The African Commission on Human and Peoples' Rights
Examination of State Reports 9th session, March 1991


Chairman Umozurike welcomed the Tunisian representative.

The Special Rapporteur, Commissioner Nguema, noted that a preliminary report on the Tunisian report had been drawn up by Commissioners Ndiaye and Beye during the previous session, but that this report could not be found in the file. He believed his two colleagues had requested additional documents from the Tunsian government, which had been supplied, and he believed they could be the foundation of a constructive dialogue.

He requested clarification on the nature of the Constitutional Council in Tunisia, and, noting that judges are nominated by the President of the Republic, expressed a desire to have more information on how the independence of the judiciary is assured.

He closed by apologizing that he had not had more time to prepare questions.

Commissioner Badawi congratulated Tunsia on having incorporated so many international human rights instruments, and inquired if the African Charter had ever been cited as an authority in a domestic legal case.

He asked which ministry of the Tunisian Government was responsible for the preparation of the report, if there were any collaboration between ministries concerned, and if any non-governmental organizations had participated. He also asked if any measures had been taken to disseminate the report to the Tunisian population. Lastly, he asked for information on the policies and programmes of the Tunisian Government with regard to implementing the economic, social and cultural rights, and any difficulties encountered.

The Tunisian Ambassador responded by saying that Tunisia had ratified several international human rights instruments, and that many human rights non-governmental organizations were operating in the country. He explained that the Constitutional Council was composed of judges, and its role was to verify the constitutionality of legislation. Although judges are appointed by the President, the Tunisian Ambassador assured the Commission that they are entirely independent.

The Ambassador had no knowledge of specific cases in Tunisian domestic courts in which international human rights instruments had been cited, and he did not know of any conflict between Tunisian law and international instruments.

The Ambassador thought Tunisia was no different from other African countries in its method of preparing reports, and encountered the same difficulties in implementing economic, social and cultural rights.

Chairman Umozurike thanked the Tunisian representative and explained that as it was the first time that the Commission was examining state reports, it was still feeling its way.



We welcome you, your Excellency, the Ambassador of Tunisia. We are happy that you are with us to present your - the Periodic Report. We have asked one of our colleagues to have a special look at it and I would now hand - I hand ourselves over to Mr. Nguema. I thank you for coming your Excellency.

NGUEMA [Original statement in French]:

I thank you, Mr. Chairman. Mr. Chairman, I must say that this report was presented a long time ago and it was examined in a preliminary way during our last session. And according to the explanation and information we could obtain yesterday, a preliminary report had been drawn up by our colleagues Mr. Ndiaye and Beye. I have just received the file this morning in this hall and unfortunately, this report is not included in this file.

It seems to me that our two colleagues had raised questions addressed to the Tunisian Government so that it should provide us with texts concerning the organization of the bar, the counsel of state, and the court of cassation. These documents were supplied and I believe we can be satisfied with the constructive dialogue which has been set up between our Commission and the Tunisian Government.

I have rapidly perused these various texts, and I came across an important institution - it is the Constitutional Council. Unfortunately, we have the bad habit concerning countries which were subject to French colonization, these institutions which have the same name, contain the same attributions. At one point, I thought that the Constitutional Council in Tunisia could debate the constitutionality of a law, of a text, that is, to what extent such a law that was enacted by the National Assembly, the legislative power, how does that curtail the provision in the Tunisian Constitution.

This is included in the documents which were submitted to us, but by reading the provisions on the Constitutional Council, I thought I understood it was simply an Assembly having consultative power, that is, that the Constitutional Council intervenes in the procedure of elaborating legislative texts only to give its point of view during the drawing up of the text, but I refer to the case, if after adoption of the law, one realises, and that of course may be primary hypothesis, we realise that the law that has been voted upon violated certain provisions of the Constitution. So I would like to know whether this Constitutional Council intervenes after the law has been adopted in case provisions of the Constitution have been violated or does its role stop at giving consultative opinion only during the elaboration of the law?

On the other hand, I have also found texts concerning the organization of the judiciary, and it seems to me that it was the President of the Republic of course who nominates the judges. I would have liked to have some information on the manner in which the independence of the magistrature is guaranteed in Tunisia. Independence, of course, vis-á-vis the executive powers. To my mind, as soon as an authority intervenes to decide upon nominations, there are chances that this authority should weigh upon the career of the official or the exercise of his functions. So if there is a mechanism in the Tunisian legislation to this effect, it would be advisable that we should have information on this point.

Here in our Commission, we can only express our satisfaction on the situation of human rights in Tunisia, especially, since the arrival of President Benali, we know of the efforts exerted in this country so that things are improved, and we do believe that we will not have too many things to ask the Tunisian Government concerning the respect of human rights.

I apologize, Mr. Chairman, there. These are the few observations I thought it might be useful to make. As I have told you, I have just become acquainted with this report right now, and I do believe that in spite of everything, the replies which will be given to us will be able to enlighten members of the Commission. I thank you, Mr. Chairman.


Thank you very much, Mr. Nguema. We apologize for the suddenness, or the fact that you have been given very little time to look at this report. As we mentioned yesterday, there has been assigned a Commissioner the last six months, a Commissioner who is unfortunately not with us. So it became necessary to pass this on to you at rather short notice.

Your Excellency, you are free to make any comments on what is said before we - the rest of us intervene - or you are free to wait until after our intervention before you answer - it is left entirely up to you.


Thank you, Mr. Chairman. I could of course make some comments now, but I think it makes much more sense to wait for all the interventions, and then I will be happy to bring any clarifications or any further details. Thank you, Mr. Chairman.


Thank you, Mr. Chairman. Mr. Chairman, I should like to thank the Government of Tunisia for having presented the report, stipulated in Article 62, and for having send its representative with us. There is no doubt, as is the case for the Libyan report, this reflects a will for cooperation and dialogue with the Commission.

Mr. Chairman, of course there is a positive aspect, that is, that the Tunisian report includes a number - a lot of information and a lot of details on a number of texts in the Constitution or the Charter.

I do have some remarks to make - the first remark relates to Article 32 of the Constitution which states the lofty commitments in international instruments ratified by Tunisia. There is no doubt that such a system in incorporating international obligations within the internal legal system is a main guarantee for human rights. However, the question remains: in the practical application of the law, are there cases in which lawyers have resorted in their defence of some cases, have they resorted to the texts in the African Charter for Human and Peoples' Rights?

It is rather important as was stated by Commissioner Mubanga-Chipoya in a previous case, it is important that the state, in this case Tunisia, supplies information as to whether defence in some of the cases is done direct, refers to the texts in the Charter in defence of a right. Or have any cases been brought up where there are deficiencies relating to Articles in the Charter and ordinary laws? This is the first remark, Mr. Chairman, there is no doubt that obtaining information in this respect will be of use to the Commission in the future for the other states when we make general comments on the manner in which we can incorporate the Articles in the Charter in the legal system.

The second remark, Mr. Chairman, relates to the manner in which the Tunisian report is prepared and the distribution of the Tunisian report to the concerned bodies related to human rights in Tunisia. I am talking about this, Mr. Chairman, once more because at the beginning of the discussion of the Periodic Reports, in fact Libya and Tunisia and the other states whose reports are being discussed now have giving us this opportunity, and we thank them for this opportunity they are giving us to cooperate with them, and so that we can raise a number of points which will of benefit in the future.

Relating to this point, Mr. Chairman, it is important that the Commission should know how this report is prepared, who has prepared it, is this report drawn up by the Ministry of Justice or is it prepared by all the concerned Ministries concerned with human rights? And then is there any participation from other and non-governmental bodies in preparing this report, such as trade unions, or leagues registered according to Tunisian law or not?

Then, the distribution of the report, does the state declare its commitment to the fact that it is going to present the Periodic Report to this Commission, and is this report available to organizations within the state for information, that is, how the state informs of its obligations in relation to the Charter and how it puts into force these commitments? I think, Mr. Chairman, that information here is not only of benefit to the internal public opinion, but is of benefit to the concerned states, because it clearly shows that the concerned state pays special attention to its obligation towards human rights. It has first of all become party to a Charter which requires respect of certain rights and then that it implements those rights including the submission of its Periodic Reports to the concerned committees.

The last point, Mr. Chairman, on which I would like to have some clarification, is the problems and difficulties faced by the Tunisian Government if, of course it encounters those difficulties when it comes to the implementation of the provisions of the Charter. Because there are texts relating to economic, social and cultural rights, and we are all aware of the fact that these rights are not easy for African states with very limited resources and with the difficulties, the international difficulties that they face to implement those rights immediately. But at least there are policies and programmes which clarify that the concerned state, the state is in the path of implementing and guaranteeing those freedoms. So it is rather important, Mr. Chairman, that we should obtain information relating to the implementation of economic, social and cultural rights, not only from the point of view of obligation, because an obligation of the Charter, but how these commitments are dealt with and what are the difficulties which hamper the implementation of these obligations?

This, Mr. Chairman, of course does not diminish in any way the efforts which have been made in the Tunisian report in the field of the implementation of the provisions of the Charter. Thank you, Mr. Chairman.


Thank you very much, Dr. Badawi.

Your Excellency, you may want to reply?


Thank you, Mr. Chairman. I do not know if I am going to speak Arabic, English or French, but I believe that the report was submitted in French, so I am going to speak that language.

Thank you, Mr. Chairman. I should like to thank the distinguished members of the Commission for the opportunity given to me to shed some light on the report introduced by my country that is reflective of the concern of the Government of Tunisia, especially since the summit of November about respecting to the letter all that pertains to human rights, as it were, and its power to ensure that human rights in Tunisia are no longer violated and hence are vigorously respected. Various laws adopted, different decisions are all reflected in the report.

Tunisia, as you know, has ratified several international conventions especially the International Convention against Torture as well as the African Charter. We have allowed many humanitarian organizations to operate in Tunisia, including Amnesty International has its representative in Tunisia, The Human Rights League, too, there is the Tunisian Human Rights League, so there are many watchdogs in Tunis that would be in a position to quantify the degree to which we observe human rights.

I am satisfied about the cooperation between the African Commission and the Government of Tunisia. Now I shall like to go on to shed light on the questions raised. So far as the Constitutional Council is concerned: this Council was created on the eve of the Summit of November as the first step towards the verification of the constitutionality of laws. Because in the first phase there was a Commission to reveal the Constitution, that is the former 1959 Constitution and the Constitutional Commission made sure that the Constitution be in conformity with the laws and that the Constitution be as democratic as possible. That was the first objective of that Council. For the time being, it has not had to make any pronouncements on laws a posteriori, but its mission, as it is said here, is to check the conformity of laws. It could be up-stream or down-stream after the Summit of October. But so far, this has only been done for a period before.

The new articles introduced in the Constitution were approved by the Council whose members are elected or appointed. First appointments are judges - of course judges are appointed by the head of state, but they are totally independent, in terms their promotion which is done on the basis of proposals made by the Minister of Justice in the right of their work, their integrity, their properties, and their independence is guaranteed. I do not therefore think the fact they are appointed by the President would infringe on their independence. Tunisia is not alone in this, there are many other countries that - in which judges are appointed by the head of state even in the industrialized countries that have very old democratic traditions.

As far as the other observations are concerned, as was said by Dr. Badawi, indeed Article 32 of the Constitution puts conventions over and above local and internal laws, I am not aware that any lawyer in Tunisia has ever international conventions or supernational laws to defend a client, but of course I can seek this information from Tunis. I do not know there has been any conflict in the past between international agreements and national legislation.

As far as the other questions are concerned, I believe that they are rather relative to all the African countries, not only to Tunisia, the manner in which the report is prepared. I think this is not exclusive to Tunisia. All the African countries have prepared reports in the same manner. As far as the examination of the report is concerned, of course this is a matter affecting all our countries not only Tunisia. Indeed so far as the difficulties encountered by the various countries concerned especially in terms of the implementation of economic, social and cultural rights, I think we are all in the same basket - the difficulties that we have to contend with are the same, and indeed the same they are in terms of unemployment, the right to work, etc.

So that I believe this is all that I wish to say at this juncture. I thank you very much and I remain at your disposal for any further clarifications. I thank you.


Thank you very much, your Excellency, for being with us this morning. This is the first time we are taking Periodic Reports so that you are in fact helping to enable us to test out our procedures and find our way through. We shall stop the discussion of your report at this stage, the Commission shall will take it up in due course again and we shall communicate with you in due course. I thank you very much for coming. I think before your Excellencies leave us, we will invite you for tea and coffee outside that would be an example of the usual African hospitality.

AMBASSADOR: Thank you Mr. Chairman, we will enjoy your company but I believe that my Libyan brother and myself are respecting Ramadan.

UMOZURIKE: Okay, sorry, sorry. We will take your share.

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