Two months fighting Covid-19 in Tunisia – Analysis on the impact on the rule of law

The crisis linked to the COVID-19 pandemic lead to drastic reductions to the rights and freedoms of at least half of the global population. Governments reacted in different ways, for example through the adoption of emergency measures, sometimes based on an exceptional transfer of relevant powers from the legislative to the executive.

The measures restricting freedom adopted as part of the management of the COVID-19 crisis are not neutral and, in a certain number of countries or even regions, we can even see their potential use in contexts of rising populism or even authoritarian temptation (when the regimes concerned are not already classified in the authoritarian category). In many cases, it appears that the measures go well beyond the recommendations2 made by the WHO.

Beyond these potential abuses, even measures which are seen as necessary at first sight may prove to be disproportionate, due to the impact they have on certain categories of the population; such as migrants, people in a precarious socio-economic situation, women, children or the elderly.

Concerns about the respect for human rights in the management of the current health crisis may therefore emerge at various levels:

  • Emergency mechanisms deployed as such, the scope of which may sometimes go beyond the initial intended purpose (lack of time frame for emergency measures; disproportionate interference with other fundamental rights; indirect discriminations that these measures may involve, etc.);
  • The implementation of emergency measures, which may give rise to systematic abuses such as discriminatory application of the measures;
  • The context of their implementation, some being more likely to encourage the commission of abuses (authoritarian contexts; pre-electoral contexts, etc.).

These concerns prevail both in the crisis period as such as well as in the post-crisis period and the envisaged deconfinement processes. In a number of countries, a clear step forward has been taken in terms of the social control of the state and over the citizens and residents; which includes, for example, digital control and the control of personal data. Moreover, the political and security response to the health crisis at times exacerbates the dysfunctions and practices that violate rights and freedoms that were already present before the crisis, particularly in terms of institutional violence, criminal justice and detention. The economic crisis that is superimposed on this social crisis also risks producing a breeding ground for human rights violations, in response to social movements that may reiterate their demands.

In Tunisia, the epidemiological data recorded since the beginning of the pandemic seems reassuring. As of 25 June 2020, the number of registered cases stood at 1160 and the number of recorded deaths linked to COVID-19 had remained at 50 for several days. Despite the historical  weaknesses  of the health system, notably in terms of access to health services, the country seems to have been spared a major health crisis.

Confronted with this situation, the measures taken by the Tunisian government were inspired by the French and Italian model (both among the most affected countries). These aimed to reduce to spreading of the virus through drastic social distancing measures, involving the cessation of virtually all social and economic activities in the country.

For the first time since the adoption of the new Constitution, Parliament empowered the executive branch of a legislative power, and it will only carry out an ex post facto evaluation of the decree-laws adopted during this period.

The management of the health crisis in Tunisia was marked by a constitutionally inspired legislative empowerment of the executive branch, while the judicial branch, the first bulwark against arbitrary attacks on rights and freedoms, was partially put on hold.

Under international standards such as the International Covenant on Civil and Political Rights -ratified by Tunisia – derogations and restrictions to human rights may be adopted particularly to preserve public health; provided that three essential conditions are met. A measure restricting liberty must be explicitly provided for by law, be necessary and proportionate to the objective pursued – in this case, health – and be subject to judicial review, which may asses, within a reasonable period, the legality, necessity and proportionality of the measure.

These conditions are reflected in the Constitution, in which Article 49 provides that restrictions on rights and freedoms, “may be established only to meet the requirements of a civil and democratic State, and to safeguard the rights of others or the imperatives of public safety, national defence, public health or public morality, while respecting the proportionality between such restrictions and their justifications. The judicial authorities shall ensure the protection of rights and freedoms against any infringement”.

It is on the basis of these imperative conditions, which are essential to the preservation of the rule of law, that this report provides an analysis of the legality of the measures restricting liberty adopted in Tunisia during the period from the state of emergency, declared on 18 March 2020, until the end of the period of total deconfinement on 14 June 2020, as well as incidents reported during the same period.

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