This decision restricts the ability of victims of human rights violations and human rights defenders in Tunisia to seek justice. It also contributes to undermine the authority and legitimacy of the African Court, which ensures judicial oversight and balance in the African human rights system and is an important pillar of justice in Africa.
Tunisia withdrawal from regional commitments to protect human rights
The African Charter on Human and Peoples’ Rights is the core human rights commitment of the member states of the African Union. Tunisia ratified it in 1983, three years before it came into force in 1986. In 2012, Tunisia ratified the Protocol to this Charter on the Statute of the African Court.
On June 2, 2017, Tunisia lodged a declaration under article 34(6) of the Protocol to the African Charter on Human and Peoples’ Rights establishing the African Court. This declaration accepts the jurisdiction of the African Court to receive applications from individuals and NGOs with observer status before the ACHPR. At the time, Tunisia was one of eight member states of the African Union to have deposited such a declaration.
Article 34(6) of this Protocol states:
“At the time of the ratification of this Protocol, or any time thereafter, the State shall make a declaration accepting the competence of the Court to receive cases under Article 5(3) of this Protocol. The Court shall not receive any petition under article 5 (3) involving a State Party which has not made such a declaration.“
L’Article 5(3) states :
“The Court may entitle relevant Non-Governmental Organizations (NGOs) with observer status before the Commission and individuals to institute cases directly before it, in accordance with article 34 (6) of this Protocol.“
The role of the African Court amid increasing human rights violations
Tunisia’s decision is just one in a succession of decisions aimed at further eroding the rights of citizens and the rule of law. As always, those who will suffer the most will be human rights defenders and society’s most marginalized groups. Since the election of Khais Saied to the Presidency of the Republic, decisions undermining the rule of law and human rights have multiplied.r.
In this context, the African Court has handed down several rulings against Tunisia, condemning the country’s infringements of human rights, the rule of law and the independence of the judiciary.
September 2022, the African Court ordered the repeal of Presidential Decree no. 117 and Decrees no. 69 and 109, adopted in the context of the “state of emergency”, considering them to be violations of Article 13 of the African Charter, which, among other things, guarantees the right of citizens to participate freely in the government of their country. The Court ordered Tunisia to restore constitutional democracy within two years, and to set up an independent Constitutional Court within the same period.
In 2024, the African Court reiterated this decision and also ordered Tunisia to repeal decree-law no. 2022-11 dissolving the Supreme Council of the Judiciary and to reinstate it within six months.
In August 2023, the African Court ordered urgent measures to grant detainees access to medical care and legal counsel, communication with their families, and full disclosure regarding the legal basis for their detention, citing concerns about their health and due process.
In its Decision 016/2021, dated November 13, 2024 [1], the Court ordered the suspension of Decree-Law no. 2022-35 authorizing the President to summarily dismiss judges and Presidential Decree no. 2022-516 dismissing 57 judges, as they threatened the independence of magistrates and the judicial system as a whole. The African Court had ruled that: “the respondent State had violated the independence of the judiciary, guaranteed by article 26 of the Charter, through its interference in the promotion and discipline of magistrates pursuant to the Decree-Law of February 12, 2022″ and that “the respondent State had violated the principle of the independence of the legislative power from the executive power pursuant to the Decree of March 30, 2022”.
[1] https://caselaw.ihrda.org/fr/entity/t1v0q3y1yvb?page=1
The African Court, the death penalty and Tunisia
The African Court has not had to rule on cases of human rights violations related to the application of the death penalty specifically in relation to Tunisia, but has had to rule on such cases concerning other States that have ratified the Protocol to the African Charter on Human and Peoples’ Rights on the Statute of the Court. Tunisia has observed a moratorium on executions since 1991. Nevertheless, magistrates continue to hand down death sentences on a regular basis and since his election as President of the Republic, Khais Saied has repeatedly called for the application of the death penalty. The African Court could have jurisdiction to judge human rights violations related to the failure to respect the right to a fair trial leading to a death sentence, death sentences for people with mental and/or psychosocial disorders, and detention conditions for death row inmates that do not meet minimum standards.
To ensure that the rule of law does not become an increasingly distant idea in Tunisia, and that the rights of all are protected, recognized and guaranteed,
So that people can always take legal action to denounce the human rights abuses they have suffered, even when there is no longer any recourse at national level, including people sentenced to death and their lawyers,
So that human rights defenders can continue to be given the means to pursue their actions, including those who advocate for the abolition of the death penalty,
And with the ordinary session of the African Commission on Human and Peoples’ Rights due to take place from May 2 to 22, the signatories of this press release call upon:
· The Government of Tunisia to reconsider this decision and put an end to violations of human rights and the rule of law
· The ACHPR to adopt a Resolution calling on the Tunisian authorities to reverse this decision
[1] https://caselaw.ihrda.org/fr/entity/t1v0q3y1yvb?page=1
SIGNATORIES :
Association Mauritanienne des droits de l’Homme (AMDH)
ACAT Congo
Coalition congolaise contre la peine de mort
Coalition Marocaine Contre la Peine de mort (CMCPM)
Coalition Mondiale Contre la Peine de Mort (WCADP)
Coalition nigérienne contre la peine de mort (CONICOPEM)
Coalition Tunisienne Contre la Peine de Mort (CTCPM)
Coordination éveil et cause pour l’unité Nationale et lutte contre l’esclavage
Culture pour la paix et la justice
Ensemble Contre la Peine de Mort (ECPM)
Legal and Human Rights Centre Tanzania
Observatoire Marocain des prisons (OMP)
Organisation contre la Torture en Tunisie (OCTT)
To learn more
