Unique, but not exceptional: transitional justice in Tunisia

Tunisia’s decision to undertake its own transitional justice process, largely encouraged and supported by the international community, was formalized nearly two years after the departure of long-time president Zine El-Abedine Ben Ali. How the country’s path to reconciliation will be measured in a global context and how its work will impact Tunisians remains very much uncertain. In the meantime, the growing library of precedent cases offers lessons and examples for Tunisia’s truth-seeking body as it works to carry out its mission in the face of political, structural, and strategic challenges.

Pursuing truth and dignity after the revolution
In December 2013, Tunisia’s National Constituent Assembly (NCA) adopted Law n°2013-53 concerning the Establishment and Organization of Transitional Justice. The Truth and Dignity Commission (TDC) began its four-year mandate in December of the following year, with the responsibility of investigating human rights violations committed between 1955 and 2013. Its capacities (defined in Articles 39 and 40) allow for the commission to hold closed or public hearings of victims; investigate cases on the basis of statements and complaints filed by victims; collect information and archive violations to create a record-base; determine the responsibilities of state bodies and other parties; clarify the causes of violations and propose solutions; elaborate a comprehensive reparations program; access public and private archives; seek assistance from public authorities to carry out investigations; implement search operations and the seizure of documents.

Nearly one year after the beginning of its mandate, controversy and internal conflict have threatened to undermine the TDC’s objectives and operations. Allegations that commission president Sihem Ben Sedrine is implicated in financial corruption have circulated in national media; following the adoption of a new antiterrorism law that has been condemned by human rights activists and organizations, the administration concocted its own short-cut to/version of reconciliation in the form of Draft Law n°45/2015. The proposed “exceptional measures for economic and financial reconciliation,” still awaiting parliamentary review, have evoked questions about the role and implications of reconciliation, as the current administration has construed economic growth and justice-seeking measures as rivaling priorities.

Birds-eye-view of transitional justice
Growing is the list of countries that have engaged in formal transitional justice processes following periods of conflict or dictatorship marked by profound human rights violations. Among the cases widely cited are Poland and Hungary’s vetting processes, Argentina’s National Commission of the Disappeared, South Africa’s Truth and Reconciliation Commission, and neighboring Morocco’s Equity and Reconciliation Commission. The table below shows the considerable number of countries that have established truth commissions over the past three decades.

Navigating politicization and managing public perception

As the Tunisian case demonstrates, transitional justice is an intrinsically political process. Kora Andrieu, Confronting the Dictatorial Past in Tunisia: The Politicization of Transitional Justice. 31 August 2015.

What was perceived to be a hasty and opaque selection process (on paper, procedures for appointing TDC commissioners were considered to be fair and clear-cut) plus the subsequent resignation of three commission members have tainted public opinion of the TDC. “Today,” Rim El Gantri observes “during nearly every discussion or media debate on the commission, attention is diverted away from the TDC’s mission, progress, and challenges to the polemics surrounding the commissioners and their ideology, political affiliation, or past deeds.”¹

In Kenya, political conflict and controversy that hovered around the country’s Truth, Justice and Reconciliation Commission throughout its four years of operation (2009-2013) nearly resulted in its dissolution. In spite of a relatively fruitful national dialogue which took into account different parties’ and civil society’s priorities and what on paper appeared to be a fair selection process, the appointment of Chairmen Bethuel A. Kiplagat proved to be the source of debilitating internal conflict that resulted in the resignation of vice-chair Betty Murungi and almost immediately “diverted and distracted the attention and energy of the Commission from executing its core mandate.”² Critics felt that the commission “perpetuated a culture of impunity,” and the commission itself acknowledged divisions as a reflection of the “absence of a clean break from the past.”

Numerous complaints—some 15,000 over the past year–from victims concerning the TDC are attributed to the public’s high hopes and expectations for the truth-seeking process and also to the commission’s lack of a comprehensive public communications and outreach strategy. Human rights and transitional justice expert Kora Andrieu has argued that a fragmented approach to creating a list of victims has even created divisions and competition amongst individuals seeking reparations. In Guatemala, the Historical Clarification Commission (1997-1999) faced a great deal of skepticism and general mistrust early on but succeeded over the course of its mandate through coordination with civil society organizations to gain the confidence of citizens. The three commission members (one UN-appointed international and two Guatemalan nationals selected through civil society consultations) were ultimately regarded as independent and deemed to “interpret their mission and make decisions based on the best interests of victims.”

Reparations: how, when, and for whom?
It is yet early to discern how and to what extent the TDC will take stock of and respond to the demands of victims, many of whom reside in regions far from the capital. Much as Tunisia’s transition has represented an effort to address marginalization and regional disparities, Peru’s reconciliation process addressed the “historical marginalization of indigenous and peasant communities who were most affected by the conflict.”³ Although its work and the implementation of an extensive reparations program were hindered by a lack of governmental cooperation, Peru’s Truth and Reconciliation Commission (CVR; 2001-2003) was able “leave the self-centered discourse” of the capital and penetrate rural communities. “The participatory work done by the CVR in drafting its recommendations, in seeking the broad contribution of victims and civil society organizations, provided a strong basis and legitimacy for its recommendations … That process, and continued efforts to organize and mobilize victims, still provides a broad base of organizations and leaders willing to challenge the limited approach that successive administrations have taken to reparations.”

Studying but a few cases it becomes quickly evident that both political and public spheres must be invested in the process of reconciliation and that a collective “commitment needs to be based on a shared idea of how the country sees its past and its obligations to victims.” Reflecting on Tunisia’s case, Andrieu describes transitional justice as the struggle to find an interpretation and meaning of history that will shape a country’s future identity, a process “aimed at transforming a society rather than simply “dealing” with its violent past through the sequential implementation of a set of clear-cut practices.”

Breaking with the past and transition to democracy
The Czech Republic, Poland, and Hungary pursued a vastly distinct approach to transitional justice: lustration, or the vetting of individuals implicated in past violations and access to documents held by the security apparatus (an approach that was not appropriate in Tunisia’s case given the inaccessibility of official archives). In Poland Leads A New Wave of Communist-Era Reckoning which appeared in The New York Times in 2012, the author pointed to reconciliation processes in Eastern Europe as a point of reference for the Arab world “where popular revolts have cast off long-serving dictators, raising similarly uncomfortable questions about individual complicity in autocratic regimes. Arab nations are forced to grapple with the same issues of guilt and responsibility that Poland and the rest of Eastern Europe are once again beginning to seriously mine.”

An essay comparing the use of lustration versus truth commissions in transitional justice processes notes that “the political divisions in the newly-democratizing East European societies were expressed by reference to the old regime.” In spite of a discourse promoting national unity and economic growth, the current administration’s nostalgia for the past, the push to “restore” security and accord exceptional amnesty to those who would otherwise likely face prosecution for economic corruption under the former regime are indicative of a political vision among whose priorities are not transitional justice, much less the demands and aspirations that propelled the revolution. Indeed, a lack of tangible changes in day-to-day life and, in particular, high youth unemployment (about 34% according to the IMF) sharpens the sense that Tunisia’s revolution was not the break from the past that so many had hoped for.

In most cases these revolutions were not complete overthrows, but moderated transitions of power…In Poland the return of post-communists came even more quickly than in Hungary, with the Democratic Left Alliance…reinforcing the cleavages in Polish society between those ready to move on, those who could not. Nicholas Kulish, Poland Leads a Wave of Communist-Era Reckoning. The New York Times, 12 February 2012.

If revolution neither embodied nor accomplished the transformation that Tunisians had once envisioned, it is precisely this process—at once unique and universal—of transitional justice that will either lead to the profound and wide-reaching changes sought, or else dead-end in the same old version of history.

Notes

1. Except where otherwise attributed, quotes attributed to Rim El Gantri are sourced from Tunisia in Transition: One Year After the Creation of the Truth and Dignity Commission, Rim El Gantri. ICTJ, September 2015.
2. Except where otherwise attributed, quotes and information on Kenya and Guatemala are from *Seventh Intensive Course on Truth Commissions. 28 September-2 October 2015. ICTJ (print). The book, a collection of essays and case studies, was distributed to those who participated in ICTJ’s recent workshop in Barcelona.
3. Except where otherwise attributed, quotes and information on Peru are sourced from Reparations in Peru: From Recommendation to Implementation, Cristián Correa. ICTJ, June 2013.