In its decision No. 2021/017, the African Court of Human and Peoples’ Rights ruled to cancel Presidential Order 117 issued by Tunisian President Kais Saied with the aim of unilateral rule and the acquisition of all powers to administer power in the country, which the Tunisian opposition considered at the time the first statement of the coup against legitimacy.
The court justified its ruling by violating the presidential order of the constitution and the laws of the country, calling for the need to return to constitutional democracy and to work on the formation of the Constitutional Court.
In addition to Presidential Order 117, the African Court on Human and Peoples’ Rights has ruled that the presidential decrees generated by it, such as Decree No. 69, by which Kais Saied relieved the Prime Minister, the Minister of Defense and the Acting Minister of Justice, from their duties.
As well as Decree No. 80 regarding the dissolution of the Assembly of the Representatives of the People and the lifting of the immunity of its speaker and members.
This ruling by the African Court comes after Tunisian lawyer Ibrahim Belghith submitted a petition to the court against the Republic of Tunisia for "violating his rights guaranteed in the articles of the African Charter on Human and Peoples' Rights."
The dissolution of Parliament is a flagrant violation of the people’s right to participate in the management of public affairs through their representatives in the Assembly of People’s Representatives, in contravention of Article 13 of the African Charter on Human and Peoples’ Rights, which states that “all citizens have the right to participate freely in the management of the public affairs of their country, whether directly or through freely chosen representatives, in accordance with the provisions of the law.”
In the text of its ruling, the court clarified that Tunisian President Kais Saied is constitutionally entitled to take measures necessitated by the exceptional situation, which may include issuing presidential orders to confront the state of imminent danger threatening the nation’s entity, security and independence, which makes it impossible for the normal functioning of the wheels of the state, but this authority Entrusted to the President of the Republic is restricted by objective conditions, and the procedures stipulated in Article 80 of the Tunisian Constitution, which stipulates the need to consult the Head of Government and the Speaker of the Assembly of the People’s Representatives, and to inform the President of the Constitutional Court;
before taking such exceptional measures.
With President Kais Saied ignoring all this;
The court held that there was a significant breach of procedure constitutionally required to impose exceptional measures.
President Kais Saied not only bypassed the constitution, but also detained the head of government in the presidential palace in Carthage - some international media indicated that the prime minister was subjected to violence by elements of the intelligence - which the court did not consider, and claimed that he consulted the Speaker of Parliament before taking measures Exception, which was denied by the Speaker of Parliament.
The implications of the ruling of the African Court
The ruling of the African Court stipulates the invalidity of Presidential Order 117 and the decrees generated by it for violating the country’s constitution and laws, and this legal language means politically the absence of legitimacy from the actions of Qais Saeed, his violation of the country’s constitution, and his coup against legitimate institutions, which he himself loses legitimacy as the country’s president to represent mere “the authority of the order.” Reality", which has strengthened the people with hard power.
The ruling also stated that “the Tunisian state should have considered less restrictive measures to deal with the situation, before taking strict exceptional measures, such as suspending the work of Parliament and lifting the parliamentary immunity of all its members elected by citizens, in the context of exercising their rights to participate in managing affairs.” the general public of their country";
This means that the dissolution of Parliament is a flagrant violation of the people’s right to participate in the management of public affairs through their representatives in the Assembly of People’s Representatives, which is in violation of Article 13 of the African Charter on Human and Peoples’ Rights, which states that “all citizens have the right to freely participate in managing affairs.” the general public of their country, whether directly or through freely chosen representatives, in accordance with the provisions of the law.
In addition to violating the people’s right to participate in managing public affairs, the court declared in its ruling that the Tunisian state “failed to establish the Constitutional Court to enforce the rights of its citizens to litigation, and to enable them to challenge the constitutionality of presidential orders,” a right guaranteed by Article 7 of the African Charter of Rights. Human and Peoples, which states that “the right to litigation is guaranteed to all, and this right includes resorting to the competent national courts to consider an act that constitutes a violation of recognized fundamental rights.” Therefore, in the text of the ruling of the African Court, there was a call for the Tunisian state to “take all necessary measures within a time limit.” No more than two years for the establishment of the Constitutional Court, and the removal of all legal and realistic obstacles that prevent this.”
In its ruling, the court affirmed that the exceptional measures taken by President Kais Saied "were not appropriate for the purpose for which they were adopted."
Exceptional measures are taken to confront the imminent danger that threatens the security, safety and independence of the country, and disrupts the normal functioning of state institutions. The country’s constitution clarifies the steps required to confront the imminent danger, all of which tend to unify the efforts of the three presidencies (the Presidency of the Republic, the Presidency of the Government and the Presidency of Parliament) as representatives of the executive and legislative authorities. To manage the exceptional stage through the permanent convening of the Assembly of the People’s Representatives, and not to hold the government accountable during that period the country is going through, while Qais Saeed’s actions, on the contrary, tended to confrontation with the legislative authority by dissolving Parliament, and confrontation with the government by dissolving it and dismissing its president.
Qais Saeed initially issued a decision to suspend the work of Parliament in order to face the "imminent danger", and later announced the dissolution of Parliament and the lifting of the immunity of its speaker and representatives, so that it became clear that the imminent danger for the president as an executive authority is Parliament itself as a legislative authority, and even after the dissolution of Parliament, which is supposed to be the danger It was removed with its dissolution, the exceptional measures were not lifted as required by the constitution, but President Qais Saeed proceeded to draft a new constitution, to be an alternative to the constitution that he swore to respect and was elected to ensure its proper implementation.
The court’s decision was not surprising given its history of taking courageous decisions in the face of violations of human rights and peoples in Africa, which gave it a respectable international appreciation. Its decisions are in line with the positions of most academics and constitutional jurists in Tunisia, who refused to acknowledge the constitutionality of exceptional measures. The deans of law faculties and professors of constitutional law also refused to participate in the advisory committee for the drafting of the new constitution, an alternative to the 2014 constitution. In fact, the head of the advisory committee for the drafting of the new constitution, Brigadier General Sadiq Belaid, who as usual walked in power for reasons unrelated to constitutional law - but rather for ideological reasons and greed for Membership of the Constitutional Court, as some say - repudiated the new draft constitution that Qais Said had drafted alone, ignoring the advisory committee, in a move that insulted the head of the committee and its members, and revealed President Qais Saeed's obsession with authoritarianism and unilateralism with the decision.
The ruling of the African Court represents a strong disappointment for the person of President Qais Saeed, who is obsessed with history, who dreams of registering his name in the history of Tunisia by drafting the constitution of the "new republic". The country and its violation of its laws, making it in the history books just a small coup usurper of power, through the mechanisms of lies, deception and perjury.
Moreover, the ruling refutes the claims of the assistant professor of constitutional law with the legitimacy of his interpretations of the constitution, and his superiority over his professors by calling them to return to studying the law before objecting to its exceptional procedures, so that the ruling restores each person to his natural size and appropriate place in the ladder of knowledge of the law.
Consequences of the African Court's decision
Under international law, Tunisia is obligated to implement the ruling of the African Court on Human and Peoples’ Rights, in the context of the commitment to implement international treaties and conventions ratified by the Tunisian state. Moreover, international relations are based on the principle of continuity of states. International treaties and charters are international obligations that a state representative must implement no matter what. It was his identity.
Tunisia ratified the African Charter on Human and Peoples’ Rights, which was approved by the African Summit at its 18th session in the Kenyan capital, Nairobi in 1981. and undertake to take legislative and other measures to implement them.
Qais Saeed will not implement the court’s decision that delegitimizes his procedures, and undermines his project to seize power through his base system, which he wants to impose on the people, and he has made great strides in it, by conducting a referendum in which only a quarter of those registered participated, and announcing his new constitution, which entered into force Implementation, and is preparing for legislative elections next December
Under this African Charter, the member states of the Organization of African Unity adopted in Ouagadougou, the capital of Burkina Faso, in 1998, the protocol of the African Court on Human and Peoples’ Rights, which entered into force in 2004. The definition of the Court’s functions stated that it is competent to “examine all cases and disputes, which are submitted to it regarding Interpretation and application of the African Charter on Human and Peoples' Rights, and any other human rights instrument ratified by the State concerned.
The Court has been ratified by 31 African countries, including Arab countries such as Algeria, Libya and Mauritania, as well as Tunisia, which signed the Court’s protocol in 2007. After the revolution, Tunisia deposited (in 2017) with the African Union Commission declaring its approval of the Court’s jurisdiction to receive cases from NGOs. and persons, thus joining Tunisia with 7 African countries that agreed to this jurisdiction of the Court.
Given the status of the Tunisian judiciary at the African and international level, Tunisia had representation in the judicial body of the African Court on Human and Peoples’ Rights, where Judge Rafia Ben Achour was re-elected for the North African region for a new term in 2022, during the meetings of the Executive Council of African Foreign Ministers, in which candidates competed from 7 African countries.
With all the foregoing reminders of international law, and the duty of states to abide by international charters and treaties, it is not expected that Qais Saeed will implement the decision of the African Court, as he is not bound by the obligations of the "black decade" - this is how he describes the ten years that followed the revolution, which brought him as president - which agreed to the jurisdiction of the African Court to receive invitations from persons, as is the case in this case brought by Tunisian lawyer Ibrahim Belghith.
Qais Saeed will not implement the court’s decision, which delegitimizes his procedures, and undermines his project to seize power through his base system that he wants to impose on the people, and he has made great strides in it, by conducting a referendum in which only a quarter of those registered participated, and announcing his new constitution, which entered into force Implementation, as he prepares to hold legislative elections next December - 11 Tunisian parties announced their boycott - it is out of the question to reverse all these steps, in implementation of the decision of an African Court.
President Qais Saeed does not respect his pledges personally - let alone the obligations of the state, which he has no experience with its laws - as he violated the country's constitution, which he swore to respect, and broke his covenant with the people who elected him to protect the constitution, like any president of the republic, and took advantage of his position in the presidency to impose his political project, which was not He proposes it to the people within his electoral program, and the people did not elect him for him or to change the country's political system.
The international political and financial bodies will intensify their pressure on the Qais Saeed regime and interfere in the internal affairs of the country, taking advantage of the existing unconstitutional situation, to impose its will and protect its interests in a manner that does not serve the national interest. abroad in order to continue to rule, and to make all concessions for that.
Although the African Court on Human and Peoples’ Rights does not have a mechanism to impose the implementation of its decisions on the Qais Saied regime, international human rights bodies will take the African Court’s decision into consideration, and adopt it as an argument for violating the rights of citizens to manage their country’s affairs, and will continue to press in defense of rights and freedoms, as well as the case For the international judicial bodies for which the ruling of the African Court will represent a judicial precedent that they can use in the ruling.
The consequences of the African Court's decision go beyond the legal and legal aspect to the political aspect and Tunisia's international relations, especially with its African surroundings.
In addition to the strong support provided by the court ruling to the Tunisian opposition forces, to withdraw legitimacy from the exceptional measures of Qais Said, which the opposition describes as coup measures;
The ruling embarrasses the regime of President Kais Saied internationally.
The United Nations has received a copy of the text of the ruling, and it is expected that the ruling will have an impact on the volume of African participation in the 18th Francophone Summit, which will be held in Tunisia on November 18 and 19.
In addition to the foregoing, the rule has a legal effect that harms Tunisia’s reputation and standing in the world, after it was admired by the world for its peaceful revolution against tyranny, the drafting of a contemporary constitution that won the appreciation of the free world, and the holding of more than fair and transparent elections that won the trust of the international community. Accordingly, Tunisia won the Nobel Peace Prize.
History proves Tunisia’s progress in the field of rights and freedoms, as it was the first to adopt the constitution in the 19th century in 1861, and witnessed the establishment of the first League for Human Rights in Africa and the Arab world in 1977, as well as the first labor organization to defend workers’ rights in Africa and the Arab world in 1946 Because of Kais Saied’s exceptional measures, Tunisia is back as an “incompetent student” in the field of freedoms and human rights, condemned by African organizations that Tunisia was behind its resurrection and establishment, in the context of its historical role in spreading a culture of rights and freedoms in the Arab world and Africa.
Today, we find the African Court calling on Tunisia to prove its seriousness in implementing the ruling’s decision related to the people’s right to participate in the management of their public affairs, and the formation of the Constitutional Court to guarantee the right of Tunisians to litigation by “preparing a report every 6 months on the measures taken to implement its decision, until the court considers that the ruling has passed.” It has been fully implemented,” which will put pressure on the Qais Saeed regime, which demands to prove “good conduct and behavior” twice a year, which means that it will face repeated campaigns against its procedures until the end of the two-year deadline granted by the court to return to democracy and form the Constitutional Court.
The African Court on Human and Peoples’ Rights has had the courage to delegitimize the procedures of an existing regime in Africa, in compliance with constitutions and laws, which represents a strong indication of the qualitative leap that the African continent is witnessing in terms of respect for freedoms, rights and the will of peoples, which embarrasses the North African countries that often boasted With its advanced history in the field of liberties over African countries that were dominated by military coups, which today issue a condemnation of a coup in the country that witnessed the first constitution in Africa on 19.