The pathway to Tunisia’s constitutional future

The language of constitutional revision and civic values based on human rights has become the baseline of political discourse, but only by submerging crucial ideological differences. 

Ian Patel
31 July 2012

Tunisia is primed to become a showcase for liberal democratic transition within North Africa – or, rather, it would be, if its conditions were not seen as uniquely effective in terms of transition within the region. It is more likely that Egypt will act as a test-case for the US State Department in its desire to increase trade and investment in North Africa. Nevertheless, Tunisia’s now critical negotiation of secular and religious political values will mark an important precedent.

Frustrating supportive commentators’ attempts to mark gradual advances in Tunisia’s process of constitutional revision, an ultra-conservative Salafist contingent has recently rendered the future role of Islamic political values in the Tunisian constitution much more controversial. In June 2012, a Tunis gallery exhibiting artwork they identified as “blasphemous” saw the destruction of its property, and curfews imposed in Tunis as a result of the  violence. A spokesman for the Ministry of the Interior, Khaled Tarrouche, was quick to call these Salafist actions “terrorist acts”. Tarrouche’s statement however, does not satisfactorily explain or defelct attention from the manner in which Salafist values are in fact being incorporated into the political process. Having been approved as a party in March, the Salafist-based, Ennahda-friendly Islamic Reform Front (Jabhat al-Islah) held its first congress in Tunis on 8 July 2012.

Can the interim government’s attempt to present a stable narrative of constitutional revision, in which any Salafist constituency is made to operate in line with democratic politics, withstand Tunisia’s uneasy public climate, which is also preoccupied with economic failure and high unemployment?  

Recent events should be placed within a larger narrative of post-revolution constitution-building. Since January 2011, international actors, advocacy networkers, and ‘capacity-building’ delegations have descended on the cradle of the Arab Spring. Both Human Rights Watch and the UN Office of Human Rights have opened offices in Tunis. Tunisia is the first North African country to join the ICC. Gesturing its support for this increase in international attention, Tunisia has the uncertain privilege of supporting the world’s first Minister of Transitional Justice, who is also Minister of Human Rights, Samir Dilou.

The initial flourishes of Tunisian political reform that followed the Jasmine revolution helped to craft a particular narrative about the Arab Spring that was conducive to the interests and values of western observers. Immediately following the uprising of January 2011, the interim government legalised over a hundred formally banned political parties. On 19 February, this government adopted a general amnesty law, which allowed for the release of several hundred prisoners being held for political offenses.

The Tunisian National Constituent Assembly (NCA) held elections on October 23, 2011, a process that was well received by most local and international observers. (New elections are to be held on 20 March 2013, and a draft of the constitution is scheduled to be released on 23 October 2012, before further revisions.) Of particular interest to international observers of the October elections was the affirmative legal action that ensured half of the candidates were women. Tunisia’s electoral system required that candidates alternate by gender, a stipulation known as the zipper rule. As a result, approximately one quarter of the seats in Tunisia’s Constituent Assembly are held by women, most prominent among whom is Sihem Badi, Minister of Women’s Affairs. (The Islamic centre-right Ennahda party, which would go on to win 37% of the popular vote, was said to be the first to ratify the zipper rule.)

The role of civil society

The role of civil society in Tunisia’s revolution and subsequent political reconstruction presents further compelling evidence of apparent progress. In the Ben Ali era, a repressive law against freedom of association meant that the majority of active or would-be civil society organisations were criminalised. Laws of (April 2) 1992 and (August 2) 1998 meant that any would-be association had to officially declare and register itself according to government-defined categories. These categories allowed for women’s associations, cultural and charitable associations, as well as ‘general’ associations. Few of these were protected from government interference or aggravation by security forces. Those who participated in or were seen to support organisations that were not legally recognised faced imprisonment or a fine – despite the fact that having received criminal sanctions such organisations could not open bank accounts or rent office space.

An estimated 2,000 civil society organisations have been created in Tunisia since the revolution. Following the suspension of the constitution pending revision, the interim government affirmed the right to freedom of association in 2011. In an April 2012 statement which also lamented legal restrictions on NGO activity in Egypt and Cambodia among other nations, UN High Commissioner for Human Rights, Navi Pillay, said of Tunisia: “the UN Human Rights office is now able not only to establish a presence for the first time in its history, but also to build a close and vibrant relationship with both the Government and the country’s burgeoning civil society sector”. Accordingly, a European donation worth 3.1 million euros was made in July 2012 to further civil society projects in Tunisia – specifically for radio coverage of the NCA, associations for torture victims, and public financial assistance.

Political gains and losses

At first glance, then, post-revolution civil society has been the focus of meaningful political recognition and attention. Many serving in the current interim government coalition have long-standing histories as civil society activists. Among those who have become high-profile political representatives as a result of their former positions as prominent activists are President Moncef Marzouki (CPR), former leader of the Tunisian League of Human Rights (LTDH) and Minister of Transportation, Abdelkarim Harouni (Ennahdha), who founded the General Tunisian Union of Students (UGTE) in 1985. Indeed, the interim government includes torture victims, political prisoners, and former union leaders, several of whose fellow activists died in prison.

But is there an underside to this apparent triumph for civil society? While the crime of membership in or support of an unrecognised association has been removed by decree-law, suppressive laws against associations remain. Under the new draft law, the interior minister can oppose the recognition of – and ultimately dissolve – an association if its ‘real goals, activity or actions are revealed to be contrary to the public order, good morals, or if the association has an activity whose objective is political in nature’.

Since several members of Tunisia’s pre-revolution, legally recognised civil society groups now occupy the highest political positions in the interim government, the popular assumption that civil society operates separately from the state must be abandoned. This raises interesting questions as to the function of civil society in Tunisia’s political future. The coming to power of former political activists has not seen the fulfilment of the hopes of civil society. Instead, the last 18 months have seen a series of ongoing setbacks and worrying developments.

Many political actors from the old regime maintain their positions, most notably in the Ministry of Interior, which regulates the police and security services. April 2012 saw extensive police violence following the interim government’s ban on protests taking place on Tunis’s Habib Bourghiba Avenue (Ayoub Massoudi, advisor to the President, would resign in the wake of these events).  Amid concerns over the permitted freedoms of the press, journalists have been attacked by police. Ramzi Bettaib, who attempted to monitor a military tribunal for Nawaat, responded to his treatment by going on hunger strike. 

Resistance to constitutional failures

These two narratives – of meaningful reform and continuing resistance – feed into the central preoccupation of Tunisian politics: constitutional revision. The terms of these revisions have long-term implications for Tunisia’s legal and political norms.

To take a specific case of legal reform, in November 2011 the newly elected interim government released Decree 115, which amounted to a new code regarding media freedoms, replacing the 1975 press code. It allows for the criticism of state institutions, among other protections. However, the implementation of Decree 115 has been left unresolved, allowing the general prosecutor to use the old press code against journalists, despite the fact that Decree 115 explicitly supersedes the 1975 press code. (The head of Nessma TV, Nabil Karoui, faced up to five years under article 121(3) of the old code for broadcasting the animated film Persepolis. Ultimately, Karoui was fined.)

Despite the fact that freedom of expression and information is a central concern of civil society in Tunisia, various reactionary forces have in effect been able to circumvent the new reform measures. Nor is this the only problem facing civil society. As with other transitional governments, Tunisia’s leading party, Ennahdha, is anxious to consolidate its power, and may be inclined to regiment civil society according to its own interests. Generally speaking, transitional governments consult ‘community-based’ civil society organisations, but often they are not prepared to deviate from their own internal pre-defined programmes. Equally, the consultation period is always brief, since transitional initiatives are almost invariably short-term.

In November 2011 the interim government announced a national consultation process on transitional justice issues. It began this summer and will continue throughout Ramadan, with a view to presenting a draft law to the NCA in October. In creating a ‘technical committee’ to undertake this task, however, the interim government singled out six national associations deemed to be ‘representative’ of transitional justice issues, to sit beside other chosen NGO organisations. This is typical of the use of civil society organisations in transitional contexts: those that are well-established, donor-funded, and speak a viable political language are best placed to be effective.

Making the constitutional process meaningful

The most important developments are yet to be seen: will the new constitution uphold the myriad legal reforms being brought to political attention in this period of civil society consultation? Will the celebration of a ‘burgeoning’ civil society in Tunisia persist beyond the interim period of consultation? 

In a telephone interview, Claudio Cordone, MENA program director at one of Tunisia’s most prominent INGOs, the International Centre for Transitional Justice, identified what he saw as the biggest barrier: “Tunisia is a small country, and everyone in civil society knows everybody else and speaks the same language, but you can tell there are strong differences”. In such a climate many organisations (like the ruling coalition parties) want to avoid an internecine confrontation between secularism and Islamic politics. As a result, the language of constitutional revision and civic values based on human rights has become the baseline of political discourse, but only by submerging crucial ideological differences. Since many organisations wish to contribute to forming the prevailing discourse around key justice issues, one wonders which of them will be pushed to the margins, and which will go altogether unrecognised as viable organisations.

Many of Tunisia’s new associations have limited resources and little capacity for publicity, and as such are forced to work in isolation. Equally they must attempt to negotiate tensions between old and new civil organisations, urban and rural constituencies, and most notably secular and ‘Islamist’ actors. The lack of consensus on the priorities and challenges that civil society is facing can be developed as a strength but, perhaps it is more likley that this will evolve into a site of further injustices, both real and perceived.

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