The Tunisian Head of State has finally signed the two decree-laws that are dear to him. The one on illegal speculation, will allow him to kill two birds with one stone by tightening sanctions against those who engage in it and pointing the threat of prison against whistleblowers such as journalists.
The second on penal reconciliation will allow him to give volume to his populist promise to recover the money said to have been stolen, even if it means breaking the whole economic machine which is in the hands of the private sector. That sector which he does not like, he denigrates and accuses of all the evils of Tunisia, even if it means distorting what some international studies say, or some reports of commissions of inquiry.
All this, while the Prime Minister of the head of state is working under his rule to develop a program whose latest CM says it “aims to win back the confidence of economic operators.” Indeed, many of the latter are already the target of the presidential ire and the decree-law of Kais Saied and his culprits to despoil the money of the people.
The false figure of 436
For the money actually said to be looted, Kais Saied relies on the old report of the anti-corruption commission of the late Abdelfattah Amor, to target 436 businessmen who should pay under threat. And yet, it was in a statement made to the Tunisian news agency TAP in August 2021, that the former member of the Commission of Inquiry on the facts of corruption and prevarication, known as “Commission Abdelfattah Amor”, Ezzeddine Saidane said that “it is not a list of businessmen but rather 463 cases, which have been entrusted to justice by the Commission.
These files were investigated in 2011, and their use in 2021 is no longer possible. An effort to update them is absolutely essential before using them again, in order to avoid injustices. Many of them have already been confiscated. Others have already been judged and others have died.
The false figure of TND 13 billion
For the amount of these funds said to be looted, former Minister of Finance and current president of the political party Afek Tounes, Fadhel Abdelkefi told a private local radio on March 22, 2022 “this figure of TND 13 billion is from a report 11 years old. Since then, people have died, others in prison, and others have already gone to court.
Commenting then on the decree-law of Kais Saied on penal reconciliation, Fadhel Abdelkefi whom Saied wanted to see in prison, said that “in Article 3 of this decree-law, it is implied that some would have fallen through the cracks. Who will decide on this list? The list of 7 people who will be appointed by Kais Saïed who appoints and dismisses its members? what I understood is that it is an optional law. And therefore, the list is still to be made. This opens all the doors against the economic system, because the rules of the game must be clear and the economic orientations too. I believe that the implementation of this decree will be difficult because complicated, which will destroy the confidence that is the basis of any economic act. The idea that Tunisia is more than rich and that its wealth has been plundered, is false, as well as saying that our problem is just a matter of plundering the country’s assets. A decree-law based on pre-selected lists can only lead to abuses.
Moreover, the president’s decree-laws do not repeal previous laws. Which ones will therefore be applied by the judge? Remarks and questions that are shared in silence by more than one businessman, and more than one possible target of this decree-law, and affirm that it will be difficult to apply.
Mohamed Ayadi, a judge and also a member of the former commission to fight against corruption and prevarication said on his social media that “under the new decree-law, the penal reconciliation will be available to anyone who makes a written request, it is therefore optional, as is usually the custom. But the most important thing is that this penal transaction will also be sealed, without any request from individuals and legal entities whose files have been entrusted to the National Commission for Penal Reconciliation (CNRP), which has issued a decision of self-referral. The aforementioned commission establishes a list of these people and invites them to submit a request for conciliation.
And Ayadi further clarified that “the aforementioned list includes persons involved in offenses committed before the year 2011 and until March 21, 2022, as well as those against whom criminal convictions have been handed down, or those who are still subject to administrative or judicial proceedings, or any person who has not been subject to any previous prosecution and has committed offenses covered by this decree-law.
What is, in this case, the relationship between penal reconciliation on the one hand, and transitional justice, the effects of one on the other, and the decisions of one on the other. It is true that by this decree-law, Kais Saied has circumvented the fundamental law on the IVD, without abolishing it. Those who have already passed before the IVD of Sihem Ben Sedrine, should they also pass before the justice of Kais Saied for the same facts?
This, in addition to the fact that the criminal law, whatever it is, non-retroactive by essence, applies only to facts subsequent to its promulgation. The penal law is also personal, in the sense that its effects apply only to the person who committed the facts, to the exclusion of any other person, closely or remotely related to the author of the facts.
Two legal principles, blithely flouted by Kais Saïed, and moreover, in the name of the constitution, mainly under the chapter relating to rights and freedoms. But this is not the 1st time…
