Tunisian Draft Law on Associations Undoing 12-years of Advancements

10-17-2023

İrem Çakmak

Middle East and Human Rights Researcher

Global Human Rights Defence

On October 10, 2023, a new draft law was presented to the Tunisian Parliament to replace the existing Decree Law 2011-88 on associations, posing a significant threat to the right to freedom of association, particularly in the aftermath of the 2011 revolution. [1] The 2011 Decree Law had introduced a series of measures that progressively ensured freedom in the operations of non-governmental organisations (“NGOs”), ultimately resulting in the formation of many NGOs. [2] On the other hand, if passed, the new proposal may impede the communication between civil society actors and authorities, further exacerbating the heightened attacks on human rights defenders. [3]

The proposed legislation has raised apprehensions on various fronts, with one of the most significant concerns being the extensive powers vested in the Prime Minister’s Office to revoke the registration of an association or deny permission to operate, without any obligation to provide justifications, within one month during which the organisation is not authorised to commence its activities. [4] The authority to reject the establishment translates to a de facto prerequisite of approval for any recently established civil society organisation, contrary to international human rights standards that require a guarantee for organisations to be established through a notification or registration procedure. [5] This process was already applicable to internationally operating associations seeking to establish themselves in Tunisia, however, its expansion over nationally based associations could impede access to justice for associations facing wrongful denials, due to the prolonged duration of urgent proceedings, requiring at least three months for a judgement to suspend the executive decision. [6] The process of creating an association should adhere to the guidelines of being ‘simple, easily accessible, and non-discriminatory’, as recommended by the UN Special Rapporteur on the Rights of Peaceful Assembly and Association. [7]

The proposal’s generous use of vague terms in numerous articles also raises concerns. For instance, Article 19 empowers the Ministry of Foreign Affairs to grant, revoke, or suspend the licence for any foreign NGO, however, it does not specify the criteria or timeframe for these actions, granting the Ministry almost full discretion in this matter. [8] Furthermore, the proposal grants the executive broad powers during the operations of associations. The proposal subjects both national and international organisations under ‘the supervision and control’ of the relevant ministry and Prime Minister’s Office without indicating the scope of the supervision, raising concerns about potential undue influence or interference. [9] Other examples of vague terms are included in Article 4, forbidding associations from ‘threatening the unity of the State or its republican and democratic regime’ without specifying definitions of ‘threat’ or ‘attack against the security of the State’ and Article 10, regulating that objectives and activities of an association must not ‘fall within the competence of public bodies’ or be ‘subject to a special legal system outside the scope of application of the decree-law’. [10] The incorporation of vague terminology gives rise to fears of arbitrary interpretation, especially in a political atmosphere characterised by the rhetoric of labelling dissenting voices as traitors and internal enemies to undermine their credibility. [11]

The proposal includes measures that severely limit civil society organisations’ activities. To begin with, civil society organisations’ funding is substantially scrutinised. Under Article 18 of the newly-proposed law, organisations shall obtain prior authorisation from the government every time they receive new foreign funding. [12] Moreover, Article 2 introduces an obligation for association activities to be operated voluntarily. [13] This restriction will significantly curtail their activities and areas of operation, as they will be unable to engage personnel to execute their programs and projects, being at odds with international standards since, akin to financial resources, the right to freedom of association safeguards access to human resources. [14] 

Article 37 of the 2014 Constitution of Tunisia provides the rights to assembly and peaceful demonstration. [15] Moreover, Tunisia has international obligations to respect, protect and fulfil the right to freedom of assembly and any related rights and freedoms pursuant to Articles 21 and 22 of the International Covenant on Civil and Political Rights, Article 10 of the African Charter on Human and Peoples’ Rights and Article 24 of Arab Charter on Human Rights. Therefore, Tunisia is obliged to comply with its international duties, that is, imposing restrictions only if necessary and proportionate to achieve a legitimate aim in a democratic society, in addition to being non-discriminatory. [16] The legality, legitimacy, necessity and proportionality of these restrictions are to be narrowly interpreted. [17] 

As a result, human rights organisations have been urging the State to refrain from adopting the proposed law. United Nations Rapporteur on Human Rights Defenders states the human rights defenders in Tunisia regard the existing law on freedom of association as a product of the Tunisian revolution, therefore, they argue that modifying it as suggested would pose a significant setback to human rights organisations and putting their safety at risk. [18] Amnesty International’s Regional Director for the Middle East and North Africa, Heba Morayef states that the legislation may undo all advancements in civil society since the 2011 uprising. [19] 

Sources and further reading

[1] Human Rights Watch, ‘Tunisia: Reject Bill Dismantling Civil Society Arbitrary Restrictions; Excessive Government Control’ (November 7, 2023) <Tunisia: Reject Bill Dismantling Civil Society Arbitrary Restrictions; Excessive Government Control> accessed 17 November 2023.

[2] Freedom House, ‘Freedom in World 2021 - Tunisia’ (2021) <Freedom in World 2021 - Tunisia> accessed 17 November 2023.

[3] Observatory for the Protection of Human Rights Defenders, ‘Tunisia: Draft amendment of the decree-law on associations seriously threatens freedom of association’ (November 2, 2022) <Tunisia: Draft amendment of the decree-law on associations seriously threatens freedom of association> accessed 17 November 2023.

[4] Proposed Basic Law No. 027/2023 Relating to the organization of Associations, Article 9, (October 12, 2023) <مقترح قانون أساسي عدد 027 / 2023 يتعلق بتنظيم الجمعيات. > accessed 17 November 2023.

[5] Amnesty International, ‘Tunisia: Repressive NGO draft law threatens independent civil society’ (October 21, 2023) <Tunisia: Repressive NGO draft law threatens independent civil society> accessed 17 November 2023.

[6] Observatory for the Protection of Human Rights Defenders, ‘Tunisia: Draft amendment of the decree-law on associations seriously threatens freedom of association’ (November 2, 2022) <Tunisia: Draft amendment of the decree-law on associations seriously threatens freedom of association> accessed 179 November 2023.

[7] United Nations General Assembly ‘Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai’ (May 21, 2012) p. 21, <Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai>  accessed 17 November 2023.

[8] Proposed Basic Law No. 027/2023 Relating to the organization of Associations, Articles 19-20, (October 12, 2023) <مقترح قانون أساسي عدد 027 / 2023 يتعلق بتنظيم الجمعيات. > accessed 17 November 2023.

[9] Proposed Basic Law No. 027/2023 Relating to the organization of Associations, Articles 6-8, (October 12, 2023) <مقترح قانون أساسي عدد 027 / 2023 يتعلق بتنظيم الجمعيات. > accessed 17 November 2023.

[10] Proposed Basic Law No. 027/2023 Relating to the organization of Associations, Articles 4, 10, (October 12, 2023) <مقترح قانون أساسي عدد 027 / 2023 يتعلق بتنظيم الجمعيات. > accessed 17 November 2023.

[11] Observatory for the Protection of Human Rights Defenders, ‘Tunisia: Draft amendment of the decree-law on associations seriously threatens freedom of association’ (November 2, 2022) <Tunisia: Draft amendment of the decree-law on associations seriously threatens freedom of association> accessed 179 November 2023.

[12] Proposed Basic Law No. 027/2023 Relating to the organization of Associations, Article 18, (October 12, 2023) <مقترح قانون أساسي عدد 027 / 2023 يتعلق بتنظيم الجمعيات. > accessed 17 November 2023.

[13] Proposed Basic Law No. 027/2023 Relating to the organization of Associations, Article 2, (October 12, 2023) <مقترح قانون أساسي عدد 027 / 2023 يتعلق بتنظيم الجمعيات. > accessed 17 November 2023.

[14] Article 19, ‘Tunisia: New law proposal threatens civic space’ (October 31, 2023) <Tunisia: New law proposal threatens civic space> accessed 17 November 2023.

[15] Tunusian Constitution (2014) Art. 37 <https://www.constituteproject.org/constitution/Tunisia_2014 > accessed 17 November 2023.

[16] Human Rights Watch, ‘Tunisia: Reject Bill Dismantling Civil Society Arbitrary Restrictions; Excessive Government Control’ (November 7, 2023) <Tunisia: Reject Bill Dismantling Civil Society Arbitrary Restrictions; Excessive Government Control> accessed 17 November 2023.

[17] Article 19, ‘Tunisia: New law proposal threatens civic space’ (October 31, 2023) <Tunisia: New law proposal threatens civic space> accessed 17 November 2023.

[18] United Nations Special Rapporteur on Human Rights Defenders ‘Tunisia: restrictions against defenders, violence and reversal of gains’ (September 22, 2023) <Tunisia: restrictions against defenders, violence and reversal of gains> accessed 17 November 2023.

[19] Amnesty International, ‘Tunisia: Repressive NGO draft law threatens independent civil society’ (October 21, 2023) <Tunisia: Repressive NGO draft law threatens independent civil society> accessed 17 November 2023.