Tunisia’s parliament has voted overwhelmingly in favour of a controversial law granting “reconciliation” to public officials involved in corruption who served in government during the rule of the autocrat Zine El-Abidine Ben Ali. This law, which for many critics is simply an amnesty for criminals and a way to rehabilitate Ben Ali’s allies back into Tunisian society, could be a critical blow to Tunisia’s transition.
Why this and why now?
The law seems at first glance to be a well-intentioned addition to Tunisia’s efforts to achieve justice for the excesses of the old regime. Its goal, as stated in its first article, is to “support the transitional justice apparatus, to ensure an appropriate investment environment, to develop the national economy, and to boost trust in state institutions.” Although no exact figures exist for the amount of graft during Ben Ali times, officials say that some $3 billion could be returned initially under the law.
In its 12 articles, the law stipulates the creation of a new committee that would include four representatives of the government and two representatives of the Truth and Dignity Commission, which was recently created on the basis of the country’s transitional justice law, passed in 2013. Thus, this committee will examine requests for restitution submitted by these public officials and evaluate the sums of money to be repaid.
The original bill, proposed by Tunisia’s President Beji Caid Essebsi, a former Ben Ali official, was sent to the Parliament in 2015 where it got stuck for two years due to criticism that it benefited business elites tied to the government. Thus, the government had to amend it to exclude businessmen from its scope. Reconciliation under the law will only be extended to those public officials involved in corruption who claim not to have personally profited during the dictatorship and were not in a position to disobey orders to commit irregularities.
Sounds good, right?
Not really… The reasons have to do with its content and its many flaws:
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- Lacks independence. Tunisia has two mechanisms to deal with corruption crimes. First, the judicial system, that prosecutes any person who has benefited from or been an accomplice to embezzlement. Second, the Truth and Dignity Commission, that has a mandate to investigate corruption crimes, arbitrate on these cases, or refer cases of businesspeople or government agents suspected of corruption to the justice system. The new law would in effect put an end to all that by taking over the roles of both the commission and the justice system. The “reconciliation committee” as envisioned, would operate for only nine months and would appoint members by the government or interest groups.
- Favours impunity. It would only be able to deal with individual cases of corrupt public officials who come forward voluntarily. The justice system would not be able to prosecute for corruption anyone who obtains amnesty through the “reconciliation”. And these financial and corruption cases would be removed from the jurisdiction of the Truth and Dignity Commission as well.
- Promotes secrecy. Its mandate would not include investigating the inner workings of corruption under the former regime and does not require individuals who receive amnesty to provide any information or evidence about their past conduct or where their assets came from. Nor is there a mechanism for transparency in the process, nor any space for public participation and debate once corrupt officials come forward.
- Undermines asset recovery. The original bill suggested that the recovery of assets takes too much time. But in just three years (2013-2016), Tunisia has frozen and recovered a decent amount of assets: 28 million dollars recovered from Lebanon, 66 million dollars frozen in Switzerland, an eight-million-dollar yacht recovered from Spain. Compare Tunisia with other country experiences. It took approximately 30 years for Haiti to begin proceedings to recover at least $6M in Duvalier’s assets, 17 years for Nigeria to freeze and take back around $380M from Abacha’s ill-gotten assets, and 10 years for the Philippines to recover around $680M in Ferdinand Marcos’s assets. At the same time, the amnesty given to these officials will allow them access to their ill-gotten assets, including those that have been frozen and subject to asset-recovery proceedings in Switzerland, the United Kingdom and elsewhere.
Since the 2011 uprising, Tunisia has been held up by Western partners as a model of democracy for the region. With this law, “the promises of the revolution are in danger of being crushed and the gains of the revolution are at stake”.