The legal text regulating associations in Tunisia is Decree No. 88 of 2011, dated September 24, 2011. It was developed within the Higher Authority for Realisation of the Objectives of the Revolution, Political Reform and Democratic Transition. This decree constituted a break away from the practice of limiting the right to organize that prevailed prior to January 14, 2011. It declared the principle of the freedom to form associations; simplified the procedures for forming them; broke the connection to the Ministry of Interior, which had previously overseen associations; and, made the judiciary the sole power authorized to suspend an association’s activity or dissolve it when necessary. This legal framework facilitating the right to organize and form associations led to the establishment of a large number of associations active in various fields - 18,507 exist in Tunisia as of February 18, 2016.[1]


Observers of the current status of civil society in general, and associations in particular, will notice that many restrictions on the right to organize have come into practice. These restrictions affect associations established and operating lawfully, associations in the process of being established, and associations attempting to restructure or alter their statutes. Their appearance can be attributed to the inability of the administration, particularly the Secretariat General of the Government,[2] to adequately track associations and conduct public oversight, especially given the proliferation of these associations. Concerns about the growth of terrorism, which dictates more oversight, further complicate the issue. These practices have also been accompanied by some campaigns targeting certain associations active in the human rights field, particularly in monitoring political life. Given this situation, which has led to the legal prosecution of numerous organizations, and to the dissolution of some and the disruption of the work of others, there are legitimate fears that Tunisia will revert to the pre-2011 situation regarding associations.


The Manifestations of Restriction and Their Unconstitutionality and Illegality


The restrictions on the right to organize that first appeared in late 2013 and early 2014, and that have recently been consolidated encompass the formation of associations, their activity, and oversight over the extent of congruence in their activity, statutes, and funding.  


Restrictions on the formation of associations


According to Article 12 of the 2011 Decree, “The association is considered legally formed from the date of the sending of the letter…and acquires legal personality from the date of publication of the association’s announcement in the Official Gazette of the Republic of Tunisia”. Publishing the announcement in the Official Gazette is only a formality, and the Official Printing Office is legally obliged to do so within 15 days of its submission. Nevertheless, numerous associations that have submitted their establishment files to the Secretariat General of the Government and submitted the aforementioned announcement to the Official Printing Office are still awaiting its publication in the Official Gazette. Some associations have been waiting more than a year. The 2011 Decree did not pair the legal obligation to publish with a noncompliance penalty. Delayed publication is also affecting some foreign associations wanting to open a branch in Tunisia. Since 2014, they have been restricted via the same means used to restrict Tunisian associations.


Resorting to the courts is the only option for rectifying this situation, which is depriving associations (legally) of legal personality and hence, “the right of litigation, acquisition, possession, and disposition of its resources and properties and…accept[ing] assistance, donations, grants, and bequests” (Article 13 of the 2011 Decree). When some associations resorted to the courts to redress the lack of publication of their establishment announcement, the administrative judge -in the summary judgement issued on December 23, 2015 in case no. 55108 (the Hassan Saadaoui Institute for Democracy and Equality v. the Official Printing Office as a public institution)- compelled the Official Printing Office to publish the announcement submitted to it, in the first issue released after the date it was informed of the ruling.


The judge based his ruling on a series of constitutional, statutory, and logical considerations, thereby consecrating the notion that an association is legally established as soon as its establishment is announced. The judge also held that the principle of good faith in the performance of contracts requires that the timeframe for publication in the Official Gazette be reasonable and not exceed three months, as had occurred in the case at hand.


Restriction of associations’ activities


The first oversight over the activities of associations began at the end of 2013 with pressure from civil society itself, and from the political opposition at the time. Many people demanded that numerous associations that were subjects of “terrorism-related suspicions” be monitored. The Secretariat General of the Government referred the cases of approximately 160 associations to the judiciary, so that it could suspend their activities and then issue rulings to dissolve them.[3] This initial stage of enacting oversight over the activities of associations occurred without transparency or appropriate media coverage,[4] and amidst silence from the traditional constituents of civil and political society. Months ago, the administration entered a new phase of oversight over the activities of some associations on the pretext that they contravene the law and public order. The campaign against Shams –an association that openly defends LGBT people– is an example of this oversight, which is ostensibly based on law, but is in essence an attack on the right to organize.


Returning to the decree regulating associations, we see that Article 3 states that associations must, “in their bylaws, activities and funding, observe the principles of the rule of law, democracy, plurality, transparency, equality, and human rights as stipulated in international agreements ratified by the Republic of Tunisia”. Similarly, Article 4 prohibits associations from “Employing in their bylaws, statements, programs or activities any incitement for violence, hatred, intolerance or discrimination on the basis of religion, gender, or region”. These principles, upon which the establishment of associations must be based, can by no means be used to attack associations active in the field of human rights. Nevertheless, they have been employed against an association that defends the rights of sexual minorities. Since the establishment of Shams in May of 2015, the head of state litigation has filed five cases against the association in response to the campaigns against it by religiously conservative parties, particularly the former grand mufti of the republic.[5] These cases have cited the incompatibility of the association’s activities with its bylaw, on the one hand, and with the exigencies of public order, on the other. The first of these cases occurred in June of 2015, and the most recent occurred in January of 2016.[6] On each occasion, the judiciary rejected the accusations and the case against the association.


Restriction of associations’ funding


Although the 2011 Decree simplified the issue of funding and enabled associations to access [various] categories of foreign funding provided that they declare such funding (Article 41), it subjected the public funding of associations to a series of conditions stipulated in Order No. 5183 of 2013, dated November 18, 2013.[7] Public funding is an opportunity to exercise oversight over associations not only before they begin their activities, but also afterwards as publically funded associations are subject to the Court of Auditors. Therefore, many associations do not seek this kind of funding and resort to foreign funding. As the decree does not subject foreign funding to any prior oversight, the oversight has for more than a year been carried out by banks, specifically the Central Bank of Tunisia, which is vested with the power to monitor the sources of such funding. This complicated and involved investigation process is time-consuming, and therefore disrupts the work of associations that find themselves unable to honor their commitments regarding disposition (such as leases and employees’ wages) and activity. Most associations now experience protracted delays in the arrival of foreign funds into their accounts, and these delays may prompt some to resort to illegal means to fund their activities. For example, they may accept funds into the accounts of their board members, which could expose those members to legal action and the association itself to a penalty up to and including dissolution (Article 45 of the 2011 Decree).


These methods of overseeing associations, in the manner in which they are applied, constitute a restriction of the activities of associations. The methods are sometimes accompanied by systematic campaigns against rights organizations and accusations that they are subordinate to foreign parties, or have shady funding. Rights organizations in Tunisia have been experiencing such campaigns and accusations since the summer of 2015.[8]


The oversight being exercised on both Tunisian associations and foreign associations operating in Tunisia prompt us to ponder the possibilities of thinking about some mechanisms for establishing a balanced and positive relationship between associations, on the one hand, and the state bodies, on the other.


What Mechanisms Exist for Overcoming the Restrictions?


Recently, there has been much discussion about the benefit of revising the associations decree and issuing a new law of associations to overcome its deficiencies,[9] as well as adding some essential articles pertaining to the public funding of associations.[10] This approach may constitute a radical legal solution to the pending issues relating to associations, but it also involves some pitfalls that must henceforth be brought to attention. The most important of these pitfalls is the lack of sufficient resources to monitor and track associations, as well as the scarcity of financial and human resources to support the administrative bodies charged with these tasks. Endeavoring to amend the decree along with its liberal spirit, is also a risk; this decree is the one that gave us the associational landscape that exists today, with all of its richness, diversity, and strengths, as well as its weaknesses and shortcomings. The point is to overcome these deficiencies, not limit the rights and freedoms contained in the decree.


This article is an edited translation from Arabic.

__________

[1] According to the latest figures from the Center for Information, Training, Documentation and Studies on the Associations, there are now 18,507 associations, more than half of which were established after January 14, 2011.

[2] The Secretariat General of the Government is the department charged by the 2011 Decree with overseeing associations.

[3] The number of associations suspected of being linked to terrorism reached 157. The government submitted requests pertaining to them to the judiciary, which examined these requests and decided to dissolve 20 of them and suspend the activities of 80 more. (See Al Arabiya, February 6, 2016).

[4] On January 2, 2016, the Secretary General of the government stated that by the end of November 2015, the government had sent 379 warnings to associations to respect the law governing them, and had asked the judiciary to suspend the activities of 164 and dissolve another 64 (La Presse de Tunisie, January 2, 2016).

[5] See: “Tunisie: Le Mufti fustige la promotion de l`homosexualité et appelle à réviser le visa de l`association Shams”, Business News, May 25, 2015.

[6] The latest ruling in favor of Shams was issued on February 23, 2016. The associations had contested the legality of the decision to suspend its activity on January 4, 2016 (See: Al Huffington Post Maghreb, February 23, 2011).

[7] This order was revised and supplemented by Order No. 278, dated June 1, 2015, and Order No. 3607, dated October 3, 2014.

[8] In this regard, see the joint statement of rights organizations in Tunisia, Assabah, December 16, 2015.

[9] In a statement on February 2, 2016, the minister for relations with the constitutional bodies, civil society, and human rights emphasized the existence of a review of the legal texts pertaining to associations, including the order regulating the public funding of associations (See: Kapitalis, February 2, 2016).

[10] In this regard, the Ministry for Relations with the Constitutional Bodies, Civil Society and Human Rights organized a series of broad consultations to discuss the government’s plan to revise the legal regime of public funding for associations by revising Order No. 5183 of 2013, which pertains to this matter; see the works of the conference on public funding of associations, organized by the Al-Kawakibi Democracy Transition Center, February 2, 2016; and, see: Mohamed Salah Ben Aissa (avec la participation de Narjess Jedidi et Ahmed Aloui), Financement public des associations en Tunisie, Tunis, Al Kawakibi Democracy Transition Center et ICNL, 2014.