The prosecution of prominent blogger Yassine Ayari exposes the continuing deficiencies of Tunisia’s legal system in upholding human rights four years after the “Jasmine Revolution” set the country on a path towards democratic rule. On March 3, a military appeals court sentenced Ayari to six months in prison for allegedly “defaming the army” and “insulting military commanders” in comments he posted on Facebook in September 2014. He has been detained since January 2015.
Much has changed in Tunisia since the popular protests that forced President Zine el Abidine Ben Ali to flee the country in early 2011. Tunisia adopted a new constitution in January 2014 that was hailed as an important step towards consolidating human rights protections and re-establishing the rule of law. Yet, some repressive legal provisions left over from the Ben Ali dictatorship remain on the books and are now being used regularly by the authorities to trample human rights.
Ayari’s is a case in point. His prosecution was brought under article 91 of the military code, one of the relics of the dictatorship. This provision and other articles in the penal code have been used regularly to charge bloggers, journalists, and artists with vague accusations of “defamation against state institutions,” “insulting public officials,” and “harming public order and public morals.”
As a civilian, Ayari’s trial before a military court violated his right to a fair trial by an independent tribunal. The interim government that took office following Ben Ali’s ouster overhauled the military justice system but failed to remove the power of military courts to try civilians. The military justice system still lacks independence, with military judges formally linked to the Defense Ministry through the High Council of Military Judges. The lack of independence of military courts feeds suspicions these courts remain susceptible to political pressure.
Ayari was actually not even present when a military court first tried him on November 18, 2014, without properly notifying him of the trial, the charges pending against him, or permitting him to prepare a defense.
Tunisia needs to enforce in practice the human rights protections contained in the new constitution, and remove repressive laws from the statute books. Overhauling the laws that criminalize free speech would be a good place to start. Defamation should not be treated as a criminal offense but be made an issue for civil litigation, imposing financial damages. However, the courts should recognize that public figures, including military commanders, are legitimately subject to criticism. Bloggers such as Yassine Ayari should be able to criticize anyone without exposing themselves to the risk of imprisonment, let alone by a military court.