In Tunisia, a free speech tussle could land a professor in jail

Last October a Tunisian academic named Raja Ben Slama suggested on television that a top official charged with drafting Tunisia’s new constitution had watered down free speech protections in the document.

Those remarks may now land her in jail. 

Two years ago Tunisians threw out their President Zine El Abidine Ben Ali, ending five decades of dictatorship. An elected assembly has since been working to construct a democratic system. On Saturday it released a final draft constitution, which must now go to a vote.

Leaders say the document safeguards freedoms and reflects compromise among often combative political parties. But critics are singling out language they say could threaten basic rights and the workings of democracy.

“Democracy isn’t just elections, it’s accepting criticism,” says Ms. Ben Slama, who is under investigation for unjustly maligning a public official. “The law must be adapted to a new reality.”

While rights may be defined in theory, their exercise is often regulated in practice. Ben Slama’s ordeal helps show why Tunisians like her want their rights guaranteed. It also shows the need to reform old laws (like the one used against her) that were written to serve dictatorship yet are still on the books.

Executive power

Tunisia’s previous constitution was enacted in 1959 under then-president Habib Bourguiba. It gave hefty powers to him and his successor, Mr. Ben Ali, including priority in lawmaking, control of the armed forces, the ability to appoint judges, and the power to name and dissolve the government at will. 

But the primary tools of control were laws regulating everything from political parties, elections, and the courts to public gatherings, media, and freedom of speech – all enforced by compliant judges and lots of police. 

Ben Ali was toppled in January 2011. The following December the 1959 constitution was scrapped, and early last year a newly-elected constituent assembly began drafting a new one. Debate has flared over what kind of system to adopt, the role of Islam, and concern for the status of women and free speech.

Meanwhile, courts have periodically used existing laws to go after critics and gadflies.

In June last year an appeals court upheld prison sentences for two men who posted caricatures of the prophet Mohammed online. In March the rapper Ala Yaacoubi, apparently still on the run from authorities, was sentenced in absentia to two years in prison for his YouTube video, “The Police are Dogs.”

Last week a military court was scheduled to begin trying Hakim Ghanmi, accused of insulting the army on his blog. He faces up to three years in prison if convicted, according to a May 28 statement by Amnesty International. His trial was postponed to this week.

A crime?

Ben Slama, the academic, strayed into trouble with a TV appearance in which she blamed Habib Khedher, the head coordinator for constitutional drafting committees and a member of the ruling Ennahda party, for editing a constitutional article protecting free speech in a way that critics said narrowed its scope.

“I said there was a problem of political ethics, and that [Mr. Khedher] didn’t respect the committee on rights and freedoms,” Ben Slama says.

Acting on a complaint filed by Khedher’s lawyer, a Tunis court began investigating Ben Slama for allegedly accusing a public official of an offense without evidence, punishable by up to two years in prison. Khedher declined to comment on the matter. 

Ben Slama doesn’t deny her remarks, but nor does she feel she deserves jail. Her lawyer and cousin Sofien Ben Slama is fighting her case on technicalities, arguing that Khedher isn’t a public official as understood by the law in question. 

Unclear rules

Meanwhile, Ben Slama’s and Khedher’s original dispute appears unresolved. Article 30 of the new constitution says the law regulates free speech, but does so in unclear terms, says Amna Guellali, Tunis researcher for Human Rights Watch. Another article, 48, sets conditions on how laws may limit free speech but doesn’t meet international standards, Ms. Guellali says.

Ultimately, “laws need to change,” says Sami Triki, a lawyer and member of Ennahda’s executive committee. “Punishment by prison for anything related to ideas is in conflict with freedom.” 

One new avenue for change is offered by the new constitution, Mr. Triki says, which lays out plans for a constitutional court where Tunisians can challenge laws they say violate their rights. 

Not everyone is convinced. The Tunisian Magistrates Association, which campaigns for an independent judiciary, says the new constitution gives politicians undue leverage in the constitutional court. Only three of the court’s 12 members are nominated by judges, while political leaders nominate the rest.

“The constitutional court will work more from a political point of view than a legal one,” says Anas Hmedi, a judge and member of the association’s executive bureau. 

Triki, from Ennahda, argues that political leaders and legislators should have a role in the court as part of a system of checks and balances. 

Ben Slama stresses the need for ordinary Tunisians to be players, too, and work to make their voices heard. If her experience has taught her one thing, she says, it’s that “we still need to defend our freedoms.”