(Tunis) – Tunisia’s parliament should carry out a reform agenda to address ongoing human rights problems in the country, Human Rights Watch said today as the new People’s Assembly is inaugurated.
The new parliament, elected October 6, 2019, should strengthen rights protections by electing its allotted quota of Constitutional Court members, revising laws to eliminate gender discrimination in inheritance, and eliminating penal code articles that criminally sanction peaceful speech and homosexuality. Parliament should also develop a plan to carry out the recommendations of a national truth commission to make the security services more accountable and the judiciary more independent.
“Tunisian lawmakers should finally set up the Constitutional Court to provide a long-overdue safeguard against repressive legislation, old and new,” said Amna Guellali, Tunisia director at Human Rights Watch. “Tunisia’s democratic gains will remain fragile until it puts into place the checks and balances that the 2014 constitution provides.”
The legislative elections yielded a fragmented parliament, with no party capturing more than 25 percent of the seats. The Islamist Ennahda party came in first, with 52 out of 217 seats, closely followed by Qalb Tounes party, newly created by the media tycoon Nabil Karoui.
While making progress on detainees’ and women’s rights, the previous parliament failed to complete its part in establishing the Constitutional Court or to eliminate even one of the many laws that are still being enforced to imprison Tunisians for speech offenses. Security services torture detainees in their custody with virtually no penalties. Women face discrimination, including in inheritance, and sexual minorities are imprisoned under a penal code provision criminalizing homosexuality.
The constitution provided for the creation of a Constitutional Court, with powers unmatched among similar bodies elsewhere in the Arab world, to strike down laws deemed unconstitutional. The constitution provided that the parliament would designate 4 of the court’s 12 members, after which the president and the Supreme Judicial Council, an independent body overseeing the appointment and promotion of judges, would each choose 4 of the remaining 8 members.
The previous parliament, which served from 2014 to 2019, held 7 sessions to select members but succeeded in designating only 1 who had the required 145 votes out of 217, stalling the process.
Parliament should also eliminate the articles in the penal code and other laws that authorities have used repeatedly to investigate, charge, and in some cases detain journalists and social media activists merely for peacefully criticizing public officials. Human Rights Watch documented the cases of at least 35 people prosecuted since 2011 for comments on social media platforms or declarations criticizing high public officials, accusing them of corruption or allegedly insulting them.
The charges frequently include accusing public officials of crimes related to their jobs without furnishing proof of their guilt, under article 128 of the penal code which provides for up to two years in prison, article 86 of the telecommunications code which provides for one to two years in prison for anyone who “willfully or knowingly harms others or disturbs them via public telecommunications networks,” or article 67 of the penal code which punishes anyone “guilty of insulting the head of state” with up to three years in prison. Articles 245 through 247 define defamation and “calumny” as criminal offenses punishable by six months and one year in prison, respectively.
Parliament should create a special parliamentary committee, mandated by the country’s 2013 transitional justice law, to oversee the implementation of the recommendations made by Tunisia’s Truth and Dignity Commission (Instance Vérité et Dignité, IVD).
The commission on March 26 released its final report analyzing and exposing the institutional networks that enabled successive Tunisian governments to perpetrate human rights abuses over five decades. The report, the result of five years of investigations by the commission, recommended judiciary and security force reforms to bar a return to systematic abuses.
Among other recommendations, the commission highlighted the need for Parliament to increase security force accountability and to ensure that all abuse allegations are investigated promptly, effectively, and independently. It recommended creating a parliamentary committee with strong prerogatives and the authority to oversee security service operations.
It also recommended amending the law to restrict the mandate of military justice to military crimes committed by military personnel. Military courts still exercise jurisdiction over civilians, and several bloggers have been tried for “defaming the army” under article 91 of the Code of Military Justice.
Parliament should take the landmark step of granting women equal rights in inheritance. The late President Beji Caid Essebsi submitted a draft law to Parliament on November 28, 2018 that would amend the 1956 Code of Personal Status which provides that men would normally inherit twice the share that women inherit, based on an interpretation of Islamic sharia law. The proposed amendment would insert a section on inheritance in the Personal Status Code that would make gender equality in inheritance the default, except when the person whose inheritance is involved formally opts out during their lifetime and chooses instead to have their wealth distributed according to the previous legal framework.
Tunisia is obligated under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), to which it is a state party, to remove discrimination against women in law. On May 23, Parliament approved the ratification of the Maputo Protocol on the Rights of Women in Africa, which imposes similar requirements.
Parliament should also work to protect the rights of sexual and gender minorities in Tunisia. It should eliminate article 230 of the penal code criminalizing sodomy, which is used extensively by police and prosecutors to arrest and charge men and trans women under the suspicion of same-sex relations. The arrests are usually accompanied by many violations of their rights, including forced anal examinations to attempt to determine the sexual orientation of the men, an antiquated practice that has no scientific value and can amount to torture. Parliament should ban the use of anal examinations in all cases to “test” for homosexual conduct.