20 May 14 | Digital Freedom, News and features, Politics and Society, Religion and Culture, Tunisia
After decades of dictatorship and two years of arguments and compromises, Tunisians passed a new constitution laying the foundations for a new democracy. (Photo: Mohamed Krit / Demotix)
“A model to other peoples seeking reform” said UN Secretary-General, Ban Ki-moon on the successful passing in 2014 of the new Tunisian Constitution. Championing a secular political and legal system following the popular uprisings of 2011, this constitution sought to maintain robust protections of fundamental freedoms. However, the recent creation of the Technical Telecommunication Agency (ATT) threatens to undermine such progress and all in the service of digital surveillance.
Established by decree no. 2013-4506, bypassing parliamentary approval, ATT “provides technical support to judicial investigations into ICT-related crimes”, enabling it to monitor and record online traffic with full access to networks and information held by Internet Service Providers. Many critics of the agency liken it to the NSA; Tunisian Pirate Party member Raed Chammem stated on Twitter “We finally have our own Tunisian law-abusing agency…#NSA-like #A2T”.
The drafting process of the constitution demonstrated the core divergent forces at play in Tunisia. Central to this tension was the positioning of media freedom, most notably in the mandate and impartiality of the High Independent Authority for Audiovisual Communication (HAICA). Articles 122 and 124 reduced the authority to an advisory role as opposed to that of a regulator and required its membership to be elected by parliament. It took concerted lobbying by civil society activists and the National Union of Tunisian Journalists to modify both articles. As stated by Freedom House “the revised language is not just a victory for press freedom and the media sector, but also a triumph for Tunisia’s growing civil society.”
The fight for greater oversight by civil society and regulatory bodies as seen in the last minute amendments to the constitution has not, to date, impacted the creation and implementation of the ATT. The International Business Times wrote that the ATT “fails to properly define the organization’s relationship with judicial authorities, and there is no legal framework for providing civilian accountability”. They go on to quote Tunisian lawyer, Kais Berrjab who states that the ATT represents a “battery of legal irregularities related to unconstitutionality and illegality.”
With an emergent blogger-community, any movement to restrict, monitor or record online content, strikes at the heart of media freedom in Tunisia. Article five of decree no. 2013-4506 outlines that ATT activities will be “secret, unpublished and only sent to the government”. When coupled with the head of the agency being appointed by the Minister of Information and Communication alone, and government plans to exempt the ATT from legal obligations, which exist for all other agencies, in regards to transparency, the prominence of the state raises pertinent questions about the impartiality and non-partisanship of the agency.
The IB Times highlights a key motivation behind the creation of the ATT; the belief “that monitoring the activities of private citizens is essential to counterterrorism effort.” Indeed this argument is playing out across the world, most notably in the US concerning the actions of NSA and the UK with its own GCHQ.
Mounting public pressure to confront recent high-profile assassinations, as well as the perceived threat of Islamic extremism has been highlighted as key reasons for this move towards creating a more investigative body – ATT in all essences replaces the Tunisian Internet Agency (ATI) – however criticism remains as to how it can operate within the legal and political parameters outlined in the 2014 constitution.
In the same IB Times article, Jillian York of the Electronic Frontiers Foundation is quoted as saying, “starting with legitimate concerns about security, the state can then push beyond that and you see surveillance used against political dissidents or just in violation of basic privacy.” Herein lies the central conflict; the last minute redrafting of the constitution established civilian oversight, an impartial regulator and robust protections, but will the ATT, wired to the central government, through the Minister of Information and Communication, undermine such progress, making online participation as dangerous for journalists and bloggers as seen under the leadership of Zine el-Abidine Ben Ali?
The passing of the constitution proved to be a powerful call-to-action for Tunisian civil society, reshaping the government’s relationship with the media and civil society and embedding freedom of media and expression at the core of the legal and political system. But with the establishment of the ATT, Tunisia risks damaging this precedent, undermining the progress, as part of an ill-defined counterterrorism campaign.
The constitution cannot exist outside any effort to counter terrorism; it should, in fact, lie at the core of these efforts. The combatting of militancy and terrorism requires the support and involvement of all sectors of society, including the media and civil society. But if it is the state that strikes the first blow against the ideals and optimism contained within the constitution, will the emergent civil society be able to defend it?
This article was posted on May 20, 2014 at indexoncensorship.org
12 Feb 14 | News and features, Politics and Society, Tunisia
After decades of dictatorship and two years of arguments and compromises, Tunisians finally have a new constitution laying the foundations for a new democracy. Deputies celebrating the ratification of the new constitution for Tunisia. Photo: Mohamed Krit / Demotix
Tunisia’s new constitution took effect on 10 February. The document which observers and commentators hailed as progressive and democratic, was overwhelmingly approved by the National Constituent Assembly (NCA) on 26 January.
Though the charter establishes Islam as the state religion, it makes no reference to Islamic law as a source of legislation. Instead, the document states that “Tunisia is a civil state based on citizenship, the will of the people, and the supremacy of law” (article 2).
Despite provisions banning “attacks on sanctities” and “apostasy accusations”, the constitution guarantees fundamental rights and liberties, including free expression, the right to privacy, access to information and women’s rights. The charter further enshrines third generation human rights such as access to communication networks and the right to a healthy environment.
Now that Tunisia has a constitution which does not fall short on human rights, what’s next? After all, a constitution is not an end in itself but a means to build democratic institutions and uphold rights and liberties
While, acknowledging that the constitution “responds to the main aspirations of the majority of Tunisians”, the Tunisian Association for Constitutional Rights highlighted the necessity for its “democratic implementation”.
“The most beautiful of constitutions could be amended, misapplied or even violated,” journalist Bechir Ben Yahmed warned in an opinion piece. “Read the constitutions of former USSR and the Republic of China. They are good, generous and progressive. Have they prevented Stalin and Mao from using them as they wish?”
In fact, after the ratification of its post-revolt constitution, a set of legal reforms await the cradle of Arab uprisings.
Amira Yahyaoui, a human rights activist and founder of the parliamentary watchdog Al Bawsala, told Index that the most urgent reform is “establishing a constitutional court to attack all stupid laws”.
The Tunisian constitution provides for the establishment of a 12 member constitutional court tasked with overseeing the constitutionality of laws. This court will be put in place after parliamentary elections take place later this year. In the meantime, the NCA will elect a temporary commission to supervise the constitutionality of draft laws.
Yahyaoui mentions legislation which does not permit children to travel abroad with their mothers unless the father issues a written authorisation. Fathers, however, do not require any authorisation if they were to travel with their children. She says, these measures are now unconstitutional since the 2014 charter enshrines “gender equality before the law”.
The future constitutional court should also revise anti free speech legislation, Yahyaoui adds. Three years after the ousting of the Ben Ali regime, prosecutors and judges still deploy his anti-free speech laws to intimidate journalists, artists and bloggers.
Journalist and blogger Hakim Ghanmi is facing military trial for merely criticising the staff of a military hospital in a blogpost he published last April. He was charged with “defamation”, “the undermining of the reputation of the army” (article 91 of the military code) and “harming others or disrupting their lives through public communication networks” (article 86 of the Telecommunications Code).
Indeed, the Tunisian Penal Code criminalizes defamation of public officials and state institutions (articles 128, 245 and 247) and punishes by up to two years imprisonment anyone convicted of “accusing a public official of committing an offense while holding office without having evidence to prove the accusation”.
Article 121 (3), further bans the publication of materials “liable to cause harm to public order or public morals” and punishes those convicted by up to five years imprisonment.
These laws are inconsistent with the new constitution which guarantees “freedom of opinion, thought, expression, media and publication” and bans “prior censorship”.
Privacy law also requires revision. “The state protects the right to privacy, the sanctity of domiciles, the confidentiality of correspondence and communications, and personal data,” article 24 of the 2014 constitution reads. Yet, this right remains under threat since the 2004 fundamental privacy law gives state authorities the power to process and collect personal data without the supervision of an independent body.
Besides, Tunisia’s data protection authority, the National Authority for the Protection of Personal Data (INPDP), remains powerless and lacks independence from government interference under the same law.
Tunisia made a major stride by adopting a new constitution. However, the long road to reform is far from over as the authorities should amend or abolish all repressive laws of the dictatorship era.
This article was published on February 12, 2014 at indexoncensorship.org
10 Feb 14 | News and features, Politics and Society, Tunisia
After decades of dictatorship and two years of arguments and compromises, Tunisians finally have a new constitution laying the foundations for a new democracy. Deputies celebrating the ratification of the new constitution for Tunisia. Photo: Mohamed Krit / Demotix
The Arab Network for Human Rights Information (ANHRI), a human rights umbrella organisation based in Cairo, issued a statement on 3 February strongly denouncing a recent attack on journalists in Tunisia. The incident saw a presenter and cameraman working for attacked by 5 members of the Tunisian General Labour Union.
The attack of 29 January happened as journalists working for satellite channel al-Mutawasit attempted to cover a strike outside the Tunisian General Labour Union’s provincial headquarters in Sfax. Tunisian news site Hour News reports that 5 union members attacked the two-man crew, threatening them and seizing recording equipment. The equipment was returned only after intense negotiations, and was found stripped of memory cards documenting the incident.
According to al-Mutawasit, this is far from the first such incident. In fact, they claim to have been victim to “a fierce onslaught” by the security services. Officials from the channel allege that, after a string of interrogations, eight members of the security forces stormed the studio on 31 October 2013, during a live discussion about the drafting of a new constitution. According to the presenter Salih Atiya, the officials gave no hint as to the justification for their surprise visit, and refused to give their names for security reasons.
The most recent confrontation on 29 January, and the increased incidence of attacks on journalists in the preceding months, has led the Media Protection League of Tunisia to issue an open letter, dated 2 February, to Tunisia’s new prime minister Mehdi Jomaa. In the letter, the group demanded a review of current legal protection for journalists, especially the hotly-debated Press Laws of 2011, which continue to be legally enforced despite controversy surrounding their contents.
This string of events, which appear to constitute a crackdown on the freedoms enjoyed by Tunisian television, print and radio broadcasters, comes amid growing optimism for the state of freedom of expression in other areas. Recent reports that Jabeur Mejri, sentenced to 7 ½ years in prison over a Facebook post, is to be released have sparked hope that the judiciary is becoming more mindful of human rights legislation.
Moreover, the signing of Tunisia’s new constitution on 27 January, after more than 2 years of wrangling, generated enthusiastic praise from inside the country and out. Prominent Tunisian human rights advocate Lina Ben Mhemni reported that it contains “some victories, but is not a triumph”, while others outside Tunisia were less measured. According to Women Living Under Muslim Law, it is a “progressive and monumental” document, one that makes Tunisia more progressive than the US with regards to women’s and workers’ rights, as well as health care and climate change. The Doha Centre for Media Freedom issued a specific statement praising the constitution for “enhancing freedom of expression“, detailing clauses that insist on “the freedom of access to information”.
The ratification of Tunisia’s new constitution undoubtedly marks an important victory for progressives in the country. However, the attack of 28 January and the events leading up to it leave one wondering how far press freedoms now enshrined in law will be protected in practice.
This article was published on 10 February 2014 at indexoncensorship.org
28 Jan 14 | News and features, Politics and Society, Religion and Culture, Tunisia
The imprisonment of Jabeur Mejri over the publication of prophet Muhammad cartoons on his Facebook page is set to come to an end soon, reports Tunisian local media.
Mohamed Attia, vice-president of the Tunisian League for Human Rights (LTDH) told privately-owned radio station Shems FM that Mejri will soon be released, and that he will travel to Sweden where he has allegedly obtained political asylum. The announcement comes after civil society groups visited Mejri in prison on 21 January.
The initiative was led by the International Federation for Human Rights (FIDH) and included representatives from the LTDH, the Tunisian Forum for Socio Economic Rights (FTDES) and Mejri’s support committee.
Mejri has been in prison for nearly two years for posting cartoons of the Prophet Muhammad on his Facebook page. He was sentenced to a seven-and-a-half year jail term for “publishing material liable to cause harm to public order or good morals”, “insulting others through public communication networks” and “assaulting public morals”.
His friend Ghazi Beji, who received the same sentence in absentia after fleeing the country, obtained political asylum in France last year.
“I cannot enjoy my freedom in Tunisia. So, I have to leave my country,” Jabeur told Henda Chennaoui, a member of his support committee, during last week’s visit.
But in order to leave the country, Mejri must first obtain a presidential pardon. Despite Tunisian president Moncef Marzouki promising this on a number of occasions, he has so far not kept his pledge.
Meanwhile, Tunisia’s National Constituent Assembly (NCA) overwhelmingly approved a new constitution on Sunday. Though the charter enshrines freedom of expression, provisions that restrict free speech over religious issues have raised concerns.
Article 6, on freedoms of belief, conscience and religious practice, tasks the State with “protecting sanctities”. The article was expanded in early January to ban “Takfir” (apostasy accusations), at the request of opposition representatives in the NCA. The same article was further amended last week to prohibit the “undermining of sanctities”.
“The state sponsors religion, guarantees freedom of belief and conscience and religious practices, protects sanctities, and ensures the neutrality of mosques and places of worship away from partisan instrumentalisation. The state commits to spreading values of moderation and tolerance, and to protect the sacred and prevent its undermining. [The state] also commits to ban and fight accusations of apostasy (“takfir”) hate speech and incitement violence,” it states.
“Article 6 remains the shame of this constitution: a clear and definite restriction of free speech,” Amira Yahyaoui, president of human rights NGO Albawsala, tweeted on 23 January.
“There are several vague points that open the door to the return of censorship, especially with the establishment of the protection of the Sacred [notion],” Lotfi Azouz, director of the Tunis bureau of Amnesty International said at a press conference on Saturday. Free speech provisions in the constitution are “chained up by principles that could harm this freedom”. He further added that article 6 “establishes censorship in the name of protecting the sacred”.
