Tunisia witnessed a popular uprising in early 2011, which culminated President Zine El Abidine Ben Ali being overthrown, and subsequently, a process of democratic transition has been underway. In October 2011, elections were held which led to the establishment of the National Constituent Assembly1. The new government have commenced the reformation of many laws that are contrary to a democratic and pluralistic society, and they face many challenges ahead. On 25 January 2014 the National Constituent Assembly approved a new democratic constitution, a final step in establishing full democracy in Tunisia2. Further, as part of a deal to end hostilities between Tunisia’s Islamist party and its secular opposition, Prime Minister Mehdi Jomaa appointed a caretaker Cabinet until new elections are held3.
Among the driving factors of the 2011 uprising, was the prolific corruption of Ben Ali and his family4. Despite this, Ben Ali’s administration maintained a reputation within the international community for combating corruption and was signatory to a number of international anticorruption agreements. Tunisia signed and ratified the United Nationals Convention against Corruption (UNCA), and, in 2004, cofounded the Middle East and North African (MENA) Financial Task Force. Tunisia is also part of the Arab Anti-Corruption & Integrity Network (ACINET).
Tunisia’s Penal Code contains eleven articles that include definitions and classifications pertaining to corruption— these include financial penalties and prison sentences. Several other legal texts also encompass wider-ranging conceptions of corruption, such as participation in bribery. Information pertaining to the effectiveness of the laws in in combating corruption, and their application, is not easily accessible to the public. Following the departure of former President Ben Ali, the majority of the Tunisian Government’s recent efforts have been focused on the recovery of his assets. To investigate corruption, the transitional government established a commission but this body is also preoccupied with revealing incidents of corruption that occurred during the Ben Ali regime.
2. Present legal environment
Whistleblowers remain a vulnerable group in Tunisia and there is currently no legislation aimed specifically at protecting them.
A draft law on the protection of whistleblowers is currently under review by the government5. The draft law relates only to the reporting of corruption or wrongdoing by public officials, and offers no protection to whistleblowers in the private sector.
a. Public Sector
Public authorities are legally compelled to report criminal activities. Article 29 of the Tunisian Code of Criminal Procedure states:
“any constitutional authority, any public official or employee who, in the exercise of his duties, become aware of an offense is required to report this fact immediately to the State prosecutor, together with all relevant information, record and documents.”6
Despite this, no effective legal protection exists for public officials who report criminal behaviour, or for those who are aware of criminal wrongdoing and want to reveal it to the public authorities.
Without legislative protection, it is arduous and costly—emotionally, psychologically and financially— for public servants to inform when they must fear repression or retribution. Substantial negative consequences are often faced by public service whistleblowers, these can include losing their job, demotion, and/or various forms of harassment.
b. Private sector
Article 93 of Tunisia’s Penal Code has a provision that affords protection to private sector employees reporting cases of corruption or abuses of power. It stipulates:
“Est absous le corrupteur ou l’intermédiaire qui, avant toute poursuite, révèle volontairement le fait de corruption et, en même temps, en rapporte la prevue”.
This clause, essentially, provides an indemnity for a person complicit in the wrongdoing if they choose to come forward.
Private sector employees sometimes still face negative consequences for making disclosures, either through official or unofficial means. Other times they are able to do so without negative personal repercussions.
3. Citizen participation
Civil society and the broader citizenry were provided with an opportunity, through the Arab Spring, to demand accountability, political participation and access to civil and political rights.
Youth were the driving force behind revolution, but more recently they have become increasingly frustrated by the lack of situational change. They are witnessing a post revolution deterioration of the economy and the resultant lack of employment opportunities; this is causing many of them to migrate to Europe in search of work. However, on a positive note, avenues for engaging youth in civil participation have increased as a result of the revolution.
A National Democratic Institute (NDI) study has shown that the youth of Tunisia currently lack deep involvement in political processes. This is because despite their keenness to participate in Tunisia’s democratic transition, the available channels to do so are viewed with scepticism7.
An additional guarantor of the new political openness in Tunisia is civil society. Under Ben Ali’s regime, few of the voluntary and national organizations (in excess of 9000 in 2009) were permitted to operate independently. Since the Arab Spring, many new associations, unions, and professional organizations have been registered.
4. Information environment
Together with other reforms, Tunisia’s government adopted a decree on access to public documents following the 2011 revolution. In Article 3 of Decree No.41 on Access to the Administrative Documents held by Public Authorities it is provided that any individual person, or legal entity, has the right of access to the administrative documents.8
Since the fall of Ben Ali’s regime media is much freer. The Tunisian Agency for External Communication (ATCE) was dismantled toward the end of January 2011, consequently freedom of expression, media independence, and Internet freedom immediately increased9. Despite this, out-dated press and penal codes remain in place and continue to constrain expression in the media. An example can be seen in the March 28, 2012 sentencing of Ghazi Mohamed Beji and Jaber Ben Abdallah Majri who received seven-year prison sentences and substantial financial penalties for “mocking Islam” on Facebook and other social media websites.10
Public awareness of the legal right of access to information remains comparatively low in Tunisia.
5. Case examples of whistle blowing
A high-ranking police officer, Samir Feriani, was detained and charged in May 2011 under the penal code with “harming the external security of the state” and “spreading false information to destabilize the public order”11. Feriani made accusations of corruption within the Ministry of Interior in an article published in Tunisian newspapers Al Khabeer and L’Audace, The article took the form of a letter to the Ministry of Interior and accused its officials of being responsible for the death of protesters during the Tunisian revolution and of destroying classified documents that evinced collaboration that occurred between Ben Ali’s administration and the Israeli secret service.
On 22 September 2011 the Tunis military court provisionally released Feriani. One week later he was acquitted of the charge of “harming the external security of the state”. Subsequently in March 2012 he was also acquitted of the second charge of “spreading false information to destabilize the public order”12.
Last modified: June 15 2016.
5 The Arabic language draft of the legislation is available here: http://www.anticor.tn/wp-content/uploads/2015/09/مشروع-قانون-يتعلّق-بحماية-المُبَلِّغين-عن-الفساد-في-القطاع-العام.pdf
6 Article 29 – Toutes les autorités et tous les fonctionnaires publics sont tenus de dénoncer au Procureur de la République les infractions qui sont parvenues à leur connaissance dans l’exercice de leurs fonctions et de lui transmettre tous les renseignements, procès-verbaux et actes y relatifs. En aucun cas, ils ne peuvent être actionnés en dénonciation calomnieuse ni en dommages-intérêts, en raison des avis qu’ils sont tenus de donner par le présent article, à moins d’établir leur mauvaise foi.