This article was written in collaboration with members of the Alliance Sécurité et Libertés (ASL) whose report "Two months of fighting against COVID-19 in Tunisia - Analysis in the field of law" is available here.
The situation gets out of hand and the police assault numerous members of the Saidani family and arrest the father. He is taken to the police station and then later into custody. According to a report by the Organization Against Torture in Tunisia (OCTT), both the father and the accused son were prosecuted.
Thousands of Arrests, prosecutions, and offences
According to the OCTT report, several other individuals also testify that they were victims of police brutality during the fight against COVID-19.
As revealed in a statement by Khaled Hayouni, spokesman for the Ministry of Interior, more than 5,000 people have been arrested for violating the confinement or the curfew.
These often brutal arrests are raising concern for human rights associations. Jamel Msallem, president of the Tunisian League for Human Rights (LTDH), fears that prisons could " reach maximum capacity or be overrun." "It may be necessary to introduce preventive measures to avoid contamination, but it is absolutely vital that we moderate how these penalties are enforced upon the general publ ic,’’ he adds.
"Hurry up, go home!" On March 24, in Bardo, in the suburbs of Tunis, policemen shout and insult people who are queuing quietly in front of the municipality. Against a backdrop of shouting sirens, the police disperse the crowd, who move away without any resistance. Suddenly, a policeman rushes up to a man, pushes him over, and hits him while he is on the ground. The man gets up and leaves in a hurry while the policeman behind him continues to threaten passers-by.
Two days later, a driver for a logistics company testified on video that he had been beaten at a police checkpoint despite having an authorization to drive. "Hats off to Tunisia," says the young driver who ironically points to his bleeding mouth. The young man was later accused of defamation by the authorities.
Speaking on behalf of the Ministry of Interior, Khaled Hayouni assures the public that if any cases of abuse are proven, "all the necessary procedures will be taken to enforce the law whilst protecting citizens’ human rights.’’
In addition to the 5,000 arrests, more than 20,000 people have been fined for not respecting the laws regarding home confinement. These individuals include those suspected of being ill and individuals who have been caught leaving the house without a valid reason.
As early as March 13, the Head of Government Elyes Fakhfakh declared that individuals returning to the country will be obliged to place themselves under self-isolation for two weeks. However, no law or legislative text has been promulgated to demonstrate how this new measure would be implemented.
On March 20, some people from Istanbul and Italy refused to comply with these containment measures. It was then decided that a representative of the public prosecutor's office would be stationed at the airport to enforce these procedures, according to statements made by the deputy public prosecutor of the Tunis Court of First Instance (CFI). Yet, it was not until April 17 that Decree 2020-9 provided the legislative framework for these new measures.
For more than a month, people were banned from traveling 24 hours a day without any legal grounds for doing so.
Some 75,000 permits and vehicle registration (grey) cards were taken while nearly 6,000 cars were seized. "Every day, 3,000-4,000 permits and registration cards are taken from people who have no valid reason to be going outside," Khaled Hayouni reports.
Johanna Wagman, project coordinator at Lawyers Without Borders (LWB) claims "there is no legislation that allows vehicles or permits to be removed for curfew or containment violations." Only a press release has been issued by the Ministry ofInterior and it does not mention withdrawing vehicles. When questioned about the legality of this measure, spokesperson Hayouni said he was not authorized to reply, stating ‘‘it is was an administrative decision taken in collaboration with the judiciary.’’
Legislative power in the hands of the executives
In March 2020, the COVID-19 crisis struck southern Europe. To the north of Tunisia, Italy, France, and Spain were all hit hard, raising fears that an epidemic would soon spread throughout the country and lead to the collapse of an already fragile health system. Anticipating this, the authorities began reducing the opening hours of restaurants and bars and closed their borders with Italy... But very quickly, the government went further. On March 18, by presidential decree, Kais Saïed instituted a curfew from 6 p.m. onwards, followed by general confinement a few days later.
According to Article 80, it is clear that these measures must be taken "after consultation with the Head of Government and the President of the Assembly of People's Representatives and after informing the President of the Constitutional Court."
However, the Constitutional Court currently does not exist. "It has been in political deadlock for years now," says Johanna Wagman of the ASF.
"One can understand the need to take action given the urgency of the situation. But in this case, why isn't the establishment of the Constitutional Court also a priority?"
Article 80 also states that once these measures have been in place for 30 days, the Assembly of People's Representatives (ARP) must request the Constitutional Court to make an executive decision by either approving or rejecting the new measures. In the absence of this institution, no third body can regulate any potential abuse of power by the president. "Laws deriving from decrees are not subject to any constitutionality review. This is a serious problem for the dynamics of powers within the Tunisian political system," says Johanna Wagman.
She also points out the ambiguity surrounding the sanctions for violating curfew and confinement. The decree does not specify what the exceptions are, how they are assessed, or what the penalties are. "It's a fundamental principle of law," she insists. "The law must be precise and consistent. In committing an action, everyone must know whether or not it is illegal, and what the sanctions are."
In practice, this ambiguity has resulted in a random array of arrests and prosecutions not necessarily related to the measures implemented to fight the epidemic.
As with home confinement, it was not until April 17 - almost a month after the announcement of the curfew and then the confinement - that Decree-Law 2020-9 specified the sanctions. These offenses will now be punishable by a fine of 50 dinars paid directly to the internal revenue service.
Alongside the President, Elyes Fakhfakh asked the ARP to broaden the government’s powers on the basis of Article 70 of the Constitution. This article states that the Assembly may allow the government to legislate by decree-laws "for a specific reason" for a period "not exceeding two months."
On April 4, following a heated videoconference with other MPs, Fakhfakh was granted his demand. With 178 votes in favor, 17 against, and 2 abstentions, the new law was finally adopted. For two months, Elyes Fakhfakh will be able to promulgate decree-laws within the context of the current health crisis. Only after this two month period will the ARP have the right to evaluate and approve these decrees.
Between April 12 and June 12, Elyes Fakhfakh promulgated 35 decree-laws. Fakhfakh was only supposed to take measures related to the epidemic in certain sectors such as health, financial and fiscal, social, rights and freedoms.
decrees going beyond covid-19
But some associations and organizations argue that several decree-laws issued by the Head of the Government go beyond the context of the COVID-19 epidemic. For example, with the closure of the courts due to social distancing rules, remote hearings were introduced. At the request of the court, trials were able to be held by videoconference "without the consent of the incarcerated defendant" - as is written in Decree-Law 2020-12. Jamel Msallem of the LTDH believes this measure "will negatively affect the holding of fair trials and the defence of defendants."
"Another issue with this decree is that it clearly states that it will continue on after the epidemic," adds Johanna Wagman. Given the importance of this measure, it should "be subject to a constitutional review.’’
"We have measures impacting the judiciary system that are being made only by the President and Head of Government. It's as if there's no balance of power in the political system and everything resides in the hands of the executives," insists Johanna Wagman.
For associations such as Access Now and ASF, another area of concern is the creation of a unique citizen identifier, a project that has been in the pipeline for several years. Here, the government has taken advantage of its new powers to enact two decree-laws to implement the unique citizen identifier. According to these laws, every Tunisian will henceforth be assigned an identifier at birth or upon acquiring Tunisian nationality.
Commenting on the link between these decrees and the COVID-19 epidemic, Chawki Gaddes, president of the National Personal Data Protection Authority (INPDP) says, "when social aid was first being distributed it was impossible to know who would benefit from it."
However Gaddes' reasoning has failed to convince Emna Sayadi and Marwa Fatafta of the Access Now association. They say that the unique identifier will remain in place after the health crisis and the distribution of aid and has little to do with the COVID-19 epidemic.
"With the unique identifier, there's no place to hide. You have to be on the radar, that's why legal systems are afraid of it," exclaims Chawki Gaddes. According to him, for a modern state to be effective, this type of system is necessary. "I'm pragmatic and I demanded that the INPDP be involved and that it follows the right standards of protection," he explains.
Under the supervision of the Ministry of Local Affairs, the National Data Processing Center will have to create a digital platform for managing the civil status data of citizens and compile the unique identifiers of every individual.
Chawki Gaddes assures that this does not pose any problem in terms of personal data because "we will continue to use sectoral identifiers." This means that not all administrations will have access to all the information about each citizen. Instead, the unique identifier would be a means of cross checking the sectoral identifiers, thereby allowing different structures to exchange necessary information.
"To access this system, each of these structures will have to obtain authorization from the INPDP to check whether it is following the correct procedures. Every citizen will have access to know who asked for what and why," says Gaddes. In regard to the security of this system, the president of the INPDP says piracy will not become a major issue. "There are measures to be taken that will be taken." "But today we have so many important public databases and nothing has ever been hacked," he argues.
"We're not against the idea of introducing a unique identifier, but the problem is all the vagueness surrounding the system. For example, we don't have the details about the security measures to protect privacy, nor do we know how this system will be developed,’’ says Emna Sayadi.
Marwa Fatafta believes that the priority should be to reform the Personal Data Protection Act, which dates back to 2004. The fact that this measure has been taken in the form of a decree-law is worrying Access Now members who fear that the ARP will not take the time to debate it properly. Chawki Gaddes, on the other hand, says that "all these decree-laws will eventually be debated and there is nothing to prevent Parliament from discussing them." "If they want to change something, they can!"
With the end of confinement, the ARP resumed its work in the Assembly. Since June 12, 2020 Elyes Fakhfakh has no longer had the authority to implement decree-laws. The legislative power has regained its rights but has been slow to implement Article 70 of the Constitution and review these new measures. Moreover, some decree-laws have already been integrated into the legal system without approval from the ARP. As of Tuesday, June 30, 2020, no decree-laws promulgated during the epidemic have yet been debated.