“If organizations that defend human rights and sexual minorities are shut down, Tunisia’s image as an island of freedom and democracy in the region will take a big hit,” said Amna Guellali, Tunisia director at Human Rights Watch.
Shams registered with the government in May 2015, as a nongovernmental organization working to support sexual and gender minorities. On January 4, 2016, a first instance court in Tunis, responding to a complaint filed by the government’s secretary general that Shams was violating the Law on Associations, ordered Shams to suspend its activities for 30 days. On February 23, 2016, the court ruled that Shams was not in breach of the law and lifted the suspension.
On February 20, 2019, the Tunisian government’s head of state litigation appealed, and a hearing is scheduled for March 1.
The law on associations, adopted by the transitional government in September 2011, requires associations to “respect the principles of the rule of law, democracy, plurality, transparency, equality and human rights” as these are set out in international treaties that Tunisia has ratified. The law also prohibits associations to incite violence, hatred, intolerance, and discrimination based on religion, gender, or region.
Shams’s statement of its principles, which Human Rights Watch has reviewed, states that its aim is “to support sexual minorities materially, morally and psychologically, and to press peacefully for the reform of laws that discriminate against homosexuals.” The government does not claim that Shams has engaged in violence or promoted intolerance or hatred.
Shams has vocally supported the repeal of article 230 of the penal code, which punishes sodomy with three years in prison. Shams has publicly condemned recent arrests and prosecutions of men accused of homosexual conduct, including the conviction of a man in Sfax to eight months in prison after he complained about assault to the police. It has also denounced the use of forensic anal examinations to “test” men for evidence of homosexual conduct.
The government appeal, which Human Rights Watch has reviewed, contends that Shams’ stated objective in its bylaws, to defend sexual minorities, contravenes “Tunisian society’s Islamic values, which reject homosexuality and prohibit such alien behavior.” It further argues that Tunisian law, which criminalizes homosexual acts in article 230 of the penal code, prohibits the establishment and activities of an association that purports to defend such practices.
The law on associations gives the judiciary the authority to determine whether an association should be suspended or dissolved. This involves a three-stage process, beginning with a government-issued warning, followed by a government application to the Court of First Instance in Tunis for a 30-day suspension. If the court upholds the petition, it suspends the association for 30 days, after which the court can dissolve it if it is deemed to have failed to correct the infractions.
“Tunisia, since the revolution, has been one of the very few Arab countries where LGBT organizations have been able to operate openly,” Guellali said. “It should be nurturing, not handicapping a diverse civil society.”