Tunisia’s new constitution, cited as a beacon of hope for a region in turmoil, should not detract attention from the country’s remaining challenges in guaranteeing basic democratic rights. Tunisia’s leaders and lawmakers are now entering a critical phase in the country’s departure from dictatorship, during which they will be responsible for making the most of their new legal framework. Internet surveillance, tightly controlled under the Ben Ali regime, is a useful indicator for gauging the extent to which authoritarian practices endure. And while certain policies in this domain hint at continuity, rather than rupture, with the former regime, Tunisians are more empowered than ever to influence decision-making. But will this new participatory potential penetrate Tunisia’s unreformed, politicized institutions?
Since the January 2011 uprising, a series of prosecutions, during which journalists, artists, and intellectuals were tried under Ben Ali’s unreformed penal code, clouded what many hoped would be a revolution in free speech. Interim actors exploited the code’s repressive laws, which penalize defamation of state agents, threats to public order, and diffusing “false” information.
To take one example: one day after Ennahda, the leading Islamist party, officially renounced any reference to Islamic law in the constitution, bloggers Jaber Mehjri and Ghazi Beji received seven-year prison sentences for insulting Islam and offending public morals in essays they published online.
Ennahda has stepped down since Mehjri and Beji were sentenced. But for Tunisian cyber-activist Skander Ben Hamda, the post-Ben Ali crackdown on free speech has nothing to do with Islam. “It’s about power,” he said. “If it’s Ennahda, they’ll use Ben Ali’s penal code to arrest people for Islam. But if it’s another party, they’ll come up with other reasons—it’s a culturally conservative political class trying to exert control.” Activists like Ben Hamda, initially hopeful that new leaders would reverse Ben Ali’s oppressive crackdown on free speech, feel straightjacketed. They fear that the judiciary remains handcuffed by the former regime’s authoritarian impulses.
Cyber activists are especially concerned about a 2013 legal decree—still pending approval—to create the Technical Agency for Telecommunications (ATT), a government organization responsible for complete control and oversight of the Internet, with a particular focus on fighting crime. The Ministry of Information Communication Technologies announced that the agency would indeed be established, despite pressure from Reporters Without Borders. The latter argued that the ATT was out of line with international legislation and reflected blatant disregard for UN recommendations, which specifically urged against the creation of additional online surveillance mechanisms. The proposal’s vague references to “information systems crimes” and lack of provisions obligating the ATT to consult judicial bodies are eerily reminiscent of the legislation governing Ben Ali’s Tunisian Internet Agency (ATI), which shut down hundreds of blogs, including Ben Hamda’s, and imprisoned writers and activists.
Ben Hamda doubts that the new constitution can hedge against similar legislation, particularly with Ben Ali’s penal code still intact. While there has been some progress in free speech since the revolution, he believes that there is little that citizens can do to disassemble Tunisia’s well-established cyber-security apparatus. “It’s hardly about the constitution,” he said. Tunisia has yet to sign the Council of Europe’s Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, which would limit censorship. “As cyber-activists, we’re still in danger.”
Others, like Kais Berrjab, a lawyer who offers legal analysis on his blog, “Cool Breakfast,” believe that the constitution’s new guarantees would render the Technical Agency for Telecommunications illegal. He filed a complaint with the Administrative Court (the judicial body specializing in administrative acts and disputes over public power) to that effect.
Rym Dhaoudi, a Tunis-based lawyer, forecasts that the ATT would be ruled unconstitutional. But the situation is complex. “The court would most likely do so to suit its political agenda rather than to set a legal precedent,” she said, citing a series of incidents in which the Administrative Court overruled decisions in order to assert its power against the National Constituent Assembly.
Even if the decree law were overturned, constituting a win for progressives, it would occur within the bounds of a biased judicial system. In fact, there are insufficient institutional safeguards to guarantee freedom of speech in Tunisia. Neutrality aside, the Administrative Court is plagued by its inefficiency. “It would take a year for the appeal to be addressed,” Ben Hamda explained. “And by that time, the ATT would be long-established.”
Cyber-activists are left with few options to fight what they see as a political class scheming for their demise. While Ben Hamda plans to lobby directly to new prime minister, Mehdi Jemaa, to demand the decree law be overturned, he believes that Internet freedom in Tunisia will continuously fall prey to a fundamental generational gap between conservative leaders and tech-savvy youth. “We want to innovate, make start-ups, boost the economy. And instead, we’re fighting for our rights,” he explained. In this way, cyber-surveillance’s implications are not only rights-based, but affect Tunisia’s economy by suffocating innovation potential and thwarting job creation.
Despite the ouster of Ben Ali, Internet freedom remains limited in Tunisia, stifled by inefficient institutions and insufficient political will. The widely praised constitution, which lacks provisions specifically protecting personal data, does little to mitigate these risks. Even worse, the new charter contains dangerous language that could bolster a cyber-security agenda. Article 6 establishes that the State “protect[s] religion” and “guarantee[s] freedom of belief and conscience” but also prevents threats to sanctities and bans takfir—the act of accusing someone of being a miscreant. Within this disconnected legal framework, the ATT would have a wide margin within which to repress online expression. But the first hurdle that bloggers and cyber-activists must face is simply convincing an older generation to release its grip on cyberspace.
Karina Piser is a Master’s candidate in International Security at Sciences Po Paris and research assistant at the European Council on Foreign Relations.