Constitutionalism and Human Rights in Tunisia (Washington DC, 04-05-13)

Conference Discusses Constitutionalism and Human Rights in Tunisia
March 05, 2013
Summary Report by Rebecca Aaberg, from the Council for a Community of Democracies   (Slightly edited by the Maghreb Center).

The Maghreb Center held a conference on March 5, 2013, co-sponsored by the Protection Project of the Johns Hopkins University School of Advanced International Studies (SAIS), the International Council for Middle East Studies (ICMES), and the National Council on US-Arab Relations (NCUSAR), to examine the outcomes of the Islamist-led democratic transition in Tunisia. “Constitutionalism and Human Rights in Tunisia: the Islamist-Led Democratic Transition Post-Arab Spring” featured distinguished panelists from academia, the NGO community, the press, and think tanks.


Dr. John Duke Anthony, the founding president and CEO of the National Council on US-Arab Relations, welcomed conference participants and introduced the event. During the opening remarks, Dr. Anthony invited the distinguished guests to comment on the building of a truly “indigenous” Tunisian democracy.

The Maghreb Center President, Dr.Nejib Ayachi, asserted that after the January 15, 2011 revolution, observers and analysts have “had high hopes for Tunisia, particularly with regard to the implementation of a genuinely democratic system, respectful of human rights, including women’s rights, freedom of the press, with some form of economic justice, and so on.” However, “in the past several months, a tense political atmosphere has developed”, with a” security situation that has become unpredictable, to say the least.”  Ayachi noted that “the Islamist-dominated Constituent Assembly, which has convened for more than a year and a half now without producing much, could have, according to many Tunisian observers and political actors, prepared a new constitution in more or less six months, because the previous one was considered as just fine by most experts, the problem is its flawed implementation, with only a few changes, adaptations, and provisions needed to strengthen human rights, establish a clearer separation of power and a system of checks and balances”. In the meantime, “the Islamist-led government appointed by the Assembly has largely mismanaged the transition”. Indeed, “the country faces increased polarization between Islamist and non-Islamists thanks to the Ennahda party emphasis on identity politics with excessive leniency towards violent Salafist extremists, in addition to high inflation, increasingly high rates of unemployment, deterioration of the security situation, infringements on women rights and media freedom, etc.” He also pointed to the fact that the recent assassination of opposition leader Chokri Belaid, the first political assassination since Tunisian independence in 1956, was made possible by this deteriorating situation in the country”.

Dr. Mohamed Mattar, the executive director of the Protection Project at SAIS and a law scholar, divided the legal framework of the as yet unfinished Tunisian constitution into three categories. First, Mattar discussed the relationship between domestic and international law, and the Tunisian constitution. In the draft, article 62 guarantees the assurance of compliance with international conventions. Second, Tunisia has been a leader on women’s rights in the Arab world, and the December 2012 draft constitution’s article seven requires the state to guarantee the protection of women’s rights in Tunisia. Additionally, article 37 includes the obligation of the state to guarantee equal opportunities for women. He also noted that regionally agreements such as the Arab Charter on Human Rights that went into effect in 2009 can support domestic rights. Third, Mattar briefly spoke about the relationship between Islamic law, religion, and the state in Tunisia. Mattar compared the Tunisian constitution to the Egyptian constitution, saying that “you cannot completely separate religion from the state [in the ‘Muslim world’].” Adding to the comments,

Dr. Isaam Saliba of the International Council for Middle Eastern Studies and an expert on Islamic Law at the Library of Congress added that the two primary issues are the economy and the role of religion. On the economy, Saliba noted that the four countries that deposed dictators (Egypt, Libya, Tunisia, and Yemen),  continue to have great disparities in terms wealth distribution: “The poverty issue is a great factor [in] whatever is going to happen. Unless the leaders …have [a] solution to this issue, [poverty] is not going anywhere.” He echoed Mattar’s comments about the relationship between religion and the state, saying that religion “cannot be taken out of the equation in Muslim-majority Arab countries” and that the Arab world had a more “holistic idea” of  state and religion: “the question should not be whether [the state] is Islamic or not…but what is an Islamic state?” He defined such a state: “Create a state committed to justice, and that is an Islamic state.”

Political and Constitutional Transitions; Economic Challenges.

The first panel discussion, entitled “The Post Revolution Political and Constitutional Transitions” focused on the writing and implementation of the draft Tunisian constitution. Dr. William Zartman, a professor emeritus at SAIS, served as moderator and opened the discussion. He said that within the region, only Tunisia and Egypt have been on the “short track” transition. He made a series of comments comparing the Tunisian and Egyptian transitions: 1. The old ruler was “ready to go” and had chosen a successor viewed by the people as illegitimate; 2. the army refused to shoot protestors; 3. the largest opposition group declared itself to be moderate; 4. the group that had been in power was willing to negotiate a transition out of power; and 5. the new government demonstrated a commitment to the continuity of the state (structures, not content). He said that it was “outlandish to expect the constitution written in six months” considering that the 1959 constitution took three years. He also noted that 27 articles of the draft constitution serve to protect human rights.

Alexis Arieff, an analyst for the Congressional Research Service at the Library of Congress, gave a brief overview of the situation in Tunisia since the revolution. She started by saying that the euphoria of the revolution was almost immediately “tempered by transition”, and that the challenges faced by Tunisia today are largely the same as the pre-transition problems. She identified the role of the elite as one of the most important throughout the transition process. Since 2011, when the country has faced a serious crisis, the elite has pulled together at the last moment. Arieff also recognized the transitional authority of the Constitutional Assembly and its duty to move past day-to-day activities and work on the constitution. She highlighted the debate over the contents of the constitution, asking who represents the “Tunisian street” and at what point will the government be considered actually to represent the people.

Dr. Alaya Allani, a professor of history at Manouba University in Tunis, explored the role of the Salafi movement, ultraconservative Islamists, in Tunisia’s revolution and transition. Youth, rather than Islamists, drove the revolution, and Salafists had no noteworthy role even though they have more recently become involved in the country’s transition. Allani divided his presentation into two sections, one on the Ennahda movement and the second on the Salafists. According to Allani, there has been a widening gap between the practice and the rhetoric of Ennahda, as a political party, and previously as a movement. The recent government shuffle occurred because the opposition did not accept its heavy control by Ennahda, and was very critical of the party and its ministers. Other researchers have also criticized Ennahda for its religious advocacy. The assassination of Belaid was only the last step in a long process of political confrontation between Ennahda and its opponents, eager to push Ennahda out of government control. At the same time, the Salafists have gained strength in Tunisia largely through their politicization because of their relationship with Ennahda. Ennahda counted on the support of Salafists during the October 2011 elections for the Constituent Assembly.  Ennahda is inexperienced, lacking competence, and not able to solve Tunisia’s current social and security problems. Furthermore, it has not acted as the moderate party it portrayed during the elections.

Dr. Ghazi Gherairi, a law professor at the University of Tunis, delved into the drafting of the new Tunisian constitution and where the process has failed to produce adequate results. He began by saying that the constitution is rooted in history; Tunisia was the first country in the Arab world to produce such a document, in 1861. He considered the Tunisian Constitution of 1959 to be the most progressive constitution in the Arab world, particularly with regard to women’s and human rights, regardless of its implementation. In the previous constitution, the Tunisian people did not consent to be ruled by the government; the revolution means redefining the social contract and restructuring the balance of power to move from ruler and subject to citizen participants. He identified the main issues of the new constitution in the procedural problems of the drafting process and jurisprudence. The National Constituent Assembly had been tasked with finishing the draft constitution within one year. Gherairi claimed that the assembly has no guidance for the work that it can or should be doing after completing the draft constitution, which adds to the already problematic nature of a lack of a legal timeframe for the draft. As a free and sovereign entity, the National Constituent Assembly is under little pressure to do the work for which it was elected. This further complicates the distrust of the citizenry for the Constituent Assembly. Additionally, the assembly decided to write the new constitution from scratch rather than using the 1959 constitution as a template. Once the draft is completed, if it is not approved by two-thirds of the Constituent Assembly, it will be put up to a vote by national referendum. Gherairi concluded his discussion of the process by calling the assembly and draft constitution more morally than legally disappointing. On the content, Gherairi said that the primary goal of Ennahda had been to introduce Sharia as the main source of law. The 1959 constitution had been the only constitution in the Arab world that did not include Sharia as a source for legislation. Although it is still up for debate whether the preamble to the constitution serves as a source of law, in practice, the references to Arab-Islamic identity are said to be a fundamental part of Tunisian law. Furthermore, the assembly has identified the secularity of the state as a goal, admitting that it is not already a civil state, though it has been by law since 1956. Gherairi also mentioned that Ennahda has attempted to call the role of women complementary rather than equal in the constitution and that the public has expressed its contempt for this proposal.

Dr. Ahmed El Hamri, a former economics professor at the University of Minnesota, and a consultant for the World Bank for many years, briefly outlined the economic situation of Tunisia. El Hamri described the past economic model adopted by the country as one that resulted in fostering inequality including serious regional imbalances, clientelism, and social exclusion. Only by seriously addressing these issues will Tunisia be able to move forward on the political front. Although it had been hailed as one of the fastest growing economies in the region with on average a five percent growth rate from 1997 to 2007, Tunisia has seen high rates of unemployment and the development of cronyism; a situation that led to serious social dissatisfactions. According to El Hamri, it is because observers have been focusing on this growth rate that Tunisia’s real problems have been ignored by its international partners and donors. Unemployment, persistent regional and gender inequalities and gaps in social protection have excluded many Tunisian citizens from benefiting from economic growth. El Hamri stressed the need for a pro-poor growth model for Tunisia to solve the country’s major problems, which he said would need to 1. limit external debt (currently $25 billion USD), in some cases by converting it into funding development projects; 2. diversify the structure of the economy in order to create backward linkages to employ Tunisian citizens rather than forward linkages that take jobs out of the country; 3. improve the business climate by reducing red tape and combatting corruption to foster entrepreneurship; 4. adopt labor policies that contribute to curbing youth unemployment, particularly among college graduates (currently about 70% of those unemployed are under 30 years of age); 5. fight gender disparities; 6. adopt policies and programs to reduce regional disparities, especially for the interior of the country; 7. develop social inclusion programs; and 8. reduce structural unemployment by updating the investment code, creating partnerships among industries and universities, updating the tax code, and creating opportunities for entrepreneurship. He suggested utilizing World Bank’s Stolen Asset Recovery (STAR) Initiative.

Human Rights and Women’s Rights

The second panel of the conference, “The Future of Women’s Rights, Minority Rights, and Freedom of Expression in Tunisia,” connected the new constitution to rights available to Tunisian citizens.

Eric Goldstein of Human Rights Watch started the panel with an overview of the failings of human rights legislation in Tunisia. Tunisia has signed on to the Rome Statute that created the International Criminal Court, the Convention on the Elimination of Discriminations Against Women (CEDAW) without reservations. However, those actions were taken by a government that did not have electoral legitimacy. The new draft constitution preserves respect for international conventions but states that they are compulsory only “if they do not contravene the constitution.” On the other hand, security sector reform has been lacking and political violence is increasingly common. Most police officers are holdovers from the previous regime with new politically appointed leadership. They are also still unsure of how to manage demonstrations without repressing them. They haven’t been re-trained to fully respect citizens’ rights. Additionally, while judges are granted some form of independence they still need to utilize it. Prosecutors, under the previous regime, have never had the ability, nor reason to investigate security forces, and there are issues with collection of evidence, and Tunisia’s Constituent Assembly should commit to the creation of an independent judiciary free from government interference. Goldstein did, however, praise the draft law on transitional justice that will set up a truth commission and a special chamber within the court system. Finally, Goldstein discussed the newfound ability of NGOs working in Tunisia to work legally and transparently. Overall, the system is “unquestionably better” than under the previous regime, even though more improvements are needed.

Naziha Réjiba, a Tunisian human rights activist and a journalist who won the 2009 International Press Freedom Award spoke about the long history of the press in Tunisia and the inability of the media to function properly under current conditions. She reminded participants that while the revolution was by those who fought for economic and social reasons, it was also a “revolution of people who wanted freedom.” She said that television networks now had the ability to support freedoms and that the government had created a new committee to control or to regulate the media, which has been supported by journalists and activists for freedom of expression. She claimed that the chaotic media atmosphere may have affected the outcome of the elections. She said that those fighting for freedom of expression were not calling for the exclusion of Islamists “but not [to] allow them to take away our dream of freedom and democracy.” She found it ironic that Ennahda, a party once persecuted for its criticism of the government, was now supporting the structures that had served to threaten its existence before the revolution. She also mentioned the “parsley campaign” against corruption in the media: A channel against political dissent had been funded through somewhat dubious means, and the owner claimed to have sold parsley. In response, a rival owner sold thousands of bunches of parsley to fund a free network. Réjiba also noted that Islamists are “ungrateful” for those who supported them before the revolution. However, the media does still have its shortcomings: many are corrupt, among other things.

Dr. Nancy Okail, a program director for Freedom House, gave the last presentation of the conference about women’s rights in Tunisia. She pointed to women’s fears of being sidelined after playing an important role in the revolution, cautioning that it is important to look at both the overall power dynamics in society and the drivers of change in the social context. Women’s rights are not isolated but play a role in the larger context of power relationships among different groups. She said it is the “story of a police state, a culture of impunity,” which repressed all citizens. The tools of changing the social space were the laws of the previous regime, which, as a means of social change, were described by Okail as superficial, oppressive, and short-lived.  The laws had been put into place to appear democratic and progressive without actually providing real results. She also discussed the issue of women elected to government, saying that it is not enough to notice that there are women but also important to ask what type of women are elected to bodies like the Constituent Assembly. Finally, she posed the issue of consciousness and culture as a means of changing society. Rights are not only formal (laws) but substantive (practice) and can be influenced and enforced by education and the media.

In his concluding remarks, the Maghreb Center president, Nejib Ayachi, stressed that while transition to democracy in Tunisia under the auspices of the Islamists has been problematic, the future is not completely bleak as  long as there are sustained vigilance and continuous involvement on the part of civil society, which has been very active, particularly women’s group; in order to implement the ideals of the Tunisian revolution, counter the excesses of Islamism, and, overall, pursue the difficult task of democracy building.