Penal Reconciliation in Tunisia: The Ends Justify the Means

2024-02-01    |   

Penal Reconciliation in Tunisia: The Ends Justify the Means

Tunisian President Kais Saied’s periodic visit to the headquarters of the Penal Reconciliation Committee last year has come to follow a predictable pattern. It is a recurring opportunity for him to bemoan the stalled penal reconciliation process and the slow pace of the committee’s work and stress the need to “recover the people’s wealth” as soon as possible so that it may be used on local projects. However, the visit on September 8 took a twist. Saied was enraged about the stalled penal reconciliation process and harshly criticized the procrastination by people embroiled in financial corruption cases when it comes to fulfilling their pledges and submitting reconciliation requests. First he targeted the special procedures that he himself enacted via his Decree no. 13 of 2022, arguing that they have become a vehicle for drawing out the reconciliation process. Then he targeted the business owners, threatening them with imprisonment should they not immediately engage in reconciliation. The threat rang differently this time, now that the judiciary has been fully subjugated and the executive authority has taken the keys to the prisons. The seriousness of the threat is demonstrated by its concurrence with arrests and remand procedures against several business owners – a message guaranteed to reach them and others.


Establishing Procedures Only to Breach Them: Extortion in Lieu of Justice


The penal reconciliation process was built atop the ruins of transitional justice. Saied based his narrative on the failure of the successive governments and institutions involved to recover the stolen wealth. The president promised to create an exceptional and rapid means of settling with the corrupt and recovering the funds they stole without going through a complex judicial process. This would entail replacing the prison sentence with a quasi-administrative settlement[1] whereby the corrupt commits to repay the sums appropriated or benefit reaped, as valued by the committee with 10% interest per year.


A year and a half after the issuance of the Penal Reconciliation Decree, Saied has found himself empty-handed, with the committee having realized no significant portion of the TND13.5 billion [USD4.2 billion] promised. The exhaustion of the president’s patience appeared in stages. First, he blamed committee president Makram Ben Mna and dismissed him last March. Then he fired the committee member who had deluded him into believing that a business owner had promised to pay TND30 billion [USD9.4 billion], which he initially saw as a potential alternative to resorting to the International Monetary Fund. Now he is turning the blame toward the procedures, which he says have become a vehicle for business owners to avoid swiftly complying with the reconciliation process and its outcomes. The corrupt are using the procedures, appraisals, and consecutive postponement of sessions at the request of the lawyers to obstruct the reconciliation process, he says. In particular, Saied faults the application of Articles 23 and Article 24 of his decree, which allow the committee –  after verifying that the application meets the formal conditions and the reference value of the sums to be paid – to conduct the necessary investigative work, including requesting documents and information from administrative departments and financial institutions and conducting appraisals via a committee of experts. The decree also allows the reconciliation applicant, pursuant to the right of defense, to appeal an appraisal within seven days of receiving it. In that case, the committee may grant permission for another committee of experts to redo the appraisal, although the new committee’s appraisal is not binding.


Besides the fact that the procedures the president is asking to violate are ones that he himself wrote, his statements bear much gravity for several reasons. They open the door wide for lawlessness, whereby not only are corruption cases snatched away from the judiciary and handed to an exceptional committee subordinate to the executive branch, but even the procedures and the sparse and weak safeguards included in the decree are also replaced by pure extortion. With his sultanic discourse, the president is vesting the Penal Reconciliation Committee with an additional power not explicitly mentioned in the decree, namely to assess the funds stolen or benefit reaped even if they did not appear in previous reports or appraisals. Moreover, Saied’s discourse deprives reconciliation applicants of the only safeguard they had for defending their interests, namely the right to appeal before the committee and request appraisals to determine a sum for negotiation, which he argues is a mechanism that stalls the process. This new way of conducting reconciliation under threat of imprisonment could allow for business owners, when political authority changes hands, to protest that the procedures were violated, their fundamental rights were trampled, and they were openly extorted and seek compensation, irrespective of how suspected they are of corruption.


The Authority’s Relationship with Business Owners: Saied Following in His Predecessors’ Footsteps


To understand the dynamics of the successive governments’ relationship with business owners, we must go back to 2011, when Beji Caid Essebsi’s government chose to absorb and extinguish public anger by issuing a decree on confiscating the assets[2] of 112 people closely affiliated with the Ben Ali family. However, the list that appeared in the decree omitted many people who belong to the ruling family or benefited from their connections to it. Likewise, the list did not match the list prepared by the Confiscation Committee, which included 131 people named in reports by the Ministry of Interior, the Central Bank of Tunisia, the Anti-Corruption Committee, and the head of state litigation. At the time, legal and media circles argued that the criteria adopted for screening the cases and names were hazy, possibly involved negotiations, neglected transparency principles, and were not based on judicial evidence. 


From another angle, the decree did not mention the issue of travel bans, which the authority used for years as leverage to extort business owners. Seventy business owners were banned from travel during the reign of the Troika. President of the Tunisian Union of Industry, Trade, and Handicrafts President (UTICA) Wided Bouchamaoui said in August 2013 that the issue had become an “electoral card” and the government had refused to supply her with the list of business owners banned from travel. The number of people subject to travel bans fell to 43 in 2014.[3] Then, the Habib Essid government kept silent about the travel ban issue in 2016. The same logic was then followed by Youssef Chahed, whose “war on corruption” involved political calculus, threats, and extortion that allowed his new party – Tahya Tounes – to attract enormous funding.


On 28 July 2021, Saied hastily received UTICA President Samir Majoul. Saied displayed the summary of the report of the National Fact-Finding Committee on Corruption and Bribery and said, “The number of people who stole the country’s wealth, based on this report, is 460. The amount sought from them, according to one former prime minister and based on this report, is 13,500 billion [millimes, i.e. TND13.5 billion or USD4.2 billion], and I have a list of the names”. At the meeting, Saied also announced the plan to conduct a penal reconciliation with the culprits in order to reinvest the stolen funds in development projects and avoid going through the judicial process, stating that he is “not an advocate of imprisoning anyone” and does “not want to make an example out of anyone”.


Some two years after that meeting and amidst the faltering of the penal reconciliation process, Saied seems to be changing his strategy on criminal accountability. After eliminating his political adversaries, he is now targeting the administration and business owners, threatening to resume prosecuting whoever among them does not concede to the Penal Reconciliation Committee’s assessments and immediately pay their dues without drawing out the procedures. Although the Penal Reconciliation Decree allows the resumption of criminal proceedings against those who neglect to reconcile, Saied’s blatant political interference transforms this measure from a judicial or even administrative outcome of a corruption case, possibly marred by covert extortion, into a form of open extortion practiced in plain sight. No longer are we facing only a process devised by the president in principle to replace transitional justice with compensatory justice; rather, we are also witnessing open threats and a political command to submit delivered after the president destroyed whatever judicial independence remained. In this context, it is no coincidence that the presidential threats came in tandem with new arrests and prosecutions targeting certain business owners. Hassine Doghri, who directs the United Bank for Commerce and Investment (UBCI, a branch of the French bank BNP Paribas), was arrested, and a warrant to imprison him was issued on September 15. Former MP Mohamed Frikha, who owns Telnet and Syphax Airlines, was also arrested on September 12. As for Marouane Mabrouk, son-in-law of former president Zine El Abidine Ben Ali, owner of one of the largest economic conglomerates in the country, and the largest shareholder in the Arab International Bank of Tunisia (BIAT), he filed a reconciliation application to the Penal Reconciliation Committee in early September following the issuance of a 15-day travel ban against him and four members of his family based on investigations into mismanagement of confiscated assets.


Here is the president who continuously attacks his predecessors and accuses them of tolerating corruption to further their party interests engaging in similar practices, threatening imprisonment at a time when court cases have become irrelevant in the face of the palace’s commands. The revenue of penal reconciliation will go not to the state budget but toward achieving the president’s desires and creating a clientelist network completely subordinate to his authority, whether via the communitarian companies funded by the state at its discretion or via local investments also decided by representatives of the executive branch.


When the Anti-Corruption Compass Loses Its Bearing: Are We Reconciling with the Corrupt or Combatting Them?


Fighting corruption is one of Saied’s central slogans. His anti-corruption discourse is based on a dichotomy between two sides: the corrupt who fed off the Tunisian people’s wealth and are known to the state, and the clean president known for his integrity and for not being held back by the barriers of texts and procedures – even if that means usurping the powers of institutions and ignoring procedures that he himself established. In this dichotomy, there is no room for institutions, a state, or law. It is a crusade against injustice and oppression whose initial weapon is to call the corrupt to submit. If they do not comply, then all means are legitimate, including threats, intimidation, travel bans, account freezes, and imprisonment. This binary logic, the broad strokes of which are clear, is fundamentally harmful to a just war on corruption.


Besides the fact that the breaches and extortion may allow today’s corrupt to claim victimhood tomorrow, Saied’s system lays the foundation for new clientelism that reproduces the mechanisms of corruption in the new era. It is not in the interest of business owners to risk years in prison, however excessive and unrealistic the bill may be. Hence, the most likely outcome is the creation of a class of business owners that is loyal to the authority and trades money for innocence, as portended by the UTICA’s choice not to protest the extortion of business owners.


From another angle, the slogan of fighting corruption is being used (and the state’s capacities being harnessed to achieve it) not to fund public finance and entrench the principle of accountability and an anti-impunity culture, but to fund the president’s project which he never bothered to put to public debate, whether in its financial component pertaining to penal reconciliation or its economic component consisting in communitarian companies. Today, we are facing a president who is tirelessly searching for existing funds to invest in his project, the contradictions and false promises of which are becoming increasingly obvious.


The talk of fighting corruption today seems meaningless. For years, we have been unable to create the structural and cultural oversight that could underpin a state that fights corruption with its institutions and laws via a clear strategy free of improvisation and extortion. The events of 25 July 2021 undermined all the basic gains in this area: the independent commissions are now history, the judiciary has been intimidated and subjugated, and civil society has been demonized and its integrity questioned. Once again, President Saied is using one of the revolution’s central slogans to justify a policy antithetical to it.

[1] The Penal Reconciliation Committee has a mixed composition and relies partially on expert appraisals and judicial reports, and partially on its own broad discretion.

[2] Decree no. 13 of 14 March 2011 on Confiscating Real Estate and Movable Assets.

[3] Statements by Wided Bouchamaoui during Mehdi Jomaa’s government.

This article is an edited translation from Arabic.

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