Tunisia: Where poems lead to prison

ARTICLE 19 is alarmed by the significant levels of power the President of the Republic has secured unilaterally, the dismantling of the democratic constitution and the rise of restrictions on freedom of expression and information. We call on President Said to abolish the state of emergency and to seriously commit to respect human rights and to ensure that all those responsible for the attacks against journalists and demonstrators are brought to justice and that their crimes do not go unpunished.

  1. Introduction

On 25 July 2021, President Saied announced a state of emergency pursuant to Article 80 of the Tunisian Constitution. He justified it on the basis of an ongoing political crisis, the inability of the state to manage the worsening COVID-19 crisis and serious economic difficulties.

After announcing the state of emergency, President Saied dismissed the Prime Minister and four government ministers1, suspended the competencies of the Parliament (the Assembly of People’s Representatives), and lifted the immunity from prosecution for its Members of Parliament2. He further took the decision to chair the public prosecution service, in addition to taking other exceptional measures he said were essential to address the political, economic and health crises3 that the country has been witnessing for several months, including creating an operations room to manage the health crisis and appointing new ministers4.

The constitutional crisis was exacerbated after 22 September, when President Saied issued Presidential Decree No. 117 of 2021, which abolished several sections of the Tunisian constitution, and transferred the legislative power from Parliament and the executive powers of the Head of Government to the hands of the President. This concentration of powers has led to the emergence of an undemocratic authoritarian presidential system without the proper checks and balances of democratic systems. The roadmap announced by President Saied on 13 December 2021 failed to provide serious assurances regarding a prompt and credible return to the democratic path.

Initially, some Tunisians supported the declaration of the state of emergency and welcomed the President’s decisions, partly due to dissatisfaction with political corruption and the lack of economic and other reforms. However, Kais Saied’s monopolisation of power and the rise of violations of freedoms, added to the deteriorating economic and social conditions, led to the escalation of voices opposing his policies and the decline in the number of his supporters.

Since the declaration of the state of emergency by President Saied, a clear authoritarian direction has emerged. The unilateral ruling due to the concentration of most of the powers in the hands of the President, the rise in the number of trials linked to people voicing opinions, and aggressions on journalists and media outlets, as well as on the right to demonstrate and protest, bear witness to this autocratic direction. These restrictions and violations included especially those who reject, oppose and criticise the 25 July process and the decisions that followed.

ARTICLE 19 is concerned about the rapid deterioration of the situation and the restrictions on human rights in Tunisia. In this briefing, we outline key challenges to freedom of expression and information six months into the declaration of the state of emergency in Tunisia.

  1. Concerns about drafting a new constitution

On 13 December 2021, President Saied announced, in a unilateral manner and without prior consultation with political parties and national organisations, a roadmap for a way out of his suspension of several chapters of the Tunisian constitution and the subsequent constitutional crisis. According to the announcement, the process started with an online consultation on constitutional and political reforms from 1 January to 20 March 2022. Following the consultation, a Political Reform Committee5, whose members are appointed by the President of the Republic, will draft new key legal texts and a new constitution that will be submitted to a referendum on 25 July 2022. This path will end with legislative elections on 17 December 2022.

The general atmosphere of ambiguity and opacity also extend to the Political Reforms Committee, the composition of which remains unclear, as do the level of prerogatives, working mechanisms, the methods for appointing its members, and the extent of its independence from the President of the Republic. This lack of transparency will affect its independence, accountability and representativeness.

It is not known whether the Political Reforms Committee will be obliged to base its work on international human rights obligations to which Tunisia subscribes.

The online consultation started in a stumbling way: it was postponed for two weeks amid concerns about the digital safety of the platform and the protection of the participants’ personal data, in addition to the broad nature of the questions asked and the answers suggested.6

Because of this ambiguity and the absence of inclusiveness of the main political forces in the current political process, there are serious fears as to whether the outcome will obtain the broad and sustainable societal consensus on the constitutional text. This lack of consensus would likely lead to a lack of legitimacy and democratic credibility of the emerging political system.

  1. Attacks on journalists

Journalists play a pivotal role in providing information to the public, covering important events and feeding debates on general interest issues. Therefore, any obstruction to their work or aggression against them is considered to be a violation of the freedom of the press and the principles of a democratic society in which the press and journalists must be free.7

The national legal framework protects journalists a range of violations. For example, articles 9 and 12 of the Decree-law no 115 relating to the freedom of the press, printing and publishing forbid all kind of restrictions on the free circulation of information and any actions that might undermine the dignity or physical or moral integrity of journalists.

However, attacks on journalists have been frequent since the declaration of the exceptional state on 25 July 2021. The attacks against journalists have taken various forms, including illegal use of force and arrests while covering protests, seizure of equipment, arrest, detention, prosecution and imprisonment, mostly based on national legislation8 not in line with international human rights standards.

On 26 July 2021, journalists were harassed by the police in the vicinity of the Parliament of the People’s Representatives in Bardo; they confiscated their mobile phones and other work equipment while they were covering the protests in front of the parliament. These attacks targeted employees of the Tunisia-Africa News Agency, Al Arabi 21 website, the Tunis Digital website, and Al Arabiya TV.9

On 1 September 2021, the security forces physically assaulted journalists while covering a protest by the “Manash msalmine” movement in Tunis, which demanded disclosure of the truth about political assassinations. There were attacks against numerous journalists, including Ghaya Ben Mbarek, Noureddine Ahmed, Yosra Chikhawi and Ahmed Zarrouki.

On 2 October 2021, TV presenter Amer Ayad was imprisoned by the military court for his recital of a poem by the poet Ahmed Matar, one of whose phrases was qualified as an attack on the dignity of the President of the Republic.10 Although he was released after a month of arrest, prosecuting journalists on the basis of the military code while excluding the press Decree-law reinforces our concerns about the tendency against freedom of the press in Tunisia.

Aside from the retaliatory nature of the charges, prosecuting journalists based on the military code for their positions and ideas is, first, contrary to Tunisian law, which subjects all forms of expression to the provisions of Decree-law No. 115 related to freedom of the press, printing and publishing.

ARTICLE 19 expresses its concern regarding the prosecution of a journalist before the military court, which should have jurisdiction over lawsuits between military employees within the framework of their military work without extending its jurisdiction to trying civilians because of their criticism and opposition to the President of the Republic as the supreme commander of the armed forces. It should be noted in this regard that the Human Rights Committee affirmed in its General Comment No. 34 of 2011 that those in positions of authority, such as the President of the Republic or the Government, should expect a higher degree of criticism and must tolerate critics, even harsh ones. Therefore, the prosecution of civilians before the military court is not compatible with international standards and particularly article 19 of the International Covenant on Civil and Political Rights (ICCPR), to which Tunisia is a signatory.

Recently, on the occasion of the Revolution Day on 14 January 2022, several journalists who covered demonstrations in Tunis that had been called by the Tunisian opposition were assaulted by security forces. There were attacks on journalist Zina Mejri, who was arrested and later released, as well as on journalist Amira Jebali, whose phone was seized and searched, and on the correspondent for the French Libération newspaper Matthew Galtier, who was physically assaulted and whose equipment was seized.11

As confirmed by the Human Rights Committee in its General Comment no 34, all attacks against journalists ‘should be vigorously investigated in a timely fashion, and the perpetrators prosecuted, and the victims, or, in the case of killings, their representatives, be in receipt of appropriate forms of redress’.

  1. Attacks on media institutions

The Human Rights Committee states:

A free, uncensored and unhindered press or other media is essential in any society to ensure freedom of opinion and expression and the enjoyment of other Covenant rights. It constitutes one of the cornerstones of a democratic society, as set out by the International Covenant on Civil and Political Rights.12

Particularly during the national crisis, it is crucial to protect media outlets from any kind of interference or bullying that impede them from their role in providing a propitious and inclusive framework for public debate.

In addition, the Tunisian Constitution guarantees freedom of information in Article 31, which provides that ‘Freedom of opinion, thought, expression, information and publication shall be guaranteed. These freedoms shall not be subject to prior censorship.’

However, since 25 July, there has also been an increase of attacks against media outlets.

On the morning of 26 July 2021, police officers stormed the office of the Qatari Al-Jazeera channel and ordered the team to leave, seizing the keys without providing any justifications or invoking a judicial permission nor a decision issued by the Independent High Authority for Audio-visual Communication (HAICA).13 Since that time, journalists working in the Al Jazeera office have used the yard within the headquarters of the National Union of Tunisian Journalists as a place to carry out their journalistic work.14

The President of the Republic also dismissed the director of the Public National Television and appointed a new acting director on 28 July 2021, according to Presidential Decree No. 78 of 2021. This appointment was in violation of the provisions of Decree-law No. 116 of 2011 related to freedom of audio-visual communication, which requires that the exemption and appointment of the director of the National Television take place in accordance with the obligatory opinion of the HAICA.

On 13 September 2021, the HAICA issued its report on political pluralism covering the period between 25 and 31 July.15 It concluded that the content broadcast by the National Television was totally aligned with the orientations of the President of the Republic, and excluded the views of political parties. This exclusion was confirmed by the President of the National Union of Tunisian Journalists on 11 January 2022, who said that there had been a decision within the National Television to exclude political parties from their political talk shows.16

During a visit from the Algerian President Abdelmadjid Tebboune on 15 December 2021, the President excluded private media outlets from attending the press conference. Only journalists working on the National Television and the Tunisia-Africa News Agency were invited, with the instruction that no questions should be directed to President Saied, a dangerous precedent of direct interference in the freedom of press. This arbitrary decision angered many journalists due to the absence of any objective and transparent reasoning for such a measure.

ARTICLE 19 warns that these practices are incompatible with international standards on media freedom.17 It is necessary to distance the National Television from all kinds of political pressures that undermine its independence and prevent the opportunity to express all opinions, especially in the current political situation in which public media can play an important role in providing information and addressing major issues in an objective and professional manner.

ARTICLE 19 fears that private media outlets are being punished for their opposition to the decisions taken by the President. This undue pressure on the media might be aimed at influencing the media outlets in modifying their content to be more aligned to the political directions of the President of the Republic.

The political interference in the editorial line of media institutions is harmful to freedom of information and creates an unsuitable atmosphere for public debates that need impartial, objective and real information. Political pluralism and diversity are also considered necessary to enable citizens to form their own opinions and political choices, especially given that the country is expecting to hold a referendum and legislative elections in the upcoming months.

  1. Escalation of trials for voicing an opinion

Since 25 July 2021, several bloggers and human rights defenders (HRDs) were prosecuted because they criticised senior officials and public authorities. The increase in trials for voicing an opinion in Tunisia18 is alarming and signals an unprecedented deterioration of the situation for freedom of expression in Tunisia.

First of all, the prosecutions of citizens based on their political opinions constitutes a gross violation of international standards, which stress the need for ‘citizens, candidates and elected representatives to be able to freely exchange information and opinions on matters of public and political affairs’.19

ARTICLE 19 reminds the Tunisian authorities of the need to respect the right to freedom of expression guaranteed by Article 31 of the Constitution and Article 19 of the International Covenant on Civil and Political Rights. It also affirms that the expression of opinions in the political sphere enjoys utmost protection, and the courts must play their role in guaranteeing rights and freedoms in accordance with the provisions of Article 102 of the Constitution, which states that ‘the judiciary is an independent authority that guarantees the administration of justice, the supremacy of the constitution, the rule of law, and the protection of rights and freedoms’.

The main provisions used to prosecute activists and bloggers are included in the Penal code20 and the military code21 and they all stipulate imprisonment as a punishment contrary to international standards, which provide that “States parties should consider the decriminalisation of defamation and, in any case, the application of the criminal law should only be countenanced in the most serious of cases and imprisonment is never an appropriate penalty’.22

This trend is very dangerous, especially given that Tunisia has a more appropriate legal framework regarding freedom of expression issues, which is the Decree-law no 115. It regulates the crimes of defamation and insult and stipulates a fine of between $400 and $800. However, the courts often exclude these provisions, especially when the cases involve senior officials in the state, such as the President of the Republic or members of the Government, security forces and judges. This trend has a chilling effect on citizens, who often hesitate to criticise these authorities for fear of severe penalties.

The prosecution of bloggers, activists and HRDs began in the first days of the state of emergency being declared. For example, on 29 July 2021, Hamza Ben Mohamed, a blogger and political activist, was arrested by police officers in Tunis in connection with his posts on Facebook, in which he criticises Kais Saied. He was released on 5 August.

In the city of Mahdia on 31 July 2021, a local political activist, Ridha Radaya, was arrested and accused of inciting violence and insulting the President of the Republic after he posted a video on Facebook in which he harshly criticized Kais Saied for his decisions after 25 July.

On 27 November 2021, a young student called Ali Saidi, an engineering student and civil society activist, was arrested by police officers in Kebili, a city in the south of Tunisia, in connection with his publication of a post on Facebook also criticising the decisions adopted by the President of the Republic. He was charged with committing an offence against the head of state in accordance with the provisions of Article 67 of the Penal Code. He was released on 10 January by the Court of Appeal of Gabes.

In the same context, on 21 December 2021, the Court of First Instance of Sfax issued a prison sentence of four months and a fine of 500 dinars (approximately $180) for insulting a public official to the human rights activist Mariam Bribri. The activist had commented on a video on a Facebook page showing police officers about to physically attack a young man in Nabeul.

On 22 December 2021, the Court of First Instance in Tunis issued a preliminary ruling in absentia against former interim President Mohamed Moncef Marzouki, sentencing him to four years of imprisonment with immediate execution on charges of assaulting external state security. The former President stated to France 24 TV Channel that he was ‘proud of his efforts with French officials to thwart the holding of the Francophone Summit in Tunisia, considering that its organisation in a country witnessing a coup would be a kind of support of dictatorship and tyranny’. The ruling came after the President of the Republic, Kais Saied, demanded during a Council of Ministers session that convened on 14 October 2021 that Marzouki be prosecuted because of his statements to the French international TV channel. The Court of First Instance in Tunis considered these statements as an attack on the state’s external security.23

What further raises doubt about the political nature of the trial of the former President is the issuance of the conviction decision in just four months, while several cases have remained pending and unresolved for many years, including cases of police attacks on journalists, political opponents, and human rights defenders.24

Moreover, Maher Horchani, a civil society activist, was arrested in Gafsa on 12 January 2022 for publishing posts on Facebook about the President of the Republic, and he was charged with committing offence against the head of state in accordance with the provisions of Article 67 of the Penal Code.

The latest prosecutions against citizens took place on 14 January 2022, when Mohamed Jihed Abayed, a student, was arrested in Tunis because of his participation in the demonstrations against Kais Saied and charged with insulting a civil servant in accordance with Article 125 of the Penal code.

  1. Attacks on independence of the judiciary

States must take measures to ensure the independence of the judiciary, and to protect judges from all forms of political influence in decision-making through the constitution or laws that establish clear procedures and objective criteria regarding the career of judges. It is not acceptable for the executive authority to put pressure on judges to direct them or to harass them because of the judgments they issued. Such Guarantees are necessary to safeguard the principle of separation between powers.25

However, since 25 July, he President of the Republic has applied contant pressure on judicial authorities and on judges specifically. In several speeches,26 he has exerted his influence on judges to take decisions on a number of issues.

This even reached the point of inviting members of the Supreme Council of Magistrature to influence the judicial authority.27 These pressures were condemned by the Supreme Council of Magistrature several times.28

Recently, the President of the Republic issued a Decree-law no 4 dated 19 January 2022 to cancel the remunerations received by members of the Supreme Judicial Council with the aim of forcing them to resign and establish a new council.

  1. Restricting the right to information

The right to access information is one of the basic tools for enriching public debate and enabling individuals to build their opinions and positions in public domains on the basis of reliable information. The first article of Organic Law No. 22 of 2016 relating to the right to access to information stated that this law aims to strengthen the principles of transparency and accountability and to support public participation in setting public policies, following up on their implementation and evaluating them. Consequently, any infringement of this right necessarily leads to obstructing individuals from extending their control over public authorities and participating in public affairs, in addition to the possibility of the spread of rumours that are difficult to refute later, especially after they have spread widely.

Since his victory in the 2019 presidential elections, President Kais Saied has pursued a communication policy based on direct communication with citizens or through videos posted on the Presidency’s Facebook page. Tunisian journalists have called for more openness and to enable them to hold press interviews or periodic press conferences so that they can obtain accurate information, but all their attempts have been unsuccessful.

On the other hand, the President of the Government issued on 10 December 2021 Circular No. 19 regarding the Government’s communication work rules, in which she calls on ministers to coordinate with the Presidency of the Government regarding the content and form of each media appearance. This publication increased the reluctance of officials, especially at the regional and local levels, to make statements or declarations for the benefit of the media, which negatively affected them.

ARTICLE 19 considers that the regulation of government communication should not be used as a pretext to restrict press freedom and the right to access information and calls on the President of the Republic to serve as an example for other officials for how to deal with the media and enabling them to provide the necessary information to the public.

Recommendations

  1. ARTICLE 19 recommends:

To the President of the Republic:

To The President of the Government:

To The Minister of the Interior:

To The Public Prosecution Office: