“ I can tell that people treat me differently because I’m black. First of all, I’m not considered to be a Tunisian,” Tunisian lawyer Khawla Ksiksi tells us. Since childhood, she has felt the weight of harassments and stereotypes aimed at black people. In nursery school, other children would tell her to “ take a shower.” Now, in the street, men often insult her, considering her to be an " easy" woman or " a sex machine."
“ People don’t imagine that I may have been to university: I’m always mistaken for a waitress or cleaning lady. On top of this, I’m often told that I’m ‘pretty, for a black woman.’”
This type of experience is commonplace for both black Tunisians and people from Sub-Saharan countries living in Tunisia. “ All of this is everyday racism,” Khawla Ksiksi explains, which often has devastating consequences, such as outright discrimination or verbal or physical violence.
According to the International Convention on the Elimination of All Forms of Racial Discrimination, which Tunisia signed onto in 1967, “ the term ‘racial discrimination’ shall mean any distinction, exclusion, restriction or preference based on race, color, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition or enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.”
Other than certain parts of Decree Law No.115 - “ on freedom of the press, printing and publishing” - Tunisia does not have any specific legal text to officially condemn acts of discrimination such as those outlined by the Convention.
A previous version of the proposed bill was already drawn up by various civil society associations and presented to the Parliament in 2016. The 2016 bill aimed to systematically eliminate racism in Tunisia through sensitivity trainings in public institutions, criminalizing discriminatory acts, streamlining reporting procedures, and protecting the victims that come forward.
But this project was eventually left aside because “ it was not a priority,'' reflects Jamila Ksiksi, one of the 14 members of parliament to have supported this proposition. The bill was never taken up for debate in a plenary session and was ultimately abandoned.
For the last few months, the subject has been back on the table, this time through a bill proposed by the Ministry of Relations with Constitutional Bodies, Civil Society, and Human Rights. According to Jamila Ksiksi, the bill does not “ even have the bare minimum;” it is composed of only 11 articles and is much less detailed than its predecessor.
For example, the bill defines racial discrimination as “ a distinction based on ethnicity, color, or origin.” This definition omits considerations of nationality and religion, which had been included in the previous version. The first bill also enumerated racially-charged acts such as “ indirect discrimination,” “ racial harassment,” and “ vulnerability;” none of these concepts are mentioned in the more recent proposition.
Yet despite these gaps, Jamila Ksiksi judges that this text is still “ a step forward.” “ It’s a strong signal which indicates that the State is stepping up against racial discriminations, and this is what we want. Now, it’s up to us to improve the text.”
The penalties envisaged by this bill include up to three years in prison and a 3,000 dinar fine. If it is a legal entity who is found guilty of racial discrimination, the fine could amount to between 5,000 and 15,000 dinars.
The proposed bill formally condemns several acts: the incitement towards hatred, the support and glorification of discriminatory ideas and/or practices, and membership in hateful and/or discriminatory groups. However, none of the articles in this bill mention acts of physical violence or aggression, even though public denouncements of such violence, written by victims and/or their allies, regularly circulate on media platforms.
Some components of this bill have been criticized for containing unintended consequences.
For example, Article 9 of the bill adds: “ the sanctions provided by this law shall not prevent the application of more severe penalties provided by existing legislation.”
“ It’s unconstitutional,” points out Mohamed Ben Hamida, a legal expert with the NGO Al Bawsala. “ If two separate penalties are issued, the sanction applied for discrimination will necessarily be the weakest in regards to the law.”
The bill also runs the risk of exclusively protecting Tunisian citizens. Article 2 of the bill specifies that distinguishing between a national and a foreigner is not necessarily discriminatory. Thus, if a foreigner is discriminated against because of their skin color or nationality, the racist elements of this attack would potentially be dismissed.
“ This paragraph needs to be completely deleted,” insists Jamila Ksiksi. “ It goes without saying that a foreigner and a citizen do not have the same rights, so there is no need to specify it. This segment is too easy to manipulate.”
A large segment of the victims of discrimination in Tunisia are foreigners, mostly coming from Sub-Saharan countries. Many of them came to study in Tunisian universities through cooperation agreements between their countries of origin and the Tunisian government. According to the Association of Africa Students and Interns in Tunisia (AESAT), there were approximately 4,500 non-Tunisian African students and interns in Tunisia in 2016-17.
This same association pointed out that this number is continuously diminishing, mainly because of the problems encountered by the students in Tunisia. Many of the people in this group have experienced administrative challenges and frequent acts of discrimination.
“ They haven’t considered foreigners in this text. And so there’s no strategy in place to confront the problems of migrants in Tunisia and to protect them from violence,” comments Safouen Medfai, the director of Mnemty, a Tunisan NGO fighting against racism.
In addition to those who come to study, many migrants come to Tunisia with the goal of finding work and/or continuing on to Europe. These people may fall victim to racially-motivated exploitation as well as to racist acts.
The 2016 draft law also made a point of imposing more severe sanctions on people with authority over the victims, especially if they coerce the victim not to file a complaint. This consideration was omitted from the new version of the bill.
Streamlining a Way to Justice
Caught between the fear of speaking up and a natural aversion to cumbersome legal procedures, victims of discrimination are often prevented from seeking justice. So as to give victims the space to take the first step and begin legal procedures, Jamila Ksiksi insists that “ a framework of trust” needs to be built.
One way to build this trust, she suggests, is by taking victims’ more seriously. “ Sometimes, a person may experience a racist attack or comment without being able to prove it. But this person still needs to be able to file a complaint, and that right has to be mentioned in the text!,” she declares.
The proposed bill does technically suggest some measures aimed at streamlining legal procedures. For example, victims would be able to file complaints directly with a prosecutor trained beforehand in cases of discrimination.
The aim of this clause is to prevent victims from having to pass through police stations, where “ they often encounter problems.” “ Their complaint is simply not accepted, or the police officers do not consider the attack to be a racist event,” reports Safouen Medfai from Mnemty. Additionally, many migrants find themselves in precarious or illegal administrative situations due to difficulties receiving their residency permits. As a result, they may prefer to avoid encounters with the police.
With this new process, Safouen Medfai hopes that victims can feel more safe, as well as confident that coming forward will result in action. According to the bill, a preliminary investigation should last no more than two months, and a final verdict should come no later than two months after the preliminary investigation has been closed.
“ We requested that the procedures take less time due to the fact that, sometimes, they take many years and the victims drop the case.”
These streamlining procedures, however, have not been fully thought out. “ For example, the text does not explain what happens if the procedure lasts longer than two months,” comments Mohamed Ben Hamida from Al Bawsala. “ Will there be a penalty... or a dismissal of the case?” The lawyer also points out that this time limit may risk rushing the investigation so as to reach a conclusion before two months is up.
Another flaw in the proposed law is that it doesn’t account for non-Arabic-speaking victims. “ Every Sub-Saharan student has been a victim of racism,'' insists Janista Assengone, a Gabonese law student. “ Yet it doesn’t even cross our minds to complain! Complain against whom? Firstly, you don’t speak Arabic, so that’s already one barrier…”
The 2016 bill stipulated that legal authorities were obliged to inform victims of their rights in whichever language they chose. However, this consideration was left out of the 2018 bill. Seeing as few migrants speak Arabic, the impossibility of having access to documents in French acts as a major barrier to coming forward.
An unclear “awareness-raising” program
In addition to this bill, the government intends to put “ awareness programs” into place within ministries, as well as to give specific training to judges, prison guards, and judicial police officers, with the aim of “ offering better access to justice” and “ fighting against impunity.”
“ But by whom, how, and according to which criteria will this training be carried out?” wonders Safouen Medfai. No details concerning this topic have been provided, other than the statement that “ strategies” will be put into place. For Medfai, such awareness programs should be first and foremost directed at media companies, medical institutions, and especially at educational institutions; “ for example, in school textbooks."
In comparison, the law against violence toward women is much more comprehensive. For example, it outlined specific training programs and called for the establishment of sensibilization programs in schools and universities as well as awareness-raising campaigns carried out by media companies.
The 2016 bill went even further in considering training programs; it would have required that the Ministries of Justice, of Education, and of Higher Education and Scientific Research establish specialized programs within their institutions. It also called for fines and/or a prison sentence of between one month and two years for public officials found guilty of committing acts of discrimination.
When it comes to providing services for victims, the proposed bill calls for “ psychological and social” support for victims. Yet the bill omits any further information regarding this support which, at the moment, is only provided by NGOs such as Médecins du Monde (Doctors of the World).
A collaboration between the NGO Mnemty and the Rosa Luxemburg Foundation aims to create a counselling center for victims of racial discrimination staffed by doctors and psychologists. The center should be fully set-up between April and December 2018.
AN INDEPENDENT COMMITTEE?
The creation of an anti-discrimination committee is also outlined in the proposed law. The committee would serve to propose national policies, strategies, and action plans to combat racism. The committee would also be tasked with data collection. Currently, the only actors attempting to collect data on racist acts work outside of government structures. There has never been a national study on racism in Tunisia.
“ We need to pay close attention to the statutes of this committee, because it’s important that it be independent… as any structure stemming from an international legal framework should be,” Jamila Ksiski warns, She adds that “ its links to the government, as well as its role and prerogatives, need to be clearly defined.”
At the moment, the bill contains few details on the scope and make-up of this committee. It is also not declared to be independent; it will be attached to the Ministry of Human Rights. “ To insure a true independence from the government, this committee has to be attached to the High Authority for Human Rights and Fundamental Freedoms. Not to a ministry,” says Mohamed Ben Hamida.
This bill has been held in committee since March 15th, 2018. Jamila Ksiksi hopes that it will be debated in a plenary session by the end of May. In the meantime, the member of parliament, as well as associations such as Mnemty, plans to develop a lobbying strategy aimed at pushing the members of the Committee on Rights, Freedoms, and External Relations to improve the text through a series of amendments.