In 2018 Tunisia responded to repeated calls from its civil society by passing an organic law that penalizes racial discrimination. This legislation filled a legal void; it allows victims of racism to seek redress through the courts for verbal abuse or physical acts. Before 2018 there was no such law. Victims were thus doubly discriminated against, by being subjected to racism and to legislation that did not recognize racism for what it was. Although Tunisia ratified the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) in 1967, it has passed no national law to transpose its provisions into Tunisian legislation.
Organic Law 50-2018 is the first of its kind in North Africa and the Arab world. Racism against black people, whether Tunisian or foreign, has been common in Tunisia for a long time. However, it was not until the 2011 uprising and the country’s democratic transition that the victims of racism became visible: the events revealed societal problems suppressed by the previous regime, which had been in power since independence. The Bourguiba regime’s construction of “Tunisianness” in post-colonial Tunisia almost inevitably chose the approach of rejecting all other identities. Black or Amazigh identities, Jewish or Ibadi religious identities had to blend into the Sunni Arab-Muslim identity constructed by the state.
The law on eliminating racial discrimination conveys the message that Tunisia’s legislature and society reject racism and confer upon those who are subjected to it the official status of victim. The law aims at turning this message into a public policy that is transversal and not just limited to the legislative framework. A law is meant to create a legal framework first and foremost; analysing Law 50-2018 also enables us to see beyond its juridical aspects to its many other contributions. Yet, these non-legal contributions have remained limited, and we shall explore why. Two years after it was adopted, Law 50-2018 should be an effective piece of legislation; as yet, it is not.
What are the legal provisions of Law 50-2018 concerning the elimination of all forms of racial discrimination?
The law gives a very clear definition of racial discrimination that conforms to the ICERD standards. Under Tunisian law, racial discrimination is “any distinction, exclusion, restriction or preference made on the basis of race, colour, ancestry, national or ethnic origin, or any other form of racial discrimination as defined by ratified international conventions, which is capable of preventing, hindering or depriving an individual of enjoying or exercising his or her equal rights and liberties, or which leads to additional duties or costs.
Any distinction, exclusion, restriction or preference made between Tunisians and foreigners is not a racial discrimination on condition that it does not target any one nationality to the detriment of others, while taking into account the international commitments of the Republic of Tunisia.”
The law also stipulates new penalties for those found guilty of racial discrimination: any racist act or language is punishable by a prison sentence ranging from one month to one year and/or a fine of 500 to 1,000 dinars. Punishment is doubled in the following cases:
- If the victim is a child;
- If the victim is vulnerable because of advanced age, disability, visible pregnancy, or immigrant or refugee status;
- If the perpetrator has legal or de facto authority over the victim or has abused the power of his or her position;
- If the act is committed by a group of perpetrators, whether they are the main or secondary perpetrators.
The law also sets sentences from one to three years’ imprisonment and/or a fine of 1,000 to 3,000 dinars for more serious acts, such as:
- Incitement to hatred, violence, segregation, separation or exclusion, or the threat thereof, towards any person or group of persons based on racial discrimination;
- The dissemination of ideas based on racial discrimination or racial supremacy or racial hatred, by whatever means;
- Praising practices of racial discrimination, by whatever means;
- Forming, adhering to or participating in a group or organization that clearly and repeatedly supports racial discrimination;
- Supporting or financing racist activities, associations or organizations.
Penalties are increased if the perpetrator is a legal entity.
The law also provides for a new procedure reserved for racial discrimination cases that facilitates access to justice for victims. Complaints can be formulated by the victim or, for minors or others not capable of doing so themselves, the victim’s legal guardian. Complaints have to be lodged with the public prosecutor who is geographically responsible. They can be delivered to the canton’s courts. The law stipulates that:
- The prosecutor appoints a substitute within the court to receive complaints relating to racial discrimination and ensure that inquiries are followed up.
- A special register must be established for complaints relating to racial discrimination.
- The delay between a complaint being lodged and the inquiry being completed and its findings transmitted to the competent court must not exceed two months.
What are the non-legal contributions of Law 50-2018?
The organic law tackles the prevention of racial discrimination. Beyond its legal aspects, it aims to prevent the phenomenon by imposing new obligations on the Tunisian state.
The Tunisian government has to put in place public policies, strategies and action plans capable of preventing all forms and practices of racial discrimination, and combating racist stereotypes in various environments. The state must also propagate a culture of human rights, equality, tolerance and acceptance of the other within society. Furthermore, the state has the obligation to put in place integrated programmes to raise awareness of and provide education against all forms of racial discrimination in all public and private bodies and establishments, and enforce their implementation.
Without limits, the law indicates the sectors that it considers priorities for the dissemination of these ideas, namely health, teaching, education, culture, sport and the media.
To enable these new obligations to be put into effect, the law provides for the creation of a National Commission for the Fight against Racial Discrimination. The Commission will be responsible for collecting and following up on various data, conceiving and proposing public strategies and policies that are capable of eliminating all forms of racial discrimination. It will draw up a yearly report which will be submitted to the relevant commission at the Assembly of the Representatives of the People (Tunisia’s parliament).
Two years after its adoption, which parts of the law have worked?
Its legal contributions seem to have become a reality: some victims of racial discrimination have been able to go to court and have been awarded reparations, even if certain suspended sentences are debatable.
I say “some victims” because others are so vulnerable that they cannot afford the services of a lawyer. However, with the NGO Minority Rights Group, a partner of the United Nations High Commissioner for Human Rights, we have trained lawyers in several governorates to assist victims of racial discrimination in their legal journey.
One of these lawyers has recently won a historical case in connection with the law, and it has been commended in Tunisia and abroad. On 14 October 2020, the lower court in Medenine authorized an octogenarian to remove a discriminatory part of his family name, atig, which refers to the inherited status of freed slave.
The law being an organic law, it repeals all subordinate legislation that does not comply with its content, especially relating to the non-registering of non-Arab first names in Tunisian registers of births, marriages and deaths. This practice was abolished in July 2020 by the promulgation of Circular 13 of 15 July 2020 by the local affairs ministers, addressed to Tunisia’s municipalities. The circular was especially significant for the Tunisian Amazigh population, which had been unable to register Amazigh first names.
However, the law’s non-legal contributions are still far from being a reality in Tunisia. Two years after the law was passed, no action plan or national strategy for preventing and combating racial discrimination has seen the light of day. I am not aware of any programme to raise awareness in public or private establishments or of improved visibility for those who are typically victims of racial discrimination in Tunisia. The ANBAR Collective has been created and tackles racism through the prism of gender. I believe this will only provide data on how racism is experienced by black women, and it is a pity that no Tunisian university is undertaking research in Black Studies.
In 2020 the global Black Lives Matter movement only seems to have touched Tunisia’s civil society, some of which protested in the streets of Tunis. There has been no reaction from the public authorities on the issue of racism in Tunisia or on the implementation of the law. The national commission on which many of civil society’s hopes rest has still not been created; the implementing provision has not yet been published in the official gazette.
And yet racism is on the rise in Tunisia, even within political circles against the only black member of the Tunisian parliament, in December 2019. The Covid-19 pandemic has exacerbated the problem. Several racist incidents against Tunisia’s sub-Saharan community were reported during the months of the Covid-19 lockdown.
There are various explanations for this delay, such as the political changes that the country has undergone since 2018. When an innovative and long-awaited law is passed, I think there is a kind of moral responsibility to make sure that it is actually implemented.
What measures or reforms are necessary for the law to be well-implemented?
The law is only a legal tool that enables victims to lodge complaints and obtain reparations. Beyond the legal field of application, there is the spirit of the law. After all, the Tunisian legislative adopted it in response to victims’ demands and to send a clear message rejecting racist practices. To begin with, more information is needed on the law, whose content is not widely known by the public and sometimes not even by judges themselves. Racism needs to be tackled in school and education programmes. Stereotyped images and discriminatory or racist language must be removed from the Tunisian dialect. As far as I know, no research has been undertaken in Tunisia on the legacy of slavery. Tunisians are just proud to have been among the first countries to abolish it. But there is a profound connection between today’s racism and yesterday’s slavery. Above all, the national commission against racial discrimination stipulated in Article 11 of the law must be established. It must have the human and financial means to carry out its mandate. While the commission is not an independent body (it answers to the ministry in charge of human rights), I would like to see it take its rightful place in the country, alongside the other human rights institutions. I would argue that a good implementation of the law would mean the commission producing reports with quantified data on the racism in Tunisia, on the response of the justice system and on public policies that have been put into effect to combat it. To conclude, I would suggest that racism cannot exclusively be tackled by legislation. We need to get to a point where it is rejected by conviction, and not simply because it is prohibited by law.
How does the rest of the Arab world compare in terms of anti-racism initiatives?
In terms of the wider Arab world, the racism certainly exists in other countries in the region and there are calls by several activists to take into consideration the rights of ethnic minorities who have been discriminated against or who are victims of racism. I am thinking especially of Lebanon, where the struggle against the kafala system is closely linked to the anti-racist struggle, and Morocco, where campaigns are being organized against the racism suffered by migrants from sub-Saharan countries. Tunisia could share its experience with several other countries in the region. First of all in North Africa, where the contexts are similar, but also in other regions of the Arab world. I believe wholeheartedly in the success of one country in the Global South exchanging experiences with another. Since Tunisia’s transition to democracy, the work of civil society has definitely benefited from a very favourable legal context. More work is probably needed on empowering civil societies in the Arab world, especially where they are working on the rights of groups who are discriminated against. I also think that Arab countries, especially those that have ratified international instruments against racism such as ICERD, could do more to harmonize their national legislation with the provisions of international conventions. The struggle against racism cannot be limited to a specific country or a given context.
The views represented in this paper are those of the author(s) and do not necessarily reflect the views of the Arab Reform Initiative, its staff, or its board.