Tunisia: the legal puzzle around Nabil Karoui, candidate in prison

Can a president be elected while he is in prison? The debate has stirred Tunisia since one of the favorites, the businessman Nabil Karoui, was placed in pre-trial detention before the start of the presidential campaign. The legal and constitutional controversy gained momentum with the candidate's qualification for the second round on Sunday (September 15th).

>> To read also: Nabil Karoui, the "Tunisian Berlusconi", candidate since his prison

On the evening of the first round, Isie, the body responsible for organizing the elections, evoked a constitutional vacuum. France 24 takes stock and unravels the possible scenarios as to the future of the media mogul, nicknamed the "Tunisian Berlusconi".

The presumption of innocence, the official position of Isie

Nabil Karoui, remanded on August 23, is under investigation for money laundering and tax evasion. So far, the candidate has relied on his wife, Salma Smaoui, to campaign. The qualification of the 56-year-old entrepreneur in the second round, however, raises a real legal puzzle: how to imagine a president sentenced, for corruption moreover? Isie, for its part, relies on the presumption of innocence:

"The position of Isie does not change regarding Nabil Karoui, he is a candidate like the others and he is qualified for the second round.The law does not prevent it", recalled the instance at the evening of the first round . Clearly, she wants justice to cut.

For the ISIE Nabil Karoui is still candidate for the second round of the presidential election Nothing changes unless he is finally sentenced by justice #Tunisia pic.twitter.com/mc5W7hbmgN

Justice turns the bullet between jurisdictions

However, the justice refuses for the moment to make a decision. The investigating judge in charge of the case refused to rule on his request for release on Wednesday, 18 September, declaring himself incompetent. It is already the third Tunisian jurisdiction to make this decision. The Indictment Division of the Court of Appeal and the Court of Cassation had done the same.

However, the clock is ticking and the end of the electoral period is approaching as Issy President Nabil Baffoun has announced that the second round should be held by 13 October at the latest. A lack of decision that could lead to several scenarios.

• The Karoui trial takes place before the elections

If the date of October 13 was to be confirmed, the holding of the trial of Nabil Karoui before the second round appears highly unlikely in view of the complexity of the case and deadlines. "It is possible that the judicial machine is racing, leading to a disqualification of Nabil Karoui," suggests political scientist Hamza Meddeb, questioned by AFP. "In addition to the current procedures (whitening investigation, Editor's note), possible violations of party financing laws could be scrutinized loan."

Nevertheless, being sentenced would not prevent him from being president, according to Mohamed Tlili Mansri, a member of Isie, questioned by AFP: a prison sentence "does not constitute an impediment to being a candidate or even winning elections in Tunisian law ", provided that the judgment does not provide for disqualification of civil and political rights.

In the case - always possible - where Nabil Karoui receives between the two rounds of a sentence depriving him of his civil rights, "it will be necessary to do without him, and organize a second round with the candidate who came in third position", considers another responsible for Isie, Adel Brinsi. Namely Abdelfattah Mourou, the candidate of the Islamist obedience party Ennahda.

• The Karoui trial takes place after the elections

The case has little precedent in the world, and none in Tunisia. "If he wins, we are in a legal deadlock," said the deputy attorney general of the Tunis Court of Appeal, Ibrahim Bouslah, according to AFP. "Whether he is still in prison or released, the problems remain: he has not been tried and the case is not over."

In Tunisia, the president has a presidential immunity. However, in order for this to be granted to Nabil Karoui, he would have to be able to take an oath and therefore leave La Monarguia, in the suburbs of Tunis. And even if that favor was granted to her, she would not settle everything, warned Ibrahim Bouslah.

"In case he would go to the presidency, he could not benefit from a presidential immunity, since it is not retroactive," said the deputy attorney general of the Court of Appeal of Tunis. From there to imagine a suspension of the procedure until the end of his presidency? The question remains open as one finds oneself in unconstitutional judicial and constitutional ground.

• Conditional release for a fair campaign?

The EU observation mission described the first round of the presidential election as "transparent". However, she called for candidates to have "full and equal opportunities" to campaign, an apparent allusion to Nabil Karoui.

"While recognizing the independence of the judiciary, the Mission notes that the authorities concerned have not taken the necessary measures to enable all candidates to campaign in accordance with the principle of equal opportunities provided for by Tunisian law" they say in a statement. "What is important for us is to ensure that the campaign gives all candidates the same opportunities: if they have the status of a candidate, they must have the rights and also the homework."

The lighting of Majid Bouden, specialist in international droti

Several political analysts believe that in the interest of the Tunisian democracy, justice must release Nabil Karoui so that he can fully campaign:

"The candidate in the lead Kaïs Saïd has interest in calling the exit Karoui prison for a balanced debate and it is in the interests of the second and the Tunisian democracy that he out so that the competition takes place", says Majid Bouden, a Franco-Tunisian lawyer in international law, interviewed on France 24. "Karoui's prosecution took place in 2016 and was immediately exploited.

"If it had been settled in 2016 and 2017, no one would have talked about this case, it's the timing that gives it its political coloring, that's also what made the candidate successful because people do not want more injustice.We voted for him because he was victimized, "says the Franco-Tunisian lawyer.

"By refusing to pronounce, the justice aggravates the problem", concludes Majid Bouden. "Independently of this candidate, it is necessary to set the record straight and that the justice begins to work even timidly."