The Bouden government takes office. Carthage Palace, 11 October 2021. Credit: Presidency of the Republic

The restrictive nature of this draft amendment to Decree-Law 88 of 2011 governing associations can be resumed in three points: the administration’s considerable discretionary power with regard to the creation of associations, the removal of the system of escalating penalties and the conditionality of foreign funding with the requirement that associations obtain a document in writing from the Tunisian Commission of Financial Analysis (CTAF).

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Decree-Law 88, currently in force, represents a pillar of a post-revolution, democratic Tunisia. It was promulgated by the High Authority for Achievement of the Objectives of the Revolution, Political Reform and Democratic Transition during the country’s transition phase, and was meant to be replaced by an organic law after the constitutive phase. But following the adoption of the 2014 Constitution, the government never submitted any such draft law to parliament.

« Since 2016, there have been several attempts by the government to reform it. But each time, we have learned about such intentions and managed to reach an agreement that would preserve the status quo. We have worked to perfect the decree’s application through the elaboration of complementary laws on public financing, the system of foundations, etc. » says Amine Ghali, programs director at the Al Kawakibi Center for Democratic Transition (KADEM).

This time, however, NGOs were excluded from the presidency’s reform process. « This draft law blots out preceding agreements with the presidency », Ghali laments. As it circulated behind closed doors among concerned ministries, the draft law was leaked to several associations. These ministries are called upon by the presidency to give their opinions on the measure before it is adopted. « According to the current legislative process, this draft will neither be submitted to parliament nor debated. Had it not been leaked, the draft might have been adopted in secret », explains Ghali, who heads a civic space work group that comprises dozens of NGOs. According to Ghali, the draft law was not only elaborated without consulting NGOs, but also outside the presidency’s General Directorate of Civil Society Relations.

A freedom-restricting approach

Beyond its flawed drafting process, the measure itself hints at an underlying will to restrict certain freedoms. One point of concern: the modalities for creating an association. Under Decree-Law 88, the constitution of associations is governed by a reporting regime.

Article 10 of the proposed measure gives the presidency’s Directorate General of Associations the discretion to reject an association’s creation if the latter does not respect the draft law’s articles 3, 4 and 10. These provisions cover general principles on an association’s commitment to not incite violence, to respect the state of law, etc. « But this is absurd », Ghali comments. « Associations are by default required to conform to these rules. The vast discretionary power given to the authorities aims to block the creation of associations ».