New draft Law threatens freedom of association
Ahead of the EU Heads of States and Governments meeting on 26th-27th October 2023, civil society groups including Euromed Rights, Human Rights Watch and Amnesty International put human rights conditions in Tunisia in the spotlight, highlighting the erosion of human rights safeguards and repeated targeting by authorities of those exercising their freedom of expression, including human rights defenders, lawyers and political activists. Similarly, direct visits of the European officials to the country reflected similar concerns as Parliamentarians noted that their meetings with human rights defenders, journalists, lawyers and academics confirmed the situation as their exchanges started with activists noting “2011 we lived in a dream, today we cannot believe the nightmare we slid into.”
Civic space developments in Tunisia remain concerning, with the recent legislative initiatives on the Decree Law 88. On 10th October 2023, a group of 10 Members of the Parliament submitted a draft law that will endanger the right to freedom of association and civic space in Tunisia if adopted as currently formulated.
- The draft law would grant the government pervasive control and oversight over the establishment, activities, operations and funding of independent groups.
- The draft law’s preamble states that associations must operate in accordance with the “principles of national orientation” and must not “violate laws related to good morals”, “disturb public security”, “undermine the unity of the national territory and the republican system” or “violate national sovereignty.” Such terms are vague, imprecise, arbitrary and overly broad and, as such, do not comply with the principle of legality.
- The draft law places national organisations under “the supervision and control” of the Ministry relevant to their main area of work, and international organisations under the supervision of the Prime Minister’s Office (article 6). The current draft law does not specify what such “supervision and control” entail. It also requires associations to inform the pertinent Ministry of any planned activities (article 13).
- The draft law also gives rise to concern about surveillance as it empowers the authorities to establish a digital database of associations and volunteers (article 14).
- While the text claims to maintain a notification system for establishing new associations, it would actually introduce a thinly disguised registration system, granting a department under the Prime Minister’s Office the authority to deny a group the right to operate within a month after registering (article 9.2). Without being required to provide any reasons, the government would also be able to petition the judiciary at any time requesting the cancellation of an association’s registration (article 9.3).
- New organisations would not be allowed to operate until a government-headed “administration of associations” publishes a notice in the Official Gazette, leaving open the possibility of denying a group’s registration. At present, under Decree-Law 2011-88 on associations, an association may begin operating once the representative of the association has notified its registration to the Official Gazette.
- Under the draft law, international organisations would be required to obtain prior authorisation to register from the Foreign Affairs Ministry (articles 8 and 19). Without setting conditions or deadlines for such a process, the draft law empowers the Ministry to issue temporary authorisations and to revoke and suspend them at its own discretion (article 20).
- This text also dangerously conflates associations with unions (article 15), which are currently governed separately under Tunisian labour law, without providing any specific guarantees or sufficient protections for union rights.
- National associations would have to obtain prior approval from the Prime Minister’s Office before receiving foreign funding (article 18). Associations that fail to comply with this requirement would risk immediate suspension or dissolution (article 24).
The use of vague legislation as a tool to criminalise independent journalism and impose restrictions on the right to freedom of expression and press freedom was raised as an issue of concern by UN High Commissioner for Human Rights Volker Türk with a statement on 23rd June 2023. The statement noted:
“Over the last three months, the Tunisian authorities have on five occasions used vaguely worded legislation to question, arrest and convict six journalists. This includes security and counter-terrorism legislation and the presidential decree Nº 2022-54 on cybercrimes, which contains ambiguous provisions that carry punitive fines and lengthy prison sentences for publishing or spreading alleged false news, information or rumours, and authorises law enforcement officers to access any information system or device, for inspection and collection of stored data. In the majority of these cases, the restrictions imposed on these journalists’ freedom of expression do not appear to comply with the strict requirements under international human rights law, including the principles of necessity and proportionality.”
🔈 #Tunisia🇹🇳Journalists Haythem El Mekki & Elyes Gharbi, who criticized the state response following the Djerba attack on @RadioMosaiqueFM, were summoned after a complaint was filed by a police union. #RSF is concerned about these new pressure tactics against media professionals pic.twitter.com/S6xbmEFIJV— RSF (@RSF_inter) May 22, 2023
Some of these restrictions imposed during the reporting period include:
*In May 2023, a complaint was filed against two journalists, Haythem El Mekki and Elyes Gharbi, in response to comments they made on the Midi Show, broadcast on Mosaique FM, related to charges of defamation under Article 245 of the Criminal Code and on accusations that they spread rumours affecting internal security, an offence under Article 24 of Decree Law No. 2022-54.
⚡️ #Tunisie 🇹🇳 Khelifa Gasmi arrêté & placé en détention, 3 mois après sa condamnation à 5 ans de prison. RSF appelle à l’acception de son pourvoi en cassation pour une libération. La protection du secret de ses sources doit être garantie.👇https://t.co/dqz0BxE6nt pic.twitter.com/ttHqTwPcq3— RSF (@RSF_inter) September 6, 2023
* On 16th May 2023, journalist Khelifa Guesmi was handed a five-year prison term under the provisions of the anti-terrorism law for refusing to reveal his sources for a story about the dismantling of a terrorist cell in Kairouan.
On 3rd September 2023, he was arrested by police in Kairouan on a warrant issued in May 2023 during his sentencing. The next day the court ordered his detention. A statement issued by RSF called for his immediate release.
* Tunisian Journalist Zied el-Heni was also arrested and released on 20th June 2023, following a comment he made on IFM Radio allegedly mocking the crime of ‘committing a brutal act against the President of the Republic’.
CPJ Middle East and North Africa Program Coordinator, Sherif Mansour said:
“The arrest of journalist Zied el-Heni on criminal insult charges is another clear example of President Kais Saied’s intolerance of the free press in Tunisia… Tunisian authorities must immediately and unconditionally release el-Heni and ensure that members of the press can discuss newsworthy topics without fear of spending years behind bars.”
Authorities prevented el-Heni’s lawyer from attending his questioning in detention, and also denied el-Heni medication