At the time of writing, Tunisian parliament is continuing its work on rewriting the country’s law on associations. Though information is scarce, it appears that a draft law submitted by a group of ten members of parliament on October 10th is the basis for these efforts.1 Should the legislation in question make its way through the Assembly of the Representatives of the People of Tunisia and onto the President’s desk, it will introduce significant restrictions on the establishment, activity and funding of associations. Of most immediate consequence, it will significantly obstruct the work of NGOs in the North African state.
Associational life after the Jasmine Revolution
Tunisia’s existing law on associational life was introduced through Decree-Law 88 of September 24th, 2011.2 A product of the early democratic transition, the decree marked a noticeable break with the past. After decades of repression, Decree-Law 88 removed the authorisation system put in place by Ben Ali which had required organisations to secure official approval from the state in order to operate. In addition to providing safeguards for freedom of association and prohibitions on government interference, it also eased the registration process for organisations, and, notably, relaxed existing controls on foreign funding. By virtue of these features and others concerning compliance and transparency, Decree-Law 88 would be hailed as “one of the 20 best association laws in the world.”3 And thanks to the enabling environment created, it helped facilitate the emergence of a vibrant and diverse civil society sector, which today counts thousands of local and international NGOs.
Saied and his allies reference Decree-Law 88’s sanctioning of foreign funding—which they present as an incursion upon Tunisian sovereignty—as justifying the ongoing reform push. In a speech during a ministerial meeting in late November, Saied strongly criticised Tunisia’s NGOs and alleged that some colluded with foreign intelligence services.4 Claiming that Tunisian associations are receiving foreign funds to the tune of several million dinars, the President announced “this has to stop” before alluding that restrictions on civil society organisations, which he charged as being “extensions of intelligence circles”, would need be put in place. Insofar as a great many Tunisian NGOs derive their funding from western partners—especially those operating on issues related to political and civil liberties—Saied’s speech constituted a clear shot across the bow.
Saied et al’s ongoing efforts are not the first time Decree-Law 88 has been targeted. The coalition government of Nidaa Tounes and Ennahda mobilized for reform as early as 2017. On that occasion, however, a wide movement of national and international NGOs managed to form a working group to raise awareness on the importance of defending the status quo.5 This collective action, which was coordinated by the Kawakibi Democracy Transition Center (KADEM), proved successful, delaying proceedings and increasing the public’s consciousness of the rights that stood to be lost. The same formula would be followed on subsequent attempts to revise Decree-Law 88. “There’s been a continuous effort by the government to modify Law 88, but the civil society has pushed back each time”, Amine Ghali, KADEM’s programme director remarked, stressing how his centre has played an active role in defending Tunisia’s civic space.
Kais Saied Takes Aim
After the 2019 elections broke the Nidaa Tounes-Ennahda dyad and the COVID-19 pandemic pushed political energies elsewhere, it appeared, for a time, that Decree-Law 88 was safe. That all changed with Kais Saied’s self-coup in July 2021. Thereafter, the Tunisian President set about systematically dismantling Tunisia’s democratic institutions, demolishing checks and balances one by one, and weakening key human rights protections: The parliament was frozen then shuttered. The constitution was suspended. Judicial independence was done away with. And under a Presidential decree issued in September 2021, the executive attributed to himself the exclusive right to legislate by decree.
Despite the authoritarian drift, some Tunisian NGOs continued to operate as their mandates dictated, and to voice public criticism of the president’s economic and political choices. Unsurprisingly, this eventually brought them into the crosshairs of Kais Saied. In January of 2022, a draft law on associations prepared by the government was leaked without any public discussion or consultation with civil society.6 In a videotaped speech on February 24th, the Tunisian president next accused NGOs of serving foreign interest, and announced his intent to change the civil societies’ legal framework and ban “funding from abroad.”7 In this instance as in 2017, however, the vigorous reaction of Tunisian civil society, which launched a public campaign and lobbied foreign governments to counter the proposed law, sufficed to persuade the President against taking hasty action.8 A holding pattern of sorts thereby took hold, lasting for the rest of the year. The President regularly feigned toward reform—during Tunisia’s latest Universal Periodic Review (UPR) in November, authorities mentioned plans to amend the legislation on associations—though opted against carrying through on his pledges.9
Tunisian NGOs & Western funding over Gaza war
In the wake of the war in Gaza, a number of Tunisian NGOs decided to boycott their Western donors due to the double standards of Global North countries over Israel’s military offensive on the Gaza Strip. Independent Tunisian watchdog “I Watch”, which aims to combat corruption and enhance transparency, announced the rejection of American funding for several reasons, including the US’ decision to veto a UN Security Council resolution allowing humanitarian aid towards Gaza. Other organisations like the Tunisian Forum for Economic and Social Rights (FTDES), the Observatory for Food and Environmental Sovereignty, and Cartographie Citoyenne declared they were severing ties with the German Rosa Luxemburg Foundation over its “both sides” rhetoric and equation of the Israeli oppressor with Palestinian victims.
These boycott moves impact the financial sustainability of Tunisian NGOs, their future projects, and cooperation with Western countries. This in a context where President Kais Saied is pushing for a restrictive legislation aiming to control civil society. Combined, the effect could be to further isolate Tunisia, which is already grappling with political instability and a worsening economic crisis, and potentially compromise the future of associational life in Tunisia.
Repression through Legal Language
It is an open question whether this holding pattern has now broken. The aforementioned draft law put forth in October, were it go into effect, would reverse many protections gained through Decree-Law 88. Henda Fellah, a freedom of expression and transparency advocate working for an international NGO in Tunisia, posits that the entire legal text—not just some of the provisions contained therein—represents a “threat.” If made the law of the land, Fellah expects local associations would “struggle more” to secure funds due to added bureaucratic procedures and restrictions imposed, and this at a time when funding for civil society is decreasing each year due to donor fatigue and a worsening financial crisis. “This draft, as it is formulated, will put our work at risk altogether”, the civil society activist said, adding that the planned amendment will likely create a “discouraging” environment for both national and foreign organisations to keep functioning. For her part, Salsabil Chellali, the Tunisia director at Human Rights Watch (HRW), pointed out that almost each article in the draft law functions to grant the state “wide, pervasive control” over the existence of civil groups. “All provisions in it are very problematic. If the draft is adopted, it will destroy the independent civil society as we know it today in the country.” Chellali further warned that it could push associations to relocate abroad.
Fellah and Chellali are not engaging in hyperbolae in these statements, as even a look at the draft law’s contents makes plain. As written, Articles 10 to 12 of the bill put forth on October 10th would reinstate the Ben Ali-era requirement stipulating that an association’s creation be authorized by the state. Other terms dictate that national and international associations be placed under the “supervision and control” of relevant ministries and the Prime Minister’s office, respectively, without specifying precisely what this means. Additional provisions establish that a department in the Prime Minister’s Office is to be granted discretion in revoking an organization’s right to operate within the first month of their registering with the state, and that executive authorities are to be equipped with the right to dissolve civil society groups at will, without going through normal judicial procedures. Nor do the troubles end there. Under Articles 8 and 19 of the new draft law, international organisations would be required to obtain authorization from the Ministry of Foreign Affairs prior to registering. Article 20, meanwhile, empowers the Foreign Ministry to issue temporary authorizations and to revoke or suspend already granted authorizations at its own discretion, and at any time.
By dint of the broad language deployed in delineating legal prohibitions, the draft law also stands to leave civil society organizations without any solid grasp on the line between licit and illicit activity. Flipside of this, it stands to equip the state with the capacity to interpret and enforce the law in an arbitrary and/or political manner. Such potentialities are especially present in the law’s preamble and its Article 24. In the preamble, it is asserted that civil society organizations may not “threaten the unity of the state or its republican and democratic nature”, “violate laws related to good morals”, “disturb public security” or “violate national sovereignty.” In Article 24, provisions are specified allowing the Prime Minister’s Office to “automatically” dissolve any group “suspected of terrorism” or that has a “terrorist background.” In articulating the law in this fashion, Saied’s lieutenants in the parliament buttress legal foundations conducive to abusive practices, particularly in a political climate where allegations of treason and terrorism can be (and have been) conjured as if from thin air. Their insertion of morality clauses also puts vulnerable non-political groups like LGBTQ rights associations at risk of repression.
Then there are regulations on foreign funding to consider. Article 35 of the Tunisian constitution and the International Covenant on Civil and Political Rights, to which Tunisia is a signatory, both establish the Tunisian state’s acceptance of civil society’s right to foreign funding sources. Article 18 of the October draft law would render these commitments conditional, however, requiring that national organizations obtain approval from the Prime Minister’s Office before receiving financing from abroad. Of grave importance, this Article also leaves the criteria under which the Prime Minister’s office may reject an application wholly undefined. Compounding matters further, Article 35 of the draft law stipulates that all foreign funding must be cleared by the Tunisian Commission for Financial Analysis, a unit within the Tunisian Central Bank tasked with fighting money laundering and the financing of terrorism. Such regulations on foreign funding constitute an obvious means for curtailing the activities of civil society organisations—and for compromising freedom of association. Indeed, the UNOHCR’s 2013 Special Rapporteur report on the right to freedom of peaceful assembly and of association asserts that a civil society organisation’s access to funding from domestic and foreign sources is “an integral part of the right to freedom of association.”10 Inasmuch as 2018 survey of 100 civil society organisations documented that about two-fifths relied, either in part or in full, on funding from abroad, these regulations could have a deeply pernicious effect on associational life.11
The Future Bodes Ill
Seen in full, the picture is exceedingly worrying. Chellali of Human Rights Watch warns that the October draft law, if ratified, could lead to Tunisian authorities targeting any organization deemed “unwelcome.” She anticipates this would occur gradually, with the state first “filtering out” associations by restricting their operations, and later officially terminating their legal existence. In her words, “Going by the president’s repressive roadmap, passing this bill would mean dismantling one of the last pillars of democracy.” Amine Ghali of KADEM largely concurs, positing that the introduction of the law would be “one of the final steps” in Saied’s cancellation of the democratic process. “Civil society is seen as another big impediment to the government’s effort of killing democracy, so they want to shrink the space for us”, KADEM’s director opined.
Tunisian civil society organisations have made an indelibly positive contribution to the country’s democratic transition. They provided essential services to the public and did crucial work in areas stretching from education and women’s issues to the environment, individual liberties, cultural life, and social marginalisation. In total, the official count documents over 24,000 associations having been registered12, although only some 300 to 400 of these are estimated to be active.13
Eight international NGOs have called on the Tunisian authorities to refrain from adopting the amended draft law on associations, reminding that the legislation would violate freedom of association and endanger civic space.14 Tunisian civil organisations are also preparing a joint action to express their opposition to relevant national stakeholders. Should Carthage proceed to move forward regardless, things may get far darker in Tunisia, and swiftly. Indeed, the closing of free civic life could represent the final consolidation of authoritarian rule.
Notes
- The text of the draft law can be read in Arabic on the web page of the Assembly of Representatives for the People of Tunisia: See: < https://www.arp.tn/en_US/loi/project/3957> ↩︎
- For the full text of the law, see: “Decret-loi no.2011-88 du 24 Septembre 2011, portant organisations des associations”, Journal Officiel de la Republic Tunisienne no.74 (September 30, 2011): pp.1977-1982. ↩︎
- See: Mosaique Radio, “Ghali: Maqariba amniyya fee mashru’a al-hakuma latenqeeh qanun al-jamaiyyat” (February 2, 2022). ↩︎
- See: Editorial Staff, “President of the Republic says end must be put to associations receiving funding from abroad and are “extensions of intelligence circles”, Agence Tunis Afrique Press (November 11, 2023). ↩︎
- For details, see: Kawakibi Democracy Transition Center, “Annual Report 2017”, (2018): pp.19-21. ↩︎
- See: Rihab Boukhayatia, “Droit d’association: le project liberticide du gouvernement Bouden”, Nawaat (February 8, 2022). ↩︎
- Editorial Staff, “Tunisia’s Saied will bar foreign funding for civil society”, Reuters (February 25, 2022). ↩︎
- Amnesty International, “Tunisie. Il faut faire barrage aux restrictions imminentes qui menacent la societe civile” (March 11, 2022). ↩︎
- See: Statements of H.E. Najla Bouden Romdhane, “Tunisia UPR Adoption—41st Session of Universal Periodic Review”, United Nations Web TV (November 11, 2022). ↩︎
- See: Maina Kiai, “Report of Special Rapporteur on the rights to freedom of peaceful assembly and of association”, Human Rights Council of the United Nations General Assembly (April 24, 2013). ↩︎
- See: International Center for Not-for-Profit Law and Beyond Reform & Development, and Menapolis, “The state of civic freedoms in the Middle East and North Africa: Access to Associational Rights in Morocco, Tunisia, Lebanon, Jordan and Kuwait”, Report (June 2018). ↩︎
- See: Centre d’Information de Formation d’Etudes et de Documentation sur les Associations, “Tableau Generale des Associations au 05 December 2023” (December 2023). ↩︎
- See: Sabina Henneberg, “Civil society in Tunisia: resetting expectations”, Policy Note 127: Washington Institute for Near East Policy (January 2023). ↩︎
- See: International Service for Human Rights, “Tunisia: Reject bill dismantling civil society”, Statement (November 7, 2023). ↩︎