Tunisia’s draft constitution raises concerns about democratic transition

(Photo illustration: Shutterstock)

(Photo illustration: Shutterstock)

Tunisia’s National Constituent Assembly (NCA) is voting on a 146-article constitution, following a political crisis which put the country’s democratic transition on hold after the assassination of opposition deputy Mohamed Brahmi last July.

The NCA, where the Islamist Ennahdha Movement enjoys a 40% majority, was elected in October 2011 to draft a new constitution. To be adopted, each article requires a simple majority vote. NCA deputies will then have to approve the text in its entirety by a two-thirds majority.

Articles that guarantee freedom of expression, the rights to access information, protest and assembly, and to form unions, associations and parties were adopted last week. The charter also bans prior censorship on freedoms of thought, conscience, expression and publication (article 30) and enshrines freedom of creation (article 41) and the right to privacy and personal data protection (article 23). Article 48 further states that no future constitutional amendments that violate human rights and freedoms could be introduced to the text.

But, ironically, Tunisia’s self proclaimed progressive and secular opposition stand behind the introduction of an anti-free speech clause in the text. The NCA adopted an amendment to article 6 of the draft constitution banning Takfir (apostasy accusations). Article 6 guarantees freedoms of belief, conscience and religious practice.

On 5 January, the vote on the constitution was interrupted over death threats received by Popular Front deputy Mongi Rahoui. He said he received death threats following declarations made by Habib Ellouze, another NCA representative from Ennahdha. Speaking to the media, Ellouze referred to Rahoui as an “enemy to Islam”. The Interior Ministry confirmed the death threats against Rahoui and placed him under police protection.

“What [Ellouze] said yesterday, that I am an enemy of Islam, has lead to death threats against me”, Rahoui said at the assembly’s plenary session of 5 January. “How much more blood must there be before we understand that we are united”, he added. Rahoui was referring to the assassination of two other fellow Popular Front leaders, Chokri Belaid and Mohamed Brahmi. Belaid, in particular, a staunch critic of Islamists was before his assassination subject to fatwas labelling him as a ‘Kafir’ and an ‘enemy to Islam’ who should be killed.

Following Rahoui’s declaration, NCA deputies from the opposition demanded a revote on article 6 to add a clause ‘banning takfir and incitement to violence’. The clause was approved by 131 votes. But by moving to ban Takfir, Tunisia’s opposition acted out emotionally and without taking into consideration the chilling effect a similar clause could have on free speech. The banning of “apostasy accusations” could only open the door to more restrictions on free speech.

“In just few hours, we will be able to say that the opposition put up in place the first rock in the way of free expression”, Amira Yahyaoui, president of Albawsala, a transparency NGO tracking the NCA’s activities, tweeted before the vote. “How is it nice to watch our representatives unanimously voting in favour of draconian laws”, she added in another tweet.

Following to the opposition’s demands for a constitutional ban on Takfir, Ennahdha’s deputies also called for criminalisation of blasphemy. But, for lack of consensus among the negotiating NCA representatives, the suggestion was not submitted for a vote.

Initially, Tunisia’s Ennahdha did seek to ‘criminalise attacks on sanctities’ in a first draft of the constitution. However, those plans were dropped following negotiations with the other two parties in the ruling coalition. Article 6, still however includes a vague phrase tasking the State with “protecting sanctities” without specifying how, or defining and listing these sanctities.

Meanwhile, Tunisia’s recently established broadcast media regulator, the Independent High Authority for Audiovisual Communication (better known as HAICA) repeatedly expressed its reservations about the draft constitution. HAICA was established by decree 116 on freedom of the media, which was issued on 2 November 2011, to regulate the broadcast media sector.

On a positive move, the constituent assembly incorporated HAICA into the draft constitution. However, the HAICA board criticised provisions in the text threatening the authority’s independence and limiting its prerogatives. Article 122 of the draft constitution states that the Parliament shall elect HAICA’s board members. The media regulator says that this selection process will ‘strip HAICA from its independence’ and make it ‘submissive to the [parliamentary] majority’. Under article 124, HAICA has an ‘advisory’ mission and is not attributed ‘regulatory’ powers which would allow it to regulate and organise the broadcast sector as it is stipulated by decree 116.

The two articles are awaiting NCA’s approval as deputies will first have to discuss and vote on chapters related to the executive branch and the judiciary.

This article was posted on 14 Jan 2014 at indexoncensorship.org

Net Freedom in Tunisia: Still a Long Way to Go

Once labelled the “enemy of the internet” — Tunisia has made tremendous strides in the past two years towards opening up the internet. Still, the country continues to face challenges in its road to expanding freedom online. Afef Abrougui reports

Tunisia is scheduled to host the third annual Freedom Online Coalition conference next week (17-18 June). The country became part of the coalition in September 2012, joining 17 other countries pledged to advance internet freedom.

A great leap forward

In a press conference last September, Tunisia’s ICT minister Mongi Marzoug announced the end of online filtering — killing “Ammar 404” (the nickname given to the country’s filtering system by its netizens).

Just this month, CEO of the Tunisian Internet Agency (ATI) Moez Chakchouk announced that ATI won an appeal against filtering of adult content. The case dates back to May 2011, when a primary court ordered the agency to filter X-rated websites on the ground that they represent a “threat to minors and the values of Islam.” After losing the appeal in August 2011, the Cassation Court quashed the filtering verdict and referred the case back to the Court of Appeal in February 2012.

“This is not about pornography; it’s a matter of principle. In post-revolutionary Tunisia, we are determined to break with the former regime’s censorship practices”, Chakchouk wrote for Index on Censorship magazine in December 2012.

Under the autocratic rule of now ousted President Zeine el Abidin Ben Ali, the ATI enforced government requests for content filtering — even though the country has never had a law requiring the agency to do so. The ATI’s recent win will only help reinforce its role as a neutral internet exchange point.

Threatened Freedom

Despite ending its filtering practises, internet freedom remains threatened by legislation inherited from the era of Tunisia’s dictatorship. For instance, laws that make ISPs liable for third-party content, obliging them to monitor and take down material deemed to violate public order and “good morals” remain on the books. While this particular law has not been enforced post-Ben Ali, other relics from Tunisia’s dictator days have been used to prosecute bloggers.

On 29 May, Hakim Ghanmi, author of the blog Warakat Tounsia, stood trial before a military court for a post he made on 10 April, critical of the administration of a military hospital in Gabes, a city in the south of Tunisia. Ghanmi alleged that his sister-in-law was denied medical treatment by the hospital director, despite having an appointment.  The blogger has been accused of “undermining the reputation of the army” (article 91 of the Code of Military Justice), “disturbing others through public communication networks” (article 86 of the Telecommunications Code), and “defamation of a public official” (article 128 of the Penal Code) following a complaint lodged by the hospital director. He currently faces up to three years in prison, and his trial is set to resume on 3 July.

Last year, a court convicted Jabeur Mejri and Ghazi Beji to seven and a half years in prison over publishing content deemed to be offensive to Islam online, under article 86 of the Telecommunication Code, and article 121(3) of the Penal Code which bans the publication of content “liable to cause harm to the public order.” On 12 June, Courrier de l’Atlas reported that Beji, who was sentenced in absentia, has now obtained political asylum in France. Mejri, however, remains in prison after losing appeal at the Cassation Court on 26 April.

If Tunisia is serious about serving as a model of internet freedom in the region and guaranteeing freedom of expression, legal reforms are urgently needed. Adopting a constitution that enshrines free speech — in accordance with the country’s obligations under Article 19 of the International Covenant on Civil and Political Rights (ICCPR) —  is equally fundamental.

Tunisian court fails to review verdict in Muhammad cartoon case

Tunisia’s Court of Cassation yesterday failed to review the seven-and-a-half year sentence of Jabeur Mejri, who was convicted last year of publishing cartoons of the prophet Muhammad on Facebook. Mejri’s lawyer, Mohammed Mselmi, told AFP that the demand for an appeal “was mysteriously withdrawn”, even though a hearing had been scheduled on 25 April. The defence team will now seek a presidential pardon for their client.


Last March, a primary court in Mahdia (eastern Tunisia) sentenced Mejri and his friend Ghazi Beji to seven and half years in prison. Beji, who published a satirical book entitled “the illusion of Islam” online, fled Tunisia. Mejir, however, has been in prison since he was arrested on 5 March 2012.

Both men were fined 1,200 dinars (GBP £480) and sentenced to five years in prison for publishing content “liable to cause harm to the public order” under article 121 (3) of the Tunisian Penal Code. They each received a two-year jail term for “offending others through public communication networks” (article 86 of the Telecommunications Code), and another six months for “moral transgression.”

On 25 June 2012, the Monastir Court of Appeal upheld Mejri’s conviction.

On 23 April 2013, a committee supporting the two young men published a letter from Mejri, written in his prison cell in Mahdia, in which he claims he has been subject to torture. Mejri wrote:

There’s no freedom of expression here in Tunisia, it is dead…I am forbidden from medicines to cure my illness and from other rights. Seven years and six months is a long period to spend within a dark and gloomy small place. Officers find pleasure to torture me [sic]”

Radio show host banned after station boss storms studio to confront outspoken guest

Tunisian radio journalist Nadia Heddaoui Mabkhout was denied access to the headquarters of RTCI (Radio Tunis Chaîne Internationale), suspended from work and had her radio show cancelled last Friday.

Mabkhout was on her way to host her show Café Noir, recently renamed L’invité du Journal, which is aired on Monday, Wednesday, and Friday from 8:30 to 9am. She was accompanied by her guest, Neziha Rejiba (alias Om Zied), a well-known Tunisian activist and writer. (more…)