By Lorenzo Figoni
Starting from the decision made on the 25th of July 2021 by the President of the Republic, the Tunisian Mr Kais Saied, to suspend the Parliament’s activity, Tunisia has entered into a vortex of deep changes. The decision is part of a panorama where Tunisia is already in difficulty, with a country hitten hard by the pandemia, widespread corruption, high crime rate and youth unemployment, high cost of living, services which do not work and debts towards the International Monetary Fund. On this background Saied, appealing to article 80 of Tunisia’s Constitution of 2014, has announced the freezing of parliamentary activities, the revocation of parliamentary immunity and the dismissal of the Prime Minister Mr Hichem Mechichi.
From article 80 of the Constitution of 2014 to full power
In fact the Constitution of Tunisia states that in case of imminent danger that threatens the national integrity, the security and independence of the country and affects the regular functioning of the public powers, the President of the Republic can take the necessary steps that the state of exception requires.
These measures are taken after consulting the Prime Minister, the President of the Assembly of People’s Representatives and after informing the President of the Constitutional Court. This latter, although it is provided for by the Constitution of 2014, it has never started working [1] and therefore it has not been able to limit the concentration of power in President Saied’s hands: in fact article 80 states a limit in the President’s discretionality stating that after 30 days from the entry into force of the measures the Constitutional Court could be asked, at the request of the President of the Assembly or thirty of its members, to decide on the continuation of the state of emergency. Furthermore, although it is expressly stated that in such exceptional situations the Parliament must be considered in a state of permanent session and that Chambers can not be dismissed, the so-called “suspension” of the parliamentary activities is still working and it seems that it will carry on for a long time. In this respect in fact, with a presidential decree on the 22nd of September 2021, President Saied decided to extend the state of emergency, also adding the decision to exercise the executive power “with the help of a Cabinet, chaired by a head of the government” keeping for himself the possibility to give to the Prime Minister the possibility to replace him [2]. So, on the 29th of September 2021, after two months and an half from the resignation of the Prime Minister Mr Mechichi, Saied appoints Ms Najla Bouden Romdhanea to form a new government: the first woman from the Arab world to have the role of Prime Minister gives birth to an executive made by 8 female out of 24 ministers [3]. All this operation has been seen by some as an attempt to level, in front of the national and international public opinion, the concern about the democratic erosion in Tunisia, considering that the government’s survival is in the hands of the President of the Republic [4].
Planning throughout the crisis
In a proposal of resolution on the 18th of October 2021, the European Parliament asked Tunisia to adopt “a clear road map which illustrates the next steps and the calendar for the current political transition of Tunisia and the end of the exceptional measures, and takes into account the socio-economic plan of the new government, the future of the current political system, included its Parliament, the Constitution of 2014 and the possibility to have early elections” [5]. Although this request does not appear in the following definitive version of the resolution, during a speech to the nation on the 13th of December evening with simultaneous broadcasting [6], Kais Saied announced his personal plan tended to end the process started in July: a real road map for 2022 starting from an online consultation aiming to gather proposals related to the drafting of a new Constitution and electoral law. These proposals will be later formalised by a specific commission, and then followed by a referendum on the 25th of July 2022: exactly one year after the suspension of the Parliament. A consultation that has also raised many concerns in the Tunisian civil society, which is critic on the method that would not allow neither the necessary transparency nor a real picture of the people’s will: “in its current form, the consultation seems to be a pretext to make the process go towards predefined guidelines”, representatives of the civil society said [7]. The road map related to the end of the crisis should arrive at the end of December 2022 with elections that would see Tunisia inside a new potential constitutional order and with a new electoral law. A goal that does not convince Mr Majdi Karbai, member of that suspended Parliament who will not participate in the December elections, “because participating would be to legitimise this regime. An electoral law decided by Saied autonomously, under the control of the Home Secretary taking away control from the Superior Instance for the Independence of the elections. We have seen how elections were during the Ben Ali regime, under the control of the Minister of Interior. We remember the percentage and we do not trust him. With my party (Democratic Party) we are boycotting both his online consultation and the elections. Moreover, we are asking for a real national dialogue in order to reach an historical compromise for Tunisia”.
The Superior Council of the Judiciary has been disestablished
The concern about Tunisia’s institutional crisis is recently increasing with the addition of a new step which has a questionable democratic value. On the 6th of February 2022, the President Saied, after accusing the members of Superior Council of the Judiciary of taking “billions” of bribes and delaying the investigations into the murder of the leader of Tunisian left wing Chokri Belaid [8], informed the population of the decision to disestablish the Superior Council of the Judiciary. “From this moment on, the Superior Council of the Judiciary belongs to the past”: with this very word the body instituted in 2016 to protect the independency of the judiciary has been disestablished, allowing Saied to continue with his project of centralization of power and to also grab the judicial power, after executive and legislative ones. In response to this another democratic downturn, G7 representatives and European Union said they were “deeply concerned” [9], leading the Tunisian President of Republic to a partial turnaround, according which the Superior Council of the Judiciary would be disestablished in its current composition, and then replaced by a “temporary Council” [10]. The body which has replaced the Superior Council of the Judiciary was born on 13th February of this year, providing the prerogative of the Head of State to control selection, appointment, advancement, and transfer of the judges, and also to fire its members [11]. And so, one wonders where could be found the necessary guarantees of independence of this new temporary Council, a concern shared by the deputy Karbai: “The Superior Council of the Judiciary is a Council that has been elected by lawyers, judges, professors, experts. It’s a body that consists of forty people who represent different components and ensure the independence of judiciary: if one has a problem with the judges, then it could be made a reform which hit the judiciary, not the Council. The reason is that unless he hasn’t his own allies within the Council, then this one can hinder him”.
A “safe country”
The questionable democracy of the measures taken by Saied is also highlighted by the crackdown on the opposition and his opponents. As denounced by Human Rights Watch, “the Tunisian authorities are prosecuting the citizens both in the military and civil courts, and they’re detaining them for having publicly criticized the President Kais Saied and other officials. These citizens include member of the Parliament, commenters on social media and a television host” [12]. The allegations of defamation and injury against the President are grounded on an outdated oppressive law and widely used in the context of the recent project of centralization of power began last 25th July. Indeed, in accordance with Tunisian civil society, these people have been prosecuted on the basis of the Telecommunication Code (article 86), Criminal Code (articles 125, 126, 128) and Decree-Law number 115/2011 about press freedom, which includes a certain number of vaguely worded provisions which criminalize the freedom of expression. These articles provide penalties which can ranging until 5 years of imprisonment for peaceful expression of various kind of opinions.
However, the freedom of expressions isn’t the only one to be jeopardized, within a legal framework which presents many critical aspects in connection with liability of torture and other forms of inhuman or degrading punishments or treatments, of threats to freedom of reunion and association, of religion and gender equality. [13] “The lack of a Constitutional Court with the mandate to abolish the laws which are in contrast with the Constitution leaves the people of Tunisia without a key guarantee against criminal proceedings based on charges which breach their human rights […] The repressive laws, included those which criminalize the critics expressed towards the national institutions, remained in force although the freedom of speech was enshrined in the Tunisia’s Constitution of 2014. There aren’t any superior courts which have the power to abolish these provisions”. In accordance with Karbai, this attempt to censorship also extends to opposition: “who really wants a reformation and to enhance the democratic transition acts differently, that’s not how you make changes. We’re heading towards a new dictatorship, which is, according to Saied, the right model for the government of the country. With a presidential decree, they have also prohibited who belongs to the opposition from publicly appear on national Tunisian channel. They have forbidden the opposition from demonstrations, and only the President’s allies can demonstrate. Today some young people are tried because they criticized the President on Facebook, and some other, who have been arrested during demonstrations on 14th January, are currently tried.
The unbearable lightness of Foreign Affairs
The Tunisian situation is surely alarming Europe Union, so much that on 12th February the High Representative of the Union for Foreign Affairs and Security Policy, Josep Borrell, stated: “We firmly demand a return to democratic normality. We’re without doubt concerned because of these events and we’re debating whether to interrupt the supply of progressive tranche of macro-financial aids which were planned” [16]. Notwithstanding, more than 6 months after the taking of full power by Saied, it seems that isn’t in doubt the friendly collaboration between Italy and Tunisia, whose agenda is mainly driven by the constant negotiation in the matter of migration. This is shown by the multiple visits of the Ministry Luigi di Maio in Tunisia, the latest of which carried out on last 28th December, when he visited Ministry for Foreign Affairs, Migration and Tunisians abroad, Othman Jerand, the Head of Government Romdhane and the President Saied. In that occasion he stated “With Tunisia the dialogue has never been interrupted, it’s a friendly nation”. A friendship that from January to October 2021 has led 24116 migrants to be intercepted at sea by Tunisian authorities and others 1665 to be sent back [17], anchored to the unshakable certainty of being able to define Tunisia a “safe country”.
[8] Chokri Belaid, leader of the Tunisian left wing, murdered next his house by a group of Islamic fundamentalist on the 6th of February 2013. In all this time, justice has not been done. The folds of a very delicate and unsolved dossier have become intertwined with the charges of corruption and impartiality against judges, in primis by Belaid’s family. https://ilmanifesto.it/la-tunisia-ricorda-chokri-belaid-e-resta-senza-giustizia/
