Social Justice and Political Participation: What Role can Transitional Justice Play in Tunisia?

Following the revolution of late 2010 and early 2011, a transition process has been launched in Tunisia. Despite the varying definition of transition, one main aspects of this process has been the call for transitional justice. In this article, Amine Ghali takes a deeper look at the challenges and the potential of adopting a Transitional Justice process in Tunisia.

Even though the process of Transitional Justice has not officially started yet, several actions have been taken from the succeeding governments which could be considered as seeds of a comprehensive process. Among the most important of these actions we can list:

  • The establishment of two National Investigation Commissions, one on human rights abuses during the revolution time and the following period; and the second one on corruption and embezzlement during the Ben Ali regime.
  • The passing of an Amnesty Law.
  • The article 15 of the election law, prohibiting former figures of the old regime from running for the Constituent Assembly elections of Oct 23rd, a decision that could be associated with the process of vetting, usually associated with Transitional Justice processes.
  • The early stages of reform of different state institutions, starting with the dismissal of some well known corrupt figures (mainly in the security system and in Media, but also in the judiciary and other public administrations).

During these months following the revolution, a number of civil society organisation, mainly those who have been active at the international scene (Arab Institute of Human Rights, Kawakibi Democracy Transition Center, Amnesty International-Tunis Branch and others) started advocating for the initiation of a dialogue on Transitional Justice, in order to lead to the adoption of such a process. In the following months of this debate – joined by an increasing number of local associations, political parties, the Bar Association, victims groups, media campaign, and other international NGOs – the political will materialized and high level decisions have been taken toward the adoption of a Transitional Justice process. Of these decisions, we mention the two most important ones:

  • The establishment of a Ministry of Human Rights and Transitional Justice, even though this decision is unique in international comparative studies. (We need to see its role in the process in order to assess the rightness of such a Ministry.)
  • The voting of article 23 of the “Reglement Provisoire des Pouvoirs” by the newly elected Constituent Assembly, asserted in its article 23, “(…) the Assembly will pass necessary legislation to establish a Transitional Justice process” [Unofficial translation by the author].

Despite these civil and political dynamics, many questioned the need for a Transitional Justice process in Tunisia, where no war or civil conflict has taken place and where no massive human rights abuses have been conducted on a very large scale compared to some other countries witnessing heavy dictatorship. The answer lies in the fact that abuses of the past decades need to be addressed in order to consolidate the democratic transition of the country.

Of these abuses, some would be labelled as violation of political and civil rights, such as the victims of the revolution (abuses of the security forces); or the political prisoners of the past decades (mainly Islamists but also Leftists and independent politicians); or citizens, who because of their views, have been deprived of their rights to work, right to movement, to education etc.. Other abuses could be labelled as violations of economic and social rights: citizens who suffered endemic corruption and embezzlement, citizens who suffered systematic marginalisation and deprivation because of their regional affiliation and geographical location.

But following the confirmation of the political will, the discourse has taken a different level, from the stage of whether we need a Transitional Justice process to the stage of how to better implement such a process. And accordingly, the main actors of this process could be divided into two branches. On the governmental side: the Ministry of Human Rights and Transitional Justice, the National Constituent Assembly (with its “Commission on victims of the revolution”, and “Commission to fight corruption”); the National Body for Human Rights and Fundamental Freedom (This body is a very weak structure, and civil society are calling for its reform to be in line with the Paris Principle and be repositioned as one main actors of the new map of human rights protection in Tunisia); the two National Commissions (on human rights abuses and on corruption mentioned earlier) or any subsequent body replacing them.

On the civil society side, it’s the Bar Association, judges associations, the victims groups, the large associations and initiatives dealing with Transitional Justice (National Coordination on Transitional justice, Kawakibi Democracy Transition Center, the Center of Tunis on Transitional Justice…), and the international NGOs (ICTJ, No Peace Without Justice, Human Rights Watch, Freedom House…).

With all of these dynamics, the path to Transitional Justice is not clear yet, and many challenges lie ahead. Amongst them:

  • The usual attempts by politicians to instrumentalize victims for political ends.
  • Transitional Justice becomes –or will be perceived as – an escape route for perpetrators.
  • Some influential forces remain opposed to Transitional Justice in order to prevent the unveiling of the truth.
  • However, the big challenge lies in the attempt of the government to set a Transitional Justice process according to political considerations, or even worse, according to partisan considerations.

The path of Transitional Justice is also uncertain because of the constraints that those in charge of implementing the process will face (mainly the upcoming commission, but also the Ministry and the different state administrations). Financial and human resources could be considerable given the cost of the process (in terms of the machine and in terms of the compensation and reparation) and the lack of human expertise. The other important constraint is time, where the victims are asking for everything (recognition, reparation, financial compensation, persecution…) immediately. Time is also of importance for the government and the Constituent Assembly to start delivering and materialising its election promises.

Finally, given the importance of this process, the need for success and the scarcity of expertise, chances of success of any Transitional Justice process could be enhanced if the international community, especially those who have confirmed expertise, gets involved according to a certain approach. The international community shall keep providing expertise without interfering in the ownership of the process. In doing so, it could contribute to the capacity building of all actors (those in charge of the implementation, the legislators, the upcoming commission(s), civil society, media…). It could also keep some of the diplomatic pressure on the politicians for the process to go the right direction and not to deviate into pure partisan deals. 

Amine Ghali is the Program Director of Al Kawakibi Democracy Transition Center (KADEM) working on issues of democracy, reform and transition in the Arab region.

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