ARTICLE 19 calls on the Tunisian Government to withdraw the planned amendment of the Decree-Law No. 2011-88 regarding associations. Changing the law as proposed would unduly curtail the rights and freedoms of civil society organisations and undermine the protection of civic space in the country. We urge the Tunisian Government to withdraw the amendment and refrain from efforts to further restrict Tunisia’s vibrant civil society.
Decree-Law No. 2011-88 of 24 September 2011 was issued following the country’s 2011 revolution, marking a major advance for freedom of association in Tunisia. As currently in force, Decree-Law No. 2011-88 provides for broad protections, including the free establishment of associations, their ability to receive foreign funding without government authorisation, and the prohibition on government interference.
To date, the Tunisian Government has not officially proposed any amendments or even confirmed its intention to revise Decree-Law No. 2011-88. Civil society organisations were only alerted to the Government’s plans because the draft amendment was leaked to them. ARTICLE 19 reminds the Tunisian Government of the importance of ensuring an open and transparent legislative process that facilitates effective participation of all concerned stakeholders, including civil society organisations.
ARTICLE 19 has long argued that the enjoyment of freedom of expression is dependent on the extent to which the freedoms of assembly and association are guaranteed. Freedom of association is not only cognate to freedom of expression, but as another essential element of any democratic system. The relationship between freedom of expression and freedoms of association and assembly is one of interdependence, in that the exercise of the latter set of freedoms may be seriously affected by the extent to which the former freedom is guaranteed.
ARTICLE 19 believes that if adopted, the draft amendment would reverse many of Decree-Law No. 2011-88’s achievements and unduly restrict freedom of association in Tunisia. Many of its provisions aim to give authorities increased control over the establishment, dissolution or funding of associations and establish limitations on their permissible activities. We are particularly concerned about the following provisions in the proposed amendment:
- The leaked draft prohibits associations from ‘threaten[ing] the unity of the State or its republican and democratic system’ and further prohibits statutes or activities being of an ‘extremist’ nature (Article 4). It also provides that publications produced by associations need to observe ‘integrity, professionalism, and the legal and scientific requirements’ (Article 5). Such vague terminology does not sufficiently protect associations from a broad interpretation and arbitrary application by authorities, in violation of the legality requirement under international human rights law.
- The vague wording introduced is particularly problematic as it is combined with a new provision that makes the legal creation of an association subject to government authorisation (see Articles 10 to 12 of the leaked draft). Under existing law, an association can be legally established through simple notification of the relevant authorities.
- The new requirement that all foreign funding be authorised by the Tunisian Commission for Financial Analysis, a unit tasked with fighting money laundering and the financing of terrorism, is also concerning. Such restrictions on foreign funding have been adopted by several States in recent years, in an attempt to curb dissent by civil society organisations. As stated by the Special Rapporteur on the rights to freedom of peaceful assembly and of association, the ability of civil society organisations to access funding from domestic, foreign and international sources is ‘an integral part of the right to freedom of association’. Requiring civil society organisations to obtain government approval prior to receiving foreign funding, therefore, constitutes a problematic constraint under international law. We, therefore, call on the Tunisian Government to instead focus on increased transparency and reporting mechanisms to support its efforts to combat money laundering and terrorism financing. For example, Canada requires certain charities to make additional disclosures regarding foreign funding but has not established any approval requirements. Similarly, the Financial Action Task Force, specialised in combatting money laundering and terrorism financing, has recommended adopting proportionate and risk-based measures that will not disproportionately affect or burden civil society organisations and are in line with international human rights standards (see its Best Practices Guidance on Combating the Abuse of Non-Profit Organisations).
- The amended Decree-law would also give governmental authorities the power to dissolve an association (Article 33). Whereas the existing law only provides for dissolution that is either voluntary (by decision of the associations’ own members) or based on a court judgment, the draft provides for automatic dissolution of an association based on a reasoned decision issued by the relevant authorities. One of the scenarios in which such a decision may be issued is if an association is deemed to no longer have an actual and real existence due to inactivity. It is unclear from the provision whether there could also be automatic dissolution for reasons other than inactivity. This is concerning as the dissolution of an association is an extremely serious step. Accordingly, under international standards, such as the Guidelines on Freedom of Association and Assembly in Africa, a dissolution order may only be applied where there has been a serious violation of national law and as a matter of last resort. In addition, the Guidelines state that a dissolution order may only be issued by a court, following a full judicial procedure and after exhaustion of all available appeal mechanisms (paragraph 58).
- In an undue restriction of their political right to stand for election, managers of associations who intend to run for presidential, legislative or local council elections would have to resign from their position within the association at least three years before the elections (Article 4). In addition, while the existing law prohibits associations from providing or raising funds to support political parties or candidates standing for elections, the draft now expands the prohibition to ‘advertis[ing] for referendums’ or providing political candidates with ‘support in any way’ – another incredibly broad formulation that would lend itself to an abusive interpretation by government authorities.
Practically all the amendments to the existing law would weaken the right of associations in the Republic of Tunisia to operate freely and without undue interference from public authorities.
ARTICLE 19 calls on the Tunisian Government to respect its obligations to protect freedom of association under Article 35 of the Tunisian Constitution as well as international human rights instruments, namely Article 22 of the International Covenant on Civil and Political Rights and Article 10 of the African Charter on Human and Peoples’ Rights, both of which were ratified by the Republic of Tunisia. We consider that many of the leaked amendments are contrary to the Guidelines on Freedom of Association and Assembly in Africa (such as paragraphs 9-13 regarding legal personality or paragraph 38 on funding). They do not comply with the principles governing the limitation of human rights – legality, legitimacy, necessity and proportionality. We further consider that the current state of emergency cannot justify such excessive restrictions on civil society actors.
Since Decree-Law No. 2011-88 was enacted, the number of associations in the Republic of Tunisia has risen significantly, demonstrating an eagerness in the community to organise and engage in a collective manner to contribute towards building a democratic society after the revolution. This progress would be at serious risk should the leaked draft be adopted. We, therefore, urge the Tunisian Government to withdraw the draft, to recognise that freedom of association is crucial to civic space and that a vibrant civil society plays an essential role not only for the exercise of freedom of expression and access to information but indeed for all human rights and the rule of law.