In February 2023, around 20 high profile political and business personalities were arrested in Tunisia, in what has been described as the country’s largest wave of arrests in recent years. Reminiscent of the wide-scale arrests during Zine El Abidine Ben Ali’s era (Tunisia’s president between 1987 and 2011), they involved several well-known individuals, such as Bashir Akremi and Tayeb Rached, two former judges sacked by Kais Saied in May 2022; Kamel Eltaief, a power-broker businessman who was involved with former president Ben Ali during his early days and remained prominent with ties across the political spectrum; Noureddine Boutar, director of Mosaique FM, the country’s biggest radio station; Jaouhar Ben M’barek and Chaima Issa, politicians and senior officials of the National Salvation Front; and Khayam al-Turki, a politician whose name was put forward as a potential prime minister candidate in 2020, among others. According to lawyers of some of the accused persons, those arrested were often not presented with formal charges upon arrest, yet reports indicate that some charges may include “forming a criminal gang to harm the Tunisian state,” “conspiracy against internal and external state security,” and other provisions of the penal code and the counterterrorism law. These accusations are consistent with Saied’s rhetoric which has attempted to justify the crackdown by framing those dissenting against him as corrupt persons and conspirators.
Since Saied’s power grab on July 25, 2021, political and judicial developments in Tunisia have raised serious concerns over the state’s future. These concerns have only been exacerbated alongside strong restrictions of the freedom of expression that has taken the form of intimidation tactics, detentions, and arrests. Student Ahmed Hamada was arrested on October 28, 2022 and his laptop and phone were seized. Hamada runs a Facebook page that covers police clashes with residents of working-class neighborhood Hay Tadhamon and could face up to 12 years in prison. In similar fashion, Nizar Bahloul, editor of news outlet Business News, was arrested on November 14, 2022, under charges of “defamation” and spreading “fake news.”
Both cases fall under the same framework: They were the first criminal investigations to take place under Decree-Law No. 54 issued on September 13, 2022, and also known as the new “Cybercrime Law.” This decree-law is one of the newest legal tools that Saied’s regime now has as part of its approach to quieten opposition. The decree-law comes on the heels of a series of presidential decrees following Saied’s power grab that have altered the structure of existing institutions and oversight mechanisms, and undermined legislative and judicial authorities. On September 22, 2021, Saied issued Decree 117, which effectively gave him authority to dictate government policies previously enacted by different institutions, and expanded his powers. These steps were further consolidated under the new Constitution that was voted on with a 30.5% turnout in a referendum on July 25, 2022. Having dissolved Parliament and the Higher Judicial Council, Saied was able to unilaterally rule by executive decree for more than a year in the absence of a sitting legislative body. He even rushed to issue two decrees dissolving municipal councils and regulating the second Parliamentary chamber for local governance days before the first parliamentary session after a new body was finally elected.
In sum, this decree-law expands the discretionary powers of the ministries of the interior and defense, criminalizes online content based on vague definitions, and gives the judicial police the authority to monitor and seize data in servers, IT systems, or others.
Decree-Law No. 54 is made of 83 articles divided across five chapters. Its stated purpose is to combat “IT and Telecom crimes”; it imposes prison sentences up to six years and a fine up to $20,000 for violating its provisions. Article 3 states that legal codes constituting criminal laws in Tunisia, such as the Penal Code, Code of Criminal Procedure, and Code of Military Procedures and Penalties, continue to apply to stated crimes in this new law depending on the case “with the possibility of imposing harsher punishments.” Article 9 allows for prosecutorial and judicial law enforcement to request, investigate, and collect any information system or device if deemed necessary in establishing “the truth,” without further defining the latter term. Article 24 drew the most backlash from civil society and international organizations: It imposes a penalty up to five years imprisonment and a fine of approximately $15,000 for the usage, production, publication, or spread of “false information and rumors,” with the possibility – and this is critical – to double the sentence if such content concerns state officials. Yet again, no definition is provided for nebulous terms, allowing any statements to be potentially identified as ‘rumors’ or ‘false information’. Article 35 enables Tunisian authorities to share information with foreign governments in some cases to pre-emptively detect online crimes and follow the perpetrators so long as partner states respect the confidentiality of the information. In sum, this decree-law expands the discretionary powers of the ministries of the interior and defense, criminalizes online content based on vague definitions, and gives the judicial police the authority to monitor and seize data in servers, IT systems, or others.
The decree-law has been criticized by different local and international actors, which considered it to be a clear violation of the constitutional freedoms of expression and press, as well as the right to privacy. Both the 2014 and the 2022 Constitutions contain a bill of rights, which guarantees, among others, the “freedoms of opinion, expression, media and publication” (Article 37 of the 2022 Constitution). In December 2022, the Tunisian General Labour Union (UGTT), the Tunisian Order of Lawyers, the Tunisian Federation of Newspaper Directors, the National Syndicate of Tunisian Journalists, and the Tunisian League for Human Rights issued a statement calling for the immediate repeal of Decree-Law No. 54, condemning it as a “systemic attack on freedom of expression and the press.” Similar criticism was also expressed by other entities such as the International Commission of Jurists, Amnesty, and IFEX, that highlighted the violations this decree imposes, not only to rights enshrined in the constitution, but also to other legal instruments like Decree No. 115 on the Freedom of the Press, Printing and Publishing, a prominent legislation governing media space that was passed after the 2011 Jasmine Revolution.
This escalation of events amplifies the atmosphere of repression in Tunisia and fears of the regime’s tactics in targeting and quelling freedom of expression while empowering law enforcement, an institution that has historically been the agent for repression in the country.
This escalation of events amplifies the atmosphere of repression in Tunisia and fears of the regime’s tactics in targeting and quelling freedom of expression while empowering law enforcement, an institution that has historically been the agent for repression in the country. Even before Saied’s power grab, the country had a history of discriminatory and violative laws, as well as abuses of freedom of expression stemming from the Ben Ali era. Nonetheless, the introduction of new legal instruments such as the Cybercrime Law, alongside the weakening of oversight bodies, the expansion of competences for implementing bodies, and the spike in prosecutions of opposition figures constitute serious grounds for worry over the future of the country’s state of rule of law. This is additionally aggravated by the current economic crisis and the stalled talks with the IMF (despite a staff-level agreement) to secure a final loan, which is expected to come with unpopular austerity measures. In the meantime, the Saied regime continues to tighten its grip and instrumentalize state rhetoric to target expression. At the end of February 2023, the president’s rhetoric launched a wave of racially-motivated attacks and arbitrary arrests against migrants and Black Tunisians. Hundreds marched to the street to denounce Saied’s remarks, and to continue expressing opposition against the state policies.
Mondher Tounsi is an independent consultant and researcher who works on democratic governance and conflict studies in the MENA region.
This analysis was originally published as a feature piece in Issue 1 of the Rule of Law Developments in the Middle East and North Africa newsletter, produced by Konrad-Adenauer-Stiftung Rule of Law Programme Middle East & North Africa and TIMEP.