Tunis — A draft law that excludes senior members of the former ruling party from political life would be a disproportionate restriction on political rights. The law would ban members of the successive Ben Ali governments beginning in 1987 and members of the former ruling party, the Constitutional Democratic Rally (Rassemblement Constitutionnel Democratique, RCD), who held specific positions from joining other political parties. Such a law would set the stage for the near-total political exclusion of thousands of people based on their past political association.
The Congress for the Republic, one of the governing coalition parties, submitted the bill in April 2012. On October 2, 2012, the Rights, Freedoms, and External Relations Commission of the National Constituent Assembly (NCA) examined the draft law and made several recommendations. The Assembly's rules require the General Legislation Commission to approve the draft and then to submit it to the full Assembly, where passage requires an absolute majority, or 109 members out of 217 total.
"Authorities may have a legitimate interest in excluding senior members of the former ruling party from elected office temporarily, but this law would effectively ban thousands of people from all political activity, thus depriving them of one of their fundamental rights," said Joe Stork, deputy Middle East and North Africa director at Human Rights Watch.
The draft law would add a paragraph to article 7 of the 2011 law on political parties stating that people who held leading positions between November 7, 1987, and January 14, 2011, are prohibited for five years from the time the law takes effect from belonging to any current political party. Those covered include members of the successive governments; the secretary general and deputy secretary general of the RCD; members of the party's political bureau and central committee; the secretaries general of the party coordination committees and regional sections and the presidents of the party's local sections.
The governing coalition parties have said their intention is to protect Tunisia's nascent democracy from the old guard, who could rely on patronage and local prestige to win seats and use their influence to interfere in future elections. These are legitimate concerns, but the measures are too sweeping as they would effectively exclude thousands of citizens from all aspects of political life, depriving them of one of their fundamental rights and violating international standards, Human Rights Watch said.
As a party to the International Covenant on Civil and Political Rights (ICCPR), Tunisia is required to allow citizens "to take part in the conduct of public affairs, directly or through freely chosen representatives" without discrimination and without unreasonable restrictions.
The African Charter on Human and Peoples' Rights, also ratified by Tunisia, requires states to ensure that every citizen has the right to participate freely in the governing of the country.
Countries that suffered under dictatorship and are struggling to build democratic societies in which individual rights are respected have a legitimate concern that these efforts could be undermined by people whose past conduct reflected the criminal, repressive, or corrupt character of those dictatorships, Human Rights Watch said. As a result, there is some justification for restricting political rights of certain people associated with the previous dictatorship at the very beginning of the transition process.
But the process should reflect respect for individual rights, Human Rights Watch said. The restrictions should not be arbitrary. They should be based on clear criteria set out in law and be proportionate, affecting a limited number of people for a limited period and not be a general prohibition on all political activity.
To achieve a balance, between the need to ensure a healthy political environment for future elections and the respect for the right of every citizen to participate in the political life, the Tunisian government should:
Redraft the law to limit the restriction on political rights more narrowly than a ban on membership in political parties.
Establish accountability mechanisms for past crimes of corruption or human rights abuses that comprehensively address longstanding abusive practices in a transparent and fair manner.
International Law and Political Participation
In its interpretation of article 25 of the International Covenant on Civil and Political Rights (ICCPR) on the right to participate in public affairs, the United Nations Human Rights Committee, which interprets the covenant, states that, "Any conditions which apply to the exercise of the rights protected by article 25 should be based on objective and reasonable criteria... The exercise of these rights by citizens may not be suspended or excluded except on grounds which are established by law and which are objective and reasonable."
The UN Human Rights Committee has on six occasions found Uruguay in violation of the right to take part in the conduct of public affairs because of the Acto Institucional No. 4 of 1 September 1976, which stripped all candidates for elected office in the 1966 and 1971 elections of political rights for 15 years. In the case of Jorge Landinelli Silva et al. v Uruguay, the committee dismissed the state's argument that a derogation under a state of emergency justified these measures and said that, "By prohibiting the authors of the communication from engaging in any kind of political activity for a period as long as 15 years, the state party has unreasonably restricted their rights under article 25 of the covenant."
In the May 11, 2000, decision by the African Commission in Sir Dawda K Jawara v. The Gambia, the commission found that, "The imposition of the ban [to take part in any political activity] on former ministers and members of Parliament is in contravention of their rights to participate freely in the government of their country provided for under Article 13(1) of the Charter." That is, a ban on "all political activity" was too sweeping.
The European Court on Human Rights has allowed some discretion to new democracies emerging from dictatorship to place limited restrictions on the right of senior members of the former ruling party under the dictatorship to run for elected office, as long as the period of time is proportional and subject to judicial review. In Melnychenko v Ukraine, the Court observed that stricter requirements may be imposed on eligibility to run for election to Parliament than for eligibility to vote.