After a two-year odyssey and despite protests, Tunisia's 'reconciliation law' passed last week, revealing just how faulty the notion of democratic transition in the country always was
There was always something problematic about celebrating Tunisia as a democracy. The contradictions in the “democracy transition” discourse were so stark in 2015 that it produced a series of pointed public commentaries and analyses.
The notion of Tunisia’s “transition” robbed the people of their “revolution,” Jocelyne Dakhlia noted. Nadia Marzouki and I pointed out that Tunisia’s democratic sovereignty existed in name only, convenient for Tunisia’s international partners.
There was always something problematic about celebrating Tunisia as a democracy
And Marzouki and Hamza Meddeb had the most succinct diagnosis, in words that are perhaps even more applicable today than they were then: “The two main goals of the revolution, namely social justice and political pluralism, are fading away each day, in the name of a category of 'democracy' that has been stripped of its political and social meaning.”
But 2015 marked only the beginning of Tunisia’s authoritarian return. At that time, the task of removing the façade of Tunisia’s “success story” to reveal the injured and contorted, but still chugging authoritarian system fell to political analysts.
This month, Ben Ali’s former ministers returned to their posts and promptly cast off their masks, with gusto. The so-called “reconciliation law” pardoning Ben Ali-era public officials “and those like them” (ashbahihum) was rammed through parliament after a two-year odyssey.
Tunisians protest in the streets of Tunis last Saturday against the passage of the reconciliation bill (AFP)
Resistance in the streets - especially through the highly innovative, non-hierarchical and decentralised Manich Msamah (“I will not forgive”) hash-tag movement - tempered the law somewhat but could not, in the end, muster enough parliamentary power to stop it passing.
Nevertheless, resistance continues, with massive protests across major cities on Saturday after the law’s passage. Local and international civil society groups have mobilised to challenge the constitutionality of the law.
'The non-respect for laws'
From a purely legal perspective, the corruption amnesty law is problematic. It mandates that all prosecution against former officials be dropped and those already convicted by the state be given amnesty rather than pardoned for, confusingly, the crimes they are now deemed retroactively by this law not to have committed, according to an analysis of the law by the International Centre for Transitional Justice.
Article 108 of the constitution states, according to one translation, that “every individual is entitled to a fair trial within a reasonable period. Litigants are equal before the law…Court sessions shall be public unless the law provides for a closed hearing. Judgment must be pronounced in a public session.”
'Not one youth who participated in the revolution used that term [transition]. Not one. But now you hear it a lot'
- Manich Msamah member Hamza Abidi
Even more sharply contradictory to the new law is Article 110 of the constitution, which mandates that “no special courts may be established, nor any special procedures that may prejudice the principles of fair trial”. In a recent press release, the Tunisian Association of Judges declared that the new reconciliation law contravenes Article 110 in substance. The association also asserts that, procedurally, the passage of the law contravened Article 114 of the constitution since legislators did not first seek judicial review.
The legal criticism of the law and its passage are important. They provide authority and rigour to the arguments of those opposing the law and opposition to the regime more broadly. But they also point out how the law and rule of law as practiced by those currently in power has reverted to the forms of the Ben Ali era.
Beatrice Hibou’s study of Tunisian politics under Ben Ali found, as scholars Mullin and Rouabah invoked in a study on the use of states of emergency, that “what dominates in Tunisia is the non-respect for laws and the way they are violated, the reversibility of regulations and their application, the absence of practical mechanisms for the implementation of laws, the frequent overturning of the hierarchy between laws, decrees, circulars and speeches…”
Rubber stamping returns
It isn’t just in the way rule of law is practised that authoritarianism is returning. The parliament is reverting to its rubber-stamp role.
In passing the reconciliation law, Tunisia’s Assembly of People’s Representatives defied the people they are supposed to represent. It would be convenient to explain this away as mere continuation or return to previous practices, but post-uprising developments actually contributed to this.
The translation of the revolution into a transition, with the help of international experts and development professionals, prescribed and reinforced the institutions of liberal democracy as the proper mechanism for democratic governance.
In an interview, Manich Msamah member Hamza Abidi breaks down “the term ‘democratic transition’ (al-intiqal al-dimuqrati). Not one youth who participated in the revolution used that term. Not one. But now you hear it a lot. To my mind, we don’t need these complex terms…What happened here is that elections were held based on an outdated framework…which brought an outdated parliament to power and created the outdated political landscape you see today.”
The particularities of that framework were especially conducive to recreating a rubber-stamp parliament of the kind Tunisia had in the past, and not just any elite check on democracy and popular power.
Elections were organised along party lists, with each party required to present as many candidates as there were seats in each electoral district. Whether a candidate made it onto the list and whether they were closer to the top or the bottom of the list - meaning the likelihood they would actually win a seat - depended on the whims of party leaderships. This reinforced hierarchical party power.
Moreover, the necessity of fielding an entire list of multiple candidates for a single post was beyond the resources of most independent candidates, whose “independence” could no longer count for much if they were running with other candidates on a list.
Combined with the fact that many party leaders seemed to select their candidates based on loyalty or financial contributions rather than competence, experience, or legal knowledge, and the fact that once in parliament legislators lacked basic support staff, it is hardly surprising that legislators never had the potential for a bottom-up constituency or power base.
Nepotism too is back at the highest levels of government, another important feature of the authoritarian political system that preceded the 2011 uprising. The son of President Beji Caid Essebsi, Hafedh, is running the ruling Nidaa Tounes party.
Moreover, Nidaa members and parliamentarians have proposed that Hafedh run for special elections to replace the MP representing Tunisians in Germany who recently joined the new government. The gossip among politically connected Tunisians recently has been that if Hafedh becomes an MP, he will soon rise to speaker of the parliament, a position that in certain scenarios could eventually assume the presidency itself.
Hafedh Caid Essebsi, leader of Nidaa Tounes party, attends an official speech delivered by Tunisian President Beji Caid Essebsi in May 2017 (AFP)
Regardless of the veracity of these rumours, it is clear that Hafedh has higher political ambitions and is being groomed. Not long ago, it was the family of Ben Ali’s wife - the Trabelsis - who drew the ire of Tunisians for their hijacking of the state through family connections for their self-enrichment and self-promotion.
As for elections, which is widely seen as one of the most important indicators of democracy, here too Tunisia has seen the resurgence of authoritarianism. The head of the supreme independent electoral body (ISIE) had announced his resignation in spring as a result of policing of and spying on the body’s members by the executive branch, as well as other forms political interference.
Municipal elections, part of a broader constitutional mandate for decentralisation, had already been postponed. After the passing of the reconciliation law and the new government of Ben Ali ministers, they have been postponed indefinitely.
Amid all this, many of Tunisia’s international partners had quietly stopped talking about “democratic transition” altogether over the past two years, with democracy promotion no longer figuring as a priority following the resurgence of nationalist, nativist, and even fascist political movements in America and Europe.
But even before the political realities of the Trump administration steered public discourse away from US-led democracy promotion, some DC experts had looked for ways to promote the reconciliation law. Collaboration between DC think-tankers and Ben Ali’s former officials was in some cases public.
One think tanker confided with me that the Tunisian government hadn’t given them enough good arguments to help them sell the bill in DC. Part of this was a visceral reaction from the US diplomacy caste to reject any negative narrative about Tunisia given the relative lack of violence compared to the rest of the region, as well as the Tunisian government’s implementation of security and economic policies that aligned with perceived US interests.
And while authoritarianism is resurgent and democracy falls back, smaller gestures of liberal reform have characterised the Tunisian regime’s attempt to neutralise criticism.
The announcement of the nullification of a circular (a legal memo with de facto legal and policing consequences) banning Muslim Tunisian women from marrying non-Muslim men coincided with the passage of the reconciliation law.
Predictably, international media in some cases took the bait, appearing to some to give more coverage to the important but rather narrow progressive liberal step than the sharp step of democratic regress.
In another moment of liberal progress and democratic regress, shortly before the recent government reshuffle and the reinstatement of Ben Ali’s ministers, the president indicated the potential scrapping of sharia-inspired inheritance laws in favour of a more gender-equal formulation.
The tensions between liberalism and democracy have grown starker around the world, and Tunisia is no exception.
- Fadil Aliriza is an independent researcher and journalist and a student of politics currently based in Tunis. Follow him on Twitter @fadilaliriza
The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Eye.
Photo: Tunisian members of parliament argue over the contested reconciliation bill shortly before it was passed earlier this month (AFP)