Tunisia: Alarming increase in number of civilians facing military courts

Military courts in Tunisia are increasingly targeting civilians, in some cases for publicly criticising President Kais Saied since he claimed sweeping new powers on 25 July, Amnesty International said today. In the past three months alone, the military justice system has investigated or prosecuted at least ten civilians for a range of offenses. The organization highlighted four cases where civilians have been brought before the military justice system simply for criticizing the president; television presenter Amer Ayad; MPs Abdellatif Aloui and Yassine Ayari and Facebook activist Slim Jebali.

“Civilians should never be tried in military courts. Yet in Tunisia, the number of civilians brought before the military justice system appears to be increasing at an alarming rate – in the past three months alone, more civilians have faced military courts than did in the preceding ten years,” said Heba Morayef, Amnesty International’s Regional Director for the Middle East and North Africa.

“In four cases, civilians are facing military courts simply for peacefully expressing opinions critical of the government. As Tunisians debate the uncertain future of their country, it is more important than ever that authorities protect their right to do so freely – even when deemed “insulting” – without fear of persecution.”

As Tunisians debate the uncertain future of their country, it is more important than ever that authorities protect their right to do so freely – even when deemed “insulting” – without fear of persecution.

Heba Morayef, Amnesty International

On 22 September, President Saied issued Decree Law 117, which suspends all but two chapters and the preamble of Tunisia’s constitution, granting the president control of most aspects of governance, including the right to legislate through decrees, and to regulate media, civil society and courts. The authorities initially imposed at least 11 arbitrary house arrests on some members of parliament and former officials but subsequently lifted them in all 11 cases.

Military trials of civilians

Between 2011 and 2018, human rights groups documented at least six cases of civilians brought before the military justice system; this number has been exceeded in the past three months alone.

The civilians currently facing military courts include six members of parliament from the Al Karama party, including Abdellatif Aloui, along with lawyer Mehdi Zagrouba.  Anouar Ouled Ali, who heads the men’s legal defence team, told Amnesty International that they are being investigated in connection with an altercation with police at Tunis international airport on 15 March 2021. They are facing charges relating to public disorder, threatening state security, and impeding or insulting public officials in the course of their work. While some of these charges relate to recognizable offenses under international law, civilians facing such charges should do so in a civilian, not military, court.

Tunisia’s Code of Military Justice allow the military justice system to try civilians in specific circumstances. Article 91 of the Military Code of Justice mandates prison terms for military personnel or civilians who carry out public acts that denigrate the flag or the army or criticise the actions of military leadership or undermine its dignity.

Tunisian law grants the president final control over the appointment of judges and prosecutors in the military court system, based on nominations by the defence and justice ministers. As a result, military courts lack independence. Under international human rights law civilians should never be brought before military courts, no matter what the charges against them.

Guidelines from the African Commission on Human and Peoples’ Rights, which is mandated to interpret the African Charter on Human and Peoples’ Rights, of which Tunisia is a state party, state that military courts should not “in any circumstances whatsoever have jurisdiction over civilians.”

Arrested after criticism

On 3 October, police from the National Brigade to Fight Criminality arrested television presenter Ayad and parliamentarian Aloui from their homes in the cities of Monastir and Tunis respectively, two days after they had appeared together on Ayad’s debate programme, Hassad 24. During the broadcast both men had made remarks critical of President Saied and voiced scepticism about the degree of meaningful authority granted to Najla Bouden, whom Saied had recently appointed to head Tunisia’s new government.

Ayad also quoted from a poem by Iraqi poet Ahmad Matar about an imaginary satirical dialogue between the poet and a dictator. For his part, Aloui said that President Saied’s recent moves should be considered a “coup” and debated as such.

Amnesty International has reviewed a video of the programme, made available online by its private broadcaster, Zitouna TV. The organization found that neither Aloui nor Ayad had made statements which seemed to constitute discriminatory language or incitement to violence, or which otherwise went beyond peaceful political criticism as protected by international law.

Lawyer Malek Ben Amor, who represents both men and was present during police’s initial interrogation of Ayad, told Amnesty International that police’s questions focused on Ayad’s statements during the 1 October broadcast. Police showed Ben Amor an order from a military prosecutor’s office to investigate the two men in connection with the broadcast, he said.

On 5 October, an investigative judge at the Military Court of First Instance in Tunis remanded Ayad to prison and provisionally released Aloui pending their investigation under Penal Code Article 67, which mandates a fine and prison term for offense against the president, as well as Articles 72 and 128 of the Penal Code and Article 91 of the Military Code of Justice.

Another member of parliament, Yassine Ayari, is facing trial on 22 November on charges including harming the dignity of the army and offense against the president. The charges are based on Facebook posts in which Ayari had called the 25 July decision to suspend the parliament “a military coup with foreign planning and coordination,” and used words such as “Pharaoh” and “silly” to describe the president.

On 13 October, a military court in the city of El Kef sentenced activist Slim Jebali to one year in prison on charges including insulting the president and harming the dignity of the army. Defence lawyer Amor Raoueni told Amnesty International that the conviction was based on Jebali’s Facebook posts in which he denounced Saied’s concentration of powers since 25 July.

Under Article 19 of the ICCPR, Tunisia is obligated to protect freedom of expression by refraining from punishing anyone for criticism or perceived disrespect toward public figures, leaders, and institutions. Guidance on implementing the ICCPR from the United Nations Human Rights Council notes that even “insult to a public figure” is to be considered protected speech.