New Civil Society Report on Tunisia: Democracy and transparency threatened by exceptional presidential measures, weakening UNCAC principles

14 December 2022 –

Over the past two decades of political upheaval, Tunisia has taken action to amend its legislative and institutional frameworks in line with the implementation of provisions under both Chapter II (Preventive measures) and Chapter V (Asset Recovery) of the United Nations Convention against Corruption (UNCAC). A recent report authored by I WATCH Tunisia discusses the country’s strengths and weaknesses in UNCAC implementation, illustrated by several case studies and recent developments in the nation. The report concludes with key recommendations to the executive and legislative branches of power for tackling corruption more effectively in Tunisia. The report is intended as a contribution to the UNCAC implementation review process in its second cycle, with technical and financial support from the UNCAC Coalition.

Click on the image to download the report.

Despite the ratification of the United Nations Convention against Corruption in 2008, the Tunisian state struggled to effectively implement it, due to a reign of authoritarianism and mismanagement of state resources. The country’s legal corpus has been silent on the issue of anti-corruption and the establishment of important mechanisms such as protection for reporting persons and whistleblowers. It was not until the 2011 revolution that the formal legalization of missing mechanisms was triggered, ushering in a wave of progress. Yet with recent political events, the progress achieved to date is under threat.

On Chapter II articles of the UNCAC related to Preventive measures, the freezing of the activities in August 2021 of the INLUCC, l’Instance Nationale de Lutte Contre la Corruption – the country’s foremost anti-corruption body – has jeopardized the rights and interests of the general public, and weakened preventive mechanisms in the fight against corruption. Public finances have long suffered from structural budgetary imbalance, reducing capacity to respond to crises. Moreover, the Covid-19 pandemic has highlighted deficiencies in the management of public funds. This is coupled with inadequacies in monitoring carried out by the various bodies involved, including the Court of Auditors.

On Chapter V articles of the UNCAC related to Asset Recovery, Tunisia has participated in the fight against money laundering, the latter acting as a tool for financing terrorist acts. A specific law on the fight against terrorism and the suppression of money laundering introduced mechanisms and measures to prevent and punish any act considered to be a money laundering operation. This law has broadened the list of entities responsible for monitoring suspicious financial transactions, requiring them to notify authorities responsible for the suppression of these acts including, primarily, the Tunisian Commission for Financial Analysis (CTAF): the country’s financial intelligence unit. However, improvements in Tunisian legislation have not covered possible offenses related to the use of more modern online financial services and cryptocurrencies.

The official UNCAC review process in Tunisia is ongoing. The governmental experts list is the only document available on Tunisia’s UNODC country profile page, but has not been published on official Tunisian government websites. I WATCH contacted the country’s UNCAC focal point as part of the research for this report, but little to no information about the review process was made available. The government of Tunisia has signed the UNCAC Coalition’s Transparency Pledge, but is not abiding by its 6 principles.

The full civil society parallel report in French can be found here and a translated English version, here. The Arabic version of the report is available here.

Main findings

Below are several of the key findings from the report, grouped according to topic:

Preventive Anti-Corruption Policies and Practices

Since the 2011 revolution, Tunisia has adopted a set of texts to combat corruption, including legislation on the protection of whistleblowers, access to information, declarations of assets and interests and codes of conduct and ethics for public officials, among others. The Tunisian Constitution of 2014 even established the prevention and fight against corruption as guiding principles for public action, and a National Anti-Corruption Strategy (2016-2020) was the result of multistakeholder consultations, including participation from civil society. Despite this, the Strategy fell short of achieving its goal to establish special anti-corruption bodies within public institutions. Moreover, the Strategy is rich in critique, but does not propose viable alternatives for action.

Anti-Corruption Bodies

The Instance Nationale de Lutte Contre la Corruption (INLUCC) was created in 2011 to investigate suspicions of corruption that plagued the former regime. The constitutional body was set up to be independent, yet was financially attached to the budget of the Presidency of the Government. From 2016 onwards, INLUCC was successful in launching educational and awareness-raising campaigns and engaging in partnerships with universities and local branches of governance. However, exceptional measures issued by the President in August 2021 froze the activities of the INLUCC. As of July 2022, the proposed new Tunisian constitution does not include provisions for any state body or organ to prevent and fight corruption, effectively making the INLUCC redundant.

Public Sector Employment

Procedures established by Tunisian law are intended to guarantee equal opportunity, integrity and transparency within the hiring process of the public sector. Job postings in the public service are generally published online through a centralized portal, as well on the websites of the relevant public institutions. Professional training centers organize sessions and courses for civil servants to improve their skills. Although the legal texts are clear, malpractice has still taken place in the form of ‘ghost workers’, with thousands of aides filling fictitious positions and receiving salaries, incurring losses of millions of dinars annually by the state.

Codes of Conduct and Asset Declarations

A code of conduct applies to all public officials – both elected and appointed – in Tunisia, but only prescribes behavior, and is not binding nor does it provide for sanctions. Candidates for public office must file a declaration of assets and interests before taking office, and any false information contained therein is subject to penalty under the law (with a fine equal to ten times the value of the concealed assets). Declarations also cover the spouse and children. The INLUCC was entrusted to maintain a database of the declarations and verify their accuracy. However, it never published information about the management of these documents, nor has it taken action against civil servants who benefitted from ‘revolving doors’, such as the various lawyers and judges appointed as ministers and civil servants across different governments.

Political Financing

Election spending limits have been identified in the country according to a government decree from August 2019. The law defines the purpose and the period in which money spent can be considered as election expenses – money spent outside of this determined period is not considered as election expenses, even if channeled into winning votes or creating political propaganda. Foreign financing of election campaigns is prohibited, and public entities are prohibited from contributing financially to the electoral campaign. The Independent Superior Electoral Institution (ISIE) and the Court of Auditors jointly monitor the proper conduct of elections in Tunisia. Downloadable reports and data on campaign finance are available on the ISIE website, but their publication is often delayed, limiting the effectiveness of sanctions which may need to be issued. The Court of Auditors also publishes reports, and has organized press conferences to present its findings.

Public Procurement

The principles and procedures set out in Tunisia’s public procurement regulations reflect a commitment to transparency, competition and efficiency in public procurement. Deadlines are set for the publication of tenders and for different stages of the procurement process. Since 2014, the Tunisian e-procurement system ‘Tuneps’ has been used to digitize all processes and minimize human intervention, allowing for faster preparation of administrative files. Nevertheless, corruption risks have not disappeared. Insider trading at the pre-procurement level has persisted, in addition to lack of capacity to upload all relevant information to the Tuneps portal in a timely manner, resulting in information gaps.

Public Finances

The Tunisian legal corpus on public finances indicates that the country is in compliance with the relevant provisions of the UNCAC, and meets commitments on good financial governance. The public is given the opportunity to participate in discussions about the state budget and public policies planned for the next fiscal year, with I WATCH itself, for example, having participated in the discussions of the 2021 finance law. Despite significant progress over the years, public finances still lack oversight via effective risk management systems. The Covid-19 pandemic exacerbated existing weaknesses, with a sudden increase in the use of direct agreements with known and reliable suppliers in order to speed up the procurement process. One such case was an order for 2 million masks, ‘negotiated’ by the Ministry of the Interior and a supplier. An investigation into the case revealed several breaches and violations, including clear conflicts of interest.

Reporting Mechanisms and Whistleblower Protection

Tunisia has strengthened its mechanisms for reporting corruption through the adoption of a law in 2017 on the protection of whistleblowers. In terms of reporting tools, INLUCC created a toll-free number to report whistleblowing and is explicitly required to keep the whistleblower’s identity confidential. In its 2018 annual report, it stated that 61% of that year’s whistleblowers called in via the toll-free number. Furthermore, protection was granted to 36 whistleblowers, with 16 cases referred to the competent jurisdictions for retaliation. While INLUCC was still operational, a backlog of cases and slow decision-making within its council hampered its work. With the more recent freezing of INLUCC’s activities, whistleblowers have become totally isolated from the government, unable to use its tools for reporting corruption.

Access to Information & Civil Society Participation

Access to information in Tunisia is a free service, although administrative fees proportionate to the request may apply. Government institutions publish all data and information that should be known by the public on their websites. In addition, municipalities must publish the minutes of meetings of the municipal councils. Nevertheless, no awareness-raising campaigns have been undertaken to outline to the general public the right of access to information, its importance, its applications and exceptions, nor does it form part of the Tunisian educational curriculum. There are no guides or brochures intended for civil society or citizens to make it easier to better understand and apply the right of access to information.

Judiciary and Prosecution Services

The 2014 Constitution ensured the independence of the judiciary through the establishment of the Higher Council of the Judiciary (Conseil supérieur de la magistrature) – an independent institution with regulatory power over the proper functioning of the judicial establishment in Tunisia. However, political turmoil led to the replacement of this Council with a Provisional Council in February 2022, granting the President of the republic the power to appoint members of the council. In June of the same year, a decree issued by President Saied allowed for the “dismissal of any magistrate because of a fact attributed to him or her that is likely to compromise the reputation of the judiciary, its independence and its proper functioning.” This resulted in the dismissal of 57 judges accused of corruption and other crimes, without regard for the adequate disciplinary procedures. The independence of the Tunisian judiciary remains threatened.

Private Sector Transparency

The National Center of the Business Registry (CRNE) collects information on companies and makes it available to the public, with sub-registers such as a trade register, professional register and register of beneficial owners. The public has access to the CRNE once a user account has been created. Yet, private sector corruption, especially bribery cases, continue to infiltrate the Tunisian political and public scene. The legal enforcement of sanctions for bribery, including among foreign officials who are not covered by the law, remains weak.

Anti-Money Laundering

The Tunisian Commission for Financial Analysis (CTAF) is the country’s financial intelligence unit, responsible for receiving and analyzing suspicious transaction reports. As a member of the Egmont Group and FATF, CTAF employs various specialized agents to carry out their work in relation to the criminalization of money laundering. Moreover, politically exposed persons (PEPs) are obliged to declare their assets and interests, and to update them in case of changes. Sanctions for non-compliance range from fines to imprisonment. Tunisia was black-listed in 2018 due to high risks of money laundering and terrorist financing, and in 2020 became subject to enhanced monitoring according to MENAFATF procedures. In addition, no bilateral agreements have been signed between CTAF and international counterparts.

Direct Recovery of Property

Various committees have been created to tackle the recovery of assets and management of confiscated property, the most recent being a special committee within the Presidency of the Republic’s offices for the recovery of ill-gotten gains abroad, created in 2020. Since June 2011, 28 million dollars (27 million Euro) have been recovered from Lebanon, 3.5 million Swiss francs (3.5 million Euro) have been deposited in the Tunisian treasury, as well as a check for 250,000 Euro. However, Tunisia’s track record in asset recovery is still not up to par because of scattered legal texts and a lack of political will. Poor coordination between the various institutions involved and the lack of expertise among judges on asset recovery have prevented several attempts to resort to the courts in these cases.

International Cooperation

In March 2021, the Ministry of Foreign Affairs, Immigration and Tunisians Abroad announced that the Human Rights Council adopted a draft resolution in its 46th ordinary session on the recovery of property confiscated from their countries of origin, submitted by Tunisia, Libya and Egypt. Through international cooperation, the EU has successfully frozen the bank accounts of numerous Tunisian businessmen across the world. Although attempts have been made to establish a culture of cooperation, Tunisia has repeatedly found itself unable to convince states parties to deport criminals because of the dilapidated state of prisons in the country.

Return and disposal of assets

The Tunisian political context has generally been unfavorable to the implementation of a genuine asset restitution strategy. No decision-maker has been able to implement real measures to accelerate the process of recovering looted assets located abroad. The country is missing harmonious legislation and regulation on the restitution of confiscated assets. Moreover, existing rules do not address either the costs of asset restitution or how victims of corruption can be compensated after the return of assets. Tunisia has tried to strengthen its negotiating skills to recover assets through its membership in the StAR initiative.

Key recommendations

In its report, I WATCH makes several key recommendations to authorities to ensure the full implementation of the UNCAC in Tunisia, among them:

Calling on the executive branch to:

  1. Ensure interaction with civil society organizations in the process of reviewing Tunisia’s implementation of the UNCAC;
  2. Ensure accessibility to official information;
  3. Promulgate the texts of application of the laws already in force concerning the fight against corruption;
  4. Further strengthen the human and financial capacity of oversight bodies;
  5. Implement mechanisms for monitoring the implementation of conventions ratified by Tunisia.

The legislative branch is, in turn, called upon to:

  1. Adopt the laws necessary for the fight against corruption and amend those in force to strengthen the autonomy of institutions involved in the fight against corruption and the consolidation of transparency and accountability;
  2. Strengthen the role of the parliament as the main monitoring organ of the state;
  3. Criminalize corruption in the private sector;
  4. Establish a specific legal arsenal for the confiscation and recovery of assets;
  5. Introduce administrative and criminal sanctions for non-compliance with court decisions.

More detailed recommendations are provided in Chapter VI of the report.

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