Tunisia: New law proposal threatens civic space

ARTICLE 19 expresses its deep concern about the proposed law on the regulation of associations (the Proposal). Many of its provisions confer authorities greater control over the operations of associations, in particular over their activities and ability to access resources, and can thereby threaten their very existence and proper functioning. We urge the Tunisian Parliament to not adopt the Proposal and protect civic space in the country.

The Proposal (27/2023) was tabled on 12 October 2023 by ten deputies. It is now being reviewed by the Parliamentary Committee on Rights and Freedoms before it is presented to the plenary. If adopted in its current form, the Proposal would reverse many of the achievements of Decree-Law No. 2011-88, which introduced extensive safeguards, including the free establishment of associations, their ability to receive foreign funding without government approval, and the prohibition on government interference. Thereby, Decree-Law No. 2011-88 allowed civic society actors to actively engage in the democratic process and advocate for fundamental rights and freedoms.

The draft law contains many provisions that are concerning from a freedom of association and freedom of expression perspective. We are particularly alarmed by the following aspects:

The Proposal (Article 6) subjects the activities of all associations, both domestic and foreign, to government supervision and monitoring. What this supervision and monitoring will entail in detail remains unspecified. This goes against the very nature of civil society organisations which are supposed to be independent from governments and accountable to the communities they serve. This severely jeopardises the effectiveness of civil society organisations as watchdogs and hampers their ability to challenge government actions.
Article 6 also subjects the establishment of branches of foreign organisations to a licensing regime. This is contrary to the African Commission on Human and Peoples’ Rights’ Guidelines on Freedom of Association and Assembly Registration, which provide that associations should not be compelled to register to operate and that registration shall be governed by a notification rather than an authorisation regime, such that legal status is presumed upon receipt of notification.¹ Furthermore, the Proposal does not itself regulate the conditions of this licensing regime but confers the power to regulate it to the Foreign Ministry. However, international human rights law requires that restrictions of this nature be established by Parliament, not by the executive government.
The Proposal (Article 18) prohibits national associations from receiving foreign funding without obtaining prior approval from the government, which is at odds with the relevant international standards. The Guidelines on Freedom of Association and Assembly in Africa, however, provide that States should not require authorisation for associations to receive funding.^{²African Commission on Human and Peoples’ Rights, Guidelines on Freedom of Association and Assembly, paragraphs 37 and 38.}
Access to human resources is also restricted. In its definition of associations (Article 2), the Proposal provides that activities of associations ‘shall be carried out on a voluntary basis’. This will considerably limit their operations and fields of intervention, as they will not be able to hire staff to implement their programmes and projects. Just as financial resources, access to human resources are protected by the right to freedom of association. The Special Rapporteur on the rights to freedom of peaceful assembly and of association clarifies in her report on Access to Resources that ‘the right of associations to freely access human, material and financial resources – from domestic, foreign, and international sources – is inherent in the right to freedom of association and essential to the existence and effective operations of any association’.³
The Proposal (Article 24) further gives the authorities the power to suspend associations’ activities or dissolve them in case of non-compliance with the provisions of the Proposal (generally following a process including an initial cautionary notice and subsequent warning for suspensions and a court judgment required for dissolutions; this order of measures may be changed in the event of the receipt of foreign funds without prior approval), without requiring a serious violation of the law as provided for by the Guidelines on Freedom of Association and Assembly Registration.⁴

The above provisions are at odds with the right to freedom of association, which, according to the Human Rights Committee ‘relates not only to the right to form an association but also guarantees the right of such an association to freely carry out its statutory activities’.⁵ Any restriction on the operations, activities or access to resources of an association must therefore adhere to the requirements of Article 55 of the Constitution as well as Tunisia’s international obligations, specifically Article 22 of the International Covenant on Civil and Political Rights and Article 10 of the African Charter on Human and Peoples’ Rights. These obligations require that any restrictions on freedom of association be narrowly interpreted and satisfy the three-part test of legality, legitimacy, necessity and proportionality. ARTICLE 19 considers that many of the provisions in the Proposal fail to meet these requirements.

ARTICLE 19 underscores the fundamental role played by the right to freedom of association in any democratic system, which allows all individuals, including marginalised communities, to express their opinions, to engage in various activities – be it political, economic, artistic or social – and participate actively in civic life. It also allows them to form and join trade unions and cooperatives, and to elect leaders to represent their interests and hold them accountable.⁶

Freedom of association also enables other fundamental rights including freedom of expression. For example, its unrestricted exercise fosters media pluralism, in particular through the growth of community media, which are typically civil society organisations, and recognised as a source of local content, cultural and linguistic diversity, social inclusion and intercultural dialogue.

We therefore urge the Tunisian Parliament to not adopt the Proposal and guarantee the existence and proper functioning of associations in line with Tunisia’s constitutional guarantees and international commitments.

ARTICLE 19 will study the Proposal in detail over the coming weeks and issue further analysis in due course.

1
African Commission on Human and Peoples’ Rights, Guidelines on Freedom of Association and Assembly, paragraphs 9 to 13.
2
African Commission on Human and Peoples’ Rights, Guidelines on Freedom of Association and Assembly, paragraphs 37 and 38.
3
“Access to resources” report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, A/HRC/50/23, paragraph 9.
4
African Commission on Human and Peoples’ Rights, Guidelines on Freedom of Association and Assembly, paragraph 58.
5
Belyatsky et al. v. Belarus (CCPR/C/90/D/1296/2004), paragraph 7.2.
6
OHCHR, ‘Joint Statement on Protecting and Supporting Civil Society at Risk’.