At the end of 2012, the Tunisian governing coalition submitted to the Tunisian National Constituent Assembly (NCA) the Transitional Justice Draft Law the government had written up in cooperation with a number of powerful social players. It was expected that the draft law would be on the list of priorities of the legislative authority, especially that primary political players all agreed on the importance of such a law. However, the draft law has been shelved for half a year. It has been left in a state of neglect, uninterrupted except by occasional debate sessions held by the legislative committees. This delay in dealing with the law is a result of the NCA’s slow handling of legislative affairs, and members being absorbed in constant conflicts that are unrelated to matters of priority.  

In return, political parties representing the ruling majority were advocating a different draft law for trials of past crimes. The proposed Law for the Protection of the Revolution allowed for political isolation of pre-revolution regime members. The ruling majority defended the idea that said law is an essential gateway for laying the foundation of transitional justice. The majority argued that the law’s ability to purge the political scene from ex-regime figures is of primary concern and should precede any discussions about transitional justice. At the same time, the political class sought actual normalization with the businessmen who were suspected of abusing public money and the state’s power and institutions in order to score illicit gains. The argument presented for appeasing those businessmen was that the country needed their efforts in the face of economic challenges.

This year, the debate over transitional justice has shifted from legal arrangements and revolutionary slogans to becoming a means for fighting a clandestine political conflict and further rearranging future political alliances. In efforts to pass a law that allows for the the isolation of their ex-regime political adversaries, the ruling parties rallied behind the banner of accountability. They had realized that their adversaries were still able to control a large section of the political arena. The opposition on the other hand, sought electoral alliances with rising political forces to benefit from the latter's influence. In fact, in the wake of elections held in October 2011, the opposition realized that its capacity to reach out to voters was weak. Therefore, it rejected the Political Isolation Law and engaged in publicly-announced alliances with those previously considered enemies of the revolution and remnants of the dictatorship.   

The NCA failed to grasp the intensity of the conflict and to contain the emergent contradictions. It neglected the growing talks about Transitional Justice Law. As a result, the public square facing the NCA building became the hub for an open political conflict throughout the summer of 2013. The political slogans raised during the open street conflict made it clear that the law for the Protection of the Revolution and the legal prosecution of businessmen accused of corruption was at stake.

Even before declaring an end to the political crisis, peace mediations between the government and its adversaries were pretty straightforward in handling the deeply entrenched disputes. They were mainly focused on what was considered a project for Transitional Justice. The ruling powers have indeed declared their acceptance of the conditions set forth for reconciliation. Several parties within the government and the majority ruling Ennahda party withdrew their support for the proposed Law for the Protection of the Revolution. This withdrawal will in turn prevent any exclusion of politicians linked to the autocracy days.

Last August, the government declared, via the minister in charge of the political portfolio, that the coordination committee session held by order of the Higher Council of Fight against Corruption and Recovery of State Properties and Assets, is heading towards resolving the case of the businessmen charged with corruption by drafting a law specially catered to such cases.

The said law would restricted to economic offenses to the exclusion of tyranny-related and other offenses. Such a resolution will secure the public’s right to the money that was stolen or illicitly used for profit. As the crisis that shook Tunisia started to ease, it became clear that things were moving towards reconciliation. The ex-regime’s politicians and businessmen on the grounds were seen as an essential political constituent of the country. In fact, everybody sought the sympathy of the dictatorship's prominent members in an open quest to ally with them for future political and electoral stages.

Thanks to their power of political lobbying or their financial influence, the political players had the legal cases that were launched against them processed faster. On the other hand, those charged with involvement in the misuse of public authority will see their cases linger for a lengthy period of time. Whether for abuse of human rights or facilitation of the pilfering of public money, those cases were relegated to the regular judiciary level to be prosecuted separately from any mechanism of transitional justice. This discrepancy came about after politicians concurred on refraining, in the time to come, from presenting any law to the legislative council so that the council can devote itself to drafting the constitution and preparing election law.  

Ironically though, the political bargain –that is now becoming clearer and in which interests and alliances have the final say– has led to the same result that the Transitional Justice Draft Law, if adopted, would have brought about.

The Transitional Justice Draft Law has been on the debate table for two years, and the country’s civil powers who participated in preparing the draft law considered it to be a pioneer experience in model transitional justice.

The law includes two types of offences related exclusively to the abuse of power:

Violations of human rights, including, crimes of torture, inhuman or degrading practices, rape, homicide, enforced disappearance and other forms of physical abuse. It primarily concerns state employees in charge of law enforcement who have intentionally exerted physical or psychological pressure on the victims. The transgressions took place in the context of combating social movements, managing political conflicts between the authorities and their adversaries among the opposition, or in the process of launching judicial searches.

Financial and administrative corruption offences, including looting of public wealth, abuse of power for personal gain or for the profit of others on the level of high-ranking government officials. These type of offences mainly concern “men of money and business” who exploited their role within, or their connections to, political decision-making circles in order to steal public money.

In relation to human rights violations, the law stipulated that judicial departments within courts of first instance should be established and assigned the tasks of accountability and punishment. Contrary to what previous laws stipulated, the draft law ensured that the effect of the statute of limitations will not apply to crimes of torture. Hence, in the case of reconciliation between perpetrator and victim, criminal prosecution shall not cease and shall be a reference in determining the punishment (Chapter 16, Draft Law for Transnational Justice).

The exact opposite was decided regarding financial corruption cases. Chapter 47 stated that the Conciliation and Arbitration Committee shall inspect reconciliation requests in financial corruption cases. Upon conclusion of reconciliation, public prosecution is no longer permissible and accountability is unattainable.

The drafters of the said law sought to pursue all pre-revolution human rights violations, thus depriving those accused of human rights violations from invoking the statute of limitations. However, the drafters’ approach to financial corruption offences was very conservative. Such offences were only mentioned under the chapter of reconciliation without specifically defining these offences or setting procedures for handling such cases. The draft law was silent on holding senior politicians who sponsored corrupt authoritarian rule accountable. Furthermore, the law failed to address offences not covered by criminal law but worthy of investigation, and in doing so, acknowledged its own failure to implement political accountability.

Consequently, the concept of transitional justice, as drafted by the experts, was catered to accommodate politicians’ deals and disputes. On one hand, it was agreed that ex-regime members and employees accused of state crimes will face prosecution and punishment irrespective of calls for reconciliation. On the other hand, there was an open call to speed up the reconciliation process with the businessmen to save them from punishment. These businessmen might be required later to pay reparations comprising of a minimal fraction of their wealth; a wealth they will still be able to enjoy.

Meanwhile, the unspoken rule of keeping quiet about political corruption has meant that the barons of the old regime were able to remain part of the political scene after the revolution. The power of money has saved its protégés from punishment, and political fanaticism protected politicians from any indictment, even from an ethical point of view, while everybody else fell in the trap of accountability and punishment. All this took place within the framework of drafting a law and later incorporating it into a political practice that stood on the law’s ruins. At the same time, the slogans of Tunisian political discourse changed. The lustrous “accountability before reconciliation” slogan was replaced by talks about national interest and securing public welfare in order to preserve Tunisian lives and safeguard social peace.

It is true that slogans are changing according to the moment’s priorities. However, if we are to evaluate the general orientation in Tunisia, it should first be admitted that seeking reconciliation with the business world might be a justifiable approach in tackling developmental needs. This is especially true when we consider the concept of transitional justice at its essence: a response to an indubitable need for reconciliation that would ensure getting over the past and working towards building the future. Also, political reconciliation might seem the necessary guarantee to prevent conflict from reaching a dead-end.

Ensuring that human rights violators are held accountable may in turn be about staying true to the principle of transitional justice. Transitional justice is about uncovering past violations in order to cut all ties with injustice and put an end to impunity to prevent the return of the old tyrannical regime.

But those wielding political or financial power were dealt with differently compared to those who violated human rights while -at times- following the former’s direct orders. Such discrimination raises many questions as to the fairness of the criteria adopted by such justice; call it transitional justice or political wheel-dealing.

Transitional justice came in vogue after the revolution. It has been the favorite subject of fervent discussions in elite clubs and fancy hotel halls for a long time now. The outcome was a draft law, supposedly for accountability, that took into account the balance of forces of the parties to be held accountable. Politicians ended up excluding the draft law and putting in place a tailored selective justice echoing the same ideas presented by the experts (who drafted the law), and endorsing the same contradictions. Reference to hybrid justice shows that concepts of transitional justice marketed by international expertise through every stage of democratization might in fact be all about reconciliation deals. Under such deals, the principles of justice are being sacrificed while the concept itself is formulated using slogans that ensure its acceptance. The setback of the transitional justice project in Tunisia might actually give us a glimpse into the predicament of beautiful ideals.  

 

 

Transitional Justice as Defined in the Initial Draft Law for Regulating the Foundations and Competence of Transitional Justice

Chapter One: Transitional Justice for the purposes of this law shall be defined as the integrated path of mechanisms and means adopted to understand and redress past violations of human rights by uncovering the truth, holding those responsible accountable and ensuring reparations for the victims. Transitional Justice should be implemented in such a way to achieve national reconciliation, preserve and document the collective memory, guarantee the non-repetition of the past and transit from an authoritarian to a democratic regime that would contribute to the consecration of Human Rights.

This article is an edited translation from Arabic.