Tunisia’s Transitional Justice in Transition: A Critical Assessment
In early April, Mohamed Fadhel Mahfoudh, minister to the head of government for relations with the constitutional commissions, civil society, and human rights, supplied the heads of the parliamentary blocs with copies of an initial draft of a bill his government intends to present to Parliament. The bill contains the government’s vision for the future of the transitional justice process in Tunisia now that the mandate of the Truth and Dignity Commission (TDC) has ended. In his correspondence with the MPs, the minister emphasized his eagerness to receive their comments and openness to the amendments they suggest, which shows his perception of the bill’s importance and his need to achieve a consensus on its text before officially presenting it to Parliament. The draft bill was leaked from within Parliament in a step apparently aimed at gauging social reaction to it.
This process shows the peculiarity of the context in which the bill was put forward. Hence, I shall first present the preliminary stances adopted by the actors on this bill before examining its text.
The Context of a Search for an Alternative Process
In a press interview broadcast by Attessia TV on 21 December 2018, Head of the Tunisian Government Youssef Chahed said that the TDC had failed to achieve its goals. He justified this negative assessment on the basis that it had finished its work without managing to rehabilitate the victims or expose the truth. He deemed that “the TDC caused more division among Tunisians and did not succeed in achieving the goals set because it was politicized and its president [Sihem Bensedrine] strained matters”. Chahed also revealed that the government has a bill that ensures the success of the transitional justice process and achieves its goals of comprehensive reconciliation and rehabilitating victims.
Two days later, the concluding statement of the 24th cycle of Ennahda’s Shura Council repeated the same assessment, stating that “the outcomes [of the TDC’s work] did not live up to expectations with regard to exposing the truth, reparation, and rehabilitation and thereby achieving comprehensive national reconciliation”. Ennahda had previously alluded to the same evaluation and affirmed its parliamentary bloc’s determination to present a bill embodying the project that its party’s bodies had adopted in early May 2016, which grants amnesty in exchange for exposing the truth in a process that ensures the victims’ right to reparation within the framework of a comprehensive reconciliation. Ennahda’s executive bureau again underscored the need for this reconciliation in its statement on Martyrs Day on 9 April 2019.
From the above, it is evident that there is a consensus among the principal political actors, both those whose supporters are counted among the victims of violations (Ennahda) and those whose ideological background was partially linked to the pre-revolution political regime (the parties with a constitutionalist background), on the idea of a new law for transitional justice that achieves the comprehensive reconciliation it calls for. The government’s presentation of the draft bill to the heads of the parliamentary blocs and its request that they engage with it appears to be an attempt by the political team of the head of the government to pass his vision of that reconciliation through as soon as possible, i.e. before the end of the last cycle of Parliament’s term. On the other hand, the intentional leak of the initial version by Ennahda’s parliamentary bloc seems like an attempt to gauge the reaction of its support bases, especially those who could be considered victims of the former regime, regarding the proposed reconciliation before determining its position on the timing of its presentation and its details, albeit not the idea of it.
On the other side of the landscape, on 9 April 2019 the Coalition for Transitional Justice, which consists of associations that agreed on supporting the transitional justice process, announced its principled rejection “of any legislative initiative that circumvents the transitional justice process and threatens and undermines its existing mechanism per the texts in effect”. This stance confirms that any attempt by the governing majority, whether before or after the elections, will face opposition from those concerned with the transitional justice process, even if the TDC’s underperformance, on one hand, and the legal and practical issues posed by the work of the Specialized Chambers for Transitional Justice, on the other, will inevitably lead to a search for compromises between those eager for a comprehensive reconciliation for political reasons and those devoted to the principles governing transitional justice. This inevitability may be implied by the coalition’s call for the government to involve it “in any governmental initiative related to completing the transitional justice process in accordance with Law no. 53 of 2013, including the formulation of an action plan or the state’s initiatives with its international partners in this regard”.
Given the certain need for a social dialogue about the outcomes of transitional justice and the changes and developments awaiting in its path, it is important to examine the draft bill to clarify its underlying approach and defend the values of that justice, which Tunisia of the present needs in order to determine its relationship with its past and lay the foundations of its future.
The Content of the Government’s Draft Reconciliation Bill
The bill excludes “reparation” from its scope, leaving the matter to the provisions of Organic Law no. 53 of 2013 on transitional justice. Hence, it declares its goal to be exposing the truth, apology, and reconciliation – stances that should be examined. The bill is based on the notion of establishing two reconciliation committees, the first examining the cases of grave human rights violations and the second examining the cases of financial corruption. Their work would result in a reconciliation that terminates all prosecutions and has the effect of a legislative pardon for rulings already issued. For this reconciliation, the bill requires the person accused of a violation to issue an apology. The bill also dissolves all the Specialized Chambers for Transitional Justice and has all their cases referred to the reconciliation committees.
Reparation: Commitment to Victims’ Rights or Rejecting a Trade-off?
The draft bill’s second article stipulates that “there shall be reparation for the victims of violations in accordance with Law no. 53 of 2013”. This stipulation suggests that the bill will not undermine what have become acquired rights for the victims of grave human rights violations who obtained reparation decisions from the TDC, and the bill does not attempt to rectify the status of those whose claims the TDC rejected and whose objections it did not examine before its mandate ended. At first glance, this stance seems to concord with the victims’ interests and not to threaten the rights they await, but examining its actual effects shows otherwise.
The draft bill does not include any link between realizing reconciliation and reparation for victims. Hence, in effect, its adoption will bring about a quick reconciliation with those accused of violations in exchange for leaving the victims’ rights to reparation suspended indefinitely.
The separation of the reconciliation process from the reparation process is therefore expected to be one of the most significant criticisms that the draft bill will face, especially from Ennahda, whose vision of comprehensive reconciliation – as has emerged from its leaders’ statements – maintains that the two processes must be connected.
Exposing the Truth: Providing Cover for Truth Already Exposed
As a declared goal, the draft specifies “establishing a legal system that spurs the exposure of human rights violations so that the truth may be known.'' But its articles reveal that the intended meaning of “truth” only includes the cases of human rights violations encompassed by Article 8 of Law no. 53 on transitional justice and entrusted to the Specialized Chambers for Transitional Justice, the regular judiciary, or any other judicial body. This means that the proposed process does not lead to the exposure of truth beyond the facts of those cases. Moreover, the bill imposes restrictions on what truth can arise from the work on these cases.
The first restriction is Article 11’s stipulation that the reconciliation committee cannot “institute cases pertaining to individual responsibility”.
The second is Article 23’s stipulation that, “In all cases, it shall not be possible to invoke before the courts what is declared or adopted in exposing the truth or, likewise, what the reconciliation committee concludes in the brief it issues”. This means that if no reconciliation is reached in a given case, the reconciliation committee’s work cannot be adopted later in any potential judicial prosecutions.
From the above, it is clear that exposing the truth, though it is listed among the bill’s goals, is actually not the intent of its provisions. In effect, these provisions are directed toward conceptualizing a remedy for the truths that have already been exposed. This seems deplorable, especially as the reconciliation that it proposes could have included exposing the truth as a prerequisite, which would have helped dismantle the system of corruption and reform state institutions in order to prevent repetition – something that the TDC, by its own admission, did not manage to achieve.
Reconciliation Mechanisms: What Concepts?
In its regulation of the reconciliation process, the draft bill addresses two reconciliation committees, the first with competence over grave human rights violations and the second with competence over financial corruption cases. Hence, the composition and powers of these committees must be examined.
The Reconciliation Committees’ Composition: Superficial Independence
The bill describes the reconciliation committees as independent. The basis for this description seems to be the bill’s stipulation that each one enjoys administrative and financial independence. Beyond this structural conception of independence, the committees clearly do not comply with independence requirements for two reasons, the first related to the selection of their members and the second to their presidents’ control over their work.
The bill stipulates that each committee be composed of nine members. Three, including the committee’s president, are appointed by the president of the republic, three by the head of government, and the remaining three by Parliament’s speaker. While each committee includes three national figures, the six remaining members are people with “distinguished legal experience” in the case of the reconciliation committee for human rights violations, and people with financial and collection experience in the case of the committee for reconciliation in the economic and financial realm.
Hence, it is clear that the committees’ members will be appointed by representatives of the political authority, which means they will be from among those who enjoy its trust, and that the president of the republic will assign the committees’ presidencies to whomever he chooses. This approach to appointment raises the question of the committees’ independence, especially as the selection criteria appear to be largely subject to unrestrained discretion.
On another level, the draft vests the committees’ presidents with authority that appears absolute over their work. It stipulates that the president is the committee’s spokesperson, the person who oversees its proper functioning, and the person who calls its council to convene. The goal of this choice is questionable, and it raises real and justified doubts about the conceptualization of the committees’ role and their hidden relationship with the political decision-makers.
The Committees’ Power: Non-Judicial Committees that Restrict the Judiciary
The bill stipulates that the two committees are not judicial. On the other hand, it affords them power over the judiciary because
It requires the court registry to refer all cases that were pending before the Specialized Chambers for Transitional Justice, including financial corruption cases, to the committee as those chambers will be dissolved by force of the law.
It requires the courts and judicial bodies that were previously entrusted with cases of grave human rights violations to cease examining them and lift the preventative measures they already adopted as soon as the committee or the person accused of a violation informs them that the latter has submitted a request [for reconciliation].
Apology and Reconciliation: Absolute Protection for Persons Accused of Violations
The draft bill reveals a major bias toward those accused of violations. The most prominent manifestation is the issuance of an expanded legislative pardon for officials and the granting of full reconciliation in exchange for a modest apology.
A New Legislative Amnesty for Public Officials Encompassing All Violations
Organic Law no. 62 of 2017 issued 24 October 2017 and pertaining to reconciliation in the administrative realm afforded a legislative amnesty to public officials and the like for “actions violating regulations or prejudicing the administration carried out to achieve an unjustified advantage for a third party provided that they did not obtain any unjustified benefit for themselves... with the exception of persons accused of accepting bribes or appropriating public funds”. This amnesty also encompassed “reparation sums for material and moral damages that they are sentenced to pay to the state, local collectives, or public institutions”.
Article 39 and Article 40 of the draft bill now expands the concept of this legislative amnesty by stipulating that “acts that were carried out before 14 January 2011 by public officials and the like... while performing their functions or on occasion thereof and that are related to those functions shall not be subject to criminal prosecution as long as they do not involve obtaining an unjustified advantage for themselves”. It stipulated that this amnesty “also encompasses reparation sums”.
This new amnesty for officials appears to be of indeterminate scope and unconditional. It covers any acts that might be imputed to them and were not covered by the first amnesty, acts that could be classified as grave human rights violations. Hence, this amnesty encompasses indeterminate violations and is not contingent on an admission of wrongdoing or apology. This can in no way be justified.
An Apology Behind Closed Doors Resulting in a Final Reconciliation
The draft links reconciliation with an apology and stipulates that this apology must be presented in the cases where the violation is established before the committee examining them. The apology will not be public and hence will not be directed to the people. There is also no requirement that the apology be delivered in the victims’ presence. Hence, the apology seems to be a mere formality realizing the reconciliation that appears to be the bill’s true goal, a reconciliation that results in the closure of the cases and not in overcoming their causes.
From all the above, it can be concluded that the proposed draft bill strikes at the values of transitional justice instead of completing and reforming its process. Hence, we must call for a complete revision of the draft, a revision aimed at reforming the process of transitional justice in a manner that ensures its missteps are overcome and achieves justice and reconciliation. The path to such a reconciliation seems increasingly difficult because of politics, as well as mistakes in which multiple players were involved.
Keywords: TDC, Tunisia, Transitional Justice, Reconciliation, Reparation
 See the TDC’s statement issued on 9 January 2019 and titled “al-Hifaz ‘ala Haybat al-Sulta al-Qada’iyya min Awwaliyyat al-Hay’a”. The statement included an admission that the TDC had not managed to accomplish the work entrusted to it in the realm of functionally reforming the judiciary.