Geneva-Paris, February 11, 2022 – While a draft amendment to the decree-law on associations seems about to be adopted by the Tunisian government, the Observatory for the Protection of Human Rights Defenders (OMCT-FIDH) expresses its deep concern at the threat posed by this amendment to freedom of association and calls on the Tunisian authorities to withdraw it.
The draft amendment to Decree-Law No. 2011-88 of September 24, 2011 on the organization of associations, which was recently leaked, seems to testify to the Tunisian authorities’ desire to acquire legal tools to control and possibly muzzle civilians. society, especially since it occurs in a climate of increased attacks against human rights defenders in the country and a total absence of dialogue between the authorities in place and civil society actors.
Firstly, the project undermines the freedom of association by making the creation of an association subject to the intervention of the authorities. While, in the legislation in force, an association is legally constituted from the filing of the declaration of incorporation with the general secretariat of the government, in the draft decree-law (article 12) this legal existence will be subordinated to the publication of the notice of incorporation creation in the Official Journal of the Republic of Tunisia (JORT). In practice, several associations have already experienced a serious delay in this publication well beyond the legal deadlines which, from now on, will have the effect of preventing the very existence of the association. In addition, to publish the notice of creation of their association in the JORT, the founders will be required to provide a copy of the statutes signed by the authorities whereas at present, they only need to provide an acknowledgment of receipt of the creation request.
In addition, article 10 of the decree-law confers on the authorities the power to refuse the constitution of an association. Until now, it has been easy to set up any association and it is up to the authorities to take legal action if they consider, for example, that the mandate of the association is incompatible with the prohibition of incitement hatred or discrimination and other principles listed in Articles 3 and 4 of the legislation in force. This faculty of refusal of constitution, already envisaged for the international associations wishing to be established in Tunisia, would be extended to the national associations. Although the refusal can be challenged before the administrative court, the excessive delays in the pronouncement of the judgments even for the emergency procedures (at least three months for a judgment of stay of execution) can hinder the right of the associations victims of abuse to access justice.
Among the other provisions of the draft which give rise to serious concerns is the introduction, in Article 4, of the prohibition on associations “threatening the unity of the State or its republican and democratic regime”. The notions of threat or attack on the security of the State tend to be the subject of extensive interpretations in Tunisia. The introduction of this provision raises fears of misuse in a political climate marked by the rhetoric of the traitor and the enemy within serving to discredit dissenting voices. Article 4 adds that it is prohibited for the leaders of an association to stand for election during the three years preceding the date fixed for the election, an excessive and disproportionate prohibition which deprives the leaders of an association of the constitutional right to To stand for elections.
Article 10 of the draft also provides that the aims and activities of an association must not “come within the competence of public persons” or be “subject to a special legal regime outside the scope of the decree-law”. This extremely vague provision is likely to lend itself to a broad and arbitrary interpretation and thus to considerably restrict the right to freedom of association.
Another very worrying provision introduces a procedure for monitoring the foreign funding of associations. Thus, article 35 of the draft prohibits associations from accepting aid, gifts or foreign donations not authorized by the Tunisian Commission for Financial Analysis. This commission, created in 2015 by the law on the fight against terrorism and the repression of money laundering, is therefore empowered to issue a prior opinion on any foreign funding that emanates from a government, a foundation or of an association. Furthermore, the issuance of the authorization will not be subject to any time limit. This new procedure should be strictly supervised in order to guarantee that it cannot be used to hinder the financing and therefore the functioning of associations whose activities or opinions shock the public authorities.
In addition to voluntary dissolution and legal dissolution, the draft envisages a new form of dissolution of an association: automatic dissolution on the reasoned decision of the service in charge of the affairs of associations at the presidency of the government (article 33). This would be the case if an association, legally constituted and registered in the National Register of Associations, were considered by the authorities as no longer having a real and effective existence due to the non-holding of its ordinary meetings or the non-execution of its activities over three successive sessions. This is a new prerogative granted to the authorities to increase their control over the activities of associations. Automatic dissolution can be challenged before the administrative court, but the procedure is excessively slow as mentioned above.
The Observatory considers that the draft amendment, if adopted, would considerably restrict the legitimate activities of civil society and human rights defenders, in violation of the right to freedom of association, a right protected by the international human rights instruments to which Tunisia is a party, and in particular by article 22 of the International Covenant on Civil and Political Rights, as well as by article 35 of the Tunisian Constitution.
The Observatory therefore calls on the Tunisian authorities to withdraw this project, to guarantee the right to freedom of association in the country and to ensure that human rights defenders can carry out their legitimate human rights activities without hindrance or fear of reprisals.
The Observatory for the Protection of Human Rights Defenders (the Observatory) was created in 1997 by FIDH and the World Organization Against Torture (OMCT). The objective of this program is to intervene to prevent or remedy situations of repression against human rights defenders. FIDH and OMCT are both members of ProtectDefenders.eu, the European Union mechanism for human rights defenders set up by international civil society.
