Hédi Jallab, director of the National Archives of Tunisia (NAT), is a prominent historian. His job position, as well as his academic specialization, have caused his name and the name of the institution he oversees to appear frequently in discussion, not always amicable, about the NAT’s relationship with transitional justice. Hence, evaluating the Tunisian transitional justice experience requires interviewing him to ask about the NAT’s role in that experience. Meanwhile, the declining political interest in transitional justice has caused the important question of the whereabouts of the archive of the Truth and Dignity Commission (TDC) to go unasked even though it made little sense for the TDC to shut down before handing its archive over to the NAT, the party required under the Transitional Justice Law to preserve this public property.

 

The Legal Agenda (LA): As the primary supervisor of the NAT, how do you envision the potential relationship between the NAT and transitional justice?

 Jallab: The NAT, as [a collection of] documents in multiple forms and a source of information, can serve as a key pillar in transitional justice’s achievement of its goals of uncovering the truth and determining responsibility. When the thinking about transitional justice began shortly after the revolution, the institution that I now represent sought to formulate an institutional vision of the relationship that you are asking about. We tried to achieve maximum use of archival material in the Tunisian transitional justice experience, and we believed that this use would be a factor distinguishing our national experience from earlier transitional justice experiences. Our studies on these experiences showed that most were deprived of an archival basis. Such experiences include all those that occurred in South America and Morocco’s experience, where there was no archive at all, and South Africa’s experience, where most of the archive was deliberately destroyed before the outset. Tunisia had the distinction of a legislative system that considers the archive public property and of good keeping of the archive that prevented any significant damage to its contents in or after the revolution’s events.

 

LA: You say that Tunisia’s transitional justice experience could have been distinguished by the archive available to it. This statement contradicts the TDC’s accusation that you kept the archive from it and deviated from professional impartiality to align with the transitional justice process’ enemies, as explicitly stated on page 91 of the executive summary of the TDC’s final report.

 Jallab: The question here has two branches, the first pertaining to the NAT’s performance and the second pertaining to my own positions. I think it’s necessary for me to separate the two dimensions.

 Firstly, regarding the institution, its cooperation with the TDC occurred in the context of total and complete commitment to implementing the laws in effect, including Organic Law no. 53 of 2013 on Transitional Justice. Here, we spared no effort. We provided a team of the TDC’s staff with a private office in the NAT premises and put at their disposal all inventory documents. They determined, based on their experience and research topics, and without any intervention from us, the digital copies and documents they needed. They were granted access, and this is documented in official correspondence. The cooperation I’ve mentioned is confirmed by the important testimony provided by the TDC’s director of archives Narges Dabbash, which was published on your website. In it, she explained, with evidence and proof, that the TDC accessed an enormous number of documents from all the ministries and institutions, foremost among them the NAT. However, the TDC did not study them and utilize them, and the accusation may have been an attempt to cover up this shortcoming.

 Regarding the accusation of a lack of impartiality directed at me, the reason, as those who made it mentioned, is the position I expressed – as an expert historian and researcher – on the TDC’s reliance on Tunisia’s internal independence document to confirm that colonial France still controls Tunisian underground resources. This shocking conclusion pushed me, as an academic specialized in history, to voice a position intended to clarify and inform. I tried to alert the TDC that in its ruling, it had used a partial document that was later supplanted by other documents, such as the complete independence protocol and sovereign decisions issued by the national state. I was not alone in debating the TDC’s position – there are more than sixty of my fellow historians. As experts, we expressed a scientific opinion on an issue raised by nonexperts. We tried to remove the confusion that the TDC had fallen into. Rather than using [our opinion] to check and correct, the TDC opted to confront it not with evidence or proof but with accusations and by calling our intentions into doubt. I lament this choice, which I think wasted for Tunisia and Tunisians a real opportunity for a communal discussion about the history of their country that serves the goals of transitional justice. I also think that this approach by the TDC led to the great defects in the final report, defects consisting in unforgivable historical errors.  

 

LA: But the TDC accused you of obstructing its effort to acquire the presidential archive and explained in an undated memo published on its website[1] under the heading “The Legal Foundations for the TDC’s Right to Take the Former Regime’s Archives Out of the State Institutions” that its assignment to uncover the truth “necessarily requires it to get its hands on all the documents and archives that were possessed by the state bodies that violated human rights, particularly the President’s Office, and in this regard the TDC is performing a distinctly investigative function confirmed by Article 42 of its law”. How do you respond to that?

Jallab: The dispute related to the question of how we should handle the archive in the context of the transitional justice process. The TDC wanted to assemble the entire archive of the state institutions it deemed embroiled in the system of tyranny and move it to its premises, citing concern for them and the need to study them. This runs contrary to what the text mentioned in your question entrusts the TDC with, namely “the right to access public and private archives regardless of the restrictions found in the legislations in force”.[2] So in that incident, the TDC’s determination to take the entire presidential archive to its premises without inventory or protection violated the Transitional Justice Law as well as the Archives Law,[3] which precisely regulates matters of maintaining and handling the archive.

 We, as experts in the field firstly and as a body responsible under the law for maintaining the public archive, insisted that this course of action was not possible for several reasons, some practical and some technical, and was against the law. We alerted those who had to provide an answer to this question that the archive is in part a living archive, i.e. it consists of documents still being used in the activity of the administrative institutions either constantly or occasionally, and that the extraction of this part by a party would disrupt the public service, which is unacceptable.

We also alerted the same parties that the public archive is very large, and transporting it to the TDC would result in a pile of documents that, considering the TDC’s human and technical resources, would be practically impossible to study.

 We suggested to the TDC that it direct its efforts toward determining the files it would work on and then assembling the archive pertaining to those files. We told it that only this methodology would ensure success. Here, we did not interfere in its work nor try to impose oversight over it, but we were hoping that the Transitional Justice Law would be implemented in accordance with its text, in conformity with the laws that protect the archive, and in a manner that guarantees good use of the archival content without putting it at risk of damage.

 It is important to mention here that contrary to what was written in the TDC’s final report, the TDC ultimately acknowledged that our position was correct and fully cooperated with us and all the state institutions, including the President’s Office, which enabled it to access the archival documents it requested. This cooperation is corroborated by testimonies by members of the TDC’s council and by the article published by the TDC’s director of archives, who is the expert in the area, in The Legal Agenda.

 

LA: In an interview with The Legal Agenda, former TDC president Sihem Bensedrine stated, “I have no choice but to surrender the TDC’s archive to the NAT given the absence of any other institution capable of properly maintaining it” and given that the law requires her to do so. However, in a televised statement on 12 June 2019, she said, “The NAT is an administration, and the TDC deals not with administrations but with the government. Therefore, it contacted the Prime Minister’s Office [i.e. the head of the government] about handing the TDC’s archive over to the NAT, but it received no response, so it obtained judicial permission to appoint a notary to inventory the TDC’s archive”. What’s your opinion? Where is the archive now, especially given that Bensedrine did not later tell the public what came of it?

 Jallab: To date, we have not been contacted by anyone. Technical meetings were organized between representatives of the TDC’s executive apparatus and the NAT (July 2018), during which the technical staff, i.e. the competent administrative staff from both institutions, agreed on a vision of the mechanisms for coordinating the transfer of the TDC’s archive to the NAT before the end of the former’s term and with plenty of time to achieve the best guarantees of the archive’s safe transfer. Of course, it was an agreement of principles written among experts, not an agreement between the two institutions as such an agreement would have to be signed by none other than the TDC’s representative. We do not know whether this draft was later presented to the TDC’s council or whether the council expressed a position on it. From our side, we tried to turn what the technical staff had agreed upon into a reality. We contacted the TDC multiple times to ask it to set a schedule for transferring the archive and write an agreement to inventory it and organize the handover. However, we received no response. It should also be noted that the TDC got most of its archive from us via a direct relationship.

 For it to then be said that the government was contacted about the archive’s handover is incomprehensible and is unacceptable in dealings among state institutions. The NAT is a specialized institution that the law designated as the archive’s maintainer, and the TDC had previously dealt with it directly without mediation from any administrative body whatsoever. I think that the excuses [Bensedrine] gave for breaching a legal obligation are refuted by the previous workflow of the body she was directing and her previous statements pledging to hand the TDC’s archive over to the NAT.

 In this regard, I’d like to add that according to the information we have, there are at least three versions of the TDC’s final report. The first is the one delivered to the president of the republic on 30 December 2018. The second is the one delivered to the prime minister and Parliament speaker. As for the third, it’s the one that was published on the TDC’s website. There is also a document called an executive summary that was published after the TDC’s term ended, and we don’t know who issued it. The NAT received no copy of those reports, nor of the two annual reports that the TDC published earlier on its work in 2015 and 2016, officially from the TDC. Despite this lack of cooperation, the NAT is trying as hard as possible to protect the TDC’s archive. Our offices save, in digital form, everything published on the TDC’s website as part of their consistent collection of Tunisian websites’ data.

 

LA: In this regard, there was reservation from the TDC over the NAT’s ability to maintain a digital archive.

 Jallab: The Tunisian experience in archiving goes back to 1874, when Grand Vizier Hayreddin Pasha created an archiving body called the “Safe of Government Writings”. The experience continued and was subsequently consolidated by the establishment of the NAT, an institution specialized in the field that maintains the entire archive of the Tunisian state. I don’t think that anyone can question the institution’s ability to maintain the archive of a body that operated for a limited time.

 We have maintained the archives of other bodies, including the National Fact-Finding Commission on Abuses Committed from 17 December 2010 to the End of its Mandate, whose archive was mostly digital. The Committee for the Revolution’s Martyrs and Wounded was subsequently able to use this archive without any problems. Furthermore, we, and the archive departments in the various institutions, were the source of most of the TDC’s archive. So how can it be said that we’re incapable of maintaining it?

 To further clarify the significant volume of our institution’s work, I’ll point out that the NAT receives more than 20,000 access to information requests from researchers and people concerned each year, and it examines all those requests. These numbers clearly refute the claim made.

 

LA: What, in your opinion, are the measures that now need to be taken to protect the TDC’s archive?

 Jallab: The TDC’s archive is a trove of knowledge and an important part of our national history for several reasons:

 Firstly, it is an aggregated, specialized archive, and this is very useful for people concerned with transitional justice.

 Secondly, in addition to the copies of several state institutions’ archives that were gathered, it includes personal archives of victims of tyranny and victims’ groups. These are documents that must be preserved so they aren’t lost.

 Thirdly – and this is very important – part of this archive pertains to the hearings for the victims of tyranny and for the torturers [jalladin]. This archive with special significance must be preserved to protect it from damage and from being leaked to parties that could try to use it in a way that harms the people who gave those testimonies.

 From our side, we will search, with the government, for ways out of the current crisis. I pledge here, from a position of responsibility, to maintain the TDC’s archive in a manner that protects the rights of everyone who helped form it, particularly those who put their trust in the TDC and gave testimonies revealing many of their lives’ secrets and now fear that those testimonies will be lost or viewed by people who won’t keep their secrets.

 

This article is an edited translation from Arabic.

 

Keywords: Tunisia, Transitional justice, Archive, TDC

 

[1] The memo was published within the final report’s appendices.

[2] Article 40 of the Transitional Justice Law stipulates, “To perform its functions, the Commission shall have the following powers: Access to public and private archives, regardless of all restrictions contained in legislation in force”.

[3] Law no. 95 of 1988 on the Archive, dated 2 August 1988.