The Subjugation of Tunisia’s Judiciary

[On March 30, 2023, Radwan Masmoudi moderated a Center for the Study of Islam and Democracy panel discussion on “The Independence of the Judiciary, and the Prosecution of Opposition Leaders in Tunisia.” This is my summary of highlights of the program, not a transcript. Use of the first person is for convenience only. For a video of the entire discussion click here.]

Abderrazek Kilani, Former Dean of the National Bar Association and Founding Member of the National Salvation Front in Tunisia.

An independent judiciary is very important to the rule of law. Our constitution of 2014 guaranteed the separation of powers. President Kais Saied violated separation from the legislature by dissolving the Parliament and now has violated separation of judicial power from the executive by investing in himself the appointment and discipline of judges through a council appointed entirely by himself. He collectively dismissed 57 judges with no possibility of appeal or of defending themselves. Charges of terrorism against the judges were then fabricated after the fact. Examples of evidence of “terrorism” for which the judges have been arrested include meetings with American diplomats.

Said Benarbia, Director of the Middle East and North Africa
Programme at the International Commission of Jurists.

The first step was dismantling all the 2014 constitutional protections of the judiciary. The president began by declaring himself the chief prosecutor of the nation. Thus when members of the dissolved parliament met online, he ordered their prosecution. He dissolved the Higher Judicial Council which protested his actions and replaced them with an unelected one  appointed by himself. The dismantling of the guarantees of independence allowed political prosecution of the president’s perceived political opponents. Over the past summer the administrative courts ordered the reinstatement of 49 dismissed judges on the grounds that no evidence had been produced that they were guilty of any criminal or administrative misconduct. Instead of reinstating them, the justice system prosecuted them. Starting with the judges has made it easier for the president to prosecute others on complaints of the Minister of Justice, or the President himself, based not on law but on political considerations.

Dan Brumberg, Nonresident Senior Fellow at Arab Center Washington DC, and Director of Democracy and Governance Studies at Georgetown University.

The President’s campaign has been aided by the massive popular disillusionment with the political situation in Tunisia. He is banking on this political alienation and uses it to his favor. I think the poor turnout in the recent election also reflects that dissatisfaction. I think that also explains why the protests have not been as massive as they might have been and insufficient to push the president back from the abyss. The main trade union with 7-800,000 members has only 8% support. Everything I know as a political scientist tells me that the factors to stop the President’s push for autocracy are not present. The one wild card is the economy, but it is hard to see how IMF pressure can have any effect absent an independent judiciary that would encourage foreign investment.

Radwan Masmoudi: I take issue with the validity of opinion polls in the current environment of fear.

Brumberg: The polls have been consistent since before the current environment of terror. I think the polls are reliable. Support for the President has declines over the past eight months.

Benarbia: Whatever you say about Tunisian democracy and freedom of expression over the past ten years, it never translated into the kind of economic growth that would have an impact on the general population. They gained nothing from Tunisian democracy that would motivate them to go into the streets and resist its loss.

Kilani: The fight now is to establish the rule of law.

Brumberg: [In response to the question as to whether we can frame the debate beyond the dominant liberal/democratic conception/model], the liberal notion of governance is not uniquely Western, and, while I respect local traditions, the appeal to them can be a slippery slope to justify authoritarianism.

Benarbia. The right to an independent judiciary is a universal human right to which Tunisia is bound. Tunisia has accepted these conventions.

Imad-ad-Dean Ahmad, Ph.D.
Minaret of Freedom Institute






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