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Tunisia: New prosecutions resurrect shadow of dictatorship

Screenshot from Facebook video of Tunisian Presidency homepage, showing President Kais Said in a visit to Avenue Habib Bourguiba in the capital city, Tunis.

On July 25, 2021, Tunisian President-elect Kais Said announced the dismissal of the prime minister, a freeze of the elected parliament, and his rule by decree. While Tunisia has been lauded as the only Arab Spring country to succeed in its democratic transition, this latest announcement fuelled growing concerns that the country is entering a political crisis. 

Shortly after independence in 1956, the country adopted a republican presidential regime that lasted for over half a decade during which authoritarian presidents took extensive executive powers and labeled themselves “fathers of the nation.” For Tunisians, President Said's July 25 power grab brought back memories of not only solo presidential rule but also the stereotypical image of a president with a monopoly over powers and low tolerance for public criticism 

From literary metaphors to insults: How Kais Said targets his opponents and critics

President Said is a constitutional law professor who was first introduced to Tunisians through 8 p.m. news segments on the national TV channel, where he was often invited to clarify legal matters. His appearances were marked by his formal Arabic, serious tone, and old literary references. Many years later, Said’s Arabic is less formal, mixed with words in the Tunisian dialect, but, most importantly, his metaphors when referencing his opponents — or any critics — are now harsher than ever.

Said has on different occasions used social media to publish videos of speeches and one-on-one meetings with government officials or representatives of national organizations, addressing both his critics and his supporters. He doesn’t always name his opponents but he refers to them as insects, traitors, or uneducated. His most controversial speech was during a council of ministers when he called on those he designated as “honest citizens”  to “purify the country of those who depleted it.” In other places, this kind of language would amount to incitement to violence. 

Many public figures denounced this speech. MP Yassine Ayari commented in a Facebook Post: 

“He calls for civil war, street justice, and witch hunts. […] For the one who has not understood it, the honest are his supporters, the others are insects, corrupt, mercenaries, traitors. The phase of the militias that he is going to legally protect is nodding off in Tunisia… ”

Prosecution in military courts  

Said’s rule has also been characterised by an increase in the use of military courts. In a statement by Amnesty International, during three months, between the 25th of July and November 2021, the military justice system investigated or prosecuted at least 10 civilians. For context, the statement says that in seven years between 2011 and 2018, human rights organizations documented only six cases of civilians brought before the military justice system.

According to Heba Morayef, Amnesty International’s Regional Director for the Middle East and North Africa:

In the past three months alone, more civilians have faced military courts than did in the preceding ten years.

Journalists are being specifically targeted in this politically tense period. On October 3, 2021, police forces arrested journalist Ameur Ayed and MP Abdellatif Aloui following their statements criticizing the decisions of the fictional president in “Hassad 24,” a TV program on Zitouna TV.  Ayed criticised President Said’s decision to appoint Najla Bouden, a former university professor, as head of government and referenced lines from “The Ruler,” a poem of Ahmed Matar, an Iraqi poet living in exile. The poem is an imaginary dialogue between the poet and a dictator.

While it is not confirmed which specific statements provoked the arrest, Ayed’s lawyer confirmed that, during the investigations, the police’s initial interrogation focused on Ayed’s statements during the October 1 broadcast.

According to his lawyer, the military court had charged Ayed with calling for an insurgency, degrading the morale of the military, committing a denigrating act against the head of state, and attributing illegal matters to a public official.

These charges are based on Article 67 of penal code, which mandates a fine and prison term for an offense against the president, as well as Articles 72 and 128 of the penal code and Article 91 of the Code of Military Justice. Ayed remained in detention until granted provisional release on November 25, 2021. The next hearing at the Military Tribunal for Ayed and Aloui is set for January 20, 2022.

Human rights organizations have regularly denounced the use of military prosecutions against journalists, and keep asking why they are not investigated under the provisions of Decree-law 115 which is related to freedom of the press, printing, and publishing.

Six months of prison for a Facebook post

Social media users have also been targeted by these restrictive laws. On November 12, 2021, the Permanent Military Court of Appeal in Tunisia sentenced Slim Jebali, a controversial blogger and administrator of a well-known Facebook page, to six months of prison based on his Facebook posts.

Jebali faced many charges, including committing a despicable act against the head of state based on Article 67 of the penal code, attributing illegal matters to a public official related to his job without providing proof, based on Article 128 of the penal code, and humiliating the army, harming its dignity, reputation, and morale, weakening the spirit of the military regime in the application of Article 91 of the Code of Military Justice.

The initial investigations were based on complaints, including one filed by the Presidency of the Republic for posts on Jebali's Facebook page. In 2016 and 2017, Jebali similarly faced charges for defamation through social networks based on complaints, including one filed by the communications advisor to the presidency of the government, as the office of the prime minister was at that time. 

Legal contradictions

Article 8 of the 1957 Code of Military Justice grants military courts the right to try civilians, but under specific conditions. Article 91 of this code has been particularly used to charge social media users and journalists. The article states that: 

Is punished from three months to three years of imprisonment, whoever, military or civilian, in a public place and by the word, gestures, writings, drawings, photographic reproduction or by hand and films, is guilty of insults to the flag or the army, attack on the dignity, reputation, morale of the army, acts liable to undermine military discipline, obedience and respect due to superiors or criticisms of the action of the superior command or of the leaders of the army, thereby undermining their dignity.

Vague terms such as “attack on the dignity, reputation, morale of the army” allow for interpretations that curb freedom of expression and violate international standards on freedom of expression codified in regional and international conventions.

This law allows for limited and non-arbitrary restrictions to freedom of expression for “legitimate” purposes. In contrast, the International Covenant on Civil and Political Rights, to which Tunisia is a state party, allows restrictions if they are “provided by law” and “necessary” for “the respect of the rights or reputations of others.” 

Human rights defenders expressed concerns over the control of the executive branch over the appointment of judges and prosecutors in the Tunisian military justice system. In his report following his 2012 mission to Tunisia, the special rapporteur on the promotion of truth, justice, reparation, and guarantees of non-recurrence, Pablo de Greiff, noted that “the institutional independence of military judges remains questionable by the fact that the Minister for Defence presides over the […] military judicial council.”

Reform opportunities lost in a 10-year political race

The calls to reform and revoke repressive laws started as early as 2011 with the interim government suspending Tunisia’s 1959 constitution. However, many legal texts and decrees that contradict the 2014 Constitution and violate human rights remain in effect.

For instance, the 2014 Constitution guaranteed the right to a fair trial in Article 27 and protected freedom of expression in Article 31. It stipulates that the military courts are only “competent to deal with military crimes,” but also states “the military courts shall continue to exercise the powers vested in them by the laws in force until they are amended.” Decrees 69 and 70 of July 2011 amending the 1957 Code of Military Justice did introduce important elements such as the establishment of a military court of appeals, but these reforms do not sufficiently protect freedom of speech and the right to a fair trial, and, for the last 10 years, citizens have been tried before both the military and civilian courts for opinions shared on social media.

In 2017 and 2018, the opposition democratic block in the parliament proposed draft legislation to amend the Code of Military Justice. The draft bill, similar to efforts to review the penal code, criminal procedures code and other laws, never made it onto the parliament’s general session agenda. Ruling parties in the parliament didn’t push the review of these laws to comply with the 2014 constitution and international human rights norms. 

For Tunisians, these laws contribute to their ongoing sense of déjà vu. The gaps in these legislations have been used to restrict freedoms, interfere in the judicial process and repress critics. Similar tactics were used by the Ben Ali regime, the post-revolution 2011 to 2021 rulers, and today in the post-July 25, 2021 era. Until they are addressed, the nightmare may continue to recur.

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