Tunis — Tunisia's Truth and Dignity Commission on March 26, 2019 made public its five-volume report analyzing and exposing the institutional networks that enabled human rights abuses over five decades, Human Rights Watch said today. The commission outlined the role of former presidents Habib Bourguiba and Zine el- Abidine Ben Ali and other top officials in the torture, arbitrary detention, and numerous other abuses of thousands of Tunisians.
The commission documented abuses not only against political opponents but against their families, including sexual assaults of the wives and daughters of opposition members. The commission named officials allegedly responsible for the crimes, including the current president Beji Caid Essebsi, accusing him of complicity in torture in his capacity as the interior minister for Bourguiba, from 1965 and 1969. It said that he should publicly apologize to the victims in the name of the state. The commission also outlined the numerous ways in which security and judicial authorities impeded its work, blocking access to evidence in archives and to the identities of police officials implicated in abuse.
"The real test of Tunisia's willingness to confront its abusive past lies in the authorities' actions to prosecute those implicated in abuses based on the commission's evidence and to reform its judiciary and security services," said Amna Guellali, Tunisia director at Human Rights Watch. "The world will be watching to see if the authorities, who obstructed the commission's work, will now make good on their promise to carry out its recommendations."
The government of Tunisia should act quickly to carry out the commission's recommendations to ensure that those responsible for gross human rights abuses in the country are prosecuted, Human Rights Watch said. The government should move ahead with reforming the judiciary and security forces implicated in abuses. It should give the Specialized Chambers within the country's court system that were created to try past human rights abuses all the means to compel members of the security forces to appear before them and limit military court jurisdiction to military personnel who committed military crimes. The government should also reinforce the independence of the judiciary by limiting the executive branch's authority to investigate or assign judges and increase investigation of and disciplinary procedures for security forces implicated in abuses.
Tunisia adopted a Transitional Justice Law in 2013 to address human rights violations and corruption between 1955 and 2013. The law established the Truth and Dignity Commission, with a four-year mandate, renewable for one year, to investigate, expose the truth, and propose measures for accountability, remedies, and rehabilitation.
The law also tasked the commission with referring cases of torture, forced disappearance, and other serious abuses to 13 specialized chambers created within ordinary courts to try those responsible for grave human rights violations committed since 1955, and that will outlive the commission's mandate. The law allows the commission to mediate cases relating to corruption and economic crimes at the request of an accused person, someone harmed by corruption, or the government.
Tunisia is the only country to establish a national truth commission in the wake of the Arab uprisings, and only the second in the Middle East and North Africa. The first was Morocco's Equity and Reconciliation Commission, established by King Mohammed VI in 2004, to investigate abuses committed during the authoritarian rule of his father, Hassen II.
Tunisia's commission received more than 62,000 complaints about human rights abuses occurring in the span of 60 years of Tunisian history, from violations during the war of independence to those committed after the revolution. The commission also held 14 public hearings for victims of human rights violations and corruption that were broadcast live on prime-time television. The commission transferred more than 170 cases of grave human rights abuses to the specialized chambers, and trials opened in dozens of these cases, but these trials have been postponed several times due to the refusal of the accused to appear before the courts.
"Those responsible for gross human rights violations should not be allowed to escape justice by refusing to appear in courts that have summoned them, thus undermining the authority of the judiciary," Guellali said. "In addition to the need for truth, it is critical for the government to carry out the commission's recommendations if it is to uphold the rule of law in the country."
Efforts to Obstruct the Truth Commission's Work
The commission said in its final report that it was able to establish the truth about systemic crimes despite the lack of collaboration, and even obstruction, of government authorities. The commission said that government institutions hindered its work by preventing it from accessing the archives of the presidency and Interior Ministry and ignoring its numerous requests for information about the identity of police agents involved in torture. The commission also said that the military courts refused to hand over the judicial files related to the cases that the commission had referred for prosecution.
The parliament voted in May 2018 not to allow the Truth and Dignity Commission to exercise its prerogative to extend its mandate by one year. Despite this vote, the commission continued to function, albeit with difficulties. The parliament also enacted a law on "administrative reconciliation," based on a presidential initiative, that removed certain economic crimes from the commission's purview and ensured amnesty for some categories of corrupt former officials.
The commission's recommendations are likely to face serious political resistance. Prime Minister Youssef Chahed is mandated under the transitional justice law to prepare, within a year of the issuance of the final report, a work plan and strategies to apply the recommendations, but he has refused to receive the commission's members for an official handover of the report. He had previously declared that the commission had failed in its mission, criticized the special courts trials in progress, and promised to introduce a new transitional justice law.
The transitional justice law also mandates the parliament to create a special commission in charge of controlling the implementation and effectiveness of the recommendations. This commission has not been established.
Key Reform Proposals
Among its many recommendations, the Truth and Dignity Commission said that Tunisian authorities should end impunity for human rights violations by ensuring accountability of alleged perpetrators.
The commission concluded that the culture of impunity is deeply entrenched in Tunisia and that the institutional and legal changes introduced after the revolution were insufficient to end torture and other egregious human rights violations. It recommended enhancing accountability by granting the 13 specialized chambers established in the ordinary court system the authority to try those responsible for gross human rights violations after referral from the commission.
The commission said that the specialized chambers should have all the means and protection they need to conduct their work without intimidation and interference. This would require police to carry out a court summons of an accused party and to create disciplinary procedures for any attempt by police unions to hinder the work of the specialized chambers by calling on their affiliates to boycott the court sessions. Judges for these chambers would also need sufficient protection and job security to perform their work.
Human Rights Watch and other nongovernmental groups have also said the Tunisian authorities should support the work of the specialized chambers, which suffer from numerous obstacles, including an effective inability to compel the accused and witnesses to appear because police have failed to enforce summonses against defendants who refuse to cooperate. The trial sessions have moved at a very slow pace, with numerous postponements. At least one police syndicate denounced the tribunals as "denigrating" the security services and urged its members to boycott them.
The first trial in these special courts, which opened in the city of Gabes on May 29, 2018, concerned the forced disappearance of Kamel Matmati, an Islamist activist whom the police arrested in 1991. None of the 14 defendants have shown up. The Special Court of Gabes has held three more court sessions, postponing the trial each time because the defendants were not present, despite court orders to appear.
Other trials in the Special Courts in Nabeul, Gabes, Gafsa, Tunis, and Le Kef suffered from the same obstacles, with the courts unable to compel the accused to appear because most of them simply ignored the court orders and police did nothing to enforce the orders. This situation has created frustration among the victims, who had long hoped to confront their abusers in a court of justice.
Institutional and Legal Reforms of the Judiciary, Security Bodies
The commission dedicated a chapter to the institutional reforms of the judiciary and security forces necessary to avoid backsliding into abusive practices, given their past role in the arrest, abuse, and prosecution of thousands of dissidents. The commission recommended, among other things, legislation to restrict the mandate of military justice only to military crimes committed by military personnel, excluding all cases with a civilian defendant or victim. Military courts still exercise jurisdiction over civilians, and several bloggers have been tried for "defaming the army" under article 91 of the Code of Military Justice.
The commission also recommended reinforcing the powers of the Supreme Judicial Council, (SJC), set up by parliament on May 15, 2015, whose mandate includes judicial appointments, discipline, and career progression of judges. One of the main concerns about judicial independence that many human rights organizations have identified is the disciplinary system for judges, as the new law empowers the justice minister to institute misconduct investigations against judges through the General Inspection Service (GIS), a body under the minister's control. The commission recommended revising the law creating the inspection service to revising the law creating the inspection service to place it under the Supreme Judicial Council instead of the Justice Ministry.
The commission recommended enhancing internal disciplinary measures to address alleged police misconduct to ensure effectiveness and transparency of the investigations. It also recommended creating an independent complaint body to investigate abuses and misconduct by the security forces. While recognizing that Tunisia has made important strides in adopting laws with stronger guarantees against ill treatment, such as the law n.5 granting access to a lawyer from the onset of detention, the commission identified other important safeguards that are needed. These include placing more cameras in police stations to monitor the work of the police and assigning supervision of the judicial police to the Justice Ministry rather than the Interior Ministry.