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Freedom of Association in TUNISIA |
Summary Report
| Civil society landscape |
| Legislation |
In 1994, when the United Nations Human Rights Committee studied for the last time a periodical report submitted by Tunisia, the Committee expressed its concerns with that country’s law on associations that could be used to limit the enjoyment of freedom of association, as defined in Article 22 of the International Covenant on Civil and Political Rights, ratified by Tunisia. Since then, as reported by regional and international human rights associations, constraints of all types upon the enjoyment of that right have multiplied.1[1]
Today, there are some 9,132 associations of all categories in Tunisia2[2]. They are active in all fields of activity of civil society. Yet few of those escape from government interference when they determine their goals and activities and select their leadership. Less than a dozen may be considered to be fully independent from the encroachment of the one-party state. Another dozen associations that are not officially recognized are compelled to operate without official authorization (and have therefore no offices, no legal addresses, no bank accounts, etc.). They all suffer from constant harassment by the security apparatus, the judiciary and government officials. It should be noted that, since 1989, no independent NGOs hace been allowed to operate officially in Tunisia.
Given the present repressive frame of mind of the authoritarian government of Tunisia, it is not surprising that the authorities tend to see all independent NGOs as so many opposition groups. The legislation on associations was amended in 1992 in order to put even more pressure on existing independent associations as well as their members.
Tunisia is a signatory state of the International Covenant on Civil and Political Rights, in which it is stated that everyone shall have the right to freedom of association with others (Article 22) and that no restrictions may be placed on the exercise of that right “other than those which are prescribed by law and which are necessary in a democratic society in the interests of national safety or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.”
Article 8 of the Tunisian Constitution of 1959 states that the freedoms of opinion, of expression, of the press, of publication, of assembly and of association are guaranteed and exercised subject to conditions established by law. However, this constitutional guarantee is theoretical and the evaluation of the exercise of those freedoms is left to a legislative branch under the control of an omnipotent executive. It should be pointed out that amendments to the Constitution, including the one establishing a Constitutional Council, did not put in place an effective mechanism for controlling the constitutionality of laws, before or after their adoption.
Furthermore, Article 32 of the Constitution states that all duly ratified international treaties take precedence over national laws. In spite of that, Tunisian courts systematically refuse to give precedence to international conventions, maintaining that their role is limited to “applying the law”. The Tunisian government continues to renege on its international commitments with the result that national laws are sometimes at variance with the provisions of the Covenant.
The law of November 7, 1959, that governs associations (Law n° 59-154) has been amended by the law of August 2, 1998, (establishing the procedure of “declaration” of the associations) and the law of April 2, 1992, (establishing a classification of associations according to their activities and their objectives).
Various types of associations exist in Tunisia, such as women associations, sports and cultural associations, fraternities, charities, associations of a general nature (associations à caractère général), etc. The category to which an association belongs must be indicated on the declaration document and in the notice published in the official gazette, the Journal officiel de la République Tunisienne.
The association à caractère général classification allows the Ministry of the Interior and government officials under that ministry to interfere with the very existence of the association as well as with its operations. For instance, an association à caractère général must accept as a member anyone who endeavours to respect its principles and decisions, unless the candidate to membership does not enjoy civic or political rights, or pursue activities that are incompatible with the goals of the association. At the time the law was drafted, the government had planned to flood the membership of the Ligue tunisienne des droits de l’Homme (LTDH) with new members that would have been supporters of the ruling party, and who could eventually have taken control of the executive bodies of that NGO. Likewise, the law states that senior executives of political parties may not at the same time be officials of an association à caractère général. Again, this was intended to destabilize the LTDH whose executive bodies included many apposition figures.
1 – Does the system allow for non-declared or unincorporated associations?
Under Articles 29, 30 and 31 of the Law on associations, unofficial associations are prohibited and officials of such associations run the risk of being prosecuted before criminal courts.
In theory, associations must go through the declaration process in order to be incorporated. Article 1 of the Law on association (Law n° 59-154 of November 7, 1959) states that an association is a convention whereby two individuals or more permanently put in common their knowledge or their activities in pursuit of an objective other than merely pecuniary, and that the association is governed by the general principles of contractual law. Courts have interpreted narrowly the term “permanently” in order to prevent the formation of NGOs that wish to pursue goals that are limited in time (e.g. political prisoners support committees, protest groups intent on launching hunger strikes, whose aims are limited both in scope and in time), and threaten the proponents of such associations with the penalties provided for in Articles 29 and 30 of the Law.
Individuals wishing to form an association must deposit a declaration of association and a list of founding members at the seat of the gouvernorat or the délégation. The law states that a receipt is then to be issued.
The association is legally incorporated at the end of a three-month period. The association may not begin to operate before the delay is expired and before the publication of a notice in the Journal officiel.
3 – What are the bases upon which registration can be rejected (e.g. race, security, religion, politics)?
The Ministry of the Interior may object to the formation of an association. A refusal must be motivated. As a rule, the reason given will be a generic “contrary to the law”, with no details provided, despite the fact that there is little doubt that the real reason is political. Both the Conseil national pour les libertés en Tunisie (CNLT) and the Observatoire pour la presse, l’édition et la création (OLPEC) have faced that problem.
4 – How easy or difficult is the registration (e.g. time, cost, number of incorporators)?
The procedure for declaring an association is detailed in Article 3 of the Law on associations. The request must be deposited at the seat of the governorat or of the délégation where the association is located. The founding members must give their name as well as the name, the purpose, the goal and the address of the association. Three of the five copies of the declaration must bear a fiscal stamp.
The law sets no time limit for the issuance of a receipt of declaration. Officials take advantage of that void to disrupt the process, preventing the publication of the required notice in the Journal officiel and therefore, the formation of the association.
Even if the receipt is issued, the Ministry of the Interior may still object to the creation of an association by invoking a violation of a legal provision. As a rule, the only reason given is “contrary to the law”.
5 – Are there effective remedies in the cases where registration is denied, delayed (e.g. judicial, administrative?
If the Ministry of the Interior rejects the registration of the association or refuse to issue a receipt, the founding members may lodge an appeal for abuse of power before the administrative tribunal. In case the authorities refuse to publish the notice in the Journal officiel, an appeal may be lodge before the Prime Minister. Procedural delays are frequent in such matters. In any case, the association may not begin its activities before there is a decision in its favour. The net result is that a number of new associations operate “outside the law”, since they are labelled “unrecognized associations” by the authorities, a situation that leaves them in a precarious situation. That is the case of the Conseil national des libertés en Tunisie, L’Association internationale de soutien aux prisonniers politiques tunisiens, l’Amicale nationale des anciens résistants, l’Association tunisienne contre la torture, l’Observatoire pour la presse, l’édition et la création, la Ligue des écrivains libres, l’Association des directeurs des radios libres, as well as the Syndicat national des journalistes. Under the Constitution, those associations should not be obliged to obtain an authorization to exist and operate.
6 – Does registration automatically entail obtaining a separate legal entity?
With registration, or more properly, with the publication of the notice in the Journal officiel, the association automatically acquires the status of a legal entity. However, only the president is entitled to represent the association in courts and intervene in legal proceedings.
The associations may initiate or intervene in legal proceedings, but only for the following:
- unpaid membership fees;
- the premises or furniture needed for the meeting of the association;
- the buildings needed to pursue the objectives of the association.
On the other hand, the associations may not initiate or intervene in legal proceedings in matters pertaining to funds given by the government or government bodies, unless the party concerned authorizes the proceeding. The associations may not associate themselves in a court action that is related to an objective of the association.
It is easier to initiate proceedings against an association. Following the amendment of 1992, anyone whose request to become a member of an association à caractère général has been denied may sue that association (more than 30 such suits have been introduced against the LTDH). That amendment had increased the precariousness of associations before the law and the government, which uses the judicial system for its own ends.
7 – Are there other viable alternatives if the right to freely form and incorporate an association is denied (e.g. incorporate as a company, a trust, a Wakf)?
There are no alternatives to the Law on associations. Foundations are not allowed, the only exception being the Fondation Temimi pour la recherche scientifique et l'information.
The Minister of the Interior may, in case of extreme urgency and in order to insure that public order will not be disturbed, issue a motivated order temporarily closing (for a maximum of 15 days) the premises used by an association and suspend all its activities as well as any meeting or gatherings of its members (Article 23).
The Minister of the Interior may ask the competent court of first instance to order the dissolution of any association whose activities seriously contravene provisions of the law on association; whose goals or activities undermine public order or public morality, or whose purpose is political (Article 24). In such a case, the Minister may request at any time the temporary closing of the association’s premises and the suspension of all its activities.
In practical terms, the Minister will close the association’s premises and prevent its member from meeting without bothering about the niceties of the law. For instance, the Minister has ordered the closing of 11 regional offices of the LTDH since September 2005 without bothering about legal formalities.
Leaders of associations who disregard the provisions of the Law on association are liable to the penalties provided for in Articles 29 and 30. Article 29 states that any breach of the Law is punishable by a term of imprisonment of one to six months and a fine of 50 to 500 dinars. Individuals who facilitate the reunion of members of an association that is non-existent in the eyes of the authorities or which has been dissolved are liable to the same penalties. Article 30 states that anyone who directly or indirectly participate to the maintenance or the reconstitution of an association recognized as non-existent or which has been dissolved are liable to a term of imprisonment of one to five years and a fine of 1,000 to 10,000 dinars, or to one of those two penalties.
1 – What is the extent of the freedom of members to draft and amend their own statutes and by-laws and to determine their own object (Are such documents imposed? to what extent?)
Forms issued by the Ministry of the Interior must be used for all declarations of association and whenever the statutes of the association are modified. Those forms, that are not mentioned in the legislation, require from the associations that they supply more information than what is provided for in the law. Any section, branch or detached premises of the association must be declared. Modifications to the internal rules are not subjected to the declaration procedure.
2 – How strict is the level of freedom of members to adhere to or leave associations?
According to the law, any association à caractère général must accept as a member anyone who endeavours to respect its principles and decisions, unless the individual does not enjoy civic or political rights, or pursue activities that are incompatible with the goals of the association. If the membership request is rejected by the association, the candidate may lodge an appeal before a court of first instance.
3 – Is there any interference in the corporate bodies : e.g. attendance of meetings (Board, General assemblies) by “supervisors”, elections ?
The law does not provide for the presence of “supervisors” in the corporate bodies. However, it is common practice for government officials to be present at the general assemblies or meetings of associations that are close to the government. They will also read “messages” and even issue instructions. Illegal corporate bodies have been forced on the Association des jeunes avocats and the Association tunisienne des magistrat, as well as on the so-called Authentically Governmental Associations (Organisations véritablement gouvernementales, or OVG) » such as the Association tunisienne des mères or the Association de soutien aux handicapés Besma. “Supervisors” will frequently oversee the election process.
4 – Are there any restrictions (legal or de facto) promoting, limiting or banning participation of women in associational offices (e.g. Board)?
There are no provisions in Tunisian law that are discriminatory against women, or that would limit or prohibit the participation of women in associational offices. However, the weight of traditions limits the participation of women.
5 – Are there any interference in the freedom of associations to decide on projects and activities? If yes, how and why?
The law prohibits associations “of a political nature”. The Minister of the Interior has discretionary power when it comes to define that term. The Minister will intervene orally to prohibit activities and will avoid sending out written instructions that could be used in a court of law. If the association proceeds with its activities, the security forces may be used to block access to the premises.
6 – Is the association’s right to freely assemble or organize private and public meetings, to move freely (including international travel) restricted in any way?
According to the law pertaining to public meetings and gatherings adopted on January 24, 1969, such gatherings may be held freely and are not subject to prior authorizations. Organizers must however deposit a notification at the seat of the gouvernorat at least 72 hours prior to the event. If the meeting is held in Tunis, the notification must be deposited at the Ministry of the Interior. Private meetings may be held freely and are not subject to any formalities.
In practice, the Ministry of the Interior systematically disregards those provisions. The prohibition to hold a meeting is often unofficial and may take many forms:
* Oral messages given to the organizers by officials of the Ministry. As an example, the police official of the El Omrane district in Tunis gave such a message to officials of the LTDH on April 14, 2006;
* Without prior notice, the premises where the meeting is to be held are surrounded by security forces;
* Owners of buildings where meeting are held are pressured to the point where they are compelled to break the lease by invoking fallacious pretexts (non-existent water damages or renovation works, premises already leased to someone else, etc.)
For instance, the Ligue Tunisienne des droits de l’Homme has been prevented to hold its congress since 2005. Recently, on May 26 and 27, 2007, the police prevented the holding of a conference on the Social forum at the headquarters of the LTDH.
Despite the fact that freedom of movement is guaranteed by the Constitution of 1959, the right to move freely inside or outside the country is often flouted. Police forces may be used to prevent members of an association to travel to the region where a meeting is to be held. In case of meetings outside the country, participants may be illegally prevented to travel, as was the case recently for two lawyers, Mr. Nouri, founder of AISSP, and Mr. Abbou.
7 – Are associations subjected to specific limitation on their right to freely communicate (e.g. access to media, publish and develop internet sites)?
Independent associations see their access to the local media associations restricted. Officials of the media received instructions not to invite independent associations and ignore their press releases or opinions to national events or matters that are of concern to them. On the other hand, media groups will often launch campaigns that are hostile to independent associations and will slander their leadership as well as pro-democracy advocates. Such attacks are often launched against the LTDH and its leaders, such as Mokhtar Trifi and Khémaïs Ksila, as well as against the CNLC and officials of that association such as Sihem Ben Sedrine, Omar Mestiri and Raouf Ayadi. Other targets of such campaigns are Kamel Jendoubi, president of the CRLDHT and the EMHRN, Khemais Chammari, a former deputy and former vice-president of the LTDH, and Radhia Nasraoui, president of the Association de lutte contre la torture.
Publications are governed by the Press Law. They are subjected to the registration of copyright, and while provisions in that regard have been formally eased, they are still used to pressure major associations. The authorities act as if the registration of copyright process equated an authorization to publish. In that context, the printer, the publisher or the distributor may refuse to meet their obligations or deliver the printed material.
Censorship of the internet is widespread in Tunisia. For that reason, independent NGOs, such as the LTDH, CNLT and AISPPT, face many difficulties in developing their web sites.
8 – Is the freedom of associations to cooperate and network with others limited (both domestic and international)?
At the national level, the formation of any federation or networking of associations is subjected to the same rules as the formation of an association.
At the international level, networking with international associations can be assimilated to the creation of a foreign association. A foreign association is defined as an association of any type which has its headquarters outside the country, or, while headquartered in Tunisia, is headed by a board whose members are foreign nationals for at least half of them. These types of associations come under the supervision of the Ministry of the Interior. They may be created or may operate in Tunisia only after having obtained a special authorization (called autorisation de siège) delivered by the Minister, under recommendation of the Minister of Foreign Affairs (Article 17).
9 – Is the participation of associations sought for opinion or participation in deciding on public interest issues? What is the nature and level of such consultations?
There are no consultations with independent associations during the decision-making process on matter of public interest.
10 – Are there effective remedies and appeals?
Keeping in mind the lack of independence of the judicial power, the remedies and appeals available to associations are theoretical only. Legal procedures undertaken by independent associations are systematically blocked such as was the case in cases concerning the CNLT or the Association tunisienne des jeunes magistrats.
1 – Are there any limitation on the right of associations to receive and own property and funds ? How?
Under the Law on associations of 1959, any “regularly incorporated” associations may, without any specific authorization, and outside funding provided by the government and government bodies, acquire, own and administer membership fees (that may not exceed 30 dinars, equivalent to about 15 euros), premises and material for its operations, as well as the buildings that are strictly necessary for furthering its stated objectives (Article 8).
The law does not prohibit donations from other sources than the Tunisian government. Such donations are not subjected to special rules. However, a decree of 1922 prohibits anyone from collecting funds from the public without prior authorization. Offenders may be condemned to up to three months imprisonment. This provision has often been used against opponents and civil society actors, in particular the Ligue tunisienne des droits de l’Homme (LTDH).
The level of funding granted by various government bodies to pro-government associations is impressive but remains undeclared. Article 9 of the Law on associations states that any association that receive such funds must submit a financial statement and related documents each year to the Ministry of Finance. The use of such funds is subjected to an annual verification process.
3 – Are there specific limitations on receiving foreign funds?
The legislation does not prohibit foreign funding. However, the law of December 10, 2003, also called the Law to support international efforts in the fight against terrorism and money laundering, drastically limits the possibility to acquire such funds. By adding new offences, procedures and penalties (that violate freedom of the press and freedom of expression) and by criminalizing the activities of independent associations, the new law restricts even more individual and public liberties. Following a decision of the Ministry of Finance, associations may now be placed under ongoing financial supervision. With the introduction of so called “prudent management” procedures that the NGOs must follow, NGOs have seen their access to funds reduced even more.
Article 68 prohibits any type of support and funding of individuals, associations or activities related with terrorist offences or other illegal activities (such as the activities of associations that are not in conformity with the Law of 1959). The new law introduces a number of procedures and penalties that may be applied to independent actors of civil society and that restrict their access to funding whatever their objectives. Thus, associations and political parties are prohibited from accepting donations or funding from unknown sources and are prevented from collecting membership fees above the ceiling established by law (30 dinars per year). Funds originating from outside the country may only be received though a recognized intermediary living in Tunisia. Cash funds may not exceed 5,000 dinars in value. Associations and political parties whose “turnover” is above a ceiling set by the Ministry of Finance must follow “prudent management” procedures that may result in various control measures at the request of that ministry: daily accounting, inventory of receipts, annual balance sheet. Non observance of those various control measures may result in the imposition of financial audit, the freezing of asset, jail terms and heavy fines.
All these measures constitute an unprecedented attempt at lumping together legitimate civil society activities with actions generally termed as terrorist, the aim being to dry up the sources of funding and muzzle independent associations through selective and arbitrary practices. The government invoked that law to oppose grants from the European Union under the European Initiative for Democracy and Human Rights (EIDHR), that would have been used for the modernization and restructuring of the LTDH, as well as for reforming the judicial system. The Tunisian government blocks those funds by invoking the provisions of Law 59-154 on associations and the decree of May 1922 pertaining to charitable associations recognized as being in the public interest, a situation that does not apply to the LTDH. That measure is contrary to the provisions of the Declaration for the protection of Human Rights Defenders, adopted by the United Nations in December 1998. The measure also violates the spirit and the letter of Article 2 of the association agreement between Tunisia and the European Union on the promotion of human rights (June 15, 2004).
4 – How effectively are these limitations on funding enforced?
Control on the use of funding granted to associations by government bodies is ineffective. A body devoid of any independence - the inspection division of the Ministry of Finance - has been granted near-discretionary powers of supervision. It should be noted that the provisions of the Law to fight terrorism have been used in 2005 to freeze the financial resources of the Institut arabe des droits de l’Homme.
Associations do not enjoy any specific fiscal benefits.
1 – What are the supervisory authorities that oversee associations (e.g. courts, ministries, independent bodies, and security apparatus)? How consistent are the activities of these authorities with the principles of freedom (check Principle 16 of the Declaration)?
Funding granted by the Tunisian government is under the supervisory control of the Ministry of Finance. As pointed out above, that control is unregulated in practice, the more so that the funds are often granted directly by the Office of the President of the Republic.
2 – Are accounts and other information transparently available to the public?
Only members of an association have access to the financial statements and other information concerning the management of the financial resources of those entities. The management of those associations that are close to the government (and who benefit from funding from various government bodies), often lack transparency and good governance.
3 – What penalties (e.g. criminal, fines, etc) and harassment measures are applied in case of violations?
The penalties are the same as those that apply to individuals who manage societies governed by civil law. In principle, provisions of the penal code pertaining to embezzlement, forgery and fraud, are applicable. It is however the government that decides to file a lawsuit or not. A discretionary power that is open to abuse.
[1] Report of Hina Jilani, U.N. Special representative on the situation of human rights defenders, March 17, 2007, A/HRC/4/37/Add.1
[2] For instance, the Association tunisienne des femmes démocrates (ATFD), the Conseil national pour les libertés en Tunisie (CNLT), the Ligue tunisienne des droits de l'Homme (LTDH). See (http://www.tunisie.com/societe/associations.html) Back to text
Khemais Chamari
"interference on behalf of the authorities is increasingly frequent when it comes to associations..." Read the interview
