Ben Ali’s regime marks the climax of many years of advocacy by Tunisian civil society organisations, such as Les Femmes Democrates. The fight for women’s rights began with President Bourgiba’s adoption of the Code of Personal Status in 1956, which notably abolished polygamy (article 18) and required marriage have the mutual consent of both parties (article 6). The current Tunisian president Essebsi is continuing his predecessor’s progressive project, making monumental steps towards equality and protection for women, including his most recent repeal of a 1973 administrative directive which prevented the registration of marriage of a Muslim women to a non-Muslim men.  However, these reforms have met opposition. Many Islamic institutions, including the University of Ez-Zitouna, a prominent Islamic university, were particularly vocal, arguing that repealing the 1973 directive was against the Qur’an and a move away from Islamic traditions.

Tunisia has a history of setting precedents in the Arab region. Jordan and Lebanon soon followed in Tunisia’s footsteps in protecting women from violence. The highly controversial “rape-laws” in Jordan (article 308) and Lebanon (article 522) were abolished on 3rd August and 16^th August respectively. Similarly to Tunisia, these laws stated that rapists could avoid prosecution by marrying their victim for a minimum of five years. This was the result of many years of advocacy led by both national and international organisations that aimed to mobilise public awareness in order to strengthen legislation to protect women from sexual violence. Sadly, the rape clause remains in many Arab countries including Algeria, Iraq, Kuwait, Libya, Bahrain, Palestine and Syria.

Although Tunisia is one of the most progressive states in the Middle-East and North African region, particularly concerning personal status laws, there are still issues that the law fails to address, namely the issue of finance. Funding for either governmental or non-governmental shelters or provisions for financial assistance to meet women’s needs still have not been put into place. Despite the vocal criticisms from neighbouring countries, particularly Egypt’s religious institution Al-Azhar, Tunisia continues to show signs of determination, making the future for gender equality reforms promising. What makes Tunisia’s path different from other Arab/Muslim countries is that its success lies in the fact that the new Article 21 in the Constitution defines women as equal rather than being complementary to men. This provides a legislative framework empowering Tunisian women to progress forward towards gender equality.

The signature of the declaration represents an improvement for the rule of law and constitutionalism in Tunisia because it goes some way to addressing the shortcomings of the Tunisian judiciary. There have been challenges in establishing the Constitutional Court which, although it will not allow direct access to individuals, will be in charge of the control of constitutionality of all legislation. According to Article 148(5) of the Tunisia Constitution, the Constitutional Court should have been created within one year of the legislative election of October 2014. So far, the Court has not yet come into being. This has interfered with the functioning of the Tunisian judicial system.

As a matter of fact, the judicial system has not been able to redress human rights challenges, as set out by the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism in his country visit in early 2017, and by Amnesty International in its annual report for 2016/2017.

The delay is due mainly to the difficulties in setting up another constitutional body, the Superior Judicial Council (SJC), provided for by Article 112 of the Constitution, which is in charge of electing four members of the Constitutional Court who will sit together with the four members elected by the President of the Republic and the four members elected by the Parliament (Article 118).

The creation of the SJC has in turn been stymied by the law establishing it being declared unconstitutional  in April 2016,  and in June 2016 by the provisional judicial body in charge of controlling the constitutionality of legislation (Instance Provisoire de la Justice Judiciaire – IPJJ). However, since December 2016, the impasse has been caused by the fact that two crucial positions at the IPJJ, that of the First President of the Cassation Court, and that of General Prosecutor, have remained vacant, and both of these positions also serve as ex officio members of the SJC (Article 10 of the law establishing the SJC).

Although it is highly desirable that the impasse will be overcome and soon, what is striking is that the Constitutional Court has not been created yet, even though the Parliament has already started discussing the election of the other four members who will sit with those elected by the SJC and those elected by the President.

The lack of Constitutional Court means that the legislation in force has so far escaped judicial scrutiny, since the IPJJ is in charge only of judging the constitutionality of the bills adopted by the Parliament elected in October 2014 and cannot rule on the constitutionality of previous legislation (Art. 18 of the law establishing the IPJJ).  Moreover, Tunisian citizens have not been protected from abuses of their rights because they cannot access the IPJJ.

The signature of the declaration to the African Court not only fills a gap in the system of rights protection, but also has a regional relevance. Tunisia joins the small number of countries which have signed the declaration, namely Benin, Burkina Faso, Côte d’Ivoire, Ghana, Malawi, Mali and Tanzania. Tunisia provides a positive example to other countries at a time when others – such as Rwanda in March 2017– have withdrawn access to the African Court.

So far, however, the biggest concern regarding the African Court is that most of the cases brought before it have been found to be inadmissible even before any examination of the alleged violations. In order to tackle this problem, a practical guide which aims to support lawyers and human rights defenders submitting complaints before the African Court has been published. This tool, together with the development of further jurisprudence, will hopefully contribute to the improvement of this human rights protection mechanism.

At this stage, certainly, the decision of Tunisia has to be welcomed as offering a locus standi to individuals and NGOs and providing an example to other African States.

In 2011, popular uprisings across the Middle East and North Africa were inspired by Tunisia’s Jasmine Revolution.  Four years later, Tunisia is again setting a precedent in the region – its Truth and Dignity Commission, which began work in December 2014, will be the first attempt at a ‘truth and reconciliation’-style process in a country that overthrew a dictatorial regime in 2011.  And many herald the establishment of the Truth and Dignity Commission as another sign that Tunisia is the Arab Spring’s ‘success story’ – as Syria continues to be engulfed by war, Libya disintegrates with two governments each claiming legitimacy, and Egypt slides back to authoritarianism under Sisi, Tunisia appears the country of the 2011 revolutions that is best placed to begin to address its authoritarian past.

The Truth and Dignity Commission was established in the 2014 constitution and 2014 Transitional Justice Law.  The Commission has a broad remit to address “political, social and economic crimes” committed between 1956 and 2013. Its work will encompass both ‘informal’ transitional justice processes like ‘truth-telling’ and recognition of victims of human rights violations which seek to bring about societal-level reconciliation, and more ‘formal’ aspects such as reparations, which will be paid from the Commission’s Victims Fund.

The Commission has been welcomed by victim’s rights groups and anti-torture groups who, particularly throughout the Ben Ali period, sought accountability for human rights abuses committed by the state, and campaigned for rule of law and transparency.  The Commission claims that its offices currently receive, on average, five people a day seeking justice for human rights abuses committed by the state.

The inclusion of the word ‘Dignity’ in the transitional justice body is significant, a self-conscious reference to the demand of the Tunisian Revolution for “employment, freedom, and national dignity.”  As such, the Commission positions itself as an inheritor and defender of the values of the revolution, notably a rejection of the authoritarianism and corruption of the Ben Ali era.  However, human rights organisations have expressed concern that current high-level politicians, particularly President Essebi who was elected in late 2014, held high-ranking governmental positions under Bourguiba and Ben Ali, and as such will be disinclined to support the spirit of the transitional justice initiative. While the constitution protects the existence of the Truth and Dignity Commission, the government has ultimate control over its budget, a fact that has already begun to constrain the work of the Commission.  If the current and/or future Tunisian government is not fully supportive of the Commission’s work, this could pose problems particularly for its planned work that deals with reparations.

Moreover, in a report released in January 2015 entitled ‘Tunisia: Four Years On, Injustice Prevails’, Human Rights Watch noted that transitional justice processes and the attempt to establish transparency and rule of law were still far from complete, and that efforts to “ensure accountability for unlawful killings committed during the 2011 uprising were blighted by legal and investigative problems and failed to deliver justice for the victims.”

In addition to the external obstacle of the government’s wavering support for the Commission, the body has also been marred by internal divisions, as members of the Commission come from across the political landscape, from left-leaning feminists to those who identify with Islamist ideologies. Lastly, the Commission faces the challenge of living up to the pressure placed on it by the region, as the first commission of its kind since the revolution, to provide a ‘template’ for post-2011 transitional justice in the wake of authoritarianism.  The Truth and Dignity Commission thus faces a difficult task – but hopefully not an insurmountable one.