ARTICLE 19 is extremely concerned that the democratic system in Tunisia built from the 2011 Revolution and reflected in the 2014 Constitution, is at grave risk.
The measures taken on 25 July 2021 by the President of the Republic, Kais Saied, including the announcement of a state of emergency and the dissolution of parliament, concentrate in one single person the executive and legislative branches, as well as parts of the judiciary, with no checks and balances. The measures place Tunisia in a grave situation, effectively suspending the democratic system with no guarantees for its reinstatement.
Human rights are also at risk, in particular freedom of expression as attacks on press freedom and the right to information continue. ARTICLE 19 is concerned by the number of attacks reported against journalists, the lack of investigation of these attacks, and the arrest and prosecution of bloggers and activists. Media outlets and broadcasters have been subject to new directives impeding their ability to report freely on the situation. The prosecution of MPs and their trial in military courts is also cause for serious concern.
In this briefing, ARTICLE 19 sets out our concerns with the recent measures in Tunisia, and their serious impact on human rights and democracy. We call on President Saied to ensure a return of Tunisia’s democratic institutions, and set a clear timeline for the lifting of the state of emergency in accordance with the 2014 Constitution. The President must urgently restore human rights protections in line with international standards, and end the prosecution of those exercising their right to freedom of expression.
Emergency measures
On 25 July 2021, President Saied announced a state of emergency in accordance with the provisions of Article 80 of the Tunisian Constitution, justifying it on the basis of an ongoing political crisis and the inability of the state to manage the worsening COVID-19 crisis, in addition to serious economic difficulties.
The country had witnessed a series of protests against the economic, social, health and political conditions, the last of which was on 25 July 2021, corresponding with the celebration of Republic Day.
On 25 July, after announcing the state of emergency, President Saied dismissed the head of the government and some of its members,[1] and suspended the competencies of the Assembly of People’s Representatives, lifting the immunity from prosecution of its MPs[2]. He further decided to chair the public ministry, in addition to other exceptional measures he said were essential to address the political, economic and health crises[3] that the country has been witnessing for several months, including creating an operations room to manage the health crisis and appointing new Ministers[4].
Under International human rights standards, any state of emergency must comply with strict limitations. It must have a clear legal basis, be for a legitimate aim and necessary and proportionate to that aim, it must not be arbitrarily or discriminatorily applied, and it must be time limited and subject to regular review.[5] States are also bound by the International Covenant on Civil and Political Rights to follow a notification procedure when declaring a state of emergency that limits rights protections.[6] The state of emergency declared by President Saied has not followed notification.
In the days following the declaration of a state of emergency, Tunisia witnessed a number of restrictions of the right to freedom of expression and the media and the right to information, accompanied by a deluge of false and misleading news, hate speech and distortion, especially on social media, in addition to attacks on journalists, media outlets, bloggers and activists. Many of these violations of the right to free expression taking place under the state of emergency fail to meet the requirements of necessity and proportionality.
Attacks on journalists and the media
On 26 July 2021, field journalists covering protests were harassed by security forces in the vicinity of the Assembly of the People’s Representatives headquarters in Bardo. Their communications were jammed and mobile phones and work devices seized. These attacks targeted employees of the Tunisia-Africa News Agency, Al Arabi 21 website, the Digital Tunisia website, and Al Arabiya TV.
A press release issued by the National Union of Tunisian Journalists[7] stated that the Tunisia-Africa News Agency photographer Hamza Kristou was attacked while he was filming the operation by security forces to disperse demonstrators.
One of the security agents also prevented Ziad Dabbar, a member of the Executive Office of the International Federation of Journalists, from visiting the protest site. Journalist Yousra Chikhaoui was obstructed from filming the operation of arresting protesters in Bardo Square. Digital Tunisia journalist Marwa Khammasi had her documents seized on Habib Bourguiba Avenue while she was working on filming the security presence in the area. The security forces also seized the mobile phone of the Arabi 21 website reporter Halima Ben Nasr[8].
In the governorate of Sfax, two protesters attacked Digital Tunisia website photographer Riad Hajj Tayeb during his filming of the burning of an armoured security vehicle in the Rabadh area. As soon as one of the protesters saw the photojournalist, he headed towards him and tried to prevent him from filming. As the photographer persisted, a second protester joined and they seized the journalist’s phone and devices. Police have so far failed to investigate the attack.
Such attacks are inconsistent with the provisions of Decree-law No. 115 on freedom of the press, which prohibits, in Articles 11 to 14, journalists from being subjected to any pressure from any authority, or for the opinion issued by a journalist or the information they publish to be a reason for violating their dignity or assaulting their physical or moral sanctity. The Tunisian authorities must therefore ensure that all those responsible for attacks on journalists are tracked down, whether they are state or private agents, and referred to the judiciary, to ensure that their actions are not met with impunity.
On the morning of 26 July 2021, security authorities stormed the office of the Qatari Al-Jazeera channel, demanded that staff leave and seized the keys to the office without providing any justification or providing a warrant or decision issued by the Independent High Authority for Audiovisual Communication[9]. Since then, journalists working for Al Jazeera’s office have been prohibited from covering any event in the field, according to Inkifada[10].
The office is still closed and under the guard of two security forces agents, and no information to justify the action has yet been provided. These actions against the Al-Jazeera office, despite its sound legal and fiscal status, are a flagrant violation of media freedom enshrined in the Tunisian Constitution and international human rights treaties.
This illegal decision must be reversed, and ARTICLE 19 calls on authorities to make an explicit and sincere political commitment not to jeopardise media freedom and to respect Tunisia’s international human rights commitments.
President Saied also removed the CEO of the National Television on 28 July 2021 by virtue of Presidential Order No. 78 of 2021, in violation of the provisions of Decree No. 116 of 2011 regarding freedom of audio-visual communication. The Decree requires that any such action must take place in accordance with the corresponding opinion of the Independent High Authority for Audiovisual Communication. The President had merely informed the Authority of his action, according to a statement by one of its members[11].
The decision came after the channel’s Director prevented the Vice President of the National Union of Tunisian Journalists and the Vice President of the National League for the Defense of Human Rights from participating in a talk show on 27 July 2021. The channel’s Director stated that a military leader had presented him with an order to prevent the two guests from entering. Subsequently, the Ministry of Defense and the Presidency of the Republic denied their involvement in the ban.
ARTICLE 19 reminds Tunisian authorities that Articles 31, 32 and 49 of the Tunisian Constitution must be upheld; the Articles require that freedom of expression and the media be respected and that they be restricted only by law in line with the conditions of necessity and proportionality.
Prosecutions of bloggers and activists
After the events of 25 July, individuals across Tunisia have expressed their views in opposition to the President’s decisions by publishing blogs and videos on social media. Worryingly, many of them have been arrested for this exercise of their right to freedom of expression.
On 29 July 2021, security forces in Tunis arrested Hamza Ben Mohamed, a blogger and political activist. His lawyer, Wissam Ben Othman, confirmed that the arrest was based on posts published by his client expressing criticism of the recent decisions taken by President Saied.
In the city of Mahdia, on 31 July 2021, a local political activist named Ridha Radaya was arrested and accused of inciting violence and insulting the President of the Republic after he posted a video on Facebook.
Two young men were arrested in Sousse on 4 August 2021 for publishing Facebook posts opposing the Tunisian President’s views after he declared the state of emergency. They were released after being interrogated.
The prosecution of bloggers on the basis of their political views is a grave violation of international laws and standards that 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[12]”.
Tunisia has ratified the International Covenant on Civil and Political Rights (ICCPR), which sets out the right to freedom of opinion and expression, and attaches “exceptionally great importance to free expression in situations of public debate in a democratic society involving personalities of the public and political sphere[13]”.
These arrests come in a context hostile to freedom of expression, as many bloggers have previously been subjected to military trials because of their criticism of the President before 25 July 2021. This reflects existing hostility to freedom of expression from the Presidency and a lack of respect for international law relating to fair trials, that require civilians not to be prosecuted before military courts except in exceptional circumstances and where regular civilian courts are unable to undertake the trial[14].
ARTICLE 19 calls on the Tunisian authorities to immediately end the detention of individuals based on their expression of opinions, and to abide by the requirements of Decree-law No. 115 of 2011. The state of emergency should not be used to enable violations of freedom of expression or to intimidate individuals.
Arrests of MPs because of posts on social media
Following the issuance of Presidential Order No. 80 of 2021, which stipulated in its second article the lifting of parliamentary immunity from deputies, the security authorities arrested three deputies on suspicion of committing illegal acts. It is concerning that the focus of the prosecutions appears to be on the social media posts and political views of the arrested deputies.
MP Yassin Ayari of the Amal Movement Party was arrested on 30 July 2021 on the basis of a 2018 military court ruling that sentenced him to two months in prison for criticising the military leadership in Tunisia in 2013. On 2 August, MP Faisal Tebbini of the Voice of the Farmers Party was arrested based on a complaint filed by a judge in Jendouba accusing him of offending and defaming him. Then, on 5 August, Qalb Tounes MP Jedidi Aroussi was arrested in the governorate of Zaghouan following a complaint from the Governor of the region, which included accusations of insulting him on social media.
As noted previously, international standards prohibit the prosecution of civilians before military courts for their expression, as the UN principles for the protection of human rights and the fight against impunity clearly affirm that “the jurisdiction of military courts should be limited to specifically military offences committed by the military”. ARTICLE 19 has previously expressed its concern about the frequent prosecution of Tunisians before the military judiciary because of their criticism of the military establishment[15].
ARTICLE 19 notes also that the penalty for crimes of defamation and insult is a fine in accordance with the provisions of articles 55, 56 and 57 of Decree-law No. 115 related to freedom of the press, printing and publishing. Therefore, it is unreasonable for citizens to be arrested for crimes punishable only by a fine and using repealed legal texts that were issued before 2011 in order to pursue activists and human rights defenders.
Finally, it seems that the arrest of MP for publishing a blog criticizing the performance of a local official in confronting the outbreak of the pandemic is inconsistent with the legitimate expectations from the decision to declare a state of exception in accordance with Article 80 of the Constitution which exclusively requires taking measures dictated by the exigencies of the situation and based on exceptional and temporary measures that must be justified in a precise, proportionate and necessary manner within the framework of a civil and democratic state.
Lack of transparency
The right of access to information is an essential tool for enriching public debate and enabling individuals to build their own opinions and positions on the basis of reliable information. The first article of Law No. 22 of 2016 on the right to access to information states that the 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 oversight over public authorities and from participating in public affairs, in addition to the possibility of the spread of rumours and misinformation that are later difficult to refute, especially after they have spread widely.
Since his victory in the 2019 presidential elections, President Saied has pursued a communication policy based on direct communication with citizens through videos posted on the Presidency’s Facebook page. Tunisian journalists have called for more openness and enabling them to hold press interviews or periodic press conferences so that they can obtain accurate information, but all their attempts have been unsuccessful.
This communication policy continued after the declaration of a state of emergency, which opened the door to the spread of false news regarding fake arrests of politicians, media professionals, and government or local officials, and created an atmosphere of terror, anxiety and suspicion.
Accordingly, the Presidency of the Republic bears a great responsibility during this delicate political circumstance, as it is necessary to make reliable information publicly available and to call on public institutions to respect the right of access to information, especially at the regional level where the procrastination of information delivery is often justified by the need to obtain prior permission from the administration.
ARTICLE 19 reminds President Saied of the right of citizens to information, as enshrined in Article 32 of the Tunisian Constitution. We call for the adoption of a communication policy based on openness and transparency, and the availability of information without any selection, with the aim of subjecting state institutions to the principles of transparency and accountability in accordance with the provisions of Article 15 of the Tunisian Constitution.
Recommendations
In order to safeguard freedom of expression and information in the current political crisis, ARTICLE 19 makes the following recommendations to the President, government institutions and international community
To the President of the Republic:
- To restore the competencies of the Assembly of the People’s representatives.
- To declare clearly when exactly the state of emergency will be lifted and the process for returning to democracy in accordance with the 2014 Constitution.
- To ensure the separation of the executive, legislative and judicial branches, in accordance with the 2014 Constitution, and avoid concentration of powers into one single person or instances depending on one single person.
- To ensure the full respect of international human rights laws and standards, including the ICCPR, to which Tunisia is party.
- To ensure that MPs and citizens are not prosecuted for expressing their opinions.
- To ensure respect for legality in the nomination of a new Director of the national public television.
- To reverse the illegal decision to close the offices of foreign media institutions, including Al-Jazeera.
- To adopt a communication policy based on openness and making information available to journalists without any discrimination.
To the Ministry of Interior:
- To ensure that all attacks against journalists are properly investigated and those responsible brought to justice.
To the General Prosecutor:
- To ensure that MPs, journalists, bloggers, activists and citizens in general are not prosecuted for the expression of their opinions, and ensure that any prosecution is in line with international human rights standards and the rights recognised in the 2014 Constitution.
To the Military Courts:
- To immediately stop prosecuting civilians before military courts for their exercise of the right to freedom of expression.
To the audiovisual communication authority HAICA:
- To safeguard the independence and diversity of media outlets and the representation of different political and social trends.
To Civil Society:
- Continue to protect the democratic system, international human rights and freedoms, especially freedom of expression, freedom of the media and the right to freedom of information.
To the International Community:
- To publicly call for a reinstatement of the competencies of the Assembly of the People’s representatives.
- To publicly call for the protection of the democratic system and international human rights, especially freedom of expression, freedom of the media and the right to freedom of information.
For more information or for media queries, please contact [email protected]
[1] Presidential Decree No 69 of 2021 dated 26 July 2021 related to the dismissal of the head of the government and members of the government.
[2] Presidential Decree No 80 of 2021 dated 26 July 2021 related to the suspension of the competencies of the Assembly of the People’s representatives.
[3] Presidential Decree No 83 of 2021 dated 30 July 2021 related to provisional measures to fight Covid 19.
[4] Presidential Decrees No 81, 85 and 87 of 2021 related to the appointment of ministers of interior, communication and finance.
[5] See the general comment no 29 of 2001 by the human rights committee on article 4 of the international covenant on civil and political rights.
[6] Same source paragraph 7.
[7] The union’s press release of 26 July 2021 published on their official Facebook page.
[8] On the aggression against the Arabi 21 journalist: click here
[9] For more information see the press release by the International Federations of Journalists : here
IFEX press release: here
Al-Jazeera office incident: here
[10] Article is available at the Inkifada website: here
[11] Declaration of the authority’s member: here
[12] See paragraph 20 of the general comment no 34 of 2011 issued by the human rights committee on article 19 of the international covenant on civil and political rights.
[13] Ibid
[14] Blogger Amina Mansour appeared before the military tribunal in Tunis on 28 June 2021 for criticizing the president of republic. Blogger Slim Jebali was imprisoned on 31 May 2021 for the publication on a social network criticism of the president of the republic.
See more details here: https://www.article19.org/resources/tunisia-military-justice-arrested-a-blogger-for-publishing-information-about-the-presidency-of-the-republic/