Kais Saied sets his sights on Tunisia's civil society

A draft law to regulate civil society organisations by amending Decree-Law 88, which was leaked by local media in February, has raised serious concern within Tunisian civil society, though it remains unclear whether the existing law has been modified and when the government may adopt it.

The draft, if passed, would give state authorities wide-ranging power and discretion to interfere with the way civil society organisations are formed, their functions and operations, their financing, and their ability to speak publicly about their activities.

Although the authorities have not formally confirmed that they are amending the decree, nor have they released a draft law, civil society groups in Tunisia are standing by and expect the proposed amendment to be published at any time.

The plan would significantly restrict the work of civil society and human rights defenders, endangering Tunisians’ associational rights, one of the hard-earned achievements of the uprisings of 2011.

"The new bill [...] threatens to considerably limit the civic space and subvert the hard work done by Tunisian civil society after the revolution"

Several provisions in the text of the revised decree give serious cause for concern.

In the most worrying provision, authorities would be granted sweeping powers to reject the application of associations that they deem to pose vague threats to “the unity of the state or its republican and democratic regime”.

Their published material would be required to align with broadly formulated “integrity,” “professionalism,” and “legal and scientific regulations” that would allow for abusive enforcement by the authorities.

Furthermore, establishing a civil society organisation would necessitate a publication of creation in the Official Gazette, which could pave the way for politically motivated delays. The leaked draft law would essentially restore a requirement for government authorisation before an organisation can obtain legal status. Under the 2011 law, people may form an association simply by notifying the relevant authorities.

The new draft also gives the authorities within the office of the head of government power to order the dissolution of an organisation summarily and outside of judicial procedure. Based on the current law, a civil society group can only be dissolved by judicial ruling or by its own members.

Another provision introduces a procedure to control foreign funding of associations whereby it forbids a group from accepting funds from abroad without prior government authorisation from a unit of the Central Bank tasked with fighting money-laundering and terrorism financing. Currently, the law does not require prior government approval for foreign funding.

“We’re going backwards,” Sofiane Zekri, secretary-general of the Observatory for Associations and Sustainable Development (ASDi), told The New Arab. “Decree 88 can be improved but we are afraid that our rights will wane if the amended draft is issued,” he added.

In his view, the two major worries about the text are the reintroduction of authorisation for the establishment of associations, and steps to reduce the presence of foreign organisations in the country and control their finances.

“Civil society’s presence will be weakened if the government’s plan goes ahead,” he said, adding that Tunisian associations are now partly inactive while waiting to see what happens.

Every Thursday, as the Ministerial Council chaired by President Kais Saied convenes and typically adopts several draft presidential decrees, civil society actors are watching in fear that the new draft law may be promulgated at any moment.

The government drafted the amendments without any public discussion or consultation with civil society, Tunisian media reported. Under a presidential decree issued last September, the head of state is able to unilaterally enact laws without any parliamentary or judicial oversight. Draft laws have not been made public or submitted to parliament for debate since President Saied suspended the assembly on 25 July.

“We have said categorically that any modification or reform in the area of rights and freedoms, including the right to freedom of association, is not allowed in a state of exception,” Raja Jabri, president of  Mourakiboun, a national network specialising in election observation since 2011, told The New Arab.

She underscored that the coalition, in partnership with other networks, succeeded in blocking previous attempts by the government to amend the decree-law on associations.

"There is a clear risk that the activities of civil society and rights defenders will be subjected to restrictions"

Jabri pointed to another controversial clause in the bill that provides that the activities of an association must not “fall within the competence of public bodies”, vague wording which is likely to significantly restrain associational rights. 

“The idea seems that civil organisations will be allowed to carry out mainly social and humanitarian work whilst those operating in the fields of human rights, justice and democracy won’t be welcomed,” Jabri speculated, adding that Mourakiboun, as an independent watchdog organisation, would be affected by the proposed decree. 

There is a clear risk that the activities of civil society and rights defenders will be subjected to restrictions, in violation of the right to freedom of association protected by Article 22 of the International Covenant on Civil and Political Rights and Article 10 of the African Charter on Human and Peoples’ Rights, both of which Tunisia is party to, as well as by Article 35 of the Tunisian Constitution.

“The new bill is liberticidal without a doubt. It threatens to considerably limit the civic space, and subvert the hard work done by Tunisian civil society since after the revolution,” Mourakiboun’s president warned. “It’s a stab in the back for the country’s democratic transition.”

She raised particular concern about vulnerable groups who risk being left on their own under the new legislation, as her organisation and others that have been supporting these communities would see their activity subjected to increased state control resulting in fewer funds and freedom to assist them.

Civil society in Tunisia takes charge of the bulk of the work needed to help marginalised communities in society, including victims of gender violence, migrants, people with disabilities, and those from lower socioeconomic backgrounds. 

The Observatory for the Protection of Human Rights Defenders expressed great concern over the amendments to Decree 88 that would provide the Tunisian authorities “with legal tools to control and foreseeably muzzle civil society”, it noted in a statement.

The Observatory called on the country’s authorities to withdraw the draft to guarantee the right to freedom of association and to ensure that human rights defenders can carry out their activities without fear of arbitrary state interference and repression.

Amine Ghali, Director of Al Kawakibi Democracy Transition Centre (KADEM), maintained that the problem is not Decree 88 but the mechanisms for its application on the part of public authorities, mostly the presidency’s Directorate General of Associations.

Jabri similarly remarked that it is the public administration’s responsibility to ensure transparency of associations and, if it is unable to control this, it is not the problem of civil society.  

“To redress these flaws, instead of working towards the appropriate implementation of the decree-law, the government has been trying to change it since 2016,” KADEM’s director said to The New Arab. “Each time, our centre along with several NGOs have opposed these moves and managed to preserve the existing legislation”.

In late 2019, he explained, the concerned associations reached a deal with the executive to keep the decree intact and incorporate complementary laws alternatively to cover issues including public financing, the system of foundations, the creation of international NGOs in the country and more.

However, work on the agreed improvements to the law halted with the arrival of the pandemic.

After the draft amendment was leaked, Tunisian civil society organisations initiated a new campaign to counter the cabinet’s contentious plan. “Like all associations, we will be surely affected if the bill is enacted and implemented,” Ghali stressed, “our field of action will be reduced, civil society won’t be as active as it is today”.

As he indicated, public financing for associations within Tunisia is very weak meaning that, without international funding, their impact on national action will be much more limited in different domains.

Many NGOs rely on foreign (and particularly European) funding to finance themselves. Besides that, much of the money pumped into Tunisia by foreign countries is primarily destined for state institutions. 

Yet, President Saied accused civil society organisations of serving foreign interests and of trying to meddle in Tunisian politics, and threatened to ban funding for such groups from abroad using language that was reminiscent of that used during the repressive era of the Ben Ali regime.

"In the decade after 2011, Tunisian civil society flourished. Civil society organisations have played a vital role in Tunisia's post-revolutionary democratic transition, safeguarding human rights and upholding the rule of law"

The Tunisian government’s move to initiate changes to the NGO law comes in a climate of the erosion of rights and freedoms and the gradual reversal of democratic gains since Saied suspended parliament last July and began monopolising legislative, executive, and judicial power under his authority.

In the decade after 2011, Tunisian civil society flourished. Civil society organisations have played a vital role in Tunisia’s post-revolutionary democratic transition, safeguarding human rights and upholding the rule of law.

A group of 13 Tunisian and international rights groups issued a statement urging Tunisian authorities to scrap plans for new restrictions on civil society organisations last month.

Though the margin of manoeuvre to stop the government's move to amend Decree 88 is limited, Tunisian civil society is mobilising efforts in the country and abroad in the hope of delaying the process throughout the exceptional period until a new legislature is elected and such an amendment is brought to public debate.

Alessandra Bajec is a freelance journalist currently based in Tunis.

Follow her on Twitter: @AlessandraBajec