15 minutes
A few weeks ago, a draft law aimed at replacing decree-law 88 (which was adopted on September 24, 2011), concerning "the organisation of associations" was leaked.
Several associations and media outlets have openly protested against this text, which is considered "liberticidal" and "threatens to sabotage the achievements of the decree [ decree-law 88], and to push associations back into a past that was believed to be gone forever".
"Clearly, one of the issues at stake in this new project is that the government will have a right of review over civil society", comments a political scientist specialising in civil society. "This is a threat to the freedom of associations."
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After assuming full powers on July 25, 2021, Kaïs Saïed froze the Assembly of People's Representatives (ARP) and dissolved the Superior Council of the Magistracy (CSM), and is now targeting Tunisian Civil Society.
By demonising Civil Society, all of their achievements that have been inscribed in Tunisian contemporary history following 2011 are overlooked. In order to understand what is at stake and to go beyond the official discourse, inkyfada revisits the main achievements of Civil Society, and analyses the economic and human impact that such a stance would have.
On the same subject
The post-2011 association boom
Since Decree-Law 88, any person may establish an association by declaring it to the Secretary General of the Government. This declaration system replaces a procedure that had previously depended on an authorisation issued by the Ministry of the Interior. From then on, it has been possible to carry out political actions, obtain subsidies and foreign funds without prior authorisation, a measure that Kaïs Saïed has now set his sights on.
This freedom of action allows for "more and more programmes on the ground, raising awareness and even aid with projects". Previously, "this was far more subject to the authorisation of the local executive. Legally, this is made possible thanks to Decree 88 from 2011, and the police can no longer object", comments the researcher interviewed by inkyfada.
Art 1
Over the last decade, the number of associations has skyrocketed. According to the latest figures from the Centre for Information, Training, Studies and Documentation on Associations (IFEDA), it has more than doubled since 2010. In March 2022, 24,263 associations were registered in the country, compared to 9,600 in 2011, which are mainly concentrated in the big cities, 20% of which are in the governorate of Tunis.
In an interview with inkyfada, this sector is estimated to employ between 70,000 and 100,000 people, according to the Kawakibi centre, which nevertheless stresses the difficulty of obtaining precise and reliable data. Indeed, "this is not a sector of the economy that is accounted for by the National Institute of Statistics." It is instead included in the statistics of services, but unlike tourism, for example, is not subject to a specific category.
This figure could even double if we take the so-called "indirect jobs" into account, i.e. the companies operating "around civil society": graphic designers, restaurant owners, transporters, etc.
According to approximate estimates, all these jobs account for between 3 and 5% of the GDP.
Number of associations per governorate
Civil society, a "safeguard" for the democratic process
Amira Yahyaoui founded Al Bawsala in the aftermath of the revolution and the election of the National Constituent Assembly (NCA) in charge of drafting the new Constitution. Emna Chebaane, former project manager of Marsad Majles, was one of the first to work there and closely followed all the debates of the ANC.
"The aim was to show what the Civil Society can do. To show that it can take the debate out of the closed circles of politicians and turn it into something that belongs to everyone", she explains.
"We wanted to introduce the concepts of accountability and transparency of elected officials and make it clear that they did not have carte blanche [free pass] and that they were accountable towards the people who voted for them", she adds.
For this to happen, the Civil Society had to have access to all debates, which was not the case at the beginning of the ANC. Al Bawsala members then acquired press cards. "We were clearly doing something illegal but there was no civil society status for attending the debates", laments Emna Chebaane. Members of the NGO have been lobbying internally to push for a change in the Assembly's rules of procedure. "The term Civil Society has been explicitly added, it is a fight that has been won."
"There was a battle for access to the Assembly. Civil Society negotiated a place to be heard but also to be an observer of the Parliament, of the plenary and committee activities. This was the subject of a power struggle in which there were concessions and certain things were acquired for civil society. It acquired the right to review which had been unthinkable", the researcher explained to inkyfada.
Emna Chebaane, along with her colleagues, recruited as they went along, attended every plenary session and committee meeting and tweeted the debates live. "When there were sessions where there were not only debates but also votes, I took photos of the voting taking place, the arrangement of the room, the voting screen so that I could trace them" she says. This was a job that could be time-consuming and tedious. "For the adoption of the electoral law, there were more than 200 votes to trace, I spent three weeks doing it."
"I am convinced that there would have been a lot of irregularities if it wasn't for Al Bawsala at the time, we shed light on several overruns, on people who were cheating during the vote. I am sure that if the votes of the MPs were not traced, we could have had different results on certain projects and even on the Constitution", concludes Emna Chebaane.
At the heart of Parliament
Associations have regularly taken action against draft laws that are considered opaque or threatening to human rights. Between 2016 and 2018, the associations Al Bawsala and Access Now also mobilised against the biometric identity card draft law, believing that "it represented a danger to constitutional rights and freedoms".
"We have been heard by specialised committees for some fairly important draft laws, and we have also taken part in amendments", explains Emna Chebaane. This was notably the case for the law on the "right of access to information" that was adopted in 2016.
"We drew up an advocacy document and we were the first association to be heard by the Committee on Rights and Freedoms in relation to this law", says Tammem Mahjoub, former advocacy officer at Al Bawsala. He then attended all the committee's meetings in order to "change the existing general trend". "Our struggle was mainly to oppose the limits set by this law, which were too extensive. We were given a semblance of access to information, but in fact everything was then taken back by the article that limited access to information", Tammem Mahjoub laments.
To convince the MPs, the NGO referred to Article 49 of the Constitution. "It limits the areas of application or restriction of freedoms. We made the MPs understand that they could not go any further than that." After numerous back and forths and a lot of advocacy work, the law was finally adopted "as we hoped it would be". A victory that would not have been possible without the impetus of civil society.
Since 2011, "human rights organisations have been able to organise themselves in order to express their views, draw up reports, draft alternative legislation or take a critical look at draft laws. And above all, they can be heard by legislative committees and carry real weight", comments the political science researcher.
In 2015, civil society also took to both the streets and the ARP to oppose the adoption of the law on "reconciliation in the administrative domain". The aim of this law was to grant amnesty to businessmen and civil servants who had committed reprehensible acts during the former regime.
The "Manich Msameh" movement was born from the protests of youth throughout the country. They organised themselves to make citizens aware of the danger of adopting such a law and organised demonstrations. "There were three rounds of protests", says Samar Tlili, a political activist and former member of Manich Msameh. Each protest took place on the day of a plenary session to debate and vote on the law in the ARP.
Faced with pressure from the street, the vote was repeatedly postponed. "We were a steering committee, we defined the protest strategy and then we contacted civil society" says Samar Tlili. "During the May 13 march, which was the biggest one, 9 political parties and a little more than 40 associations were present", she adds.
According to the activist, the associations carry out "technical and expert work" by calling on international organisations, while Manich Msameh raises awareness at a national level by addressing citizens directly or through the media, "we were very complementary".
The outcome was mixed for civil society activists, since the law was still passed, but the pressure meant that it was not passed in its entirety. The amnesty no longer concerns businessmen, only civil servants.
Foreign funding, a vital resource for many associations
"Our funding was exclusively foreign. The Tunisian state was having trouble paying the salaries of its civil servants, not to mention the associations", says Emna Chebaane. Like Al Bawsala, several advocacy and human rights associations rely on foreign (and particularly European) funding to finance themselves.
Indeed, according to a survey conducted among a hundred associations in Tunisia, nearly two-fifths (⅖) of them say they rely wholly or partially on foreign funding to function.
"Considerable funds have been allocated to support Tunisian democracy", confirms the political scientist. "These are funds from richer countries that have made it possible to guarantee the establishment of observatories and ambitious programmes that also make it possible, more than just to cover fixed costs, to 'pay' the people who are going to devote themselves fully to the implementation of the project."
In 2019, the European Union's delegation to Tunisia announced that 20 million euros in grants would be awarded to civil society, claiming that civil society was one of the "telling signs of a young democracy on the march".
In contrast to this, President Kaïs Saied now claims that foreign funding is "an extension of foreign powers that seek to control the Tunisian people with their money".
"We have a president who accuses you of gnawing away at society from within. It's very serious", denounces Malek Khadhraoui, executive director of Al Khatt.
"This evokes an imagination of the manipulation that external funding allows", comments the political science researcher. He points out that in the 2000s, the government blocked foreign funding for organisations such as the Tunisian Association of Democratic Women (ATFD) and the Tunisian League for Human Rights (LTDH).
The issue of foreign funding is thus "a tool and a language of stigmatisation that was used at times by the Ben Ali regime, which considered human rights organisations to be foreign agents", he continues.
"It can be a tool of discredit. There is an idea that it is a tool of interference."
However, in reality, much of the money injected into Tunisia by foreign countries is primarily destined for state institutions. According to the 2018 activity report of the EU delegation, which is one of the main donors of development aid to Tunisia, civil society is far from being the most favoured recipient of EU funding.
Between 2011 and 2016, only 3.9% of the European aid to Tunisia went to human development and civil society.
In comparison, the vast majority of these grants are dedicated to good governance, growth support, reforms, etc. The main recipient of European aid is therefore the state.
Foreign funding to make up for the State's shortcomings
"The question that should be asked is why associations are resorting to foreign funding", the political scientist told inkyfada. He explains that as far as the state is concerned, very little funding is allocated to associations.
"The funding is very low for civil society and it is also quite discretionary because it favours large structures that are close to the state", he explains. Indeed, between 2015 and 2017, the funding granted to associations was about 77 million dinars, and the vast majority of these funds were primarily intended for state structures.
"Without a uniform policy of support for associations, it is quite understandable that associations go elsewhere, particularly to carry out large-scale operations", says the researcher.
He further cites an example of democratic monitoring operations: "Mourakiboun and LTDH [Tunisian Human Rights League] spent around 300,000 euros on election monitoring operations in 2011".
More than 10 years later, the issue remains the same. In 2019, at the close of the presidential elections, the president of the ISIE (Independent High Authority for Elections) had invited the State to develop state funding for associations observing elections, stressing the need to pay salaries in a sustainable manner and reduce foreign funding.
"We are not even talking about remuneration", comments the political scientist. "Even if only to rent a number of premises to train people, to compensate for food expenses, etc. All this is a lot of money."
"The problem is not the [legal] text"
Despite the official discourse's demonisation narrative, Decree-Law 88 from 2011 clearly states that associations are entitled to domestic or foreign funding. "This decree establishes [important] principles for civil society (...) [and in particular] freedom of funding and sources of funding", says Malek Khadhraoui. "Associations have not violated any laws by accepting foreign funding".
Threatened by the new bill, Decree-Law 88 has been repeatedly praised internationally. "Decree-Law No. 2011-88 enshrines a regime that complies with international standards on association freedom and is considered one of the most progressive legal frameworks in the sub-region in this area", says the Special Rapporteur on rights to freedom of peaceful assembly and association freedom.
"It is true that there may have been abuses (...)", the researcher acknowledges. "The theory was that the associations could serve as channels for financing terrorism, laundering money, or even financing [political] parties. And that they were channels of influence for future candidates", he explains.
For example, in in its 2017 risk assessment, the Tunisian Financial Analysis Commission (CTAF) indicated that "non-profit organisations (NPOs) present a high risk of misuse for the purpose of terrorist financing". This report came just after Tunisia was singled out by the Financial Action Task Force (FATF-GAFI) as a high risk country for money laundering.
In the wake of this, a task force composed of several NGOs and state institutions was created. "Several associations such as Kawakibi, Oxfam, Al Bawsala, I Watch, Lawyers without Borders, etc. (...) worked with the CTAF", explains Oumayma Mehdi, a researcher at Legal Agenda.
"The first recommendation that emerged from this was: 'Don't touch Decree 88'. That is what the state institutions that are supposed to grant authorisations according to this new bill said", she continues.
She adds that in the last four years, only 45 associations have been disbanded for money laundering. "45 out of how many? 20,000 associations!" she exclaims.
For Charfeddine Yacoubi, president of the Onshor association, Kaïs Saïed generalises the problems of financing terrorism or political parties, and applies this to all associations "even when everything is done within a framework of transparency".
“If certain associations pose a problem, the law and the decree provide for them to be dissolved. If the administration is not capable of controlling this, it is not the problem of civil society!" he exclaims.
Malek Khadhraoui confirms that the legislation "puts control mechanisms [and] accountability mechanisms in place".
"Asphyxiating associations by prohibiting funding because it is poorly controlled is like closing down companies because of tax evasion because we don't have the means to control it", Malek Khadhraoui sums up.
"The restrictions have already begun"
By claiming to be fighting against outside interference by suppressing foreign funding for associations, Kaïs Saïed is thus attacking a counter-power. Civil society is at the root of many legal and social victories that contribute to defending the rights and freedoms of citizens.
Today, the founding text of this freedom is under threat. Several weeks after the draft law was leaked, the government has still not confirmed its veracity and it is difficult to know whether it will indeed be amended.
At the Presidential level, measures seem to have already been taken.
"The fact is that at the presidential level of government, they no longer accept to issue receipts for anyone who wants to submit a file for the constitution of an association", says Emna Chebaane who spoke to someone who recently wanted to set up an association.
The claim is that the administration is waiting for the new text to be published, which is "very serious". "A law is in force, they can't just decide that", she insists.
Beyond the legal text, members of civil society are worried about the crackdown on associations: "Civil society is not going to disappear but it will become docile. It will be a society that panders", fears Oumayma Mehdi. "Today, when we talk about the dissolution of civil society, its limitations and external funding, we are talking about [organisations] that will prevent the president from implementing his plan".
Consequently, for the people interviewed by inkyfada, the issue above all concerns associations that have a counter-power role: those that have led legislative battles, that have participated in demonstrations or that have, in one way or another, opposed the state.
"There is a lot to be said for effectiveness, impact, etc. (...). (...) We would have liked to be able to draw up an assessment of the activities of civil society", Malek Khadhraoui commented during Inkytalk, a podcast produced by the inkyfada team. However, according to him, in light of the threats that these organisations now face, it is first necessary to defend their very existence. "In one second, the efforts of 10 years can be destroyed", Charfeddine Yacoubi concludes.
