Court of Accounts Exposes Shortcomings of TDC Performance

2019-06-18    |   

Court of Accounts Exposes Shortcomings of TDC Performance

On 30 April 2019, Tunisia’s Court of Accounts issued a report about the special oversight mission a team of its judges performed over the Truth and Dignity Commission (TDC). This report appeared to be an important document for evaluating the TDC’s work. The significant media interaction with the report underscored this importance, but it only addressed the aspects concerning financial conduct and ignored the oversight mission’s important comments on the TDC’s functional performance. This issue is what the following reading attempts to transcend. (Editor)

Article 64 of the transitional justice law vested the Court of Accounts and none of the other oversight bodies with the power to oversee the TDC’s financial and administrative conduct. To put this power into effect, the court charged an oversight team composed of its judges to investigate “the extent of the TDC’s success in accomplishing the tasks entrusted to it, particularly those related to research and investigation, immediate care, temporary compensation, arbitration, reconciliation, and institutional reform, as well as the robustness of its financial and administrative conduct”. The oversight would cover the TDC’s work from its commencement in 2014 to 18 October 2018, which is less than two months before the end of the TDC’s mandate as decided by its council.

On 30 April 2019, i.e. one month before the end of the TDC’s liquidation process, the Court of Accounts published the report on its oversight mission. This report is an important document because it is the result of an objective functional examination by a judicial oversight institution that enjoys significant public trust performed on a commission that was, throughout its operation, a point of contention between opponents of the process it sponsors and its own supporters. The former picked holes in the commission’s performance in order to thwart that process, while the latter considered every criticism of its performance a conspiracy aimed at preventing the victims from obtaining their rights and establishing impunity for their torturers.

The oversight report, which was professional by the testimony of both the TDC and its opponents, revealed breaches in the TDC’s financial and administrative conduct. It also presented a statistical assessment of the TDC’s professional performance, and these outcomes should be examined.

First: Concerning the Breaches of Financial and Administrative Conduct

The Court of Accounts observed a number of breaches in the TDC’s financial and administrative conduct, the most important being:

Appointing personnel without respecting the rules of competition.

Noncompliance with the government rules in carrying out financial undertakings.

Making expenditures that are unjustified and contravene accounting and administrative regulations.

Disbursing monetary sums to people not entitled to them without relying on objective rules to distinguish between those entitled.

Lack of transparency in preparing the budget and presenting it for legislative approval.

The report did not explicitly specify whether these breaches constitute conduct errors or financial misconduct or are merely irregularities in conduct that do not amount to either of the above.

This reservation in classifying the breaches appears to stem from two factors:

That the Court of Accounts is not competent to judicially examine conduct errors that may have been committed by those administering the independent commissions, including the TDC. This precluded any classification that might suggest that a judicial decision on the errors has been made.

That criminally classifying actions falls within the competence of the regular judiciary. In this regard, in the press conference convened to announce the report and present it to media personnel, First President of the Court of Accounts Najib al-Qatari mentioned that the irregularities harming public finance that had been observed could constitute crimes to be referred to the Public Prosecution.

The publication of the court’s report led the media to circulate news of financial misconduct. For the most part, the media considered this misconduct corruption. Sihem Bensedrine, liquidator [and president] of the TDC, rejected this accusation. She stressed that the court did not impute corruption to her or her commission and that it only observed irregularities that stem from the peculiar nature of the work of truth commissions. She added that information in the report was being used by circles opposed to transitional justice in an attempt to discredit the TDC’s success in completing its work and publishing its final report.[1]

To objectively handle the financial breaches, the veracity of which is agreed upon but the classification of which is disputed, we must wait for judicial investigations into them to proceed in order to determine their scope in comparison to all the TDC’s financial activities and to classify them.

Second: Regarding Oversight over the TDC’s Functional Performance

In its report, the court observed a shortcoming in the TDC’s performance of its functions due to:

1- The Impaired Composition of its Council:

The law requires that the TDC’s council be composed of 15 members. However, because of resignations and dismissals, the TDC completed most of its term with only nine. This undermined the legal quorum for adopting decisions within the TDC, as well as the composition of the committees emanating from it. Regarding the latter, “the Functional Examination and Institutional Reform Committee and the Arbitration and Reconciliation Committee each fell from five members to three, and the Reparation and Rehabilitation Committee fell from five members to one, in contravention of the TDC’s internal statute”.

The report attributed responsibility for the impaired composition to the TDC’s council, which dealt unevenly with its members. The report also attributed responsibility to Parliament, which announced the vacancy caused by the two resigning members without taking the initiative to elect replacements.

In response to being held responsible for not complying with judicial decisions, the TDC’s president maintained that “the stay of execution orders issued by the first president of the Administrative Court that are final and not open to appeal do not respect the constitutional right to litigate on two levels”.[2] She thereby seemed to be giving herself the right not to comply with any judicial decision not open to appeal. Yet she had previously paid no attention to the criticism directed at the rules governing the work of the Specialized Chambers for Transitional Justice, which do not guarantee those referred by the TDC to these chambers the constitutional right to litigate on two levels.

2-  Weaknesses in the Research and Investigation into the Violations

The oversight mission observed breaches in the work of the Research and Investigation Committee related to the statements, defining the victim, and the judicial process for grave violations.

a) Breaches related to victims’ statements

Unlike all previous transitional justice experiences, in which officials merely heard samples of the victims, the TDC’s council decided that all the victims who submitted cases would be interviewed in secret hearings. These 49,654 secret hearings, most of which were individual interviews though there were also some group interviews, are considered one of the TDC’s most significant successes. In its concluding report, the TDC stated that it reinforced this success by saving the testimonies in an electronic database called “Ifada” [“Statement”].[3] This success also consumed a large portion of the TDC’s work, as well as significant human and financial resources.[4]

On the other hand, the court’s report revealed that this mark of uniqueness and success was spoiled by significant breaches. These breaches consisted primarily in “variation in incorporating [into the database] the information related to the statement from one interviewer to another and in the results of hearing violations of the same nature, such as variation in conveying the testifier’s requests, in assessing the case, and in conveying the victim’s data”.

b) Breaches related to defining the victim

The report stated that the TDC granted victim status to a number of persons who submitted cases but later turned out not to be victims. But by virtue of that status, they had obtained aid and benefited from social intervention systems. The report also mentioned that from 2016 to October 2018, the TDC rejected 4,036 requests for victim status and received 278 objections to these rejections. At the end of 2018, the number of rejections rose to 17,496 issued during a brief period without the persons concerned being given sufficient time-frames to appeal. Moreover, the Appeal Committee, which the TDC announced was being formed under the presidency of one of its members, was announced after his term ended, rendering such appeals an impossible procedure.

The oversight report drew attention to a major issue affecting the rights of a significant segment of the authoritarian era’s victims. Namely, the TDC, which theoretically was supposed to be the body that investigates violations and searches for evidence of them, relinquished this role and placed the burden on the victims.[5] It charged them with proving the violations they suffered, and not many succeeded in doing so. This action infringed on their rights and society’s right to know the complete truth about the authoritarian era – an infringement deepened by denying them the right to appeal the decisions to reject, dismiss, or abandon their cases.

c) Breaches related to judicial accountability

The Court of Accounts stated that the TDC’s council only approved the investigation and analysis strategy encompassing the various stages followed to refer cases to the Specialized Chambers for Transitional Justice on 8 June 2017, and it only approved the criteria for referring these cases to the chambers on 25 January 2018. The court also stated that the TDC only began referring cases to the chambers on 2 March 2018. In this regard, the court deemed that the TDC fell short in its work, especially as the members of the chambers were appointed by the Temporary Body for the Judiciary as early as 13 November 2015 and the UNDP allocated US$1 million in the same year to training those judges.

In the same context of the judicial accountability process, the court’s report revealed that on 29 September 2017, the TDC’s council approved the appointment of a third-rank judge to supervise the Investigation and Reconciliation Unit in a session attended by only four of the council’s members. In other words, per the TDC’s internal statute, the legal quorum for the session to convene was not present. This procedural defect uncovered by the report seems important in its effects as the referrals to the Specialized Chambers were formulated by the appointed judge, which raises a question over the legality of their decisions and thereby deepens the procedural issues obstructing their work.

3- Functional Examination and Institutional Reform

As defined by the TDC in its concluding report, institutional reform aims to “dismantle the system of corruption, repression, and authoritarianism and remedy it in a manner that ensures that it will not recur, human rights are respected, and a state based on law and institutions is established. Institutional reform requires, in particular, revising legislations, filtering people proven responsible for corruption and violations out of the state institutions, updating their methods, restructuring them, and training their personnel”.[6] The Court of Accounts concluded that the Functional Examination and Institutional Reform Committee conducted two activities throughout the TDC’s term: completing one study on reforming the security and judicial institutions and another on safeguards to ensure the violations are not repeated. Nine workshops were also organized between 6 March 2017 and 12 July 2018, but without any benefit. This shortcoming appears shocking, especially as it concerns an important expectation related to envisioning the future and democracy building, and we deem that whoever helped cause it should be held to account.

4- Arbitration and Reconciliation

The Court of Accounts defined arbitration and reconciliation as “an optional mechanism for resolving conflicts without resorting to the regular judiciary. Under Article 45 of the transitional justice law, the Arbitration and Reconciliation Committee is competent to examine conciliation requests pertaining to violations and cases of financial corruption after obtaining the victim’s consent”. The court mentioned that while this committee was entrusted with 25,998 arbitration requests, it only examined 3,043. In 21 of these, an arbitration agreement was formulated, and nine of those ended in arbitration decisions.

The court attributed this poor quantitative performance to a number of causes, the most important being:

A shortcoming on the part of the committee, which only approved the methodology for assessing violations in arbitration cases pertaining to corruption on 22 May 2018 and operated with three members when by law it should have had five.

Lack of cooperation from the head of state litigation. Between 2015 and 2017, this figure participated in 896 arbitration and reconciliation case sittings, none of which reached an agreement as he refused arbitration in 394 cases on the grounds of insufficient evidence or lack of jurisdiction and putting off responding to the remaining cases without explanation.

On another level, the court revealed that the TDC was negligent in handling a conflict of interests related to its member who presided over the Arbitration and Reconciliation Committee. The member continued his duties despite having recused himself from the reconciliation cases.

The court also revealed that on 28 May 2018, the TDC’s council approved the deduction of the value of seized property from the damages for which the state must be compensated, as well as the arbitration applicant’s retention of the first opportunity to buy his seized property.

After publishing its concluding report, the TDC succeeded in pushing through a media discourse claiming that it achieved income estimated at TND750 million [approx. US$ 250 million] for the state budget and that the state was responsible for wasting the opportunity to reap much greater sums because it didn’t cooperate. The report by the Court of Accounts toppled this discourse by revealing that the sums allegedly raised included confiscated funds, which were funds already owed to the state. Hence, arbitration and reconciliation is one of the issues that call for deep study in order to understand the reality of the performance therein and the extent of its transparency.

From the above, it is evident that the report by the Court of Accounts caused the TDC’s performance to be reevaluated in an objective manner far removed from the discourses of opposition and support that previously dominated. Today, we must move forward in this objective study in search of true success for the Tunisian transitional justice experience.

This article is an edited translation from Arabic.

Keywords: TDC, Transitional justice, Court of Accounts, Oversight mission, Tunisia

[1] Press conference convened by the TDC’s liquidator on 7 May 2019.

[2] P. 47 of the report by the Court of Accounts.

[3] See the TDC’s concluding report, part 1, “The Commission’s Mandate”, p. 50-51.

[4] Eighty-one interview offices (the central office, regional offices, and mobile offices) in which 190 statement-takers worked.

[5] A notice issued by the TDC in early August 2018 read, “The TDC informs those who submitted cases in which investigation was not completed because of weak evidence that it is granting them a final chance to bolster their cases. Hence, it calls upon them to submit their evidence and testimonies or any additional clarifications in writing that support their statements to avoid having the cases lacking sufficient evidence dismissed”. See also the TDC’s statement on 26 December 2018.

[6] The TDC’s concluding report, part 1, “The Commission’s Mandate”, p. 12.

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