Tunisia is a promising young democracy in many ways, but its penal code must be brought into line with its constitution to prevent the persecution of minorities, writes Ian Duncan.
Ian Duncan is a British Conservative MEP in the ECR group.
The democratic uprisings that we know today as the Arab Spring, began in Tunisia. In short order the protests of the Jasmine Revolution had spread through much of North Africa and the Middle East. Of the states engulfed in democratic uprisings, only Tunisia has blossomed into a stable, functioning democracy.
Back in 2011, Freedom House, an independent democracy watchdog, awarded Tunisia the lowest ‘political rights’ score available. Today the same watchdog granted Tunisia its highest score and upgraded its democracy rating from ‘partly free’ to ‘free’; an extraordinary journey from autocracy to democracy in only five short years. Tunisia has a new constitution and free and fair elections. As further proof, last year the Tunisian National Dialogue Quartet was awarded the Nobel Peace Prize for their contribution to the building of a pluralistic democracy.
But not all have shared in this flourishing of democratic rights. When I visited Tunisia in November last year, I met with minority rights campaigner Yamina Thabet. Yamina is president of the Tunisian Association for the Support of Minorities (ATSM), a human rights group she set up in 2011 to campaign for the rights of all minorities in Tunisia. In a quiet corner of my hotel, she explained that the democratic revolution had not yet trickled down to Tunisia’s gay community.
“Even though Tunisia is praised as the region’s most progressive country, human rights violations continue. Presumed homosexuals are still jailed, with evidence gathered in ways which violate the constitutional right to privacy,” she said.
Tunisia’s gay rights record of came under the spotlight in September last year, when a 22-year-old man known by the pseudonym Marwan was arrested upon suspicion of taking part in homosexual acts. An anal examination sealed his guilt. He was sentenced to one year in prison.
Following the case, the Minister of Justice Mohamed Salah Ben Aissa made an extraordinary public statement in which he called for the decriminalisation of same-sex relations. A month later, he was sacked, and the defence minister assumed the Justice portfolio. No reason was given by the prime minister for his dismissal.
Despite a progressive constitution, Tunisia’s penal code is a relic of its colonial past. Framed by the French colonial administrators back in 1914 and last updated in 1968, the code is unequivocal: it is illegal to be gay. Article 230 of the code declares that sodomy is illegal. Article 226 has been used by the authorities to arrest transgender people for outrages against ‘public decency’. To be found guilty of sodomy carries a jail sentence of up to three years. To be found guilty of an outrage against public decency can result in a fine or six months’ imprisonment. Against such a backdrop, it is hardly surprising to find that homophobia and hate crimes are commonplace. Most go unreported, the victims too frightened to report the crime.
As a matter of course the government carries out humiliating forced anal examinations on all those suspected of being homosexual to determine whether sodomy has taken place. These examinations are undertaken in violation of international law and medical ethics. Indeed, they have been recognised as a form of torture by the United Nations.
The new constitution, supported by every major political party, affords every Tunisian citizen the right to privacy and personal liberty, yet the penal code grants the police wide ranging powers to investigate, and the judicial powers wide ranging authority to punish, anyone suspected of being a homosexual.
In February I hosted Ms Thabet in the European Parliament. There she outlined the challenges faced by the LGBTI community and by those groups which defend the rights of the persecuted and prosecuted. At the meeting we received assurances from both the European Commission and the European External Action Service that they would look at what could be done to encourage Tunisia to bring its penal code in line with its constitution.
I will close with a quote I heard when I was the North African state: “Tunisia is always ready to turn the page.” Let us hope so.