“Freedom” is one of the words engraved on the official emblem of Tunisia, and it has been a part of the country’s culture since independence and is deeply rooted in Tunisian collective thought. Since its independence on March 20, 1956, Tunisia has taken its first breath of freedom through the ballot box and the constitution of basic freedoms.

The historical context and the political orientation of the ruling parties have always been the most influential factors in the results of elections and Tunisian history. This is also the case for the upcoming elections, which are shrouded in a state of confusion and chaos, due to the lack of clarity in terms and legislation. Despite the relatively slow preparations of the electoral commission, the biggest question remains about the extent to which the right to freedom of expression is respected in the gloomy electoral climate.

A Barren Legal Framework

In principle, no one denies that Tunisia has embarked on an irreversible path away from the successful legal and procedural gains in terms of protecting the enshrined right to freedom of expression. However, the blatant legal duality undermines these gains through a series of laws and amendments that strike at the heart of freedom of opinion, expression, the press, and publication ^[1], as was clearly evident in most of the new laws.

The 2022 Constitution of the Republic of Tunisia has preserved these freedoms in name only, but it has not enacted the necessary guarantees and controls to protect them. It has also not strengthened the independence of the judiciary, and work has not begun on the establishment of “ the Constitutional Court” ^[2] in a definitive manner.

Recently, the Official Gazette of the Republic of Tunisia (issue 108) published Order No. 588 of 2023, dated September 21, 2023, calling on voters to elect local council members. This came after calls to delay or postpone the elections in the face of economic difficulties and their coincidence with some trends to amend some laws, such as the electoral law, and to repeal others, such as Decree No. 54 of 2022, dated September 13, 2022, on combating crimes related to information and communication systems, as one of the most prominent and dangerous decrees issued during the exceptional period. The same is true for some of the articles contained in the following:

• The Penal Code: Articles 125 and 128, which deal with penalties that restrict freedom in crimes of defamation, insult, and spreading false news.
• The Communications Code: Article 86, which deals with penalties that restrict freedom for offensive digital content.
• The Code of Civil Procedure, as well as military penalties: Article 91 of the Code of Military Justice, which deals with the trial of civilians before military courts.

These are among the factors and legal tools that have led to the truncation and suppression of the gains brought about by Decree No. 115 of 2023 on 2011 freedom of the press, printing, and publication.

All of these legal developments have exacerbated the fragility of the state of freedom of expression in Tunisia, which fell 21 places in the annual ranking of Reporters Without Borders in 2022 and continues to decline in 2023. During this year, violations and crimes against freedom of expression have accumulated, due to the suffering of the media and journalists from severe economic difficulties, judicial prosecutions of individuals for participating in peaceful gatherings or raising slogans against the public authorities, or publishing blogs or political opinions, despite the clear constitutional text ^[3],and in the 23rd article, which established the principle of equality for all before the law.

Based on this, there is a need to review the electoral decree, which has been marred by many shortcomings, especially with the complexity that characterized it after its revision on September 14, 2022, to overcome the difficulties and succeed in the electoral process. It must be emphasized that democracy, the protection of freedoms, the promotion of human rights, the consecration of the rule of law, good governance, and the fight against corruption are irreversible options in Tunisia.

Terrorizing freedoms and truncating rights

On July 25, 2022, during the campaign for the referendum on the new constitution of the Republic of Tunisia, the High Independent Authority for Elections, within its supervisory jurisdiction, filed 24 complaints with the First Instance Court in Tunis against media outlets and Facebook pages, including charges of defamation, assault on public morals, foreign funding, political advertising, and infringement on the dignity of voters. This was condemned by a number of organizations, including the Tunisian National Union of Journalists, for targeting freedom of opinion and expression, which has reached the point of exercising the role of a “police” censor on the public opinion of citizens and the media.

Will this trend continue in the upcoming elections through the exclusion of the media?

Civil society organizations expressed their surprise at the lack of interest of the Electoral Authority in the integrity and transparency of the electoral process, and providing a healthy electoral climate based on freedom. This is supported by the numbers and data specific to the parties that carried out attacks against journalists. The executive summary showed that 68 cases of suspension from work were recorded, 44 of which were recorded during election periods, and 42 cases of harassment were recorded, 15 of which were during the previous electoral period. The parties responsible for these attacks were from government agencies, accounting for 90% of the attacks, which were distributed as follows:

Number of attacks	Agent
61	Polling station officials
25	Security personnel
14	Public servants
13	Subsidiary body officials
9	Ministries
7	Government officials
7	Subsidiary body members
4	Polling office officials
3	Local officials
3	Independent bodies
2	Polling office members
1	People’s deputies

This was stated in the annual freedom report, which acknowledged the significant decline of Tunisia in the fields of freedom of expression and freedom of the press, as the rates of harassment, arrests, and trials of activists, political opponents, and social media users on charges related to freedom of expression and publication have increased.

Some of them were tried in military courts without taking into account the international and national standards and principles that require a fair trial in a civil court, where this was violated in addition to the lack of providing necessary legal guarantees.

Diminishing Representative Democracy:

On the political level, the Independent High Authority for Elections in Tunisia is continuing preparations for the local elections and the elections of the regional and provincial councils. In contrast, the opposition continues to boycott the electoral process.

These elections are unprecedented in Tunisia, as they will be held for the first time in 2,155 electoral districts, a very large number compared to the municipal elections that were previously held in a maximum of 350 districts. They are also direct municipal elections from all citizens, which form a prelude to the elections of the regional and provincial councils, as they can only be accessed after the expiration of the municipal councils.

The Independent High Authority for Elections in Tunisia has been working with a reduced number of members. It currently has 4 members instead of 7, following the decision to dissolve the board of the elections authority emanating from the 2014 constitution and elected by the previous parliament.

It is worth noting that the organization of these local elections was linked to a fundamental condition, which is to fill the vacant positions in the independent elections authority, so that its legal quorum becomes legal and allows its council to convene and organize all future electoral paths.

President Kais Saied appointed 3 new members who took the constitutional oath before him in 2022 without any consultative or proportional considerations for these unilateral appointments that are authoritarian in nature.

In the same context, the Tunisian Parliament continues to operate with a reduced number of members^[4]. Since its inaugural session on March 13, 2023, the Parliament has been operating with only 153 deputies out of a total of 161 seats stipulated by the 2022 constitution, which stipulated the number exclusively.

It is worth noting that there must be a suitable time difference between the elections of the second chamber (the Council of Regions and Provinces) and the first chamber (i.e. the Parliament), without a significant time difference between the two practices.

It is feared that delaying the elections may disrupt the consideration of economic laws and development plans that require the double ratification of the two chambers, as well as postpone the consideration of laws that affect freedom of expression and suppress basic freedoms, which are considered tools of oversight over the authorities.

The Independent High Authority for Elections is awaiting a letter from the House of People’s Representatives to start preparations for the partial legislative elections and propose an electoral timetable that it will send to the President of the Republic. After his approval, he will himself call for elections by a presidential decree published in the Official Gazette. However, this seems to be unfeasible at this time.

The question that is strongly posed is, how long will the procrastination continue without defining a strategy to guarantee democracy in Tunisia?

Silencing the Voice of Civil Society

Civil society and political parties have called for a postponement of the local elections, despite the fact that the hypothesis of postponement was not raised for the presidential elections. This is because the general economic and social situation and the breakdown of the legal framework do not allow for elections to be held in a fragile democracy.

There is a general trend among citizens of a lack of interest in the political process, accompanied by a lack of interest in the electoral process because the process is difficult to implement in the current situation due to the proximity of the time frame. 

This is because it is not possible to hold elections technically, due to the lack of readiness of the Tunisian Independent High Authority for Elections, and the need to train observers and assistants, given the large number of nominations, the multiplicity of electoral districts, and the need for other major logistical preparations, in addition to the process of collecting endorsements in each municipality. This requires a great effort and greater media scrutiny.

The Situation of Freedom of Expression in Tunisia:

The situation of freedom of expression in Tunisia has deteriorated in recent months. In 2023, the Ministry of Culture banned several books from being published at the Tunisian Book Fair. This was seen by civil society organizations as a flagrant and dangerous violation of freedom of thought.

The Tunisian Constitution guarantees freedom of thought and expression. However, the daily violations of these rights are in violation of the law.

There are currently many calls for the protection of freedom of expression, but these calls are often met with silence from the authorities. This silence is a worrying sign of the return of repression.

The situation of freedom of expression in Tunisia shows that the country is still struggling to achieve its democratic goals.

Recommendations

The Gulf Centre for Human Rights (GCHR) urges the Tunisian government to implement the following recommendations:

1. The electoral decree must be revised to address the many shortcomings that have been identified. This will help to overcome the challenges facing the electoral process and to strengthen the role of the fourth estate;
2. The chapters mentioned above in the Penal Code and the Communications Code should be repealed, as there are similar crimes in the legal framework of Decree 115, with penalties that are more appropriate for work in the media field;
3. The government should work as quickly as possible to prepare for the partial legislative elections, which are essential for achieving full representative democracy;
4. The government should immediately stop all government actions taken by the authorities or their affiliated entities that undermine intellectual and cultural freedoms;
5. The government should reaffirm that democracy, the protection of freedoms, the promotion of human rights, the rule of law, good governance, and the fight against corruption are irreversible choices in Tunisia.

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^[1] [Article 37: “Freedom of opinion, thought, expression, information, and publication is guaranteed.”]

^[2] ” [Chapter Five of the Tunisian Constitution: The Constitutional Court]

^[3]  [Article 23: “Citizens are equal in rights and duties and are equal before the law without any discrimination.”]

^[4] The vacancies in the Parliament’s seats are due to the fact that no elections were held in 7 electoral districts abroad during the December 2022 elections due to the lack of nominations and the inability of candidates to collect 400 endorsements from Tunisian voters living abroad. The vacancy in the eighth seat is due to the imprisonment of MP Wajdi Al-Gawwi, from the district of Al-Mrouj, for three months. He was arrested on the day of the opening of Parliament’s work due to an electoral case, and the judiciary has so far refused to release him.