On the evening of July 4th 2015, Anis Guiga was pulled over on his drive home in the Tunis suburbs. After searching his car and discovering two cases of beer in the trunk, the police arrested Anis for possession of alcohol during Ramadan, forcing him to spend the night at the police station. In court three days later, the judge handed down a three-month suspended sentence, a permanent mark on Anis’ record. His crime? Public indecency (public outrage à la pudeur).
Though alcohol is not criminalized in Tunisia and is generally not difficult to obtain, restrictions on consumption and purchase do exist. However, the law isambiguous. Dating from 1913, Article 317 of the penal code forbids selling alcohol to Muslims, as does Law 61-55 (passed in 1961). In Anis’ particular case, the prosecution invoked the vaguely worded Article 226 and 226 bis, which criminalize violations of “moral standards” and “public decency.”
But as numerous Tunisians have pointed out, none of the above-mentioned articles are in accordance with Tunisia’s 2014 constitution, widely praised as the most progressive in the region. According to Article 6, the state “guarantees freedom of conscience and belief, (and) the free exercise of religious practices.” In other words, the government is obligated to defend Tunisians’ constitutional right to practice (or not practice) religion as they so choose. Drinking alcohol during Ramadan is no exception.
The marked inconsistency between the 2014 constitution and numerous elements of penal code stems from critical governmental delays. Mandated by the Tunisian constitution, the Constitutional Court is tasked with ensuring the “constitutionality” of numerous questions, including past legislation. However, the Supreme Judicial Council (tasked with selecting four of the Constitutional Court’s twelve members) is yet to be established. Lacking the necessary institutions to even select the membership of the Constitutional Court, Tunisians continue to live under a colonial-era penal code in blatant contradiction with the spirit and text of the constitution.
Over the past year, injustices stemming from a broad range of unconstitutional laws, court rulings and police practices have been widely reported. However, nowhere has the state’s infringement on individual rights been clearer (and more extensively condemned) than in two areas: homosexuality and cannabis use.
Privacy and Equality Before the Law
On October 6th, police in Hammam Sousse called in a 22-year old Tunisian student, “Marwan,” for questioning due to his possible involvement in a murder (his number was found on the victim’s body). Though police found no evidence of Marwan’s involvement, a search through the victim’s text messages pointed to an intimate relationship with him. Based on Article 230 of the penal code, which states that “homosexual practices” and “sodomy” are punishable by up to three years in prison, police forced Marwan to undergo a degrading “anal examination.” Subsequently, prosecutors submitted “evidence” from the “test” to prove Marwan’s homosexuality in court. On September 24th, the court found Marwan guilty of violating Article 230 and sentenced him to one year in prison.
Following a major public outcry spearheaded by Tunisian LGBT activists and human rights organizations and taken up by international NGOs, Marwan’s case was appealed, and his sentence commuted to two months in prison. While the adjusted sentence is significant, Marwan’s record remains marked by a criminal charge for homosexuality.
Three months after Marwan was brought in for questioning, police jailed 6 university students in Kairoun onaccusations of homosexuality. Following the trial, which once again included evidence garnered from forced anal examinations, the court elected for the maximum sentence: three and three-and-a-half year prison sentences, followed by a three-year banishment from Kairoun. Following a major international awareness-raising campaign, the appeal is currently underway.
The unconstitutionality of Article 230, under which both Marwan and the Kairoun students were charged, is hardly ambiguous. Legislation criminalizing consensual homosexual relations clearly violates Tunisians’ rights to equality before the law and privacy, as outlined in Article 21 (“all citizens, male or female, are equal before the law without any discrimination”) and Article 24 (“the state protects the right to privacy”) respectively. Furthermore, the cruel and scientifically spurious “anal examination” is a clear breach of Article 23, which prohibits “mental and physical torture” and guarantees the right to “human dignity and physical integrity.”
Nonetheless, more than two years after the signing of the Tunisian constitution, Article 230 remains the law of the land.
Law 52 and the Assault on Tunisian Youth
According to a recent Human Rights Watch report, drug offenders account for a whopping 28% of Tunisia’s prison population. Of that group, around 70% are convicted for possession or use of marijuana, at a time when Tunisia’s prisons remain severely overcrowded. Charged under the notorious “Law 52,” by which the minimal sentence for all drug possession is one year in prison irrespective of quantity or the drug in question, thousands of Tunisians end up behind bars every year.
Widely despised for its rigidity, Law 52 is equally detested for its unofficial function: the silencing of dissent and repression of youth activists. Often referred to as “a year and a Vespa” for its mandatory minimal prison sentence and fine (the approximate cost of a Vespa), the law is particularly loathed among young people. Since its passage under the Ben Ali in 1992, Law 52 has been routinely used to target cyber activists, rappers, under-ground artists, and others daring to criticize the regime. In the years following the 2011 revolution, the law’s distinctly political use remains unchanged.
Confronted with mounting pressure from activists, the Tunisian government recently proposed a bill intended to replace Law 52. And while the proposed legislation has been widely criticized for not going far enough, the bill nonetheless provides certain key improvements, such as “the abolition of mandatory sentences for both first time and repeat offenders.” Presently however, there is no fixed date by which the parliament will vote on the law.
Violations of Individual Liberty: Is Tunisia Moving Backwards?
In light of the lack of progress on individual liberties, alongside a precarious economic situation, continuous corruption, and the absence of serious judicial and security system reform, frustration abounds. In recent months, numerous commentators have argued that nothing has changed since 2011, while others have gone as far as to claim that the situation has actually gotten worse.
Undoubtedly, such frustration is understandable given the circumstances. However, the draconian policies mentioned above ought not to be interpreted as a step backwards. Rather, what we’re seeing today is the bringing to light of policies that have long existed in Tunisia. The shift then, is not a question of changed policies, but the result of markedly increased awareness of violations of individual liberties that have long characterized the Tunisian justice system and police force.
This leads us to one of the most important gains of the revolution. In the press, in civil society organizations, and on the streets, Tunisians today are boldly standing up for their freedoms and liberties, refusing to accept blatant violations of their hard-fought constitutional rights.
Since the establishment of Tunisia’s first LGBT rights organization following the revolution in 2011, multiple organizations, informal groups, and individual activists have mobilized around the question of Article 230 and the question of LGBT rights. From sustained online campaigning to public demonstrations, Tunisian LGBT activists have boldly challenged legislation and social stigma alike in demanding legal and societal reform. A similarly broad mobilization, involving artists, human rights defenders, parliamentary deputies, and others, has developed around Law 52. And in a critical recent development, organizations from both movements have joined forces with other human rights groups in the establishment of the “Collective for Individual Freedoms.” Composed of more than 28 organizations, the Collective aims to address the full scope of the repression of personal liberties in Tunisia.
Undoubtedly, significantly increased freedom to organize, mobilize, and advocate for change does not necessarily mean that the desired changes will take place. Tunisia’s outdated and unconstitutional penal code remains the same, and, as evidenced by the major protests that rocked the country several weeks ago demanding employment, the economic situation is exceedingly grim.
Ultimately then, meaningful analyses of contemporary Tunisia must avoid the twin clichés of “worse than before the revolution” and the “last remaining hope of the Arab Spring,” both of which fail to adequately take into account the myriad complexities, nuances, and challenges of the situation.
 Due to security considerations, his real name has not been made publicly available.
Daniel Levine-Spound is a 2012 Brown University graduate and Fulbright Grantee, Daniel Levine-Spound has been living and working in Tunis since April 2015. Currently, his writing focuses on issues of human rights, counter-terrorism, and Tunisia’s democratic transition. Follow on Twitter: @dlspound
Ramy Khouili is a dedicated Human Rights advocate, Ramy Khouili has worked at EuroMed Rights (the Euro-Mediterranean Human Rights Network) since the Tunisian Revolution in 2011. His work is primarily focused on issues of civil and individual liberties, sexual and reproductive rights, women’s rights, and gender equality. Follow on Twitter: @khouiliramy
This article was originally posted on Observatory Media
Image courtesy of Wikimedia