Tunisia Passes Controversial Law, Undermining Democratic Transition

Tunisia’s parliament recently passed a controversial law effectively granting amnesty to public officials involved in corruption under the Bourguiba and Ben Ali dictatorships from 1955 through 2010. The law thus ensures impunity for the very system of government corruption that the Tunisian people sought to upend in their revolution of 2010 to 2011.

As a relatively stable, democratic country in a tumultuous region, Tunisia is critical to the United States’ efforts in North Africa to counter ISIS, reduce drug smuggling and address migrant issues. A successful and peaceful democratic transition in Tunisia would serve as a model not just in the Arab world, but for any country emerging from dictatorship. Yet many ordinary Tunisians are losing faith that the revolution can deliver on its promises of economic justice. Some Tunisians voice a reluctant nostalgia for the Ben Ali regime–mainly in response to the ailing economy and a sense of greater insecurity due to the terrorist threat.

Passage of the so-called “administrative reconciliation” law demonstrates the fragility of Tunisia’s transition. Since 2015, President Beji Caid Essebsi has pushed the parliament to adopt this law. Supporters claim, without evidence, that it will spur investment in the country’s ailing economy by removing the threat of prosecution of corrupt officials. Facing waves of opposition from civil society, Essebsi’s government proposed three successive versions of the bill. The final version applies only to civil servants, not businesspeople. Officials who claim they did not see personal financial gain will be eligible for full amnesty, while those who profited will be allowed to repay the state some portion of their self-identified, ill-gotten gains, and escape prosecution. The government will drop all current prosecutions of related cases.

Opponents of the law, including prominent local civil-society actors and international legal experts, argue that the law lacks independent enforcement mechanisms to determine the extent of corruption that occurred or produce meaningful asset recovery or accountability for past crimes. The law creates a new commission that will grant “a certificate of amnesty” for certain civil servants, who will remain anonymous. There will be no prosecutions or trials, and no mechanism for appeal of decisions on the certificates.

The law thus undercuts efforts to understand how corruption operated in the Habib Bourguiba and Zine El Abidine Ben Ali regimes–efforts that are crucial to reducing and protecting against corrupt practices now and in the future. It short-circuits the transitional justice process, led by the Truth and Dignity Commission (TDC). Though the commission remains under-resourced, its televised public hearings and testimonies–mainly on human rights abuses but also on elite corruption–have transfixed the nation and demonstrated its power as a catalyst for national healing and progress. The TDC’s official mandate empowers it to build cases related to “election fraud, financial corruption, [and] misuse of public funds.” The reconciliation law infringes on the TDC’s mandate by setting up a separate, opaque track for corruption cases, which is highly vulnerable to political interference and co-optation.

In addition, it is unclear whether the law is even constitutional. Though parliament referred the bill to the High Judicial Council for an opinion on its legality, as required by the constitution, the legislature voted before the council had issued an opinion.

Even the apparently pragmatic argument for the law is a red herring. There is no evidence that the funds potentially recouped would be substantial enough to help address the country’s economic problems. Nor does is there reason to believe that government officials–fearing prosecution on corruption charges–are holding up private sector investments. To the contrary, the IMF team that visited Tunisia this summer highlighted strong anti-corruption efforts as critical to restoring investor confidence and stem illicit business practices. The IMF continued to stress the need for bringing down Tunisia’s high wage bill and improving access to credit.

The spirit of this law runs counter to the revolution. Former President Ben Ali subverted state institutions for the vast enrichment of his extended family, largely through restricting access to credit and market entry. As I heard repeatedly during a recent trip to Tunisia, combating the “mafia-ization” of the state, ending impunity for corrupt actors, and securing equal access to jobs and credit have been core demands of Tunisians working to preserve the revolution. Many honest and courageous judges, ministers and other officials have risked or suffered personal harm because they refused to cooperate with the former, corrupt regime; the new law insults their efforts.

In the first years after the uprising, however, tackling corruption was not a primary focus. Tunisians leading the transition process initially prioritized creating transitional institutions to avert chaos or a return to dictatorship and integrating Islamists into the political system. Two brazen terrorist attacks in 2015, a declining economy, and violence in Libya complicated these political tasks. Amid stalled efforts to create more jobs, recurring labor protests in marginalized, resource-rich regions have drawn attention to chronic unemployment, and made specific demands for more equitable investment of development funds, and transparency in oil and gas extraction contracts. But such protests have also disrupted Tunisia’s energy production sites, imposing economic costs on the country.

Meanwhile, a “democratization” of corruption has occurred, in which the center no longer so tightly controls the abuse of public office. Grand corruption may have decreased in volume, but corruption overall seems to have risen. Political parties, consumed with internal jockeying and compromised by their own corrupt practices, have not taken on corrupt patronage networks. Perhaps this is also why they did not mount serious political opposition to the reconciliation law.

Grievances against corruption are directly linked to violent extremism in Tunisia. A recent IRI study looked at the drivers of violent extremism in a region that has produced a significant number of foreign fighters: Institutional corruption–along with lack of economic opportunity and harassment by security services–was one of the most frequent reasons cited for radicalization. A 2016 National Bureau of Economic Research study estimated that 6,000 Tunisians have left their country to join the ranks of ISIS, a number disproportionate to the country’s small size.

Passage of the reconciliation law is a disturbing step backward in Tunisia’s path toward democracy, transparency and accountability. But it is not a nail in the coffin of the revolution. The law has galvanized a broad spectrum of Tunisian activists to unite against it and inspired the creation of the youth protest movement “Manich Msamah” (“I will not forgive”). Civil society has allies in the legislature: Already, 38 opposition parliamentarians have petitioned against the law to the provisional constitutional court. Aside from challenging the constitutionality of the law, human rights and anti-corruption groups can press for adequate resources and political independence for the TDC to complete its work on corruption cases–and as importantly, for judicial reform to effectively prosecute those cases. Tunisian analysts also report attempts by political parties to organize an alliance against the law, and signs that youth may be considering runs for office. The latter would be an especially important shift, given that since the revolution, non-Islamist Tunisian youth have largely abstained from participating in formal politics.

In parallel, Tunisia’s international supporters should do all they can to maintain pressure on the government to demonstrate a genuine commitment to tackling corruption and impunity. If donors, partners, and investors want long-term stability in Tunisia, they should deliver a consistent political message on the importance of rule of law, support Tunisian civil society efforts and offer incentives to the Tunisian government to take tangible reform steps.