An Interview with Tunisian Law Professor Wahid Ferchichi

On 25 July 2021, Tunisian President Kaïs Saïed dismissed Prime Minister Hichem Mechichi, froze the activities of parliament, and lifted the immunity of its deputies. In late September, Saïed appointed Najla Bouden Romdhane as Tunisia’s new Prime Minister, whose government was officially sworn in shortly after. Saïed’s takeover is considered controversial, dangerous, and unconstitutional by many, but also raised hopes across the country that his intervention might end Tunisia’s long-lasting political blockade and pave the way for authorities to eventually tackle the serious socioeconomic struggle faced by large strata of society.

On this occasion, the RLS’s North Africa Office launched a series of interviews with activists, civil society, and academia from Tunisia about the recent events and how things could evolve in the upcoming months. Sofian Philip Naceur of the RLS’s North Africa Office spoke to Wahid Ferchichi, professor for public law at Carthage University and co-founder of the Tunisian Association for the Defence of Individual Liberties (ADLI), about why Kaïs Saïed’s de facto suspension of the 2014 Constitution should be considered a threat to Tunisian democracy and collective and individual freedoms, the role of the Tunisian military, and how Tunisia’s civil society could act now to prevent an authoritarian rollback. The interview was conducted in early October 2021.

On 22 September, Kaïs Saïed issued a new decree, prolonging the exceptional measures imposed on 25 July, and setting up provisions regarding how the executive branch of government is supposed to work from now on. The 2014 Constitution is basically no longer applied, except for certain articles. However, Saïed’s most recent decree appears to be more detailed than the previous ones. Are we dealing with a provisional interim constitution right now?

I think that since 25 July, the 2014 Constitution is not applied any more. The President has first gathered all powers, before sidelining the parliament and of course the government. One of my first papers on the subject already calls this a provisional organization of powers. Since 25 July, the situation already implied a provisional organization of powers, but there was no legal text. In a slightly ironic way, I would describe this as the transition from civil to martial laws, in the military sense of the term.

What the President did on 22 September was to publish a clear text to organize powers. Moreover, he does not want to call this a “provisional organization of powers”, but rather “exceptional measures”, as he has always done. But we have to be very careful as Kaïs Saïed likes to give the impression that the 2014 Constitution is still applied, especially Article 80 [Saïed refers to this article to justify his takeover as legal]. Even if I do not share this position, I think he tries to keep a certain constitutional and above all legal legitimacy through the texts–though he keeps calling this his “popular legitimacy”.

This makes sense as he always framed himself as a constitutionalist and someone who respects the law.

One might be tempted to call this attitude very hypocritical, legally speaking. Personally, I am completely opposed to what Kaïs Saïed has done since 25 July, which I call a “coup d’état”. There is a phrase I like to repeat: “the imminent danger comes neither from the Kasbah [government headquarters] nor from Bardo [parliament], but from Carthage [the presidential palace]”. And I insist: this is legal hypocrisy. He could have easily said from the beginning: “I had to grab power because the situation was untenable, it is a revolution led by myself and supported by the people”. He could have said that, but he preferred not to discard the Constitution completely, perhaps in view of likely domestic and foreign resistance that questions his legitimacy after the parliament and the Constitution were discarded. I think he was taking this into consideration.

You said that the 22 September decree is very detailed. In reality, it is not as it only contains 23 articles. It is a short but very dense text. And this is maybe where I agree with you, framing Kaïs Saïed’s actions as lax if we compare it to the other decrees published since 25 July. The 22 September decree contains something fundamental and very dangerous. It says that if constitutional and legal legitimacy goes against the popular will, and since it is the people that hold the true sovereignty, all procedures must be abandoned in order to keep only the will of the people. Philosophically speaking, I find this very important, but practically speaking, this is very dangerous. Because it opens the way for questioning the very existence of procedures, mechanisms, institutions. Those, however, are inspired by a fundamental idea in law that provides for the supremacy and inalienability of individual rights. But if we discard all the safeguards and all the control mechanisms that guarantee democracy on the pretext that they contradict the people’s will, we will not be able to prevent, in a year or two, someone else from doing the same thing.

The second element that could be disturbing in this decree is the fact that it advocates for keeping the preamble and the first two chapters of the Constitution, as well as all the provisions that do not contradict the 22 September decree. In doing so, he takes the precaution of “reassuring” those who would worry about respecting freedoms [guaranteed by Chapter 2 of the 2014 Constitution]. But this is false! Chapter 2 of the Constitution is a declaration of rights, but it does not guarantee the framework in which citizens will be able to enjoy these rights. This is detailed in the rest of the Constitution. The legal mechanisms regarding how to guarantee freedoms are not written down in Chapter 2.

Moreover, everything that refers to local power in the Constitution has been suspended, and is subjected to a selection of what will be kept and what will be dropped. It has been said that everything that fell within the jurisdiction of parliament is now the prerogative of Kaïs Saïed. He has taken over the whole of Article 65 of the Constitution, which deals with the subject matter of the law. He claims to be an “engineer” of legal matters, but this is not true for two reasons: first of all, he says that everything that was part of the law becomes his jurisdiction, and everything that was not part of the law also becomes his jurisdiction. But he will be the only one legislating from now on, so he does not have to say that. He is now both legislator and executor. He prides himself on not touching Chapter 2 of the Constitution, which refers to human rights, while he has given himself the right to touch all human rights!

Additionally, since Saïed has now all the rights from a legal and judicial point of view, why keep repeating that this is not going to affect rights and freedoms? It may not affect rights directly, but it can affect the mechanisms that guarantee the respect for those rights–for example when he interrupted the work of the National Anti-Corruption Commission (INLUCC). In early October, he started to sharpen the tone against the Independent Superior Electoral Institution (ISIE) in a kind of threatening attitude. If ISIE continues to be critical of the President, the same thing that happened with the INLUCC could happen, and ISIE’s offices could be closed. This is very dangerous because this is precisely where rights and freedoms can be affected. It is precisely a body like the ISIE which is supposed to be the guardian of political and civil rights, just like the INLUCC.

Is Saïed the real danger? Or is it rather those who will come after him?

Saïed himself is already dangerous! Everything we will experience after him will have already been done by him. What Kaïs Saïed has done since 25 July, and what he will continue to do, is preparing Tunisian society to accept any dictatorship. This is the real danger, and not only what will come after him. Kaïs Saïed is destroying the very idea of democracy. Because people are now asking: “what did we gain from democracy? What have we gained from freedom of expression?” The first danger is him. He will be able to prepare the ground for any kind of dictatorship. Worse still, who says that Kaïs Saïed cannot, after a while, be ousted by the army? There is nothing to stop actors that are stronger than him from doing so. Tunisia’s army has always been on the sidelines since Tunisia’s independence, but this is no longer the case since 25 July. Even before that date, Kaïs Saïed had increasingly used the army, and that is very dangerous. Because usually, the Tunisian army is objective and stays away from political games. It is rather the Ministry of Interior that has always been dangerous by interfering in political games.

But Saïed is bringing in another [active party] who, until now, was not politicized and, like him, was ignorant regarding politics. The Tunisian army has never been associated with politics before. So it becomes as dangerous as him, because even if the army is in power in a way, it has no political experience. Personally, I am afraid of his actions and what will come next. Interestingly, he always responds to those who say that this was a coup. So one has to ask why a head of state is so defensive? When I communicated publicly that Kaïs Saïed is an imminent danger, the presidency issued a statement the next day, stating that “some say that the imminent danger comes from Carthage”. I find this particularly dangerous because it is as if he had taken it personally. And dictators take everything personally. So this is a nice dictatorial project, with a population worn out after ten years of political blockades and economic problems. People are now even ready to accept Abir Moussi [head of the Free Destourian Party and a former member of the party of ex-dictator Zine El Abidine Ben Ali, who was ousted in 2011]. Moussi continues to lead the polls for the parliamentary elections.

Saïed also took over judicial powers to a certain extent. I struggle to understand how he is now–legally and constitutionally speaking–able to control the judiciary? Is there proof that he is already controlling it?

In the 25 July speech, Kaïs Saïed designated himself to become head of the public prosecution. He said this orally. But a public prosecutor, a single prosecutor, has not existed in Tunisia since 2014. The problem arose at the time as to whether the Minister of Justice was the head of the public prosecution. It has always been argued that it would be better to have an independent judiciary, and in that case even the Minister of Justice would not have this jurisdiction. But after orally stating that he would be the head of prosecution on 25 July, Saïed never mentioned this in writing. This is very important. On 26 July, he received the President of the Supreme Judiciary Council (CSM). I think during this meeting, this institution made it orally clear to Kaïs Saïed that it is simply not possible to become the head of the public prosecution.

So I think that Saïed wanted to arrogate judicial powers to himself, but that he was finally called to order in a way. This was not mentioned in writing, neither in the text of 26 July nor in that of 22 September. But you have to be very careful: on 23 July, he dismissed the Attorney General of the military judiciary. And it was only a little later, in early August, that he appointed the new military prosecutor. He knew very well that there was going to be significant resistance from the civil criminal justice system. That happened indeed when the CSM pinned him down on that. But he could have control over the military judiciary. That is why, since 25 July, the majority of trials in progress have been held before military courts. That is why we have not stopped calling for an end to the trial of civilians by the military judiciary.

Even if Saïed gives the impression that he is not the head of the civil prosecution, he is the head of the military prosecution. This is important because, legally speaking, it is the head of state who is the supreme commander of the armed forces, and, therefore, of all military structures, including the military judiciary. Unlike civil courts, the military courts are not autonomous and independent. So I think that through certain niches that he controls in the judiciary, Saïed is resolutely manipulating them. Some of the recent arrests have only a political meaning, not a judicial one. If people are suspected of crimes, they should be brought to justice. People who are currently banned from travelling, people who are under house arrest–why are they not brought to justice? Saïed intervenes resolutely in judicial matters, through the military judicial system.

Let’s talk about civil liberties: since 25 July, we have witnessed a lot of incidents that have greatly alarmed civil society. However, we still do not see a systematic crackdown on opponents to the 25 July- measures, do we?

Personally, I would say the opposite. You are talking about “incidents”, a term that certainly does not testify to a systematic repression, but the sum and continuity of these incidents remain an indicator. Moreover, it is Saïed’s speech that constitutes the greatest danger in my opinion. He is a man whose speech is hateful and violent. When he mentions conspiracies, people who conspire with foreign powers, always without naming them, it incites people to go hunting for “traitors of the nation”. A good example of this is the 3 October protests [in support of Saïed], where lists with names had been publicly displayed. I think then that the main danger that Kaïs Saïed represents is his speech, and the trivialization of violence. And it is in here where the repression can be qualified as systematic. By his speech, which is systematically violent and hateful.

The day after 25 July, the solicitor Yadh Ben Achour was the first person to describe the previous day’s event as a “coup d’état” in a radio show, providing legal and judicial arguments. Subsequently, the President of the Republic called Ben Achour a “charlatan”, a “witch doctor”, and an old man in need of psychological medical treatment. When you say that about a human being, and moreover about your former law professor, what are the people supposed to think? That Ben Achour is becoming the enemy of the revolution. By doing so, you are inciting people to banish all differences and that is where the “systematic” danger lies. The threats against journalists show the same thing, namely that the President refuses difference and diversity.

How can civil society push back against possible attempts by the President of reintroducing an autocracy in Tunisia?

I think that Kaïs Saïed succeeded in doing something important since 25 July, namely to divide civil society a bit. My Association for the Defence of Individual Liberties (ADLI) is part of the Collective for the Defence of Individual Liberties, which brings together 44 associations, including the Tunisian Association of Democratic Women (ATFD), the Tunisian Human Rights League (LTDH), and Lawyers Without Borders. On 26 July, the collective suggested to issue a statement to warn against the risk of an authoritarian drift by Kaïs Saïed’s coup. Of the collective’s 44 members, only seven supported the statement. This is very revealing. During a remote meeting on 30 July, we realized that civil society was split in two, at least in the beginning. One could say that it was even divided into three groups: a minority group, composed of seven associations deliberately calling the events of 25 July a coup d’état, and warning of the threat they represent to democracy. The second group did not want to call the events a coup d’état as such, while advocating restraint and careful monitoring of what would follow. The third group fully supported Kaïs Saïed.

Therefore, we wanted to get together to agree on a course of action, and it is only very recently that a large number of Tunisian associations begins to realize the danger posed by Kaïs Saïed. It took almost two months for associations such as the National Syndicate of Tunisian Journalists (SNJT), the ATFD and the LTDH to become aware of the danger. They realized that Kaïs Saïed does not support participation and dialogue after having thought at first that the President would involve them in the debate. It was then that they realized that Saïed decides alone and does not involve other entities.

To continue its work, civil society needs to establish a strong strategy. Many of its members have lost credibility since 25 July, both with other civil society organizations and at a political level. The truth is that the President does not respect people who consider him a divinity, who only speak well of him. And he does not hide it. He considers those who claim to support him to have the aim of joining his team and coming to power. In order to move forward, civil society needs a radically different working strategy. Saïed has dealt a blow to civil society by associating civil society with the bourgeois milieu, the corrupt, those who work with international institutions and so on. He has succeeded in “selling” this image of civil society to the people–and to “reclaim” the population will be very difficult for civil society. Yes, civil society will play its role, but it has also been weakened. Kaïs Saïed is not only against political parties, he is also against associations and organizations. Whether they are political or associative, all these intermediary bodies are the same for him. And I assure you that if we let him continue with his project, his next target will be civil society.

But how can civil society react right now in order to prevent an autocratic rollback?

I think the first thing to do is to form a front in order to clearly formulate our expectations towards the President. Initial work has already been done by six organizations–the same six that have met the President on 26 July at the presidential palace (SNJT, LTDH, AFTD, the Association of Tunisian Women for Development Research, the Tunisian Forum for Economic and Social Rights, and CSM). These six organizations are all members of the Collective for the Defence of Individual Liberties, except for the CSM. Ideally, these associations should open up to other organizations in order to increase their number, and form a front that can push the demands forward.

In addition to this, civil society must stop criticizing political parties, because if they do not cease their criticism, then who will be able to take over politically? I think that this aspect is fundamental in order to resume work between civil society and political parties. I would recommend starting with a roadmap in which civil society reflects its own opinions and formulates its expectation, beyond criticism. In particular, we hope that legislative elections can be held in six months, paving the way for the end of this transitional period. We also ask that the drafting of the new constitution should not take place behind closed doors in the presidential palace.

The content of this text does not necessarily reflect the position of RLS