Eleven years ago, Tunisia’s revolution ushered in a period of enormous hope. In short order, the interim government seized then-dictator Ben-Ali’s assets and those of his extended family, set up Commissions on Human Rights and Anti-Corruption, created a Ministry of Human Rights and Transitional Justice, and began a constitution-drafting process. Soon after, a Truth and Dignity Commission (TDC) was empaneled. The country was widely celebrated as the only success story of the Arab Spring.
Today, that success is in grave doubt. The president, with the support of a majority of Tunisians, last July suspended and later dissolved a Parliament that was known for dysfunction and terminal partisanship and now rules by decree. He also suspended part of the constitution, dissolved the Supreme Judicial Council set up in 2016 and created his own hand-picked body. Meanwhile, Tunisia normally imports some 40 percent of its grain from Ukraine and Russia, so the war has caused bread shortages and exacerbated an already grim economic situation, fueling popular discontent.
While political fragmentation and bickering against a backdrop of continuing economic and health crises and persistently slow economic growth are the usual suspects, another key factor is the limited success of the transitional justice process and the democratic transition more generally. Despite a model consultative process and innovative provisions, ambitious transitional justice mechanisms confronted terrible timing, political infighting, and an inability to focus on the demands for structural changes that had driven the 2011 revolution. In the end, the leaders and supporters of the transition were unable to adequately challenge an exclusionary, oligopolistic economic system that left many aspects of Ben Ali-ism intact without Ben Ali.
Intended Structure of Transitional Justice
The 2011 Revolution demanded work, freedom, and national dignity. The Ben Ali regime had been based on two pillars: the police (especially the secret police) who hounded, tortured, and imprisoned dissidents, and a small group of oligarchs and cronies, especially the family of first lady Leila Trabelsi, who captured the state and used it for their own benefit. Immediately after the fall of Ben Ali, the interim government set up two commissions, one on human rights and one on anti-corruption, both of which recommended accountability and broad reforms including vetting. The government created a Ministry of Human Rights and Transitional Justice, which engaged in a broad, two-year national dialogue on what Tunisian-style transitional justice should look like.
Beyond transitional justice per se, the 2014 Constitution guaranteed rights and liberties, set up a Judicial Council in charge of judicial administration, called for a Constitutional Court to vet legislation and for a unicameral Parliament. Notoriously corrupt judges, and those close to Ben Ali, lost their jobs. A freewheeling media and multiple political parties (including some banned in the past) cemented a view that Tunisia was on the right track. Parliament in 2013 passed a law creating the TDC that was intended to identify the truth of abuses that occurred under the dictatorship, ensure accountability, devise a system for reparations, and propose institutional reforms. It also mandated interim medical and other interim aid for those wounded or killed during the revolution (or their families).
The Tunisian transitional justice design boasted several innovations. It was based on an understanding that corruption was systemic and integral to the regime, and closely connected to human rights violations of both civil and political and economic, social, and cultural rights, creating a mutually reinforcing double impunity. Therefore, the transitional justice process was to look at both civil/political and economic violations, investigate cases involving both, and consider reforms to the system as a whole. The TDC was also to act as a kind of investigative magistrate, compiling files about potential crimes to be sent to the Prosecutor, who was to transmit them directly to 13 Special Judicial Chambers within the regular courts, with alleged perpetrators to be tried for either corruption or human rights-related violations (or both). Article 46 of the TDC Law had an “arbitration” function that, in economic crimes cases, allowed potential defendants to voluntarily come forward, acknowledge guilt and apologize, declare their ill-gotten gains, and agree to pay reparations in exchange for an end to legal proceedings against them.
Polarization and Paralysis: Shortcomings of the Transition
The 2014 election marked a turning point. The old guard became a dominant political force once again, eventually in a coalition with the Islamist Ennahda party. The new government, which had been a supporter of a transitional justice process, was now opposed to anything that might shine an unfavorable light on its members or on the police; collaboration with the nascent TDC ended, including access to documents and service of legal process on those whose files were sent to the Special Judicial Chambers. Adverse media coverage and reports of infighting in the TDC also undermined its legitimacy. The new government quickly proposed an “economic reconciliation” law that would have protected both public and private actors from corruption prosecutions or public scrutiny; after an epic two-year battle, civil society managed to whittle down the law so that it was limited to providing a kind of “superior orders” defense to mid-level public servants who engaged in bribery or other illicit behavior.
The TDC published a lengthy final report in 2020 (only the Executive Summary is in English). It established the historical facts in several notorious instances of human rights abuses, and drew up a list of victims entitled to receive reparations. During its existence, the commission had some successes: one of Ben Ali’s relatives went before the TDC (and the country) in a public hearing where he apologized and outlined how corruption took place, although due to conflict with the state litigation office, it’s doubtful that he (or any other perpetrator) actually paid into a reparations fund as was required. The commission took some 60,000 statements, held 14 public hearings, and referred some 200 cases (69 indictments and 131 cases requiring further investigation) to the Special Chambers for prosecution, covering rights violations and financial crimes from 1956 onward. Its recommendations went far beyond reparations and changes to the police and judiciary to consider reforms of the customs authority, public procurement, audit institutions and other parts of the administrative state. The TDC pioneered the concept of the victim region, focusing on interior areas that had been systematically marginalized and neglected after they were labeled as opposition bastions following independence; while there were no public hearings on marginalization, the commission called for collective reparations to these regions. Its report and recommendations were published in the official gazette, which gave them the status of legal pronouncements.
Nonetheless, the lengthy media attacks, the lack of state cooperation regarding archives, subpoenas, and assets, and the political divisions reflected in the TDC itself took a toll. The arbitration and prosecution parts of the scheme were unsuccessful. Few people came forward, and civil society groups noted that there was no ability to check whether the asset declarations filed were complete, or truthful. No significant funds were recovered. The Special Chambers process, which began in 2018, was similarly overwhelmed. Police unions refused to serve subpoenas, and judges filed no contempt claims when defendants did not appear, stymying hearings. Judges were subject to annual rotations to other judicial posts, which meant that the chambers never had a dedicated cadre of judges trained or experienced in either international law or complex investigations. Until now, the Chambers have not issued a single final verdict. All of this, of course, demoralized victims and contributed to the general sense that the transition had become bogged down in infighting and confusion.
Looking into Tunisia’s past also necessarily entailed looking at the roles of France (the colonial power) and the international financial institutions that touted the government as a model state in the region under Ben Ali while insisting on neoliberal austerity policies with negative human rights consequences. The TDC in 2019 wrote to both France and the World Bank and International Monetary Fund (IMF) asking for an apology and reparations. The commission memorandum says France used “a strategy of impoverishment of the peasantry and extreme taxation of the population” and “economic exploitation of the country’s mineral and agricultural wealth,” in addition to employing terror tactics during the independence struggle. It asked France to set up a binational commission to determine reparations. With regard to the IMF and World Bank, the commission’s request referred to social crises from the 1970s on that were provoked by IMF conditionality. Neither France nor the financial institutions ever responded to the TDC’s letter. And the new governments were equally subject to IMF austerity pressures.
With the value of hindsight, many of those I spoke with who had been involved in the process agreed that the fundamental failure was in not dealing with the economic issues and structural inequities that had prompted the 2011 revolution. The broad temporal and thematic mandate of the TDC meant that its resources were inadequate and delays were the norm. The focus on corruption and police as the twin pillars of dictatorship might have been better accomplished in two separate but coordinated entities, which might have diffused rather than concentrated opposition and allowed at least one set of investigations to proceed with fewer headwinds. The Special Chambers were inadequately conceived and regulated. The Parliament, which by 2020 had degenerated into fistfights and name-calling rather than legislating, could well have spent less time early on focused on the aspirational exercise of broad constitutional reform, and more on actually implementing the changes called for. The Constitutional Court, for instance, has still not started work. Nor did Parliament effectively dismantle the systems of licenses and permits, procurement and land rents as well as unaccountable security forces, that kept (and keep) the old elite in place. And the international donors and lenders who supported the transition were, in the end, happy to maintain as much of the status quo as possible in the name of “stability.”
Enter Kais Saied: Coming Full Circle?
It was this sense of wheel-spinning and dysfunction, compounded by pandemic-related economic and health crises from 2020 on, that led most Tunisians to applaud, to the West’s horror, on July 25, 2021, when Tunisia’s President Kais Saied, a former constitutional law professor, suspended Parliament and affirmed he would rule by decree. He announced a consultation process leading to further constitutional reform, and, under continuing pressure from Western countries (and in dire need of economic help from the IMF) eventually agreed to a timeline for return to parliamentary democracy of some sort. His rhetoric has veered between an anti-corruption, pro-poor stance and the messianic language common to populist autocrats the world over.
Indeed, as time has gone on, the government has taken on some worrisome signs. Kais Saied dissolved the Supreme Judicial Council (itself a creation of the 2014 constitution) and replaced it with a loyalist interim council with fewer powers. Amnesty International has denounced trials of civilians in military courts for criticizing the president. He formally dissolved Parliament in March 2022. And, despite the anti-corruption rhetoric, he has also placed the head of the Anti-Corruption Commission (INLUCC) under house arrest.
Kais Saied has ignored the recommendations of the TDC, which if implemented would go some way towards needed reforms. Instead, he is promoting a new form of “criminal reconciliation” in corruption cases that would allow those accused or convicted of economic crimes – committed at any time, even decades ago — to invest in marginalized regions in exchange for immunity or pardons. It would oust the judges who under the post-revolution transitional justice law were responsible for trying these crimes, without much clarity about what would replace them. He has also mixed together compensation for police and soldiers injured in terror attacks with reparations for those hurt or killed during the dictatorship, angering victims’ groups. Most alarming have been reports, based on leaks, that a draft NGO law is in the works. The draft law, similarly to other increasingly autocratic countries elsewhere, will limit foreign funding and subject local civil society groups to increased government control.
Most observers agree that Kais Saied himself is not corrupt, and that he was right to insist on changes in an unsustainable status quo. Whether his proposed constitutional reforms will finally tackle the underlying structural problems — starting with implementing the TDC’s reform recommendations as well as breaking the stranglehold on the economy by a small group of families — or will simply add Tunisia to the lengthening list of “illiberal democracies,” is still up in the air. So far, it doesn’t look good.