Civic space in Tunisia: international dynamics don’t always help

Guest article by Amine Ghali

As in many countries in transition, Tunisia’s experience of recent democratic change relies heavily on civil society being one of the main engines of transformation, not only on the political level but also on social, economic and cultural levels. This lead role has fostered a positive perception of civil society at the national level and also among the international community, as illustrated by the award of the 2014 Nobel Peace Prize to the quartet of Tunisian organisations that mediated a political agreement in the aftermath of the 2013 political crisis. For the moment, Tunisia’s civil society is living with the benefits and burdens of this new role, but also with the challenge that the gains civil society has made in recent years could be reversed. Such a reverse could be fatal to the nascent Tunisian democratic transition, since no democracy would survive without the civic freedoms of association, assembly and expression.     

Recent progress

The single most outstanding event contributing to these new dynamics was the passing of a new association law, Decree 88-2011. This was adopted by the Haute instance pour la réalisation des objectifs de la révolution, de la réforme politique et de la transition démocratique - the Higher Authority for Realisation of the Objectives of the Revolution, Political Reform and Democratic Transition, an interim official body created following the 2011 revolution to replace the dissolved parliament. This body passed 130 decrees in the 10 months of its existence, around 40 of which addressed important democracy and human rights reforms. Decree 88 was drafted in a participatory approach, involving the technical committee (a team of constitutional experts), international expertise (from the United Nations Development Programme (UNDP) and international civil society organisation (CSO) the International Center for Not-for-Profit Law (ICNL)) and a national CSO, the Kawakibi Democracy Transition Center.

Decree 88 is considered one of the best association laws in the world and certainly one of the best in countries in transition. The Decree came as a rupture from the old regulations and practices. For example, it states that CSOs merely need to declare their formation, rather than receive prior approval. It provides for gradual sanctions for non-compliance that can only be imposed by a judge. It recognises the contribution of CSOs to all aspects of public life, and has provisions on access to resources, both domestic and international, and on the transparency and accountability of CSOs. The Decree also moved the Department of Associations from the Ministry of Interior to the Prime Ministry, moving it from a repressive ministry to a more administrative one.^[1]

This legislative reform yielded immediate results in the number of newly created associations, from around 9,500 in late 2010 to more than 21,000 currently, according to the national registry.^[2] This represented an average annual increase of around 2,500 to 3,000 in the first two years, followed by a slowdown to an average of 1,000 to 1,500 per year. These legislative gains for civil society have been further enhanced by a liberal provision of the newly drafted constitution, in which article 35 guarantees the freedom to establish associations, and by a number of other laws, including those on access to information, mandatory public consultation of civil society and public funding of CSOs.

Further to these national gains, Tunisia, compared to other countries of the region and sub-region, is becoming a hub for regional and international CSOs, which are opening regional offices and holding national, regional and international events, such as seminars, training activities and conferences, thereby further enhancing the national civic space. In this new climate, Tunisian civil society has rapidly become one of the engines of transformation of the state, strongly contributing to the transition in areas such as constitution drafting, elections, transitional justice, transparency, supporting the economy - including by supporting the social economy, micro grants, the green economy and entrepreneurship - and even mediating peace, as recognised by the Nobel Peace Prize award.

Current challenges

These important improvements in Tunisia’s civic space are however not written in stone, and elements that are eroding these are being assessed by domestic and international actors, triggering a response by defenders of civic and political liberties.

Signs of restrictive practices started to be signalled in late 2014, particularly concerning the registration of new CSOs. The Department of Associations at the Prime Minister’s office started to abstain from confirming receipt of declarations of formation by new CSOs. This meant that new CSOs would not be registered in the national gazette. Despite the efforts of civil society and Tunisia’s international partners, the Department also chose to resist any institutional development and remained a very weak structure with no presence in Tunisia’s regions, limited outreach and poor technological capacity. However, despite these deficiencies, this administration spares no efforts in overpassing its mandate, interfering in the objectives of newly registering CSOs and trying to limit the scope of their work.

Restrictive practices also come from the security forces. There have been examples of intimidation of some associations working on sensitive issues, such as accountability and the rights of marginalised groups, along with the prohibition of some activities and the arbitrary arrest of some civil society activists involved in peaceful protests.  Additional practices that restrict civil space take the shape of illegal delays from official institutions for actions such as enabling CSOs to open bank accounts, lengthy delays in financial transactions related to associations and civil activists, and a refusal to deliver ID cards to CSO employees.^[3]  

A major motive for curbing civil society has been the adoption by some politicians and security forces, unfortunately aided by affiliated media, of a discourse targeting civil society, and particularly human rights advocates, as protectors of terrorists when they advocate for the respect of the rule of law and the rights of the arrested, even for those accused of terrorism.^[4] This demonisation of human rights advocates and civil society actors is warmly received by populist audiences, opening the door wide open for the restriction of space for human rights CSOs, with an extrapolation that accuses civil society of being a platform of support for terrorism.^[5]

The authorities see civil society as running massive budgets with no accountability and minimum transparency. While some of these allegations are true for a number of associations accused of links to networks of terrorism and money laundering, it is important to note that Decree 88 contains all the necessary provisions for transparency and accountability. The failure to address problems is due to the lack of enforcement of these provisions and the inability of the Department of Associations to follow up properly with associations at fault and to transfer cases to the judiciary for proper gradual sanctions.

These accusations of civil society using unaccountable funds to finance terrorism or launder money and the need to address this deficiency has brought influential international actors into the debate on the national need to ‘better’ control domestic CSOs and some international CSOs in Tunisia, which has led to a political call to reform the current association law to allow for the closer scrutiny of funds, sources and spending. In this debate CSOs have managed since 2016 to develop a strong argument, supported by a coalition of national and international organisations present in Tunisia that are concerned about civic space, to urge the government to improve the application of the existing law rather than revise a law that is considered good and includes all the necessary provisions to cover what the authorities are currently highlighting as gaps.^[6]

However, the interference of influential actors, namely the US State Department and the intergovernmental Financial Action Task Force (FATF), changed the balance of powers between the Tunisian authorities and CSOs defending both Decree 88 and civic space more broadly.^[7] Motivated by national and international reports on the state of terrorism financing and money laundering in Tunisia^[8] and the European Union’s February 2018 blacklisting of Tunisia on this matter,^[9] Tunisian authorities, following the recommendations of the National Commission for Financial Analysis (the body in charge of domesticating the recommendations of the FATF) decided that there is an urgent need to reform civil society through a revision of the law, a better monitoring of funds and an improved registration process. Some of these recommendations apply to other actors and some are specific to civil society. To further make these recommendations a reality, the US State Department has given a large grant to support the efforts of the government to revise the law and to create a registration and monitoring platform specific to civil society.

While civil society is not opposed, in principle, to any of these improvements, its leaders and the coalition of those concerned with this issue grew suspicious of government actions. Because of the false arguments advanced by the authorities over the past few years, CSOs are worried that the authorities, and institutions hostile to civil society, will use this opportunity to curb civil liberties, rather than adopt a supportive platform and revise specific deficiencies of the law.

Also because of FATF recommendations, at the time of writing Tunisia’s parliament is debating a new law on an electronic registration platform for companies and CSOs, with harsh sanctions and heavy obligations that will deter activists and citizens from creating and engaging in associations. The draft law is blind to the particular circumstances and needs of CSOs, and can be considered as unconstitutional. Again, CSOs are active in trying to mitigate this new threat, including by talking to the authorities, parliamentarians and international actors. Interjections and strong recommendations from the international community, which are highly followed by the Tunisian government and parliament because they are seeking to overcome being blacklisted, are the new big threat to civic space in Tunisia and to the gains that civil society obtained through Decree 88.

Advocates from local civil society, aided by some leading international organisations, are trying not only to fight the classic attempts of the authorities to restrict civic space through legal and illegal means and at the institutional and practical levels, but are also now scaling up the fight to counter the international dynamics that are influenced by the FATF and some western governments that are supportive of blind reforms which adversely impact on civic space.