In the decade since Mohamed Bouazizi’s self-immolation ignited region-wide protests in 2011, Tunisia’s journey toward democracy has been marked by relatively free and fair elections and political polarization. While Tunisia’s state security and military forces have stood at the cusps of the country’s democratic transition, that reality drastically foiled when President Kais Saied decided to consolidate political power through unilateral executive decree on July 25, 2021. The increasing role of Tunisia’s state security and military in the administration of justice over civilians, however, predates the rise of a Saied-led autocracy and stems from a long-standing culture of impunity for state-sanctioned violence, countless political impasses, and legislative loopholes. Once hailed as the only country in the region with a progressive constitution and a judiciary devoid of militarized policing, Saied’s recent erosion to the rule of law undermined judicial independence and impartiality, threatened civil liberties and fundamental freedoms, and disrupted Tunisia’s system of checks and balances. The following explainer assesses how interference from the executive, state security, and military institutions have effectively dismantled judicial independence in Tunisia since July 25, 2021.
The president consolidates power
A ballooning political and economic crisis compounded by the effects of the coronavirus pandemic and a strained civil society set the backdrop for President Saied’s use of emergency measures under Article 80 of the 2014 Constitution. By invoking Article 80, Saied seized the opportunity to unilaterally suspend the parliament, revoke immunity for elected officials, and give the president control of the Public Prosecutor’s office. The sweeping presidential overhaul of government institutions—fraught by entrenched issues of political stalemate, public corruption, and dysfunctional oversight mechanisms—replaced Tunisia’s rule of law and constitutional order with highly contested executive decrees.
Tunisia’s 2014 Constitution was considered monumental for the emphasis it placed on judicial independence and oversight mechanisms, providing an advanced framework to guarantee access to justice
Tunisia’s 2014 Constitution was considered monumental for the emphasis it placed on judicial independence and oversight mechanisms, providing an advanced framework to guarantee access to justice. However, it was outlived by a slate of executive decrees and a new constitution in 2022.
While some of the constitutional checks to maintain a balance of power between branches of government failed to come to fruition ahead of President Saied’s overreach—most notably the Constitutional Court—Decree No. 117 of 2021 institutionalized Saied’s practice of governance by executive-decree laws while rendering them supreme to the 2014 Constitution. It also provided him with unchecked authority to delegate law-making responsibilities and control the judiciary.
By dissolving the Higher Judicial Council, the country’s only oversight body designed to maintain judicial independence by capping the number of presidential appointments among other measures, Decree No. 11 of 2022 granted the president with nearly exclusive control over judicial reforms, and the nomination, appointment and removal process of judges for the newly created temporary judicial council.
President Saied’s increasing control of the judiciary was soon paired with blanket dismissal powers. Decree No. 35 of 2022, passed on June 1, 2022, granted the president with the authority to remove judges and prosecutors without notice or justified cause. Dismissal under Decree No. 35, moreover, triggers automatic criminal proceedings against the targeted judicial official. As part of an alleged crackdown on public corruption, illicit conduct, and perceived threats to the integrity of the courts, Saied used Decree No. 35 to summarily dismiss 57 judges and public prosecutors on the same day the decree was made available to the public. Despite an administrative court issued decision ordering 49 of the 57 judges reinstated on August 14, 2022, the Ministry of Justice refused to enforce the reinstatement order purportedly due to additional criminal charges levied against the judges, including “obstructing terrorism-related investigations, financial and moral corruption, adultery, and participating in alcohol-fueled parties.”
Politically motivated attacks on the judiciary at the behest of presidential orders have been widespread and not limited to judges. Since Article 3 of Decree No. 117 of 2021 effectively suspended parliamentary immunity, members of the political opposition also faced judicial prosecutions in reprisal for criticizing Saied’s power grab. Such arbitrary practices not only violate basic fair trial and due process rights, but also have a chilling effect on the public’s confidence with the justice system.
The 2022 [Constitution] effectively consolidated Saied’s self-appointed powers invoked under Article 80 of the 2014 Constitution and ratified in Decree No. 117 of 2021—reverting Tunisia’s momentary strides toward democracy to near autocracy
In another significant assault to Tunisia’s judicial independence, President Saied repealed the 2014 Constitution and passed a new constitution through a highly-contested referendum. Replaced by exclusive presidential appointment powers, the electoral process for appointing judges to the Supreme Judicial Council under Article 112 of the 2014 Constitution was diminished to a mere consultative function. Article 96 of the new constitution grants the president unchecked authority to declare a state of emergency of indefinite duration; emergency measures are not subject to judicial review and safeguards to protect individual rights during states of emergency are absent. The prohibition against arbitrary suspension or dismissal of judges, previously guaranteed under Article 107 of the 2014 Constitution, was also repealed to grant the executive branch exclusive discretion over judicial dismissals and sanctions. The 2022 version effectively consolidated Saied’s self-appointed powers invoked under Article 80 of the 2014 Constitution and ratified in Decree No. 117 of 2021—reverting Tunisia’s momentary strides toward democracy to near autocracy.
State security steps up
Since independence, Tunisia’s state security apparatus, apart from the military, has been increasingly more involved with the country’s political and judicial affairs. Police units were infamous under former President Zine El Abidine Ben Ali for committing acts of torture without ever being held to account, and violating due process rights and the right to fair trial and equal treatment before the law, among other coercive measures. From the targeting of perceived dissidents with violence and impunity to unlawful interrogation practices, Tunisia’s state security officials have a history of enforcing repressive state policies under the executive branch’s directive.
Since 2021, security forces—notably the police—have violently attacked protestors who were peacefully challenging the executive’s unilateral subversion of the judiciary. Arbitrary arrests and detention of individuals, often activists and members of the political opposition, have increasingly been conducted through extrajudicial processes—bypassing legal procedures and due process safeguards. The crackdown on high-profile political opponents like Noureddine Bhiri, the former Justice Minister and deputy president of Ennahda and Fathi Beldi, a former official in the Interior Ministry, have arguably been carried out through extrajudicial means. Bihri and Beldi were both arrested without a warrant or formal charges, and temporarily detained incommunicado by plainclothes officers. According to public reports, the Ministry of Interior relied on Article 5 of Emergency Decree No. 55 of 1978, which authorizes exceptional national security measures, to bypass the judiciary and arbitrarily detain political opponents.
The 57 judges and public prosecutors dismissed in June 2022 were alleged to have refused requests from the president and police to prosecute political opponents. Such interference from the executive branch with judicial investigations and prosecutorial decisions is materialized with police violence. In seeking to dismantle independent judicial oversight, police forces have stormed Tunisian courts and attacked judicial officers who refused to follow their orders, or threatened the culture of police brutality and impunity with accountability. The intimate relationship between the presidency and state security apparatus persuasively implies that there is at least a concerted effort across the executive branch to abolish an independent judiciary and consolidate presidential control over traditional judicial functions.
The military increases involvement
Although civilian-led rule in Tunisia has had some democratic shortcomings, the country’s military has relatively remained apolitical and not interfered in political and economic affairs following Tunisia’s independence in 1956. Since 2021 however, Tunisia’s military seems to be playing a growing role in the country’s political and judicial affairs.
The military’s involvement with restricting access to the parliament and preventing elected public officials from entering and fulfilling their duties, in apparent support of President Saied’s government takeover on July 25, 2021, marked a shift from their traditional apolitical approach to service
The military’s involvement with restricting access to the parliament and preventing elected public officials from entering and fulfilling their duties, in apparent support of President Saied’s government takeover on July 25, 2021, marked a shift from their traditional apolitical approach to service. In effect at the time, Article 18 of the 2014 Constitution required military members to remain politically neutral and support the country’s civilian authorities within legal parameters. Some have called into question the legality around Saied’s acquiescence of power and suspension of parliament on July 25, which puts the military at risk of having violated constitutional obligations.
More notably, however, the escalation in prosecution of civilians before military courts has been criticized by rights groups as a testament to the deterioration of the rule of law and fair administration of justice. Article 108 of the 2014 Constitution guaranteed equal treatment before the law for all persons and the right to access a fair trial. Military prosecutions of civilians, particularly since Saied’s power grab, have been marred by politicization and significant violations to due process rights and the rights to freedom from double jeopardy.
While recognizing that both civilian and military judges in military courts are appointed by presidential decrees, military judges report to the Ministry of Defense as opposed to the Ministry of Justice. Judicial conduct of military judges is also not monitored by an independent civilian oversight body. In some cases, defense lawyers have their access to relevant case files or information on interrogation and custody practices restricted on grounds of national security. The lack of transparency, inherent to military tribunals restricting the right for counsel to access information in preparation for defense, is a violation of the right to a fair trial. Furthermore, the public’s inability to attend court sessions under the pretext of national security calls into question whether a militarized judiciary can ensure effective and fair administration of justice over civilian matters.
The misuse of archaic laws has increased the government’s arsenal with additional violative tools to target political dissidents, journalists, lawyers, and other members of civil society perceived to be a threat to Saied’s rule
The weaponization of vague penal provisions under the Military Justice Code and Law No. 82-70 from August 6, 1982, often results in trumped up defamation and national security charges prosecuted before military courts. Article 8 of the Military Justice Code allows civilians to be prosecuted for direct or indirect perpetration of offenses provided in the legal text including offenses defined under Article 91 of the Military Justice Code: “anyone, military or civilian, […] is guilty of insulting the flag or the army, of attacking the dignity, reputation, morale of the army, of acts likely to weaken, in the army, military discipline, obedience and the respect due to the superiors or of criticisms on the action of the higher command or the persons in charge of the army to their dignity.” Article 22 of Law No. 82-70 criminalizes activities that threaten the ability of security forces to maintain order and preserve the internal and external security of the state. The misuse of archaic laws has increased the government’s arsenal with additional violative tools to target political dissidents, journalists, lawyers, and other members of civil society perceived to be a threat to Saied’s rule.
Regulations granting military courts with jurisdiction to prosecute civilians fail to clearly define specific activities or conduct deemed unlawful. Political gridlock within Tunisia’s now defunct legislative branch of government prevented parliamentarians from passing proper reforms to the military justice system, including a proposed legislative fix, which has been tabled since 2018, exempting civilians from their jurisdiction. Irrespective of the abusive role military courts play in enabling the government’s repression of civil society, the practice of arbitrary detention without charge, increased government surveillance, prosecutions under cybercrime and terrorism-related charges, are amongst other trends within the executive’s prerogative, which curtail the survival of an independent judiciary in Tunisia.
Reverting back toward democratization
The instrumentalization of law enforcement and judicial institutions to usurp rule of law, restrict civic space, and stifle free speech and peaceful expression of political dissent have facilitated President Saied’s unchallenged grip to power. The misuse of vague legal provisions under the Penal Code and Military Justice Code to arbitrarily arrest, detain, and prosecute members of civil society including judges, lawyers, and political opponents, are nothing short of politically motivated attacks intended to inhibit the free flow of information, freedom of expression, and public’s participation in pluralistic debate. While President Saied’s rule by executive decree will have lasting effects on Tunisia’s political stability, impartial judicial independence is part and parcel to effective democratic governance, balancing abuses of powers, and safeguarding fundamental freedoms.
Meroua Zouai is the Legal Associate at TIMEP. She has dedicated her academic and professional career to pursuing accountability for human rights violations and increasing access to justice across MENA and West Africa by working with local and international NGOs.