Transitional Justice in Tunisia—a Transition to What?

733

Atlantic Council- January 14, the anniversary of President Zine El Abidine Ben Ali’s 2011 ouster, is a now a national holiday in Tunisia. It is also a moment to examine how things are going in the country that ignited “the Arab Spring”—the only country whose uprising did not go off the rails.

This year’s anniversary coincided with a landmark in Tunisia’s transition: its truth commission is completing its four-year mission.  In the next few weeks, the Truth and Dignity Commission (TDC), an independent state body mandated by the 2013 Law on Transitional Justice, will publish its mammoth report on government repression from independence in 1956 to 2013, and recommend institutional reforms to prevent backsliding to dictatorship. The commission has referred cases to “special courts” that the law established to try the accused. It will recommend reparations for the thousands of victims of torture, political imprisonment, and other grave abuses, though the funds to pay for them are not yet in place.

But the commission’s work, far from being heralded as a milestone to consolidate democracy, has met with ambivalence about how to deal with the traumatic past, leaving in doubt the future of transitional justice.

Truth commissions take many shapes but all start from the axiom that a collective reckoning with a nation’s dark past will heal wounds and contribute to a more just future. Tunisia’s was the only national truth commission born of the Arab uprisings, and only the second in the Middle East and North Africa. The first was Morocco’s Equity and Reconciliation Commission (ERC)establishedby King Mohammed VI in 2004, to investigate abuses committed during the brutal reign of his late father, Hassan II.

The ERC was anomalous among truth commissions in that it operated in the context of regime continuity rather regime change.  While it documented and acknowledged atrocities under the previous monarch and set terms for compensation, its mandate prohibited it from naming perpetrators or recommending their prosecution. The ERC’s recommendations on governance, implemented only half-heartedly by the state, did little to restrain its repressive reflexes.

Tunisia’s truth commission, by contrast, grew out of genuine regime change, one that brought democratic rule, a progressive new constitution, and a flourishing of free speech. Another factor that worked in favor of Tunisia’s effort was that the political movement whose members constituted the bulk of the victims of past repression—the Islamist Nahdha party—was part of the ruling coalition that drafted the transitional justice law.

The commission, headed by the renowned human rights activist Sihem Ben Sedrine, conducted nearly 50,000 private interviews with victims, and referred dozens of cases to the special courts. It convened public hearings for victims that were broadcast live on national television.

But following the 2014 elections, the TDC faced a drumbeat of criticism from politicians and officials, mainly those affiliated with Nidaa Tounes, the senior party in the new governing coalition. Nidaa’s ranks include many former members of the ruling party under Ben Ali who harbored, at best, mixed feelings toward a commission mandated to expose ugly truths about the past, including corruption.

During his successful election campaign in 2014, Tunisian President Béji Caid Essebsi, who held high posts under both Ben Ali and founding president Habib Bourguiba, declared: “I’m against settling scores of the past. I believe Tunisia must move forward.” Soon after taking office, Essebsi introduced legislation that would in effect remove some economic crimes from the commission’s purview and ensure amnesty for some corrupt former officials. His so-called Economic Reconciliation Law passed in modified form in 2017.

Tunisian Prime Minister Youssef Chahed, like Essebsi, shunned the commission’s concluding session in December. He declared that the commission had failed in its mission, criticized the special courts trials in progress, and promised to introduce a new transitional justice law.

Even the Nahdha Party has blown hot and cold, amid political calculations and jockeying, say political observers, especially in anticipation of legislative and presidential elections this year. Nahdha’s leadership joined Nidaa Tounes in supporting the contentious amnesty law for economic crimes, ensuring its passage despite dissent from some Nahdha deputies. The party chief, Rachid Ghannouchi, has come out in favor of a general amnesty for people who acknowledge and apologize for their misdeeds.

The TDC had flaws, especially of internal management. But for most of Tunisian civil society, supporting the commission in the face of efforts to undercut it has been a no-brainer. The commission winds down in January. It will present its final report to the government, including recommendations on reparations, and on reforming the security sector and other state institutions.

The transitional Justice law requires the government to devise a program to enact those recommendations and submit it to parliament. Will it? It has already manifested its reluctance to abolish repressive laws that remain in force, including those punishing speech.

The TDC will transfer the wealth of historical material it gathered either to the national archives or another specially created repository. The final destination for this chunk of Tunisia’s patrimony, and how it will be preserved and made available to the public, are yet to be determined.

Meanwhile, the criminal trials set in motion by TDC referrals confront numerous obstacles, including an effective inability to compel the accused and witnesses to appear. In the first special court case, involving a death in detention under torture, none of the fourteen defendants have shown up.  At least one police syndicate denounced the tribunals as “denigrating” the security services and urged its members to shun them.

Transitional justice, in a country that once seemed a propitious setting for it, is at risk of petering out amid indifference or worse from leading politicians.  If Tunisia’s citizenry wants to see a more robust second act for the transitional justice process, one that provides a fuller reckoning of the past, including accountability in some form for perpetrators and stronger safeguards for the future, they will have to make their demands known during the approaching election campaign.

Eric Goldstein is the deputy Middle East and North Africa director at Human Rights Watch. Follow him on Twitter @goldsteinricky.

https://www.atlanticcouncil.org/blogs/new-atlanticist/transitional-justice-in-tunisia-a-transition-to-what