Political instability, revolutions and repression characterised Tunisia’s fight for independence from Britain until 1956.[1] Tunisia inherited a culture of impunity under its first Prime Minister and later first President Habib Bourguiba, whose main rival and pan-Arabist nationalist movement leader Ben Youssef was forced into exile and later assassinated in Germany. Bourguiba’s administration launched a campaign of persecution against Youssef’s supporters, killing at least 900 within a few years of the country’s independence.[2] Famous for his feminist leanings and supporting women’s emancipation in Tunisia, Bourguiba faced stiff opposition from Islamist groups like the Movement of Islamic Tendency (MIT), which considered his administration’s excessively western policies as inimical to Islamic values. He also faced opposition from student movements and labour unions, which grew during the economic crisis that rocked the country in the 1970s. Bourguiba’s administration met this opposition with bloody cycles of repression, decimating the ability especially of the Islamist nationalist movements to regroup. In 1975, Bourguiba proclaimed himself ‘president for life,’ and in November 1978, after about 30 years in power, he was deposed in a peaceful coup by his Prime Minster Zine al-Abidine Ben Ali, who cited Bourguiba’s age and physical and mental incapacity as reasons for the coup.[3] Despite his initial apparent support for the Islamist movements, Ben Ali soon consolidated his grip on power and, in 1990, clamped down on the leadership of the MIT, banning its activities, incarcerating most of its leaders and forcing others into exile. Ben Ali’s regime was also characterised by serious human rights violations. Like his predecessor, he clamped down on labour union members, human rights defenders, civil servants, journalists and political activists, and intimidated, detained, tortured and subjected critics to inhumane and degrading treatment. Freedom of expression and assembly were under strict scrutiny. Oppressive security policies were implemented to silence the opposition and secure Ben Ali’s rule. One such measure was the 2003 Antiterrorism Law, which allowed security forces to arrest people without a warrant and try civilians for acts of terror. These trials were often below basic standards and based on confessions obtained through torture, with court hearings closed to the public. In December 2010, frustration at the corruption, economic stagnation and police harassment under President Ben Ali’s administration led a 27-year-old street vendor, Mohamed Bouazizi, to douse himself with petrol and set himself ablaze. In the aftermath of Bouazizi’s death, thousands of Tunisians took to the streets to protest against the regime. Although the protests were initially peaceful, after attempts by the police to violently disperse the protesters they quickly snowballed into an uprising that would lead to many deaths, and the removal of Ben Ali from office in January 2011. Described as the Arab Spring, the protests inspired uprisings across the Arab world, including in Egypt, Libya, Syria, Yemen and Bahrain. Upon Ben Ali’s resignation and exile to Saudi Arabia, and after at least two interim administrations, Fouad Mebazaa was appointed interim president and soon commenced a speedy reform process to return the country on the path to democracy. The ban on the MIT was lifted, and the movement metamorphosed into a political party, Ennahdha. The party took part in the first free Constituent Assembly elections in the country’s history in October 2011, winning 89 of the 217 parliamentary seats. In December 2014, with the success of his Nidaa Tounes party, Beji Caid Essebsi became the country’s first democratically elected president. Both the Mebazaa and Essebsi administrations introduced various reforms to address the country’s challenges. Some of these included criminal trials of major actors in Ben Ali’s administration; the establishment of the Ministry of Human Rights and Transitional Justice in 2011; the enactment of the Transitional Justice Law in December 2013; and the establishment of the Truth and Dignity Commission (TDC) in 2014. Tunisia initially recording major milestones in both its democratic and transitional justice processes, such as convening a National Dialogue in 2013 and successfully adopting a new National Constitution in 2014. Tunisia’s quest for justice and accountability has since become a long and uncertain journey, however. Its transitional justice process has been characterised by serious setbacks like corruption, lack of government support and, in some instances, complete hindrance by the government.[4] Notorious for his campaign promise to end the “digging of the wounds of the past and move on,” Essebsi sponsored the Economic Reconciliation Law in the parliament, which was intended to remove economic crimes from the mandate of the TDC, with the aim of granting amnesty to corrupt former officials and businesspeople under Ben Ali. In 2017, opposition to the proposed law resulted in tensions and protests across the country’s capital. The TDC, meanwhile, was not able to hold any public hearing until 2016, as it faced stiff opposition from lawmakers in the two main political parties, Nidaa Tounes and Ennahdha. In October 2018, members of parliament of the Nidaa Tounes party boycotted parliament, requesting the dissolution of the TDC. Despite concerns about compliance with the requisite parliamentary quorum, they then voted against extending its mandate by one year.[5] Upon Essebsi’s death in office in July 2019, Kais Saied assumed office as president of Tunisia following his victory at the 2019 elections. Despite being an independent social conservative, Saied campaigned with the support of the Ennahdha party, and on the populist promise of youth employment and electoral reforms. Under his administration, however, Tunisia has backslid from its democratic gains. In July 2021, in a move reminiscent of Bourguiba’s era, Saied dissolved the parliament and dismissed the head of government.[6] In January 2022, he constituted a widely criticised National Consultation to draft a new constitution. Despite widespread opposition and boycotts of the process, a draft constitution whose making is largely unclear was delivered to the president in June 2022. In December 2022, only 21 candidates were elected in a parliamentary election characterised by widespread voter apathy. In January 2023, a run-off was also characterised by empty ballot booths across the country, with less than 11 percent voter turnout. Tunisians complained of not knowing who the election candidates are, and that the proposed parliament was part of Saied’s deign to increase his stranglehold on power, having lost legitimacy when he dissolved parliament in 2021. Experts have expressed serious concerns about the risk these developments pose to the transitional justice processes in the country. More than a decade after the end of Ben Ali’s autocratic regime, many Tunisians wonder if the 2010–11 revolution was worth the trouble. The following section discusses the various transitional justice processes implemented in Tunisia following the revolution. In the wake of the 2010–11 revolution, the interim government under Mebazaa established three commissions to address specific aspects of the causes and aftermaths of the crisis. These are the Commission on Constitutional Reforms (Higher National Commission on Political Reforms), which was mandated to recommend appropriate constitutional and other reforms; the Fact-Finding Commission on Corruption and Embezzlement, mandated to investigate official corruption under the ousted administration of Ben Ali; and the National Fact-Finding Commission on Human Rights to investigate allegations of human rights abuses committed specifically during the uprising. Each of these investigative commissions were composed of members from various sectors, including civil society groups, the private sector, political interests and organised labour. Within a few weeks of its establishment, the Fact-Finding Commission on Human Rights received about 238 cases of extrajudicial killings during the uprising and 1,965 cases of other forms of human rights violations. Despite many challenges – including lack of trust in the leadership of these commissions, the problem of funding and especially the problem of disappeared relevant government archives intended for use by the Commission on Corruption and Embezzlement – two of the commissions submitted their final reports and made recommendations on their respective mandates. The Fact-Finding Commission on Human Rights released its final report in May 2012, publishing the names of victims killed or injured, along with the nature of their injuries. According to the report, 132 people were killed and 1,452 were injured during the uprising. The Fact-Finding Commission on Corruption and Embezzlement examined 5,000 claims, held over 120 hearings and referred 300 cases to the Public Prosecutor. Continuous protest and lack of trust regarding the composition of the Commission on Constitutional Reforms compelled the interim government to instead conduct a Constituent Assembly election in July 2011 to take over the mandate of the commission. The Constituent Assembly was mandated with drafting a new constitution, paving the way for presidential elections in December 2014. Perhaps Tunisia’s most innovative initiative in the field of transitional justice was its establishment of the Ministry of Human Rights and Transitional Justice in October 2011. The ministry was tasked with designing a transitional justice framework for the country, to help it address its experiences with human rights violations in particular, and with other legacies of the despotic regimes from its independence to the end of the Ben Ali administration. Headed by Samir Dilouas, a renowned member of the Ennahdha party who himself was a political prisoner,[7] the ministry engaged several segments of society in a national dialogue for transitional justice, and effectively moderated the national discussion of what a Tunisian-style transitional justice process ought to look like. The ministry faced many challenges, including of legitimacy, especially among civil society and victim-led organisations, which considered its composition as an attempt by the competing political interests in the country to monopolise the process. The ministry also faced tensions and calls for its disbandment after its minister pushed for a law to award immediate financial reparations to former political prisoners who were granted amnesty immediately after the revolution. Many considered this a ploy to financially reward the minister and members of the Ennahdha party, who constituted a large part of the political prisoners under the Ben Ali regime. The proposed law was dropped. Although the ministry was eventually disbanded in 2014, it succeeded in laying the foundation for several transitional justice milestones that would be recorded by the country, including the country-wide National Dialogue on Transitional Justice and the enactment of the Transitional Justice Law. The Tunisian National Dialogue on Transitional Justice was inaugurated in 2012 as part of the processes geared towards designing a transitional justice process for the country. Convened and moderated by the Ministry of Human Rights and Transitional Justice in collaboration with civil society and international organisations, the dialogue was preceded by the establishment of a technical committee comprising representatives from five different coalitions of civil society organisations. The committee embarked on a country-wide transitional justice consultation with a wide spectrum of interests, in all the governorates of the country through its regional dialogue committees. One of the most important aspects of the dialogue was its reach and inclusivity. Within the two years of its mandate, the technical committee ensured the inclusion of several segments of society, including national and international organisations, human rights associations, professional bodies and political interest groups. An important aspect of the dialogue was the opportunity afforded to these groups to convey their opinions and expectations of what the country’s transitional justice process must achieve. These opinions and contributions, together with surveys conducted in the process, were documented and utilised in recommending the design of transitional justice in the country. A significant challenge for the dialogue was insufficient time. Consultations took place simultaneously in each of the governorates between 16 September and 7 October – less than one month. It took just one week between the end of consultations to the publication of its recommendations. This hurried process gave rise to concerns as to whether the recommendations by each of the interest groups were taken into consideration in the final report. There was also the problem of nominative participation of civil society and victim-led organisations, effectively excluding victims without membership in any organisations as well as organisations outside the various coalitions. Despite these challenges, the dialogue culminated in the recommendation of various transitional justice mechanisms via an enabling law for that purpose. In line with these recommendations, the Tunisian parliament enacted the Transitional Justice Law in December 2013, with the main objectives to reveal truth and preserve memory; ensure accountability for wrongs committed; ensure reparations and rehabilitation for victims; reform government institutions; and attain national healing through reconciliation.[8] The TDC was established pursuant to Article 16 of the Transitional Justice Law, as a legal entity with financial and administrative independence. It was tasked with the mandate of investigating human rights violations committed from independence on 1 July 1955 to the operative date of the new law.[9] The TDC had a four-year mandate and was composed of 15 commissioners who had to be persons known for their neutrality, integrity and competence. At least one-third had to be of one gender; two had to be representatives of victims’ groups; two had to be nominees of human rights organisations; and all had to be appointed by the legislative council.[10] The TDC was granted powers under the law to access all private and public archives, regardless of the existence of any law to the contrary; investigate all human rights violations committed within the period under its mandate; take all measures in collaboration with security agencies to protect witnesses, victims and experts in any way involved in its proceedings; notwithstanding any immunity in force, summon all persons and authorities whose testimonies were relevant to its mandate; and enter, inspect and search any private or public places, among other powers. Pursuant to its independence under the enabling law, the TDC at its first meeting in 2014 elected one of its commissioners, Sihem Benserine, a woman, renowned journalist and human rights defender who had suffered arbitrary arrests and persecution, as its president. In the course of its four-year mandate, the TDC treated 62,720 files, identified 49,654 victims, established offices in 24 regions of the country to bring its work closer to the people whose experiences it was meant to address, and held both public and private hearing sessions. Like with other transitional justice mechanisms in the country, the TDC faced several challenges, the most prominent of which were highlighted by the TDC itself as coming from the government and its institutions. These included refusal by parliament to extend its mandate by one year in contravention of the enabling law; lack of support by both the judiciary and security agents of the government; denial of access to crucial evidence in national archives; denial of access to fund and honorary protocol; and denial of access to venues for its sessions.[11] In March 2019, despite the challenges highlighted above, the TDC made public a five-volume report of its findings, including details of torture, arbitrary detention, sexual harassment against wives and daughters of real and perceived opponents of government officials, and forced disappearances of dissidents and opponents of political actors. The report detailed human rights violations against specific victims and according to specific happenings in the country, including the systematic targeting and killing of students and Islamists under Bourguiba and later Ben Ali. The report stated the names of persons allegedly responsible for the crimes. One of those named in the report was then President Essebsi, who was indicted for his role in the torture of political opponents while he was minister under Bourguiba between 1965 and 1969.[12] To address these violations and ensure redress for victims, the TDC recommended the following: an official apology by the government for violations in the country, and specifically for the atrocities committed during the revolution; criminal prosecutions for extrajudicial killings; individual and collective reparations; guarantees of non-recurrence; the preservation of national memory of human rights violations through memorialisation; and national reconciliation. The TDC also recommended the operationalisation of the Dignity Fund, which was provided for under the Transitional Justice Law, to provide reparations. While the TDC is considered by many to be a successful truth commission, some have criticised its final report as not historically accurate or balanced. Others have contended that whereas the National Dialogue that led to the establishment of the commission was inclusive, the TDC report lacks local ownership because the recommendations were not publicly discussed beforehand. Tunisia embarked on criminal trials of actors in the Ben Ali regime for human rights violations, and specifically for economic corruption. Immediately following the end of Ben Ali’s administration, the interim government under Mebazaa brought some 182 cases before military tribunals, including against Ben Ali; former Interior Ministers Rafik Hadj Kacem and Ahmed Friâa; former Director General of the National Security Forces Adel Tiouiri; former Director General of the Anti-Riot Police Jalel Boudriga; former Director General of the Presidential Guard Ali Seriati; former Director General of the Public Security Forces Lotfi Ben Zouaoui; and 14 other commanders and officials. In June 2011, Ben Ali and his wife were each sentenced in absentia to 35 years in prison, and fined USD 66 million for embezzlement and official corruption. They were, however, not tried for human rights violations. The trials of other officials took place in a judicial system many consider to be part of the problem, and in need of urgent reforms. The Transitional Justice Law contemplated the establishment of Specialised Criminal Chambers (SCC), but operationalisation continued to suffer challenges for a long time after establishment. The military tribunals were largely not independent and impartial, with proceedings that many considered hasty and unfair. Also, victims/survivors and their families criticised the investigative efforts of the prosecuting authorities for absent or inadequate witness protection. Although the SCC was eventually established in 2014, it was not until May 2018 that it had its first hearing. At the end of its mandate in 2018, the TDC referred a total of 200 cases to the SCC, but since then trials have occurred at snail speed. Like the TDC, the SCC has suffered from lack of government support and cooperation, which is manifest in three main forms: refusal by the police to execute its summons; the dumping of all prior cases by the Office of the Public Prosecutor on the SCC without assistance on progress made or on the evidence already collected; and the yearly compulsory rotation of its membership by the Tunisian High Judicial Commission.[13] In January 2023, the SCC announced closing arguments in a trial for extrajudicial killing before it. So far, none of the cases before the SCC has led to a verdict. Immediately after the ouster of Ben Ali from government in January 2011, the interim government promulgated a decree in February granting amnesty to about 500 political prisoners. Conditions for their release included reinstatement to their various offices or employment before their conviction or imprisonment. In October 2011, the interim government promulgated Decree Law No. 97, which provided financial reparations to direct and indirect victims of the revolution and their survivors. This measure was to be coordinated and overseen by the Ministry of Martyrs and Injured of the Revolution, which was created for that purpose. The reparative measures include a monthly allocation for victims or their survivors, free access to public medical care and free public transportation. The law also provided for limited monetary compensation of up to 6,000 dinars to victims/survivors who sustained injuries, regardless of the extent of the injury, and of up to 40,000 dinars to the families of those who were killed. An important aspect of this reparation process was the incorporation of the struggle of human rights defenders into school curricula and the renaming of streets after victims of the revolution. Beyond these initial measures, Article 41 of the Transitional Justice Law provides for the establishment of a Fund for the Dignity and Rehabilitation of Victims of Tyranny (Dignity Fund), whose mandate and operations were to be defined by an enabling law enacted for that purpose. In 2019, the Dignity Fund was established with a single grant of 10 million dinars (about 3 million euros). A commission to manage the fund was set up in 2020. Despite these developments, it is still unclear how the government intends to address all the recommendations of the TDC regarding reparations. At the core of the 2010–11 revolution was the issue of socioeconomic injustice, official corruption and embezzlement of public funds by members of the Ben Ali administration and their families. Therefore, protesters demanded accountability for the stolen wealth. To address these demands, the interim government adopted legislation aimed at confiscating property and monetary assets acquired by the Ben Ali and the Belhassen Trabelsi families. Trabelsi was Ben Ali’s brother-in-law, who was accused by the TDC of economic corruption and pillaging of the wealth of the country. In 2011, the interim administration established the Commission for the Recovery of Stolen Assets. By 2013, it had recovered USD 28.8 million in looted assets held abroad by Ben Ali and his family. Observers insist that the recovery process has avoided notable figures who benefitted from their relationship with the Ben Ali and Trabelsi families. By 2015, when the mandate of the commission came to an end, only about 148 people had been investigated or had their stolen wealth confiscated. Although the anti-corruption and recovery mandate of the commission has been taken by other institutions established for that purpose, the recovery process is still plagued by many challenges, including lack of transparency, absence of a legislative framework for the recovery of assets outside the country, and the failure to repatriate Trabelsi to face corruption charges in Tunisia.[14] As part of non-recurrence efforts, Tunisia adopted legislative and institutional reforms. Perhaps the most prominent was the enactment in 2014 of a new Constitution. Some of its major reforms were the integration of equality between women and men before the law; limits on the powers of the president; and the establishment of the Constitutional Court to determine the constitutionality of actions of the executive and guarantee respect for human rights. Other reforms included the establishment of five independent constitutional bodies: the Higher Independent Electoral Commission, to guarantee free and credible electoral processes; the Independent Authority for Audio-visual Communications, to guarantee press freedom; the Human Rights Authority, to serve as the independent national human rights institution; the Authority for Sustainable Development and the Rights of Future Generations; and the Authority for Good Governance and the Fight against Corruption.[15] In addition, the government enacted the Law for the Protection of the Revolution in Tunisia, which prevents anyone who served in the former government or the Democratic Constitutional Rally, the party that led the country from independence until 2011, from returning to political office for a period of seven years. But like most institutions established and democratic gains recorded immediately after the revolution, some of these reforms were effective only in theory, while others were operationalised several years after their establishment or never at all. Again, with the recent controversial introduction of a new Constitution by President Saied, these reforms have been rendered nugatory in fact or by implication. Like in most conflict situations, women suffered disproportionate harm, including sexual and gender-based violence, during the years of tyranny in Tunisia, and specifically during the revolution. Apart from receiving at least 795 complaints of rape alone, the TDC identified several other forms of gendered violence against women, mainly systematic violations of their right to freedom of belief and dressing, which accounted for 37 percent of the total number of complaints filed by women. The TDC also received complaints of sexual abuse against men and boys, indicating that while women were at greater risk, males also suffered sexual violence in the crisis. In the context of the 2010–11 revolution, women took prominent roles in the uprising, joining public protests and rallies, and consequently suffered a similar fate at the hands of security agents as other protesters, including killings, arbitrary arrests and detentions. Despite the experiences of women in Tunisia, the country has been the exception with regard to gender issues among states in the Middle East and North Africa. It has striven to include women’s perspectives in its transitional justice processes and render government more gender responsive, including by electing a woman as the head of the TDC. One of the achievements of Bourguiba’s rule was his feminist policies, which granted women the right to abortion, education, divorce and property rights. This laid the foundation for women’s later participation in decision making, and specifically in the transitional justice processes of the country. The first National Constituent Assembly elections immediately after the revolution witnessed women accounting for one-third of the total elected members of the Assembly. More recently, these gains are being lost, due to fear among women that participation in politics exposes them to violence, with no intervention by the government to assuage this fear.[16] Electoral law reforms introduced by Saied saw the removal of all requirements for gender parity, paving the way for a possible male-dominated parliament. In the January 2023 elections, only 122 women candidates were approved for the elections, compared to 936 men.[17] [1] Leila El Houssi, ‘The History and Evolution of Independence Movements in Tunisia,’ Istituto per l’Oriente, https://www.jstor.org/stable/10.2307/48572291 [2] Kora Andrieu, ‘Confronting the Dictatorial Past in Tunisia: Human Rights and the Politics of Victimhood in Transitional Justice Discourses since 2011,’ Human Rights Quarterly, Vol. 38, No. 2 (2016). [3] ‘A Coup is Reported in Tunisia,’ New York Times, November 7, 1987. [4] Leo Siebert, ‘Where Does Tunisia’s Transition Stand 10 Years After Ben Ali?’ United State Institute for Peace (2021), https://www.usip.org/publications/2021/01/where-does-tunisias-transition-stand-10-years-after-ben-ali [5] ‘Parliament Votes to Disband Tunisia’s Truth Commission,’ Al-Monitor News, April 13, 2018, https://www.al-monitor.com/originals/2018/04/tunisian-parliament-vote-mandate-truth-dignity-commission.html [6] ‘Tunisia: President’s Power Grab is an assault on the Rule of Law,’ International Commission of Jurists, July 26, 2021, https://www.icj.org/tunisia-presidents-power-grab-is-an-assault-on-the-rule-of-law/ [7] Ali Al-Khulidi, ‘The Role of Civil Society in Transitional Justice in Tunisia,’ Master’s Thesis, University of Carthage (2016/2017), https://repository.gchumanrights.org/server/api/core/bitstreams/0ec8fd02-5b48-436b-9844-b44c940d598f/content [8] Articles 2, 8, 12, 14 and15 of the Transitional Justice Law of Tunisia (2013), https://www.ohchr.org/sites/default/files/Documents/Countries/TN/TransitionalJusticeTunisia.pdf [9] Article 16 and 17. [10] Article 19, 20 and 21. [11] Part 1, Chapter 10, of the Final Comprehensive Report of the Truth and Dignity Commission of Tunisia, https://truthcommissions.humanities.mcmaster.ca/wp-content/uploads/2020/11/Tunisia-Truth-and-Dignity-Commission-Report_executive_summary_report.pdf [12] Ibid., Part 3, Chapter 5 & 6. [13] ‘Tunisia: A Tortuous Path Towards Accountability and Justice for Victims of Gross Human Rights Violations,’ Opinio Juris, May 29, 2021, http://opiniojuris.org/2021/05/29/tunisia-a-tortuous-path-towards-accountability-and-justice-for-victims-of-gross-human-rights-violations/ [14] ‘Asset Recovery Overview: Tunisia,’ https://uncaccoalition.org/files/Asset-Recovery-Tunisia-Summary.pdf [15] Chapter IV of the 2014 Constitution of Tunisia, https://www.constituteproject.org/constitution/Tunisia_2014.pdf [16] ‘Exploring Women’s Participation in Civic Life in Tunisia,’ Carter Center (2021), https://www.cartercenter.org/resources/pdfs/news/peace_publications/democracy/tunisia-exploring-womens-participation-in-civic-life.pdf [17] ‘Tunisia Election Set to Deliver Male-dominated Parliament and Erosion of Women’s Rights,’ The Guardian, December 16, 2022, https://www.theguardian.com/global-development/2022/dec/16/tunisia-election-male-parliament-womens-rights-kais-saied
Background
Commission on Constitutional Reforms and Fact-Finding Commissions on Corruption and Human Rights
Ministry of Human Rights and Transitional Justice
National Dialogue on Transitional Justice
Truth and Dignity Commission
Military Tribunal Trials and the Special Criminal Chamber
Amnesties and Reparations
Recovery and Repatriation of Stolen Wealth
Legislative and Institutional Reforms
Gender
Endnotes
CSVR | CENTRE FOR THE STUDY OF VIOLENCE AND RECONCILIATION
