In recent years, civil society in Tunisia has been confronted with attempts at curtailing its space through proposed amendments to Decree Law 88 on associations, amendments that have been criticized by pro-democracy actors. Critics of the Decree Law 88 have pointed to its reliance on foreign funding, its limited reach within local communities, and its tendency to divert promising young activists who could otherwise have bolstered the ranks of political parties.
A positive balance sheet
While these criticisms hold some truth, it is crucial to acknowledge that civil society has made overwhelmingly positive contributions over the past decade to Tunisia’s democratic transition and society at large. Emerging entities like Al Bawsala and I-Watch have played pivotal roles in fostering a culture of accountability among decision-makers and institutions. Longstanding organizations like the Tunisian League for the Defense of Human Rights (LTDH) have leveraged their political acumen and connections to guide the country through political impasses, a feat that led to receiving the Nobel Peace Prize in 2015, alongside unions and the Tunisian Bar Association. Civil society organizations, particularly those championing individual freedoms, have been instrumental in advocating for the decriminalization of LGBTQ+ rights and recreational drug use, among many other things. These initiatives have reshaped public attitudes and advanced important causes. Additionally, the impact on the careers of countless Tunisians, especially the youth, who have either worked, undergone valuable training, or volunteered with civil society organizations, cannot be underestimated. In a nation grappling with the pervasive issue of youth unemployment, civil society has provided opportunities for growth, learning, and meaningful engagement that have left an indelible mark on Tunisia’s future.
This transformation was made possible essentially through the enactment of Decree Law 88. This exceptionally progressive legal framework was implemented in the wake of the 2011 revolution by the Higher Authority for the Realization of the Objectives of the Revolution to break the locks that had been put over public life in Tunisia for decades and to help govern the democratic transition. For example, Decree Law 88 removed the authorization system in place under former President Zine El Abidine Ben Ali, simplified the registration process for organizations, loosened the grip on foreign funding while introducing strict accountability and transparency norms, and introduced judicial guarantees for the dissolution of NGOs.
This crucially important ecosystem faces an imminent threat as the impending amendment of Decree Law 88 looms on the horizon.
This legislation effectively led to a dynamic and flourishing network comprising thousands of NGOs. While official figures cite the existence of 24,000 NGOs, a rough estimate of only 10 to 20 percent of them are still active. These organizations are not only engaged in vital issues related to the democratic sphere, such as promoting good governance and safeguarding individual and minority rights, but they have also extended their influence into diverse domains, including the arts, education, and sports.
This crucially important ecosystem faces an imminent threat as the impending amendment of Decree Law 88 looms on the horizon.
A legislative process that precedes Kais Saied
Discussions surrounding changing Decree Law 88 are not a recent development, as previous attempts were made in 2017 and 2018, driven by Tunisia being on the EU list of “high-risk” third countries for money laundering and terrorism financing. This followed its inclusion on the same type of list from the Financial Action Task Force (FATF), an intergovernmental organization founded by the G7 to combat money laundering and terrorism.
In this context, Democracy International—an American organization active in the fields of elections—launched with the American embassy in Tunis consultations with the objective of amending the law. A (democratic) struggle ensued between experts, DI, the government, and civil society. At that time, the Tunisian government abandoned its plans to reform the decree, primarily due to three key arguments presented by civil society. First, the government contended that it already possessed adequate legal mechanisms in the form of Decree Law 88, which is already widely recognized as a comprehensive legal framework for governing civil society activities. Second, the government faced challenges related to the lack of human and technological resources required for effective oversight and regulation, rather than a shortage of legal instruments. Finally, in the absence of a constitutional court and the prevailing hostility toward civil society within the parliament, there were insufficient guarantees that the reform would not be exploited to restrict civic space.
With the shifting political landscape in the wake of the 2019 elections and the onset of COVID-19 pandemic, it appeared like projects for amending Decree Law 88 were abandoned, at least in the medium term. However, it is only with the authoritarian turn initiated on July 25, 2021, that fears of amending Decree Law 88 were rekindled.
A more dangerous legislative initiative in a changed context
The current Tunisian government seems more determined than ever to change legislation related to civic space, only this time, in a context of far fewer democratic safeguards and increased repression on freedom of expression and assembly. Needless to say that the recommendations made by civil society to reinforce the administrations in charge of controlling civil society organizations were never put in place.
In February 2022, a draft law circulating within the Tunisian government was leaked, showing that there were new plans to change the decree law. Attention was focused on three main elements: extensive discretionary power granted to the administration especially in the creation of civil society organizations, removal of judicial guarantees in the sanctioning of civil society organizations, and control on the reception of foreign funding. In addition, other articles with very elastic dispositions were introduced. For example, the law could strip civil society of its main tools of action: according to the leaked text, access to information for NGOs is limited to those that have “a vested interest” while the publication of reports or any other types of documents are only possible within the framework of “professionalism and integrity.”
The leaked text was shortly followed by the first remarkably hostile declaration from Kais Saied toward civil society organizations, perceived as a direct endorsement of reforming the decree. During a ministerial meeting held in late February 2022, Saied considered civil society organizations as “an extension of foreign powers that seek to control the Tunisian people with their money,” and expressed the need to change the legal framework to ban foreign funding.
No one escapes populist rhetoric
Although this specific project appears to have been temporarily shelved, Saied continued to deliver fiery speeches critical of civil society organizations. The culmination of tensions occurred following the migrant crisis triggered by the president’s remarks. His comments were followed by a wave of racism and violence from both state and non-state actors against vulnerable communities, with disturbing reports and allegations of mass deportations in harsh desert conditions. National and international NGOs condemned such rhetoric and attempted to provide assistance to the migrants. However, they faced criticism from Saied, supported by Foreign Affairs Minister Nabil Ammar: during an interview with The Washington Post, when pressed on NGO reports concerning the mistreatment of migrants, Ammar resorted to familiar insinuations about foreign agendas driving those NGOs.
More recently, during a visit to the central bank, Saied called for heightened scrutiny by the Tunisian Financial Analysis Commission (CTAF), the financial intelligence unit of the country, regarding the funding of “certain associations,” that he believed were receiving money from abroad that was transferred to political parties. However, it is important to note that this controlling duty goes beyond the legal mandate and the capacity of the commission according to its former general secretary.
Following the leak of the draft law and the swift response from civil society and international condemnations, including that of United Nations High Commissioner for Human Rights Michelle Bachelet, efforts to revise the decree came to a standstill. With the government operating in full opacity, there was little information available until the latest Universal Periodic Review (UPR) in November 2022, during which civil society was informed of intentions to amend the legislation governing its activities, officially to combat money laundering, terrorism financing, and collusion between political parties and civil society organizations.
A parliament aligned with the president
While the executive branch hesitates, the recently established parliament grows increasingly impatient. After rejecting the previous parliamentary practice of providing civil society (and journalists) access to the workings of parliamentary committees, the new parliament is now at the forefront of efforts to amend the legislation governing civil society organizations in Tunisia.
Ibrahim Bouderbala, the president of the assembly and a staunch supporter of President Saied, issued a warning regarding the perceived dangers of foreign financing for NGOs. He also cautioned that if the government failed to present a new legislative proposal, a group of MPs was prepared to take the initiative. On October 10, 2023, Fatma Mseddi, a former MP affiliated with both Nidaa Tounes and Machrouu Tounes, who also became one of Saied’s ardent supporters and vocal critics of the past decade, submitted a legislative initiative with a group of 10 MPs. Their aim is not only to amend, but to entirely replace Decree Law 88.
The draft law, which is inspired from legislation from other Arab countries, was forwarded to the Rights and Freedoms Committee on October 12, 2023. It contains alarming provisions that are completely at odds with norms related to the freedom of association. The narrative and intentions behind the draft law are evident from the outset. The explanatory statement characterizes the Higher Authority which adopted Decree Law 88 as an entity that has “caused havoc” and “dismembered the state,” by adopting, among other things, a text that “legalized corruption, terrorist networks, and money laundering.”
The draft law, purporting to encapsulate the spirit of national sovereignty as outlined in the 2022 Constitution, seeks to enforce a series of stringent restrictions on the establishment of NGOs, particularly international ones. It effectively transforms Tunisia’s existing declaration system into an implicit authorization system, granting the executive branch direct oversight and surveillance over NGOs concerning their financing and activities, and placing the reception of foreign funding at the discretion of the executive.
Within its provisions lie the customary vague and broadly defined clauses, affording the government ample latitude to penalize civil society organizations that fall out of favor. It also removes the judicial safeguards that currently exist for the dissolution of organizations if they are suspected of terrorism; a very worrying disposition in the context of increased use of anti-terrorism law against the political opposition. Paired with the striking erosion of the independence of the judiciary in Tunisia, these amendments have the potential to crush civil society, especially those actively engaged in democracy and human rights.
The numerous declarations originating from the president, coupled with leaked legislative texts predating the current parliamentary initiative, strongly indicate an imminent shift toward more restrictive civil society-related legislation, whether the current draft law advances in parliament or not.
However, concentrating solely on the amendment to Decree Law 88 would obscure the multitude of factors contributing to the narrowing of civic space in Tunisia. Additional legislative measures, such as the passing and enforcement of Decree Law 54—ostensibly targeting defamation and cybercrime but effectively acting as an anti-freedom of expression law—have further constrained the space for expression and contest, including for civil society. Yet, beyond these legislative threats, civic space has witnessed a significant contraction over the past two years due to a convergence of factors and practices that have become increasingly prevalent. Blaming the president exclusively oversimplifies a trend predating President Saied’s tenure, with roots extending deeper than his individual declarations.
A smothering atmosphere for civil society
Indeed, amidst a backdrop of broader state-level machinations with respect to the draft law, changes in the political sphere often translate into attacks on actors at the forefront of preserving civil society. Attacks, defamation campaigns, and intimidation, originating from reactionary forces and the security apparatus, have become a daily reality for civil society organizations operating both in Tunis and across the regions. These attacks occur in a climate of complete impunity and find resonance within the realm of social media, where conspiracy theories tend to flourish.
Kais Saied’s regime, as well as the success of his July 25 coup, fundamentally relies on the backing of a security apparatus historically distrustful of civil society. Their deployment has often been marked through several documented physical assaults on activists. To illustrate, a few months after July 25, 2021, Badr Baadou, a prominent LGBTQ+ activist and a founding member of the DAMJ association, was assaulted on the street by two police officers. During this incident, they stole his phone and laptop, and stated that “this is what happens when you insult the police.” Another disturbing case involves Arroi Baraket, a journalist and activist, who endured physical violence, arrest, and prosecution following a complaint lodged by police officers.
Amidst a backdrop of broader state-level machinations with respect to the draft law, changes in the political sphere often translate into attacks on actors at the forefront of preserving civil society
Other activists have been recently prosecuted because of their work. A group of prominent activists, including Mehdi Jelassi, the outgoing president of the union of journalists, have been summoned for “inciting disobedience and assault on a public official,” following a protest they organized against the referendum in July 2022. Saif Ayadi, an activist associated with DAMJ and LTDH, was abducted in broad daylight by plainclothes police officers upon his return from a press conference on police brutality. Seif Ayadi faced serious allegations, including “criminal conspiracy to prepare or commit an attack against persons or property,” and was subjected to a travel ban.
This situation underscores two notable trends. First, there is a deliberate escalation in the prosecution of activists. While previous charges against activists were relatively minor—but still carried the threat of imprisonment—the use of such serious charges sends a chilling message to civil society. Second, there is a will to clamp down on LGBTQ+ activists. DAMJ has recently published a video where a police officer, calling from a police station, clearly threatens the organization and its members.
Several instances of police interference have also been documented in recent months, particularly during events organized by civil society organizations. The process of establishing NGOs is also increasingly marred by hurdles and obstacles, making it practically impossible for individuals with no connection or legal resources to create associations or to open bank accounts. This situation echoes a return to the authorization system reminiscent of the Ben Ali era.
At the individual level, civil society workers have encountered difficulties when attempting to renew their identity cards. Police officers have refused to process their applications, asserting that NGO work must be purely voluntary and that they cannot list their job titles on their ID cards, as this is a legal requirement under Tunisian law.
A convergence of interests
During Ben Ali’s rule, well-established organizations were subjected to persistent police harassment and surveillance. During the following decade, NGOs and the security forces—embodied by the ministry of interior and police unions—remained in a perpetual state of tension which revolved around a range of issues, including police brutality and impunity, the persecution of marginalized youth, and a proposed law that aimed to grant additional protections to security forces. As a result of the activism against police impunity, young activists suffered retaliation, including prosecution as well as online harassment and public campaigns orchestrated by police unions’ Facebook pages.
In the aftermath of July 25, 2021, a convergence of interests emerged, linking a president who dismissed all intermediary bodies—political parties, unions, media, and civil society—with a resentful security apparatus. Civil society now finds itself in the crosshairs of an impending overhaul of Decree Law 88 that has enabled its growth over the past decade, while the regime is increasingly resorting to both old and new repressive measures to stifle opposition.
Civil society is being systematically pushed to the margins. Yet, the most ominous aspect of this situation lies in its long-term repercussions. Beyond the immediate threat posed by an escalating authoritarian regime, there is a subtler facet to the erosion of civic space in Tunisia. The Tunisian authorities’ attempts to vilify civil society organizations and their leaders within society is dissuading Tunisians, particularly the youth, from engaging with NGOs; yet another step in President Saied’s methodical dismantling of Tunisia’s democratic aspirations.
Lamine Benghazi is a Nonresident Fellow at TIMEP focusing on rule of law and the judiciary in Tunisia, with particular attention to criminal justice reform, transitional justice, and the independence of the judiciary.