Abdellatif Aloui, a member of Tunisia’s suspended parliament, and conservative TV host Amer Ayed were detained and taken before a military court on October 10 to face charges of “conspiring against state security”.
The alleged crime for which the two men, who are both civilians, will stand trial is making critical remarks about Tunisian President Kais Saied on one of Mr Ayed’s broadcasts.
After its 2011 revolution and transition to democracy, Tunisia’s constitution protected “freedom of opinion, thought, expression, information and publication”, opening the doors to critical discourse after more than half a century of autocracy.
But a series of legislative and judicial mishaps have left open a constitutional loophole which has been used to try civilians in front of military tribunals for criticising the army or public officials, offences that would not stand up in civil court.
The practice has drawn the criticism of civil rights watchdogs and Tunisia’s western allies.
Freedom of expression under threat
In a statement issued after the arrest of Messrs Aloui and Ayed, US State Department spokesman Ned Price said: “We are concerned and disappointed by recent reports from Tunisia on infringements on freedom of the press and expression and the use of military courts to investigate civilian cases.”
In the decade since the revolution, Amnesty International has recorded more than 20 cases of civilians – primarily lawyers, politicians, dissidents and journalists – being tried in military courts. More than half of those cases have come in the months since President Kais Saied took sole control of the country on July 25.
Dissident blogger-turned-parliamentarian Yassine Ayari is among the most recent cases, though he has a long history with the military judicial system. He has stood before a military tribunal six times over the past decade for posts made on social media criticising the army or government officials.
Shortly after Mr Saied suspended parliamentary immunity for MPs in early August, Mr Ayari was imprisoned for a 2018 conviction for Facebook posts critical of the president at the time, Beji Caid Essebsi.
“Nothing I’ve said or done was illegal,” he said in an interview shortly after he finished his two-month sentence. “What I said is freedom of expression. I give facts, I give opinions.”
Mr Ayari believes the prosecutions are retaliatory for his anti-corruption activism and gadfly blogging, both of which are aimed at the political and business elite: “I make a lot of powerful people angry, and the only way to stop that is to put me in prison.
“That’s why they use the military court, because if they tried me in a civil court they’d never get a conviction. But in the military court, you’re convicted before you walk in the door.”
Stalled reforms to military justice
Military courts have long been used to try dissidents in Tunisia and were used liberally under the presidencies of both Habib Bourguiba and Zine El Abidine Ben Ali, according to Ghazi Chaouachi, the secretary general of the Democratic Current party.
“Bourguiba established The Court of State Security and used it to try politicians and opponents, and even carry out death sentences,” he said.
The military justice code, which was established after Mr Bourguiba led the country to independence in 1957, grants military courts the right to judge civilians on crimes including public insult of “the flag or the army” and “criticism of the actions ... of army officials which undermines their dignity”.
While they underwent a partial reform following Tunisia’s uprising, military courts are still controlled by the executive branch as the President has exclusive say over the appointment of judges and prosecutors in the courts.
Though the 2014 constitution guarantees a right to a fair trial along with freedom of speech, it also left the task of reforming the military justice code to the country’s nascent lawmakers, stating “the military courts shall continue to exercise the powers vested in them by the laws in force until they are amended”.
Mr Chaouachi, who became an MP in 2014, worked with other parties in the opposition block to push forward legislation to amend the military justice code in 2017 and 2018.
“Civilians should enjoy their right to a fair trial, and that can only be achieved in a civil court,” he said.
The bill was never debated nor voted on. Mr Chaouachi says the governing collation of Nidaa Tounes and Ennahda refused to deliberate legislation proposed by the opposition, a point of contention in the dysfunctional parliament.
“Their interests prevented them from changing the laws,” he said.
“It comes in handy to have a judiciary that operates following orders [from the executive] rather than having an independent one, particularly when they want to settle a score.”
“Now some people who are facing military prosecutions were against changing the law while we were pushing for a change,” he said.
Mr Chaouachi worries the threat of military prosecutions is putting a dampener on free speech and progress at a moment when Tunisia needs it most.
“It is truly unfortunate that 10 years later, we still have a military court sentencing civilians over an online post,” he said.
He said that Mr Ayari would again face military justice next week for calling Mr Saied’s actions a “coup”, a characterisation the president denies.
“It brings back fear to the hearts of Tunisians, and you cannot have accountability where there is fear. In an atmosphere of injustice, fear and terror, you cannot build anything.”