Transitional Justice in Tunisia, 2017: Apprehensive Appraisals

2018-05-07    |   

Transitional Justice in Tunisia, 2017: Apprehensive Appraisals

Between November 17, 2016, and December 17, 2016, the Truth and Dignity Commission succeeded in holding four public hearings for the victims of the authoritarian era. These hearings attracted attention beyond Tunisia, and the reactions showed that a significant portion of the public supports the commission’s work. Hence, it was hoped that 2017 would be a successful year for transitional justice. But this hope was not realized even though the commission held eight hearings that year. Rather, the opposite occurred: after the commission faced mounting crises, the last quarter witnessed a revival of the processes that occur in parallel with the transitional justice processes.

Reconciliation from Outside the Transitional Justice Processes

During 2015 and 2016, President Beji Caid Essebsi did not achieve what he had promised at the beginning of his presidency in terms of a swift reconciliation with businessmen and officials accused of being embroiled in corruption before the revolution. The bill that he presented for this purpose[1] was opposed by social forces that considered it a coup against the principle of accountability. It did not gain the required majority as the political parties disagreed on the conditions of the reconciliation and each one stuck to its own conception.

Not much changed with the onset of 2017. Reconciliation had turned into a subject of political dispute between the two constituents of the parliamentary majority, namely the Nidaa Tounes party and the Ennahda party. The former stuck to the presidency’s conception of reconciliation, while the latter proposed a comprehensive reconciliation that adds to that conception a clause ensuring that the victims are rehabilitated and compensated for their damages.[2] Reconciliation was also a subject of dispute between the opposition, which openly rejected it on the grounds that it whitewashes corruption, and the majority, which stuck to it and considered it a political due whose time had arrived. This political situation compelled the presidency to announce that it was sacrificing the greater portion of its draft and retaining just the clause granting amnesty to public servants charged with financial corruption but not proven to have financially benefited themselves. Subsequently, on September 13, 2017, the amended bill was approved despite the objection of opposition parties and several social forces. The president stamped it after the challenge to its constitutionality failed because the body that monitors the constitutionality of laws was unable to examine it within the set timeframe.

The reconciliation law was actually only a reflection of the political actors’ abandonment of the idea of linking reconciliation to transitional justice. The party landscape and, previously, the appointments in government positions have revealed a comeback of figures of the pre-revolution political regime. The latter are now called “competencies” in an implicit comparison between them and the officials behind them described as incompetent. Because of this mood, transitional justice processes have lost their pivotal role in the realization of the democratic transition. Thus, the defeat of the political exclusion bill[3] and the participation of those who worked with the pre-revolution regime[4] have become hallmarks of its success.

The Transitional Justice Process: An Agreement on Failure and a Search for Closure to Cover the Disappointment

Although the commission held eight sessions during 2017, it failed to preserve the gains achieved for it in 2016, particularly after the last of these sessions – which addressed the buckshot incidents in Siliana – became the theme of a crisis.

The Crisis of the Hearing on the Buckshot Incidents in Siliana

The announcement of a public hearing for the victims of the buckshot incidents in Siliana divided their commission’s council into two conflicting factions. The first included four of the commission’s members who accused its president, Sihem Bensedrine, and her associates of singlehanded decision-making and mismanagement. Bensedrine repelled their accusation by accusing them of loyalty to the Ennahda party and striving to serve its interests from within the commission.[5] The dispute ended suddenly with a reconciliation between the two sides. The reconciliation’s clauses were based on forgetting the accusations exchanged, which had been hastening the termination of the transitional justice process.[6] One effect of this reconciliation was that in the opening of the hearing that prompted the dispute, the commission’s president affirmed the political leaders’ innocence of the events concerned. The hearing, as a result, provoked a segment of the political community, which considered it a political action for the benefit of Ennahda.[7] This signaled the commission’s forthcoming end.

Nine Members Unable to Extend Their Term

At the end of 2016, the Truth and Dignity Commission’s council issued decisions dismissing two of the commission’s members. A year earlier, the same council had dismissed another member.[8] While those aggrieved by the dismissals obtained summary rulings from the Administrative Court to stay the execution of these decisions, the commission’s president refused to implement these rulings. Additionally, from 2014 to 2015, three members resigned from the commission’s council. Consequently, their number fell to nine.

The beginning of 2017 suggested that the objections that had come to follow the administration of the commission and caused the division in its council could not impede its work given the cohesion of the political cover that it enjoys, which consists primarily of Ennahda MPs.[9] The commission’s president and, behind her, the supporters of the transitional justice process were assuming that parliament would, before the end of the commission’s term in mid-2018, have to elect new members to fill the vacancies in its council and thereby allow it to adopt a decision to extend the term for another year. The extension decision legally requires a two-thirds majority of the commission’s members, i.e. at least ten.

The Ennahda block in Parliament, as well as the opposition parties, seemed committed to this due for the sake of continuity in the transitional justice process. However, the parties with a constitutionalist background showed determination to prevent its issuance, arguing that the commission must abide by the judicial decisions to restore its dismissed members before demanding that the vacancies in its structure be filled. On January 25, 2018, the vote in parliament’s bureau ended in a decision refusing to refer the issue of filling the vacancies to the general assembly before the legal dispute concerning the dismissals is over. In practice, this decision ended any chance of extending the commission’s work because of the absence of the quorum needed to do so.

Activating the Specialized Judicial Departments at the Last Minute

On August 8, 2014, the Tunisian government issued the order creating the judicial departments, or chambers, specialized in transitional justice. The Temporary Body for the Judiciary appointed their judges for the first time on November 13, 2015. However, the Truth and Dignity Commission abstained from referring any judicial case to these departments despite intense pressure from the victims.[10] These bodies would have been all but neglected were it not for the Supreme Judicial Council’s intervention to fill the vacancies in them on December 8, 2017, at the commission’s request. This indicates that the commission’s council is preparing, in anticipation of the end of its term, to refer court cases to these bodies in what it sees as a success and a way out for it. At the same time, the commission has strived to ensure the Fund for Dignity and Rehabilitating the Victims of the Authoritarian Period set up before the end of its term is announced. The establishment of this fund will achieve a portion of the expectations of more than ten thousand victims demanding their dues. President Essebsi’s speech on the revolution’s seventh anniversary confirmed a number of these courses, for he stated that the fund would appear soon and that a list of the revolution’s martyrs and wounded would be announced before the end of March 2018.

Hence, the most important drivers of transitional justice will likely launch after the end of the Truth and Dignity Commission’s term and as a way out for it.

This article is an edited translation from Arabic.

[1] Mohamed Afif Jaidi, “Min al-‘Adala al-Intiqaliyya ila al-Musalaha al-Wataniyya fi Tunis: Quwwat al-Mal Tafrid Qawa’id al-Musalaha”, The Legal Agenda, July 24, 2015.

[2] The president of Ennahda’s Shura Council Abdelkarim Harouni defined comprehensive reconciliation as “ending all divides between Tunisians and every attack on the rights of the oppressed and giving a chance to whoever wants to participate in the path of the new Tunisia in order to benefit from their competencies”. Statement to Tunis Afrique Presse on September 23, 2017, on the occasion of the Shura Council’s 15th cycle.

[3] The president of the Ennahda party told Anadolu Agency, “In Libya, they enacted the Political Exclusion Law. Anyone who worked with [former Libyan president Muammar] Gaddafi, was referred to retirement. In Iraq, they enacted the de-Baathification law. We avoided this. We said that the people must be unified, old and new, Islamic and secular. This is consensus rule”. Anadolu Agency, October 20, 2017.

[4] In his speech at the opening of the Ennahda party’s annual conference for 2017, Rached Ghannouchi said, “Whoever was a [political] actor before the revolution and joined it and its system … today they are sons of the revolution like everyone else. It is necessary to work with them to achieve its goals.” Hassan al-Ayadi, “Rached Ghannouchi Ra’is Harakat al-Nahda: al-Tamassuk bi-l-Tawafuq wa-Taswiquhu Dakhil al-Haraka ‘ala Annahu Khatt al-Thawra”, Le Maghreb, December 25, 2017.

[5] “al-Tafarrud bi-l-Qarar Ya’sif bi-Hay’at al-Haqiqa wa-l-Karama: Nazariyyat al-Mu’amara Tu’akhkhir al-Islah”, The Legal Agenda, August 21, 2017.

[6] “Hay’at al-Haqiqa wa-l-Karama: Qira’a fi Bayan al-Musalaha”, The Legal Agenda – Tunisia, issue 9, November 2017.

[7] “Ba’d Jalsat al-Istima’ fi Milaff Ahdath al-Rashsh: Ittihamat ‘Adida li-Bensedrine ‘ala Facebook”, Al Chourouk, November 26, 2017.

[8] Zuhayr Makhluf, Mustafa Bazawi, and Zahra Buqira.

[9] “Intisar Hamm li-Hay’at al-Haqiqa wa-l-Karama: Madha bi-Sha’n al-‘Adala al-Intiqaliyya?”, The Legal Agenda, January 19, 2017.

[10] “al-Dawa’ir al-Qada’iyya al-Mutakhassisa li-l-‘Adala al-Intiqaliyya: al-Samt al-Tawafuqiyy Yughatti Azmataha al-Qatila”, The Legal Agenda – Tunisia, issue 8, June 30, 2017.

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