Tunisia: Draft Organic Law on the Elimination of Racial Discrimination

In February 2017, ARTICLE 19 reviewed selected provisions of the Tunisian Draft Organic Law on the Elimination of Racial Discrimination[1] – that is currently being discussed in the country – for its compliance with international freedom of expression standards.

The Draft Law aims at “the elimination of all forms of discrimination between people on the basis of race, colour, origin, national or ethnic descent or religion to ensure equality and respect of human dignity by rejecting various forms of discrimination, suing and sanctioning its perpetrators, and setting up appropriate mechanisms to protect its victims.”

At the outset of the analysis, ARTICLE 19 reaffirms its view that the rights to freedom of expression and equality are universal, indivisible, interdependent and interrelated and essential to the international protection of human rights.^[2] We believe that racial discrimination and discrimination on other grounds constitute one of impediments to the realisation of the right to freedom of expression. Discrimination can inhibit and stifle the right of everyone to seek, receive and impart information and ideas through any media and regardless of frontiers. ARTICLE 19 is thus particularly concerned with the prevalence of various forms of discrimination, as well as the existence in many countries and regions of the world of a climate of intolerance, and the threat these pose to equality and the full enjoyment of human rights and freedoms. From its inception, ARTICLE 19 has stressed the positive contribution that the exercise of the right to freedom of expression, and full respect for the right to freedom of information can make to the fight against racism, discrimination, and intolerance.

As such, ARTICLE 19 appreciates the initiative to adopt a dedicated law addressing various issues related to racial discrimination in Tunisia; and we believe that the failure to fight against racism will also constitute a failure to promote and defend diversity and pluralism of voices. Previously, ARTICLE 19 also elaborated a detailed framework for the mutually reinforcing nature of the rights to freedom of expression and equality in The Camden Principles on Freedom of Expression and Equality,^[3] drafted by ARTICLE 19 on the basis of discussions with international experts, as well as in the dedicated policy document Prohibiting incitement to discrimination, hostility or violence.^[4] Both of these documents are reflected in this analysis.

In our view, Tunisia will only achieve its overall aim of the Draft Law if it complies with the international standards on freedom of expression. The Draft Law has a number of serious shortcomings in this respect that should be addressed before the final text is adopted. In our analysis, we focus on these provisions and suggest how they should be made fully compliant with relevant standards. ARTICLE 19 does not review the Draft Law in full for its compliance with other international standards on equality and non-discrimination; the fact that we provide no comments on some provisions should not be interpreted as ARTICLE 19’s agreement with or endorsement of the text.

We stand ready to support the review of the Draft Law and provide further assistance in this process.

Summary of recommendations

• The focus of any law on discrimination should be broad and it should provide protection against discrimination on all the protected grounds recognised under international human rights law;
• The definition of the “discrimination order” should be eliminated;
• Provisions of Article 19 of the Draft Law on injunctions should be clarified;
• Articles 21, 22 and 24 of the Draft Law should be should be eliminated.