Since the 2011 revolution, Tunisia has had the most progressive and democratic legal framework for civil society in the Arab region. Decree-Law 88, issued in September 2011, has even been described as “among the 20 best association laws in the world.” Thanks to the favorable enabling environment created by Decree 88, an independent civil society sector—composed of a wide array of local and international civil society organizations (CSOs), many with funding from abroad—has flourished in Tunisia.

Now, as part of his drive to dismantle Tunisia’s hard-won democratic system and cement his one-man rule, President Kaïs Saïed is poised to reverse these crucial gains. After shuttering the parliament, suspending the constitution, and erasing judicial independence, civil society looks to be the next target of his power grab. Earlier this month, Tunisian media reported that the government had drafted—without any public discussion or consultation with civil society—amendments to Decree 88 that would significantly increase the state’s control over civil society and severely erode Tunisians’ associational rights. CSOs that Saïed perceives as critical of him may be at particular risk.

In a cabinet meeting today, President Saïed vowed to change CSOs’ legal framework to “prevent” them from accessing foreign funding, claiming that the practice “serves as a cover for the financing of political parties.” He also reportedly said that despite being associations in appearance, “in reality, they are extensions of foreign powers, which seek to control the Tunisian people through their money.” It is not yet known whether Saïed plans to go ahead with the amended version of the decree that was reported in the media last month or with a different set of changes. According to a decree that Saïed issued in September, he is able to unilaterally promulgate or change laws without any parliamentary or judicial oversight.

 

Some Key Changes

Although the government has not yet officially revealed its planned amendments to Decree 88, the draft that was published in the media would, inter alia:

  1. Give the authorities sweeping powers to ban civil society organizations (CSOs). Echoing the security-focused language prominent in authoritarian CSO laws like Egypt’s, the amended language would allow authorities to reject the applications of civil society organizations that they deem to pose undefined “threats to national unity or threats to the democratic and republican nature of the state” (Article 4, Article 10). Such language does not exist in the 2011 law.
  2. Prohibit CSOs from accepting foreign funds without prior government authorization from a unit of the Central Bank (Article 35). The 2011 law does not require prior government approval for foreign funding.
  3. Make it harder to establish legal CSOs. According to the amended language, an organization would gain legal status only after the government has published a notification in the Official Gazette, a requirement that could open the door to politically motivated delays (Article 12). The amendments would also give the authorities wide latitude to reject CSO applications (Articles 10, 22, 27). Under the 2011 law, establishing a CSO is a straightforward process.
  4. Grant the executive branch wide latitude to dissolve CSOs. Various state entities would be able to request the dissolution of an organization for committing undefined “serious violations” (Article 45), and the “authorities” would be able to order its dissolution (Article 33). Under the 2011 law, a CSO can be dissolved only by judicial ruling or by the organization itself.
  5. Weaken restrictions on state interference in CSOs. Article 6 of Decree 88/2011 explicitly states, “Public authorities are forbidden from obstructing or disrupting the activity of associations directly or indirectly.” In the amended version, this language has been notably weakened.
  6. Ban CSO leaders from running for office unless they have resigned from their CSO position three years before the election is held (Article 4). In addition, the founders and leaders of a CSO would not be allowed to join the local, regional, or central structures of political parties (Article 9). The 2011 law does not include such restrictions. 
  7. Add limits to CSOs’ rights to hold meetings, access information, and publish reports and other information (Article 5). This limiting language is not found in the 2011 law.

 

Implications

As the Observatory for the Protection of Human Rights Defenders noted in a recent statement, these amendments to Decree 88 would provide the Tunisian authorities “with the legal tools to control and foreseeably muzzle civil society.” CSOs in Tunisia are at great risk of losing the ability to operate freely, without fear of arbitrary state interference and repression, just as the state is facing a looming fiscal crisis, an upcoming constitutional referendum, and grave threats to judicial independence. Civil society should be empowered to help Tunisia navigate this challenging period, not silenced. Associational freedom is an essential component of democratic systems. The Tunisian government should immediately rescind the proposed amendments to Decree 88 and instead protect civil society’s gains since the revolution. 

 

 

Sheridan Cole is POMED’s Advocacy Associate. Amy Hawthorne is POMED’s Deputy Director for Research. Zachary White is POMED’s Editorial Associate and the editor of POMED’s twice-weekly Tunisia Update. They thank their Tunisian colleagues for assistance with this analysis.

Photo Credit: Présidence Tunisie رئاسة الجمهورية التونسية