On the Rocks: Tunisia’s Transitional Justice Process

In the chaos and excitement of a major political transition, political actors, transitional authorities, and civil society often downplay the importance of reconciling with the past and holding perpetrators of human rights abuses accountable. There are so many pressing priorities – drafting new constitutions, setting up transitional institutions, preparing for elections, breathing life into the civil society sector, reestablishing security, and bolstering the economy – that transitional justice can get lost. Yet, when societies do not appropriately address massive violations of human rights, it sets the stage for continued impunity and allows grievances to fester, ultimately undermining stability and democratization.

Tunisia is a case where the transitional government and civil society recognized the importance of transitional justice early on. Civil society organizations had been laying the groundwork for transitional justice years before the protests that gripped the country and ultimately unseated President Ben Ali in January 2011. They did so because they saw a link between the transitional justice process and political reform in Morocco, and believed that it was the best strategy to win political concessions and improve the human rights situation without an all-out confrontation with the government.

When Ben Ali was forced out, Tunisian civil society expanded their efforts to establish a comprehensive transitional justice process. Working closely with international partners, civil society champions organized conferences, seminars, advocacy campaigns, and capacity building sessions for lawyers, nongovernmental organizations, media, military courts, and government officials to raise awareness and understanding about the importance of transitional justice. Their work culminated in the passage of the Transitional Justice Law in December 2013. This law, the first of its kind in the world, set out a holistic framework for addressing violations committed throughout Tunisia’s dictatorship and in the years immediately following the revolution (1955 – 2013). The law established the Truth and Dignity Commission (TDC) to reveal the truth and preserve the national memory regarding gross and systematic human rights violations, handle reparations to victims, and recommend institutional reforms to prevent a return to dictatorship. In addition, the law created Specialized Judicial Chambers to adjudicate cases referred to it by the TDC.

A unique and vital feature of Tunisia’s transitional justice law was the inclusion of financial corruption and misuse of public funds within the TDC’s mandate. Champions for this groundbreaking provision successfully argued that human rights violations were inseparable from corruption and graft, as the Ben Ali regime preyed on ordinary citizens and used financial controls to marginalize and punish its opponents. In this regard, Tunisia’s transitional justice process is a crucial experiment – and one that is being closely watched by other countries in which gross human rights violations are closely linked to widespread corruption.

Despite the inclusive and participatory process through which Tunisia’s transitional justice law was drafted, from the beginning, the TDC’s work has been mired in political maneuvering and divergent views about Tunisia’s trajectory. The TDC got off to a rocky start when the Ennahda-led National Constituent Assembly selected its members through a technically legal but opaque and rushed process. This left the TDC vulnerable to accusations that it lacked independence and was intent on settling partisan scores, rather than serving as a neutral body. The TDC has also suffered from internal discord and dysfunction. Out of the original fifteen commissioners, four have resigned, and only one has been replaced. The commission’s head, Sihem Bensedrine, has become a lightning rod inside the TDC and throughout Tunisia, in part due to her reportedly overbearing personality and in part due to a media smear campaign aimed at discrediting her.

Other challenges were part of a government-managed strategy to undermine the TDC’s work. Despite being guaranteed to have unfettered access to public and private archives, the government has physically blocked the TDC’s access to a goldmine of presidential records documenting decades of repression and corruption. The latest blow to the transitional justice process is the draft economic reconciliation law proposed by President Beji Caid Essebsi. This law aims to provide amnesty to businessmen and civil servants who committed financial crimes or misused public funds in exchange for their admission of guilt and willingness to pay back their ill-gotten gains, with 5 percent interest. Of great concern, the bill envisions establishing a six-person commission comprised of government officials and two members of the TDC, operating confidentially out of the President’s office. It would also negate the innovative provisions in Tunisia’s Transitional Justice Law related to financial corruption and misuse of public funds.

Proponents, including Ennahda leader Rached Ghannouchi, argue that the economic reconciliation law is necessary to calm the investment climate and get businessmen to inject much-needed capital into Tunisia’s moribund economy. Essebsi has also played on the public’s growing frustration with a revolution that they blame for damaging the economy and creating insecurity. Since being elected, the president has insisted on “turning the page on the past once and for all” and has promoted the idea of “national reconciliation” so the country can concentrate on addressing the threat of terrorism and get the economy back on track. He has also been able to galvanize support amongst Tunisians who feel that the transitional justice process will disproportionately reward Islamists, who bore the brunt of human rights abuses during the dictatorship.

Opponents argue that the law is politically motivated and dispute that it will have any real economic impact. Instead, they assert that it is an effort to undercut the transitional justice process and reward businessmen who helped Essebsi get elected. Tunisians involved in the transitional justice process also allege that the bill is an attempt to get even with the architects of the Transitional Justice Law for including electoral fraud and forced migration within the TDC’s mandate. These provisions are believed to have been added by the Ennahda-controlled National Constituent Assembly in order to target politicians from the former government – including Essebsi. More broadly, critics fear that the economic reconciliation law is a threat to the political transition and a harbinger of worse things to come by demonstrating that it is possible to gut institutions established by law and set up a parallel, politically-driven process.

Civil society actors who have been intimately involved in the transitional justice process for nearly a decade are resigned to the fact that the economic reconciliation law will probably pass through parliament. Yet they are optimistic that the same spirit of dialogue and conciliation that has gotten Tunisia through so many dangerous moments in its transition – and for which the National Dialogue Quartet was just awarded the Nobel Peace Prize – will prevail. Their hope is that the bill will be amended in ways that add greater transparency and independence to the economic reconciliation commission’s work and deconflict it with the TDC’s mission.

Throughout its turbulent transition, Tunisia has been an inspiration to people everywhere who are yearning for greater freedom and dignity. The transitional justice process is no exception, and has the promise to serve as a model through its historic inclusion of corruption and economic abuses. As parliament prepares to debate the controversial economic reconciliation law in the coming weeks, the world waits once again to see whether Tunisia will be able to reach a compromise that continues to move Tunisia forward, while preserving the transition’s hard-won gains to increase transparency and hold perpetrators of political and financial crimes accountable.

Shannon N. Green is a senior fellow and director of the Human Rights Initiative at the Center for Strategic and International Studies (CSIS) in Washington D.C.

Commentary is produced by the Center for Strategic and International Studies (CSIS), a private, tax-exempt institution focusing on international public policy issues. Its research is nonpartisan and nonproprietary. CSIS does not take specific policy positions. Accordingly, all views, positions, and conclusions expressed in this publication should be understood to be solely those of the author(s).

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Shannon N. Green