Supporting the rule of law in Tunisia

The Canadian Bar Association is partnering on a project with the International Development Law Organisation (IDLO) to help Tunisians assert fundamental rights promised to them under their constitution signed in 2014. Funding for the initiative is provided by the United States Department of State, Bureau of Democracy Human Rights and Labor.

The CBA will provide expertise to support Tunisian lawyers looking to identify and argue cases in the courts. It will also support the capacity building of Tunisian civil society organizations and lawyers to pursue strategic litigation to strike down laws that violate constitutional rights and freedoms.

Following the Jasmine Revolution of 2011, which launched the Arab Spring, Tunisia made significant progress moving towards democratic governance and the rule of law. When the country's constitution came into force, it enshrined an advanced set of rights, and clear provisions for judicial independence and the separation of powers.

However, last year Tunisian President Kais Saied announced a partial suspension of the constitution and froze Parliament from performing its duties. He now rules by decree, and announced in March that he is dissolving the country’s parliament after its members held a plenary session online and voted on a bill against his “exceptional measures.”

In February, Saied replaced the apex institution of judicial independence, the Supreme Judicial Council, with his appointees and gave himself the authority to sack judges. He also named a committee to help draft amendments to the 2014 constitution. He has called for Tunisians to give their input online, but the participation rate has been low.

Saied, a former law professor, has served as the President of Tunisia since his election in October 2019. He defends his actions, claiming they are necessary to save Tunisia from years of economic stagnation and political corruption.

Meanwhile, Tunisians struggle to assert their constitutional rights in the absence of institutional checks and free, independent legal institutions, says Ayokunle Ogundipe, acting director of International Initiatives at the CBA. "Many laws that undermine constitutional commitments remain on the books," he says. "Moves to reconcile or repeal them are slow or non-existent because the Constitutional Court, which should have oversight, does not yet exist for largely political reasons." He points to the Personal Status Code, which limits women's rights in marriage, inheritance, and custody of children, and therefore runs counter to the constitution's equality objectives.

Democratic governments have urged Saeid to form a new government and restore democratic tenets. So far, he has shown no signs of easing his grip on power and recently extended the state of emergency until the end of 2022. He will be holding a referendum on the updated constitution in July. "Saied is in absolute control of the referendum process and plans to appoint all the experts who will draft the constitution," says Ogundipe. "It is unclear to our project partners both the legitimacy of such a referendum and its focus. The president's plans for the Constitutional Court are unclear”, he adds.

CBA's International Initiatives has developed programs to strengthen the rule of law and in emerging democracies for 30 years. "These foundations include an independent legal profession, independent judiciary, transparent and accountable institutions, equality before the law, and the dignity of the individual," says Ogundipe.

In the 1990s, the CBA supported constitutional litigation in South Africa -- part of a project that played a role in helping clarify governmental obligations under its 1997 constitution, and certain judicial powers. The program was instrumental in helping South African lawyers successfully argue cases before the country's Constitutional Court, including landmark decisions that affirmed extensive rights.

South Africa's experience is proof that "a functioning rule of law state must have in place legal systems and frameworks that define and ensure the rights and obligations of all, irrespective of positions of power," says Ogundipe. "This creates the certainty and predictability needed for development."

The challenge, he says, for the Tunisian Bar Association is that it still lacks valuable experience implementing its constitution. "In any scenario of a nascent constitution, the mechanism of strategic litigation will be very relevant," says Ogundipe. "Tunisia will grapple with different issues relating to gender equality, and human rights. To become agents of social change, and win international support, Tunisian lawyers will need to shore up their knowledge regarding concepts such as 'vulnerability,' as well as on constitutional law and international human rights conventions."