The final report of the Tunisian Truth Commission (IVD) was presented to the public on March 31, 2019. Yasmin Hajer has followed and researched the process over the years. In her contribution, she explains how the coming to terms with the past was appropriated by the various political parties and how they tried to influence it.
The 17th of November 2016 is a notable date in the modern history of Tunisia. The Truth and Dignity Commission (Instance Verité et Dignité, IVD) held its first public hearing. Tunisia is among 44 countries that established such a commission to undertake a transitional justice process, to put an end to a period of conflict and to endorse the onset of a democratic transition.
Consequently, this historic moment was celebrated by being broadcast on international TV and by the attendance of national and international public figures. Among them were heads of commissions and bodies with similar missions from several countries around the world. However, in the midst of this ovation, there was one person who drew most attention to himself through his absence: The symbol of the empty chair of the President of the Tunisian Republic, Beji Caid Essebsi, was not created in a vacuum. It was a political message, delivered by one of the major ruling parties in the country, Nidaa Tunis.
With this incident, the party expressed its reservations towards the commission for the first time in public. In fact, since the adoption of the Law on Transitional Justice on 15 December 2013, both major ruling political parties, Nidaa Tunis and Ennahda, have used the commission as a political card in their power struggle. This resulted in the politicization of the IVD mission. The commission became the target of frequent accusations of appropriating or exploiting its program in order to promote an ideology or to benefit a particular political group, especially Ennahda. Consequently, people that had been oppressed under Habib Bourguiba and Zine al-Abidine Ben Ali, i.e. the victims that were to be compensated by the commission, were increasingly regarded as ‘political agents’ of respective political camps.
In fact, since 2016, the victims have increasingly been voicing their interests, including the organization of demonstrations, sit-ins and even a hunger strike. As part of this, they have initiated the Alliance of Dignity and Rehabilitation in October 2017 in order to support the work of the Truth and Dignity Commission and to call for their rights to the truth and reparation. However, in the face of ongoing attempts to politicize the process, their calls and demands went unheard not only by the ruling system, but also by many civil society organizations. They too began to question the neutrality of the work of the commission as a result of this trend of politicization.
In this article, I will explain how the commission was transformed by the two major conflicting parties from a legally constituted entity into a political tool, despite the mechanisms within the constituting law to protect the commission from precisely this fate.
The Legal Protection of the Commission and the Transitional Justice Process: A Failed Attempt?
The Organic Law on Establishing and Organizing Transitional Justice (TJ Law) represents a ‘Tunisian particularity’: The legal definitions of victims and the crimes and atrocities defined by the law gave the commission the power to investigate a broad range of human rights violations.
Definition of the victim:
Article 10 of the TJ Law does not only consider those who directly suffered from human rights violations and atrocities such as torture, but also pays attention to indirect victims, such as relatives of the victims, who too may have suffered physically, morally, or in terms of their position in society. Article 10 of this law states that “a victim shall be any individual, group or legal entity that suffered harm as a result of a [human rights] violation. Under the Public Law, shall also be considered as victims family members who were harmed as a result of their kinship to the victim as well as any person who was harmed while intervening to help the victim or to prevent the violation.”
The inclusiveness of this definition is intended to decrease the possibility of discrimination between the victims on the basis of ideology, political leanings or any other matter. In addition, the commission’s terms of reference, provided by the TJ Law, entail the entire period from 1955 (the time of independence from France) until 2013, during which human rights violations against all opposition realms in Tunisia were committed. This included Human Rights Defenders, Youssefists (the followers of Bourguiba’s competitor Salah Ben Youssef during and following independence), Leftists, Islamists, Unionists and others. Furthermore, women were given particular attention in the TJ Law. Not only were women encouraged to submit their files and to give testimony, they too were considered to play a critical part in the success of the process, because they were among those who suffered from oppression and violence practiced by the old regimes and played a crucial role in the uprisings of late 2010/early 2011.
Therefore, the commission established a sub-commission for women, the Women´s Commission, that operates transversally with other sub-commissions, such as the Arbitration and Conciliation, Reparations and Rehabilitation, Conservation of Memory, Inquest and Investigation, and Functional Review and Institutional Reform sub-commissions.
Moreover, the legislative recognition of victims went beyond the individual. It included “every region which was marginalized or which suffered from systematic exclusion”, as mentioned in Article 10. This means that the marginalized regions in Tunisia, which were exposed to systematic exclusion, sometimes due to political feuds by the ex-regimes, were given the status of “victim region” and were consequently able to seek reparations.
Definition of human rights violations
Similar to the broad definition of victims, the TJ Law includes a broad definition of human rights violations and takes into account a wide range of crimes, atrocities and violations that were committed by past regimes. Article 3 of the TJ Law states that not only violations on political grounds should be processed, but violations against economic and social rights must be considered as well. To be precise, Article 3 states, “In this law, violation shall mean any gross or systematic infringement of any human right committed by the State’s apparatuses or by groups or individuals who acted in [ the] State’s name or under its protection, even if they do not have the capacity or authority to do so. Violation shall also cover any gross or systematic infringement of any human right committed by organized groups.” For instance, this inclusiveness allowed for the consideration of the violation of the right to pursue education and/or obtaining public sector positions, as experienced by many opposition political activists, both Islamists and Leftists.
In summary, the broad spectrum of definitions for victims as well as human rights violations committed by the old regimes that was included in the law was designed to make it difficult for any political party, including Ennahda, to use the Truth and Dignity Commission for its own interests. The upholders of transitional justice, among them MPs and civil society actors involved in the drafting of the law, did their best in aiming particularly at protecting and immunizing the transitional justice process from any attempt of political misuse. However, as I will show in the following paragraphs, the different political actors did not always succeed in separating the work of the commission from the political power struggles in the country.
Two Opposing Powers on the Rise
The political context in which the Truth and Dignity Commission was established triggered the politicization of the commission and the emerging bias around it.
The Constituent Assembly elections, held on 23 October 2011, gave rise to the Islamist Ennahda party, which was able to mobilize large parts of the population in the aftermath of the Revolution. The elections, in which Ennahda won 89 out of 217 seats, were followed by the establishment of a government with Hamadi Jebali of Ennahda as prime minister, and Ennahda ally Moncef Marzouki of the centre-left Congress of the Republic (CPR) as the president of the Tunisian Republic.
Together with the social-democratic Ettakatol Party, this so-called ’Troika’ government strengthened the power and legitimacy of Ennahda. Additionally, a general amnesty for political prisoners who had been arrested during the time of Ben Ali came into force in early February 2011, releasing around 3,000 persons from prison. The majority of those amnestied had previous affiliations with Ennahda, but among them were also Leftists, Nationalists, Human Rights defenders, Unionists and other former political opponents. The Law No. 4 from 22 June 2012, which regulates the exceptional conditions under which citizens are recruited in the public sector, and in particular Decree No. 3252 of the year 2012, dated 13 December, which stated that a former political prisoner can be granted a position in the public sector as compensation for missed opportunities under previous regimes, were received with a lot of justified criticism by parties opposed to Ennahda.
As a result of this legislation, the number of recruitments went far beyond the need of the public sector and further inflated the system with not sufficiently qualified personnel. The opposition did not see this act as a “restoration of fundamental rights” for political prisoners but interpreted it as a way for Ennahda to expand its influence into all state institutions.
In addition, the fast emergence of Salafist-jihadist activism after the Revolution represented another important development that influenced the transitional justice process. Several Salafist parties were legally recognized under Jebali’s government, including the most radical Hizb Al Tahrir. In addition, other non-parliamentarian Salafist groups, and most notably Ansar Al Sharia in Tunisia, were left alone to pursue their activities, which included open ‘proselytizing’ and recruitment of young people for armed groups. As a result, the political landscape in Tunisia flared up, especially after the assassinations of the secular-left opposition figures Chokri Belaid and Mohamed Brahmi in February 2013 and July 2013 respectively. This contributed to public hostility towards Ennahda and finger-pointing by the opposition at the party, arguing that Ennahda shares interests with Salafist groups, who were in turn accused of being involved in the assassinations.
The rise of Ennahda to power triggered dangerous political events and put the country at risk of a civil war. This nourished a broad anti-Islamist political discourse promoted by the liberal and secular opposition, which finally established the Nidaa Tunis party in 2012. In this anti-Islamist climate, the Truth and Dignity Commission was established on 23 December 2013, and Sihem Ben Sedrine, a well-known journalist and human rights activist during the regime of Ben Ali, was elected as the President of the Commission by the Constituent Assembly. However, because the majority of the Constituent Assembly consisted of Ennahda members/sympathisers, the opposition questioned the neutrality of this election and labelled Ben Sedrine as a service provider for the interests of Ennahda and its followers.
The Truth and Dignity Commission: Between a Partisan and an Antagonist
- Nidaa Tunis and the Deadlock of the Process
The political project of the newly established Nidaa Tunis Party presented itself as a continuation of the Bourguibian ‘modernist’ legacy and adopted an anti-Islamist discourse. It also became a new home for some representatives of the old regimes, who used to be directly or indirectly complicit in past human rights violations, especially those who used to serve in higher positions. This is why investigations regarding these crimes, which lie at the core of the mandate of the Truth and Dignity Commission, were increasingly perceived as a threat by Nidaa Tunis.
After winning a majority in the October 2014 parliamentary elections, the ideological tensions between the now largest party in parliament, Nidaa Tunis, and the second largest party, Ennahda, turned into a full-fledged political dispute. Against the backdrop of Ennahda’s image as upholder of the Truth and Dignity Commission, Nidaa Tunis expressed its hostility towards the commission through open anti-Islamist rhetoric. Nidaa Tunis for its part, adopted now the same discourse that was first initiated by Ennahda’s political opposition since the initiation of the Truth and Dignity Commission in 2013 and even intensified it now by the claim of politicizing the commission and portraying it as a political agent established by Ennahda.
In the wake of this dispute, the work of the commission was compromised. For instance, after the presidency shifted from Marzouki to Essebsi, the government prevented the commission from accessing the presidential archives, as well as the archives of the Ministry of Interior and the Ministry of Finance. Moreover, Nidaa Tunis blocked the approval of the commission's budget several times in the parliament.
Today, only 20 out of almost 60.000 files of Human Rights violations that were submitted to the commission have been transferred to the special judicial chambers and only few files entered the process of investigation by the Inquest and Investigation sub-commission. Furthermore, until today, the victims are waiting for their files, which officially state the human rights violations they have been exposed to and the type of repartition they are entitled to receive. This has led the victims to organize demonstrations under the “Where is my file?!” slogan, in front of the Truth and Dignity Commission’s headquarters in early 2017. However, up until now, no one has paid any political attention to this campaign or to the victims’ demands.
So far, the list of names of legally recognized victims has not been published. In light of the fact that the commission ends its mission in December 2018, it seems that this will not happen any time soon. Lastly, although the ‘Al-Karama ('Dignity') Reparation Treasury’ has recently appeared in the Journal Officiel de la République Tunesienne (JORT), its administrating Treasury Committee has not been established to this date. Neither has the government opened the bank account that is meant to receive the national and international donations for compensation.
- The Commission and Ennahda’s political pragmatism
It is important to know that besides the continuous attacks against the commission by Nidaa Tunis, Ennahda too intentionally used the politicization attempts triggered by Nidaa Tunis for its own benefit instead of refuting them. The following three arguments support this statement:
First, Ennahda’s pragmatic support of the Administrative Reconciliation Law, which was passed by the parliament in October 2017, promoted impunity for civil servants who were involved in corruption and fraud under Ben Ali and Bourguiba. This vote was received with widespread criticism by numerous statements of Ennahda members and by the larger civil society in support of the transitional justice process and the Truth and Dignity Commission.
Second, when the IVD asked for an extension of its mission for an additional year, until the end of 2019 instead of 2018, the Ennahda party’s MPs left the plenary and abstained from voting in favour of the extension during the plenary meeting on 26 March 2018, leaving the majority in parliament, members of Nidaa Tunis and smaller political parties, to vote against the extension. Ennahda pragmatically refrained from confronting its coalition partner, Nidaa Tunis, while at the same time continuously expressing its pro-IVD position towards the opposition and towards the public. These allegations allowed Ennahda to keep and even strengthen its support among the victims, independent of the compromising vote against the extension. They regarded the party as the “saviour” of the commission. For instance, in several interviews I conducted with victims of oppression during the Ben Ali regime, my interview partners expressed that they do not blame Ennahda for approval of the reconciliation law, but rather Nidaa Tunis for having put Ennahda under pressure to do so.
Third, Ennahda more recently developed an interest in containing the full success of the Truth and Dignity Commission, as the party was uneasy about what was presented by the independent Commission Defending Brahmi and Belaid, which had been initiated by members of the opposition parties, The Popular Front in particular, in order to investigate into the assassinations of the two leftist politicians in 2013. This commission has recently accused Ennahda of direct involvement in the assassinations and called for its dissolution. Moreover, on several public statements, president and Nidaa Tunis leader Essebsi emphasized his interest in proceeding judicially with the findings of the commission, especially intensifying this discourse when at a political deadlock with Ennahda. As a result, Ennahda started to shift in its discourse from calling for criminal persecutions of the human rights violators under the ex-regimes to a plea for general reconciliation. In a speech in November 2018, Rached Al-Ghannouchi, the head of Ennahda, revealed his intention to surpass the phase of criminal prosecutions and truth-seeking. This shows how the commission and the transitional justice principles it is based on are compromised by Ennahdha in order to serve the party’s political interests.
The Truth and Dignity Commission was created on the basis that the cases of all victims should be treated equally. However, the politicization of the commission limited the intention to maintain the broad definition of the victims as originally provided by the law. The victims were increasingly clustered and perceived as political agents calling for rights to the benefit of one political entity over the other. Regrettably, this rhetoric, first adopted by Nidaa Tunis, soon became widespread among civil society actors and the Tunisian population at large. Numerous activists, including feminist activists and even some victims themselves, particularly from the Left, started to question the neutrality of the commission. Ultimately, the mere display of sympathy with the victims became subject of ideological disputes. On 12 November 2018, five female former political prisoners started a sit-in inside the headquarters of the commission and went on hunger strike for ten days, in order to protest against the delay in issuing the compensation program by the commission. None of the established feminist organizations in Tunisia visited these women or reported their demands on their social media platforms, not to mention the total absence of any kind of media coverage about this protest and the related grievances. As a result, their strike went unnoticed by the public.
The politicization of the work of the Truth and Dignity Commission and its transformation from a constitutional mechanism into a political tool, was a result of the power struggle between Nidaa Tunis and Ennahda. This deformed the work of the commission and emptied it from its original mission, i.e. claiming justice for the victims of past crimes. In a recent interview I conducted with Jamal Barakat, the brother of Faysal Barakat, a political prisoner who died under severe torture in 1991, F. Barakat stated that “the regime of Ben Ali has made us victims of oppression and exploitation. Today, the current regime is turning us into victims for a second time. However, this time we are victims of the power greed and the political interests of those in power.”
 “Organic Law on Establishing and Organizing Transitional Justice” – unofficial translation by the International Centre for Transitional Justice (ICTJ)., Office of the United Nations High Commissioner for Human Rights, retrieved from https://www.ohchr.org/Documents/Countries/TN/TransitionalJusticeTunisia.pdf.
 N.N. (2011): “Thousands of Ben Ali's political prisoners released under amnesty.” France 24. Online: https://www.france24.com/en/20110219-thousands-political-prisoners-held-under-ben-ali-released-under-general-amnesty-tunisia.
 See: Hajar, Y. (2018): "Democratic Islam According to Ennahda: First Appraisal." The Legal Agenda, 11. Online: http://legal-agenda.com/en/article.php?id=4499.
 N.N. (2018): “Tunisia to extend Truth and Dignity Commission’s mandate until end of 2018”, Middle East Mentor. Online: https://www.middleeastmonitor.com/20180525-tunisia-to-extend-truth-and-dignity-commissions-mandate-until-end-of-2018/.