Tunis — A café owner in Tunisia was convicted of publicly offending morality on May 29, 2019 for keeping his café open during Ramadan fasting hours, Human Rights Watch said today. Such prosecutions, using a vague provision that is applied sporadically and inconsistently, constitute an arbitrary use of the criminal law.
Imed Zaghouani kept his Damascus café in the city of Kairouan open during the current month of Ramadan, when Islam instructs believers to fast from sunrise to sunset. He spent 10 days in jail before a court sentenced him to a suspended term of one month in prison and a fine of 300 dinars (US$100). Tunisian authorities should drop the case and stop using vaguely worded morality laws to go after people who do not observe the fasting hours.
"Tunisia has no laws requiring cafés to close during the daytime fasting hours, recognizing the rights of fasters and non-fasters alike," said Lama Fakih, acting Middle East and North Africa director at Human Rights Watch. "So why are the courts using elastic morality laws to trample those rights?"
On May 18, police visited the Damascus café and checked the identity cards of all customers who were there. They asked Zaghouani to promise in writing to remain closed, which he refused to do, he told Human Rights Watch. The next day, they returned, asked the customers to leave, and arrested Zaghouani, he said. On May 20, Zaghouani appeared before a prosecutor, who ordered him held in pretrial custody.
Zaghouani said that the police had harassed him in previous years for remaining open during Ramadan daytime hours, but never provided him in writing the legal grounds for requiring him to close.
A statement posted on the Interior Ministry website dated May 22 says that the police took the café owner into custody when he became verbally abusive toward them, and that the prosecutor opened an investigation for an affront to morality. The ministry said that this was the basis for the criminal charges and denied that it was harassing cafe owners because they remained open during Ramadan.
However, the one-day trial before the Kairouan Court of First Instance, on May 29, focused on the issue of the café remaining open, Zaghouani told Human Rights Watch. The court did not convict him of offending or assaulting a public agent or any offense other than two counts of "publicly offending modesty" or "publicly offending morality," under articles 226 and 226bis of the penal code, said his lawyer, Hamdi Yousfi.
Violations of those articles are punishable by up to six months in prison and a fine.
Zaghouani said that the case file contains a police report dated May 18 stating that a patrol visited his café because it was open during the day in Ramadan. The report cited penal code articles 226 and 226bis. The second count stems from a police report dated May 19 that says that the police had returned to the café that day in response to complaints from neighbors.
The International Covenant on Civil and Political Rights (ICCPR), which Tunisia has ratified, states that: "Everyone shall have the right to freedom of thought, conscience, and religion." It is widely accepted that this article guarantees the right also to practice a religion according to one's individual beliefs, or to practice no religion. The ICCPR allows countries to restrict the freedom to manifest one's religion or beliefs "subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundament rights and freedoms of others." The ICCPR also requires that domestic criminal laws should be clear enough that anyone could predict a specific act, or inaction, would amount to a crime.
The sporadic prosecution of people who keep cafes or restaurants open during Ramadan on the basis of "morality" provisions of Tunisia's penal code does not meet this standard because those articles are too vague and too arbitrarily applied to allow a person to know if and when they are violating the articles, Human Rights Watch said.
Zaghouani said he will appeal his conviction. The Damascus Café, in Kairouan's medina, or old city, has remained open.
"I've suffered major injustice and I will not calm down until I get all my rights back," he said. "They terrorized me and my clients since last year, my bills are piling up and I need them to leave me alone."