An independent judiciary is vital to safeguarding individual rights and freedoms and ensuring democratic governance, justice, and the rule of law in any society. Since taking office in 2019, however, Tunisian President Kais Saied has systematically undermined the judiciary to strengthen his grip on power. His actions pose a serious threat to human rights, democracy, and rule of law in the country. 

Presidential Control Over the Judiciary

Following the 2011 overthrow of authoritarian president Zine El Abidine Ben Ali, Tunisians took concrete steps to ensure judicial independence. In January 2014, Tunisia adopted a new constitution that guarantees the institutional independence of the judiciary and its members.  It created the Supreme Judicial Council (SJC)responsible for appointing, promoting, and disciplining judges, and gave the judiciary substantial self-control over its own affairs. This was an important reversal from the Ben Ali-era, when the judiciary was firmly under executive control.

But in July 2021, Saied announced extraordinary measures that included suspending most of the constitution, declaring himself the head of the public prosecution, suspending parliament, and revoking parliamentary immunity. In September 2021, Saied issued Decree-Law 117, which dissolved the parliament and allowed Saied to rule by decree without judicial review. Following this sweeping power grab, Saied sought to reverse the country’s judicial independence. His first step was passing laws to grant himself absolute power to intervene in judicial affairs.     

On February 12, 2022, Saied issued Decree-Law 11 dissolving the SJC and replacing it with the Provisional Judiciary Council (PJC). While the PJC holds similar responsibilities in overseeing judicial operation, including the appointments, promotions, and transfers of judges, it lacks the independence of the SJC: The president has the power to appoint nine of its 21 members and holds veto power over the PJC’s nomination of senior judges. If the council cannot fill vacancies with members Saied approves of, he has the discretionary power to appoint anyone who meets the qualifications for the position, placing the PJC under the direct influence of the executive.

On June 1, 2022, Saied went a step further by issuing Decree-Law 35, amending Decree-Law 11 to give himself the sole power to summarily dismiss judges and prosecutors based on vague criteria, such as prejudicing public security and the supreme interest of the country, which are commonly used to target human rights defenders, judges, and political dissidents. These ambiguous, hard-to-define terms are open to various interpretations and misunderstandings, and may constitute a breach of the principle of legality, due process, and equal protection of the law. On the same day, and without prior notice, Saied issued an unreasoned presidential order dismissing 57 judges and prosecutors, accusing them of obstructing terrorism-related investigations, financial and moral corruption, and adultery, according to media reports.

One of the dismissed judges, Hammadi Rahmani, testified to Amnesty International that the underlying motive behind this illegitimate order lies in targeting “the independence of judges and those who denounced the erosion of the principle of separation of power and the executive control over the judiciary.”

Decree-Law 35 also aimed to block any available means for the dismissed judges to challenge this order by depriving them of their constitutional right of appeal before the Administrative Court. It shielded Saied’s actions from judicial review until a final criminal judgment was issued regarding the alleged misconduct, denying them timely access to justice. Furthermore, it posed a significant obstacle in enforcing the Administrative Court decision to restore 49 dismissed judges and evaded criminal complaints filed against the Ministry of Justice for failing to enforce the court order.

Then, in July 2022, Saied pushed through a new constitution to replace the country’s 2014 constitution. The new constitution dismantled many of the previous guarantees to the independence of the judiciary. Tunisia’s 2022 constitution established a presidential system based on autocratic rule rather than the semi-presidential system. While the country’s 2014 constItution allowed for a no-confidence vote to remove the president under Article 88, the 2022 constitution abolished this power. Article 119 of the new constitution also divided the judiciary into three councils: judicial, administrative, and financial; making them easier to control. Contrary to the 2014 constitution, the 2022 constitution vested the appointment of the Constitutional Court jurists solely in the president, which risks putting it under direct influence of the executive, allows the transfer of judges without their consent and the SJC’s approval, and permits the trial of civilians before military courts.

Targeting of Judges

President Kais Saied’s systematic assault on Tunisia’s judiciary extends far beyond his initial purge of judges, and includes retaliatory arrests, arbitrary appointments, and sweeping travel bans that have effectively dismantled judicial independence.  In February 2023, Tunisian authorities detained two of the judges who had been dismissed in June 2022: Bechir Akremi and Tayeb Rached. 

Akremi, the Prosecutor General of Criminal Affairs, was accused of sympathizing with terrorists and mismanaging the assassination case of opposition leader Chokri Belaid, a political activist, whose case symbolized the challenges of achieving justice and accountability in Tunisia after 2011. However, the main reason behind his arrest was Akremi’s refusal to give into pressure from the justice ministry to implicate certain Ennadha party leaders in the Belaid case.  According to his family, he was arrested from his home by plain clothes police, interrogated for 26 hours during which time he was subjected to torture. 

The Tunisian Magistrates Association reports that between August 2023 and April 2024 the minister of justice appointed, transferred, or suspended 105 judges via executive memo. According to the association, as these transfer memos were issued outside the legal scope of judicial rulings and implemented under executive authority without adhering to legal appeal mechanisms, they were a clear violation of judicial independence. In addition, these transfers violated  Article 121 of the already weakened 2022 constitution.

Anas Hmedi, an appeals court judge and the head of the Tunisian Magistrates Association, has also faced arbitrary disciplinary and criminal proceedings and a defamation campaign launched by several social media channels seen as close to the president. These efforts aimed to discredit him in reprisal for the association’s work and for exercising his right to freedom of peaceful assembly and association over a strike in 2022 to protest the summary dismissal of judges.

Moreover, Tunisian authorities have imposed an indefinite travel ban on numerous individuals, including judges, without judicial approval, written order, or reason given, in a way that limits their ability to appeal. Although the law vests the issuance of travel ban orders in the judiciary, Saied justified this repressive practice to prevent those who are suspected of corruption or posing security threats from fleeing the country.

Exclusion of Presidential Candidates

By cementing his grip over the judiciary, Saied was able to remove potential challengers in the October 6, 2024 presidential election, all but guaranteeing his reelection, further consolidating his power in the country. At least eight prospective candidates were disqualified from running in the presidential election. These candidates were convicted and sentenced to prison terms or lifetime bans on running for office on trumped up charges including making donations to influence voters and spreading fake news and rumors. Some of the candidates challenged their disqualification before the administrative court, which ruled in their favor. However, the Independent High Authority for Elections (ISIE) refused to implement these decisions, highlighting that even with some independent judges, Saied’s government will simply sideline their decisions. (See more in the MEDC fact sheet, “Tunisia’s 2024 Presidential Election: Neither Free Nor Fair.”)

Conclusion

Through interference in judicial affairs, Saied has undermined democracy and the rule of law, eroded public trust in the Tunisian judiciary system, and deprived citizens of their fundamental right to a fair trial. His administration follows the same authoritarian playbook as other dictators in the region by using the judiciary to eliminate opposition and immunize the executive from checks and balances. These actions also reveal an intentional strategy to consolidate his power by diminishing civic space and intimidating those who might oppose his authority.

In 2020, prior to Saied’s sweeping power grab, Tunisia ranked 56 on the Rule of Law Index. By 2024, the country had dropped to 76th place. If the president continues on the same path, he puts the foundation of democracy at risk. Urgent reforms are needed to restore judicial autonomy and rebuild public trust in Tunisa’s legal system to avoid further  damage caused by Saied’s repressive policies.  

 


About the Author

MOHAMED EL-ANSARY is a seasoned human rights lawyer and researcher specializing in international law, the rule of law, and democratic governance. He has worked with leading organizations such as Watchlist on Children and Armed Conflict, the Cairo Institute for Human Rights Studies, and the International Commission of Jurists. His work spans legal research, strategic litigation, and policy recommendations on issues such as judicial independence, freedom of expression, and human rights violations in Egypt, Libya, and Tunisia to hold perpetrators accountable. El-Ansary has represented clients in high-profile legal cases, challenged repressive laws in Egypt and Libya, and provided legal analysis to international bodies, including the UN and the ICC. He has numerous publications, including his work with a team of researchers to write a report entitled Egypt’s Judiciary: A Tool of Repression – Lack of Effective Guarantees of Independence and Impartiality, published in October 2016 by the International Commission of Jurists. He also authored the 2017 POMED (now MEDC) report, The Role of the Public Prosecution in Egypt’s Repression. El-Ansary holds an LL.M in American Law from Syracuse University and a diploma in International Human Rights and Humanitarian Law from Cairo University. He is a licensed attorney in Egypt and is preparing to sit for the New York State Bar Examination in 2025. Find him on LinkedIn.

 

Photo: Tunisian President Kais Saied at the ceremony of the issuance of the 2022 constitution in August 2022. The 2022 constitution dismantled many of the previous guarantees to the independence of the judiciary. Credit: Tunisian Presidency/Facebook