On the Watchlist: Concerns over moves to undermine judicial independence and attempts to muzzle CSOs

Introduction

Following the decision of President Kais Saïed to dismiss Prime Minister Hichem Mechichi, suspend parliament and lift parliamentary immunity (see previous update), violations of civic freedoms have continued unabated. In August 2021, the President extended his extraordinary powers indefinitely.

In December 2021, he announced that parliament would remain suspended until December 2022, when elections for a replacement body will take place. Furthermore, he announced that there would be a national referendum in July 2022 on revisions to the Constitution.

In a concerning development for judicial independence, in February 2022, President Saïed announced the dissolution of the High Judicial Council which deals with the independence of judges. At the time of the announcement, the premises of the High Judicial Council were condoned off by Internal Security Forces, preventing its members from accessing the building. The decision to dissolve the Council was preceded by a series of verbal attacks by the President, who accused the judiciary of being corrupt and spoke of the imperative to “purify” the judiciary of corruption.

While its establishment in 2016 was considered a major step to enhancing the rule of law, separation of powers and the independence of the judiciary in Tunisia, UN High Commissioner for Human Rights Michelle Bachelet noted that the dissolution of the High Judicial Council was a clear violation of Tunisia's obligations under international human rights law.

“Much remains to be done to bring justice sector legislation, procedures and practices in line with applicable international standards – but this has been a big step in the wrong direction.”

A week later, the Presidentannounced a decree which replaced the Council with a Temporary Supreme Judicial Council, including nine of its 21 members appointed by the President who also has powers to dismiss "any judge failing to do his professional duties". Additionally, the decree states that "it is forbidden for judges of all ranks to go on strike or hold any organised collective action that could disturb or delay the normal working of the courts." The announcement sparked mass protests.

Civil society groups called for this decision to be abandoned as well as "it would constitute a fatal and irreversible blow on the independence of the judiciary, the separation of powers and the rule of law." In response to this criticism, Justice Minister Leila Jaffel noted that the law regulating the Supreme Judicial Council will be reformed as part of a ‘participatory’ process.

Association

Civil society has sounded the alarm on a recently leaked draft amendment to the Decree law which poses a serious threat to association. The draft law provides for additional administrative burdens on the creation of an association, which will be subject to intervention from authorities. It introduces a prohibition on associations which “threaten the unity of the State or its republican and democratic regime”. Another concerning addition seeks to restrict access to foreign funding by bringing in conditionality, namely article 35 of the draft bans associations from accepting foreign aid, gifts or donations not authorised by the Tunisian Financial Analysis Commission. It also introduces automatic dissolution as a result of a reasoned decision of the department responsible for the affairs of associations within the presidency of the government (article 33). Additionally, CSOs were excluded from the reform process as they were not consulted on these amendments which will directly hamper their work.

International groups also raised concerns. The Observatory for the Protection of Human Rights Defenders (OMCT-FIDH) considers that:

"the draft amendment, were it to be adopted, would considerably restrict the legitimate activities of civil society and of human rights defenders, in violation of the right to freedom of association, a right protected by international human rights instruments to which Tunisia is a party, and especially by article 22 of the International Covenant on Civil and Political Rights, as well as by article 35 of the Tunisian Constitution".

The Observatory called on the authorities of Tunisia to withdraw this draft, to guarantee the right to freedom of association in the country and to ensure that human rights defenders can perform their legitimate activities in defence of human rights without hindrance or fear of reprisal.

On 25th February 2022 President Saïed said that he plans to issue a decree to outlaw foreign funding for CSOs in order to hold these organisations accountable for “transparency standards”.

Peaceful Assembly

There are serious concerns that the government is currently using the COVID-19 pandemic as a pretext to unduly restrict the right to peaceful assembly.On 13th January 2022, the government imposed a blanket ban on peaceful assemblies, in response to rising COVID-19 numbers. The ban came a day before anti-government protests were to take place on the 11-year anniversary of the Tunisian revolution, which saw the ousting of former president Zine El Abidine Ben Ali.

Despite the ban, on 14th January 2022, people gathered to stage anti-government protests and denounce the arbitrary ban on gatherings. However, the authorities prevented people from gathering on the main street in the centre of the capital, which has traditionally been the central gathering point for protests. They responded by dispersing protesters with tear gas, sound bombs, batons and a water cannon. Rhida Bouziane, a 57-year-old man died, reportedly as a result of injuries sustained during the police crackdown on the protest. A “suspicious death investigation” has been opened by the independent, anti-torture body. At least 35 people have been detained by authorities for violating the COVID-19 ban on gatherings.

Additionally, journalists faced attack during protests. Correspondent for French newspaper Liberation, Mathieu Galtier was attacked while filming a violent attack against a protester. Security forces seized his mobile phone and memory card and took him to the police station.

The newspaper quoted its reporter as saying:

“They started hitting me; I was on the ground, curled up in a foetal position. I was screaming that I was a journalist. One of them doused me with gas...They kicked me, and they took my phone, my press card”.

Security forces also arrested other journalists, seizing their video material.A correspondent from Hakaekonline, a local news website, had her phone seized by police to view her private messages and photos while she was filming during the protest. A Business News newspaper videographer was also arrested by security personnel and later released.

Separately, in response to the President's announcement regarding the Supreme Judicial Council, on 10th February 2022, the Association of Tunisian Judges (AMT) staged protests outside the Court of Cassation, with others planned in the coming months.

Expression

Targeting of media outlets

The offices of privately-owned TV channel Zaytouna were raided by security forces and equipment was confiscated for not having a broadcasting licence during October 2021. Similarly, in October 2021, security forces raided the offices of privately-owned television channel Nessma TV and the privately-owned radio station al-Quran al-Kareem, shortly before Tunisia’s media regulatory authority, the High Independent Authority of Audiovisual Communication (HAICA), shut down both outlets, stating that they did not have the proper broadcasting licence. However, according to press freedom groups, many media outlets have been operating for years in Tunisia without a licence. The shutdown of both outlets is believed to be in retaliation for their critical reporting of President Saïed.

As previously reported on the Monitor, the offices of Al Jazeera were raided during July 2021, with authorities confiscating the keys to the premises. Although there has been no official court decision, the police have since blocked access to the office and Al Jazeera now operates from the front yard of the National Union of Tunisian Journalists. Additionally, the station has been denied authorisation to film and has been using borrowed footage. Furthermore, violations against journalists have continued, which includes physical attacks and arbitrary detentions.

Silencing of government critics

The authorities target those with critical views of the President and have labelled the July 2021 developments as a “coup”. Several prosecutions of civilians have been documented via the civil and military courts.

• During November 2021, Selim Jebali was sentenced to one year’s imprisonment (later on appeal reduced to six months) for “insulting the president, defaming the army and accusing public officials of crimes related to their jobs without furnishing proof of guilt,” due to Facebook posts in which he labelled the President as a “coup maker”.
• Television host Amer Ayed was arrested and faced similar charges for comments he made about the President during his show, which include “insulting the president,” “an attack that seeks to change the form of government or to incite people to take up arms against one another,” “accusing public officials of crimes related to their jobs without furnishing proof of guilt,” and “defaming the army.”
• Social media commentator, Amina Mansour, remains under investigation for comments she made about the President in a satirical Facebook post.

Government officials have also been arbitrarily detained. Ex-Justice Minister Noureddine Bhiri remains in arbitrary detention at a hospital under police guard, after he was initially detained at his home in December 2021 without any arrest warrant. Bhiri is also a vice president of Ennahdha, the largest party in parliament, and head of its parliamentary bloc, which denounced the President's actions as a “coup”. Former interior minister employee Fathi Beldi was also detained at the same time. However, his whereabouts have not been revealed. According to the Interior ministry, who did not name either man, two individuals were detained as a “preventive measure dictated by the need to protect national security,” as permitted by article 5 of [Emergency] Decree 78-50 of 26th January 1978.