No to the introduction of “malicious undermining of State authority” in the Belgian Penal Code

Crédit photo : Justine Dofal
Photo credit: Justine Dofal

On 22 February, the Belgian federal parliament approved the adoption of a new criminal code. A necessary reform, but one in which certain provisions worry the actors of civil society, particularly the one provision concerning the introduction of an offence of malicious attack on the authority of the State. What lies behind this article is the possibility for the State and the magistrates to criminalise the use of a tool that is fundamental to the proper functioning of our democracies: civil disobedience.

This text is part of a growing trend, in Europe and elsewhere, towards the criminalisation of social movements and attacks on the right to demonstrate and freedom of expression.

This article of the penal code on ‘malicious undermining of the authority of the State’ could be used to attack social movements, and its broad definition leaves a lot of room for arbitrariness and the discretion of magistrates.

Such a situation would undermine the principles of legal certainty, legality, equality before the law and freedom of expression, which are essential in any democratic society.

Civil disobedience: a fundamental democratic tool

Civil disobedience is the act of publicly, consciously and non-violently breaking the law in order to denounce and call for the reform of a law or public policy that infringes people’s fundamental rights.

It does not call into question the rule of law, but targets specific legislation or policies. Its aim is to put certain issues back at the heart of public debate, thereby nourishing the democratic life of a state.

Not only is it compatible with democracy, it is essential to its proper functioning, particularly when legal and political avenues have been exhausted.

Combined with other legal means of action, it makes it possible to win battles for rights and justice.

Ituri: Impact of the state of siege on criminal justice

In May 2021, the Congolese state declared an exceptional state of siege in the province of Ituri in an attempt to put an end to more than three decades of wars, insurrections and violent armed conflicts against a backdrop of political legitimacy crisis, identity crisis and regional competition over the exploitation of natural resources.

This combination of crises and armed conflicts has resulted in serious violations of the human rights of the population and a growing weakening of the authority of the State. Since the early 2000s, the country has engaged in political negotiations, diplomatic exchanges, military operations and the organisation of general elections in an attempt to put an end to the various armed conflicts, but has so far achieved little success.

This report takes stock of the implementation of measures relating to the state of siege and its deleterious impact on the rights of the population and on justice, with a particular focus on the province of Ituri. Under the state of siege, all cases handled by the civil courts were transferred to the military courts, which considerably slowed down judicial activity in the region. The military courts, which have very few staff, quickly found themselves overwhelmed by this influx of cases. In addition, the magistrates and judicial staff of the courts and tribunals do not have the necessary skills to deal with civil cases.

The courts and tribunals are also concentrated around major conurbations, which makes it difficult for people from rural areas to get to them, particularly in a region where any travel entails serious risks of insecurity.

The reflections presented in the report are the fruit of observations of the functioning of the state apparatus and the justice system, as well as practices in supporting victims of mass crimes and defendants deprived of their liberty, and of exchanges organised with all the institutional and civil society actors involved in people’s justice seeking journey. It analyses the contours of the execution of state of siege measures and the functioning of the judicial and security system, with a view to proposing a set of realistic recommendations to the authorities and other stakeholders.

East Africa – Protecting civic space: A public interest litigation approach

This article was published in ASF’s 2022 annual report.

In 2022, ASF’s East Africa office launched a project covering three countries in the region: Burundi, Tanzania and Uganda. The objective of the project is to contribute to the advancement of the rule of law through the understanding and usage of regional human rights treaty bodies, mechanisms and instruments by local civil societies organisations.

In practice, the project focuses on promoting the use of public interest litigation as a tool for influence, to bring about positive reforms in the areas of civic space and civil liberties. In its countries of intervention, ASF has identified existing and developing cases led by civil society organisations. Through the project, financial and technical support is provided to these cases, along with strategic reflection on how their reach can be amplified through advocacy and external engagements. A key aspect of the project, given its regional nature, will also be to support cases mobilizing regional mechanisms such as the East African Court of Justice, or the African Court on Human and People’s Rights (ACHPR).

With support from the Pan African Lawyers’ Union, ASF is working on legal submissions to the ACHPR on the right of association, which cover a dozen African states. Our observations and legal analyses led us to believe that practices and laws governing NGOs in many African states were in violation of the freedom of association. These submissions are aimed at upholding fundamental civil liberties and imposing a positive obligation on the states to reform the laws in force and to end the practices infringing on the right of association.  

ASF is also providing financial and technical support to a constitutional petition brought by civil society organizations, including Chapter Four, before Uganda’s Constitutional Court, to challenge the constitutionality of the Computer Misuse Act voted into law in October 2022. Though this controversial piece of legislation has been hailed by the government as a necessary protection of privacy in the digital age, it is perceived by many local CSOs as an infringement on the freedoms of expression and press.

ASF’s East Africa regional hub

This article was published in ASF’s 2022 annual report.

In recent years, ASF has progressively adopted a regional approach to its activities in East Africa. To lead the organisation development in the region and enable the implementation of strong and coherent regional strategies, a regional hub was created in Kampala in 2021. It is currently made up of three staff, in addition to the Regional Director and the respective Country Director for Uganda and Coordinators of Programs for Kenya and Tanzania.

Countries in East Africa share historical, economic, political, social and cultural ties, and have become increasingly integrated. In this context, issues of interest to ASF, such as the governance of natural resources, detention, or security and liberty, may cut across several countries. Lessons learnt when implementing programs in one country can therefore be of great significance to develop our action in other contexts.

Since its creation, a key role of the Regional Office has been to strategically compile and redistribute knowledge across all programs. This has allowed for synergies to be developed, while also leaving space for the contextualization of each intervention.

In addition to this, the creation of new roles dedicated to specific technical functions within the regional team has provided a way for ASF to improve methodological support to the various country teams, in areas such as research, monitoring and evaluation, strategic litigation, and advocacy.

A key priority for the Regional Office is also to identify opportunities for development at a regional level, including through the drafting of multi-country and regional projects. In March 2022, ASF launched a two-year project funded by the Belgian DGD entitled ‘Protecting Civic Space: a Public Interest Litigation Approach’. Covering three countries in the region, the project aims to contribute to the advancement of the rule of law in East Africa through mobilizing civil society around regional human rights treaty bodies, mechanisms and instruments.

Moving forward, the Regional Office intends to keep strengthening ASF’s presence at a regional level in East Africa. Whether through advocacy, strategic litigation, or other engagements with external stakeholders, efforts will continue throughout 2023 to ensure that ASF’s work is visible and impactful in the region.

ExPEERience Talk #11 – Decriminalising poverty, status and activism: a global emergency, an international campaign

  • When? 5 October – 12 pm (GMT+1, Tunis) ; 1pm (GMT+2, Brussels)
  • Language: French
  • Free online event – Mandatory registration

This 11th ExPEERience Talk will be devoted to the Campaign for the Decriminalisation of Poverty, Status and Activism. Several of its members will present its history and how it operates. They will discuss the challenges encountered and the opportunities presented by the networking of a multiplicity of actors to tackle a global and systemic issue of such magnitude.

In many countries, criminal procedure, penal codes and policing policies continue to reflect a colonial legacy. Offences dating from the colonial era, such as vagrancy, begging or disorderly conduct, are commonly used against people already in a vulnerable or marginalised situationt (homeless people, people with disabilities, drug users, LGBTIQ+ people, sex workers, migrants, etc.), with the sole aim of criminalising what they represent in society rather than the offences they have committed. Many countries are also witnessing a narrowing of civic space and the use of criminal law to repress activism and stifle dissent. These phenomena are deeply rooted in the legislation, institutions and practices of States around the world.

During this ExPEERience Talk, speakers from several of the campaign’s member organisations will illustrate the very real consequences of these repressive laws and practices for civil society and the general public. They will also talk about the various actions undertaken as part of the campaign: joint research, litigation and lobbying actions before national and international institutions.

To date, the campaign is supported by some fifty civil society organisations from many countries. Its ambition is to create the conditions for a global change in criminal and social laws, policies and practices by adopting a transnational and multisectoral strategy.

Speakers

  • Khayem Chemli – Head of advocacy at ASF – Euromed region (moderator)
  • Soheila Comninos – Senior program manager at Open Society Foundations
  • Arnaud Dandoy – Research & Learning Manager at ASF – Euromed region
  • Asmaa Fakhoury – Country director Morocco
  • Maria José Aldanas – Policy Officer at FEANTSA

The campaign to decriminalise poverty, activism and status

This article was published in ASF’s 2022 annual report

The next ExPEERience Talk (webinar) organised by ASF and its Justice ExPEERience network will address the theme of the Campaign for the Decriminalisation of Poverty, Status and Activism. It will take place on Thursday 5 October 2023 at 12pm (Tunis) – 1pm (Brussels). You can register now, participation is free.

The Campaign for the Decriminalisation of Poverty, Status and Activism, launched in Africa, South Asia, North America and the Caribbean, is led by a coalition of civil society organisations calling for the revision and repeal of laws that target people because of their status (social, political or economic) or their activism.

In many countries, criminal procedure, penal codes and policing policies continue to reflect a colonial legacy. Offences dating from the colonial era, such as vagrancy, begging or disorderly conduct, are commonly used against people already in a vulnerable or marginalised situationt (homeless people, people with disabilities, drug users, LGBTIQ+ people, sex workers, migrants, etc.), with the sole aim of criminalising what they represent in society rather than the offences they have committed.

At the same time, in several of these countries, the criminal law is being used to repress activism and stifle dissent. Sedition laws dating back to colonial times and more recent public order laws, for example, are ubiquitous tools deployed by states to stifle protest and limit freedom of expression. States use the security apparatus, justice and detention against individuals and groups who do not represent a danger to the safety of citizens, but rather to maintain the status quo and the privileges of a minority.

This abuse of power has a profound cost in terms of human rights, manifesting itself in discrimination, the use of lethal force, torture, arbitrary and excessive imprisonment, disproportionate sentences and inhumane conditions of detention. This situation is compounded by intersecting forms of oppression based on the gender, age, disability, race, ethnic origin, nationality and/or social class of people who are already marginalised. The populations most affected by this criminalisation of status, poverty and activism are also those most affected by phenomena such as prison overcrowding, pre-trial detention, loss of family income, loss of employment, etc.

In 2021, the campaign, which brings together lawyers, jurists, members of the judiciary, activists and experts from more than 50 organisations, won some important victories, including landmark cases against various laws before national courts in Africa. These include the adoption of principles on the decriminalisation of minor offences by the African Commission on Human and Peoples’ Rights, and the establishment by the Pan-African Parliament in 2019 of guidelines for a normative/model law on policing.

The Campaign therefore represents a real opportunity for a global change in criminal and social laws, policies and practices. For the first time, civil society is focusing on the common dysfunctions of the criminal justice system and establishing, among other things, the links between colonial criminal legislation and the criminalisation of poverty, in a global context of shrinking civic space.

The campaign has been organised through several committees: a global committee, of which ASF is a member, and thematic and geographical sub-groups to ensure greater representativeness of stakeholders and greater impact.

Avocats Sans Frontières is a member of the coordinating committees of the Francophonie and North Africa sub-groups respectively. This structuring is intended to further strengthen the campaign’s research objectives, priorities and targets in terms of advocacy and awareness-raising.

On the occasion of the 18th Summit of the Francophonie, held in Djerba on 19 and 20 November 2022, ASF and its partners in the Tunisian coalition for the decriminalisation of minor offences and poverty, organised a parallel event in Djerba during which demands were made to the Organisation Internationale de la Francophonie (OIF), contained in a public document entitled the “Djerba Declaration”. The signatories believe that the OIF could and should play a central role in promoting the values of human rights, and promote the decriminalisation of minor offences which, in addition to their discriminatory nature, exacerbate the phenomena of prison overcrowding, which are themselves responsible for the worsening of inhumane and degrading conditions of detention.

The French-speaking sub-group, of which ASF is a member, started a series of internal consultation meetings in March 2023. These should lead to the drafting of a common vision and common objectives for its members, aligned with the campaign’s overall strategy charter that will bring together the common vision and objectives of its members. It will serve as the basis for an advocacy strategy vis-à-vis influential players such as the European Union and its member states, the African Union and its member states, the various European institutions responsible for cooperation policies, and the institutions and mechanisms of the United Nations.

ASF’s Euro-mediterranean regional hub

This article is part of ASF’s 2022 annual report.

In 2018, ASF launched a regional hub in the Euro-Mediterranean region, based in Tunis, with the aim of pooling resources and strengthening and harmonising its action in the region. The innovative aspect of the regional office is to fully assume the historical, economic, political and cultural links that exist between the two shores of the Mediterranean, and to take them into account in order to put in place action at regional level that is coherent and efficient.

The Euromed Hub is made up of five members and the country directors for Morocco and Tunisia. It collects and analyses data from the field in order to guide decision-making processes at national and European level. The hub provides strategic guidance to the region’s offices and identifies opportunities for developing and consolidating partnership networks at both national and regional level. The hub also provides technical support to the country offices in terms of financial management and human resources.

Three eminently transnational and global issues, which in their own way shape relations between the two shores of the Mediterranean, have been identified as thematic priorities for the region:https://asf.be/development-of-regional-approaches-the-regional-hubs/

a)            Migration: all the countries to the south of the Mediterranean are countries of origin (Tunisia, Morocco) and transit (Algeria, Libya) for migrants. On the European side, migration is taking up an inordinate amount of space in the public debate, and the policies implemented by the European Union and its member states flout the fundamental rights of migrants.

b)            Freedom and security: the fight against terrorism and violent extremism can give rise to public policies that restrict freedoms and civic space and hinder democratic transitions and people’s fundamental freedoms. This is true for the south and the north of the Mediterranean Sea, where a proliferation of exceptions to the principle of the rule of law for health and security reasons is threatening the “consolidated democracies” of the European continent.

c)          Combating the impunity of economic actors: economic interests maintain a system of dependence from the south to the north of the Mediterranean. The conduct of European economic players in Africa has a major impact on increasing social inequalities and on the environment, and can sometimes be a determining factor in conflict (at local, national and international level).

ASF’s annual report is available!

The Avocats Sans Frontières team is delighted to present its latest annual report.

We have come a long way since ASF was founded in 1992 by a group of Belgian lawyers. Over these 30 years, hundreds of people have contributed to making the organisation what it is today: a militant organisation active in a dozen countries, working to promote access to justice and the rule of law based on human rights, in close collaboration with local actors.

These thirty years of action, the local roots we have developed and the links we have forged with human rights defenders from the four corners of the world give us a great deal of strength and confidence as we look to the future and continue to deploy impactful action in the service of populations in vulnerable situations (women, children, the LGBTQI+ community, ethnic minorities, people in detention, people in migration, etc.).

But the challenges are many. All over the world, civil society organisations and human rights defenders are faced with worrying developments and trends: the rise of authoritarianism, the shrinking of civic space, growing public distrust of institutions, heightened social tensions, etc.

Defenders of human rights and access to justice have to work in contexts that are increasingly hostile to them. The very notions of human rights and the rule of law are being called into question. Activists, lawyers and journalists working to defend the fundamental rights of populations in vulnerable situations are increasingly systematically targeted by repressive policies.

Every page of this report bears witness to the vigour of the flame that drives those who are committed to upholding human rights at the very heart of our societies, at the risk and peril of their own freedom. This report is a tribute to each and every one of them.

600 days after Article 80 : From the state of exception to the establishment of autocracy

The Alliance for Security and Liberties (ASL), of which ASF is a member, has published its fifth report on the rule of law and the state of freedoms in Tunisia. Begun in the aftermath of President Saïed’s coup de force on 25 July 2021, ASL’s quantitative and qualitative monitoring and analysis of the events, decisions and reactions that followed the controversial vote on the new Tunisian Constitution on 25 July 2022 is presented in this fifth edition.

More than a year and a half ago, on 25 July 2021, President Saïed activated Article 80 of the Constitution and established a state of emergency. This date marked the beginning of his dismantling of the institutions resulting from the post-2011 transition: parliament frozen and then dissolved, constitutional bodies dissolved, full powers by decree, ratification of a Constitution unilaterally drafted by Saïed and voted under deleterious conditions…

The picture painted by this bulletin leaves little doubt as to President Said’s autocratic intentions and his desire to close the chapter of democratic transition in Tunisia once and for all. He unilaterally imposes a political project with vague outlines but which is certainly vertical, authoritarian and populist.

Several trends and developments emerge from the monitoring and analysis work of the Security and Freedom Alliance.

At the institutional level, the period was marked by the vote and ratification of the new Constitution, which established the hypertrophy of the executive to the detriment of the legislative and judicial powers, which were considerably weakened. The polls leading up to the vote on the Constitution and the election of the first chamber of Parliament were characterised by their incompatibility with electoral norms and historically low turnout. The judiciary continues to be attacked and dismantled against the backdrop of a major socio-economic crisis.

At the same time, rights and freedoms continue to be eroded, in a context of instrumentalisation of the judiciary and the security apparatus, and repression of opponents, the press and trade unions. Arbitrary administrative measures to restrict freedoms and the adoption of liberticidal decree-laws have become common practice. The last few months have also been marked by a campaign of racist violence – supported by the state’s hateful rhetoric – against sub-Saharan populations, at a time when more and more migrants (Tunisian or not) are trying to reach Europe by sea, risking their lives.

Finally, the vice is tightening ever more on an opposition that is struggling to form a united front against the regime. The political scene remains unstable and shifting. Several opposition initiatives (civil and political) coexist but do not manage to constitute an opposition force capable of challenging the President’s authoritarian designs, while some of his allies are distancing themselves.

On the international scene, Tunisia is isolating itself. Condemnations have been mounting and even intensifying since the waves of arrests of public figures in recent months and the deployment of xenophobic rhetoric against sub-Saharan migrants. It is in this context that the President is undertaking diplomatic efforts, particularly with Arab states, to obtain international support.

L’Alliance pour la Sécurité et les Libertés

The Alliance for Security and Liberties (ASL) is an alliance of Tunisian and international civil society organisations based in Tunisia which, in the continuity of the Revolution of Freedom and Dignity, reflects, mobilises and acts so that Tunisia consolidates the construction of a democratic state whose public policies are at the service of the citizens guaranteeing peace, respect for their human rights and equality between all.

Reports

Four periodic bulletins have already been published 50, 100, 200 and 365 days after 25 July 2021.
Find all the reports of the Security and Liberties Alliance.

365 days after article 80

200 days after article 80

100 days after article 80

50 days after article 80

Tunisia: From the state of exception to a populist and authoritarian turn

ExPEERience Talk ‘Authoritarian drift in Tunisia: diagnosis and power mapping’ (Webinar)

???? Thursday 30 March: 12pm (Tunisia) / 1pm (Brussels) / 2pm (Kampala)
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???? Download the last report “365 days after article 80”, published by the Alliance Sécurité et Liberté

Tunisia: From a state of exception to a populist and authoritarian turn

Tunisia was considered the democratic exception in the region after the Arab revolutions of 2011 until the activation of article 80 by President Saied on 25 July 2021. That day, the country entered a state of exception (suspension of parliament, dismissal of the head of government and the President’s takeover of the executive and legislative branches) and it generated a rule of law crisis that now threatens to put an end to Tunisia’s democratic transition process.

This authoritarian turn, the end of the separation of powers, ratified by the new Constitution voted one year later (July 2022) by less than a third of the electorate, has been accompanied by increasing and major attacks on the rule of law and on rights and freedoms. The arbitrary dismissal of judges, the press and media being increasingly hindered, opponents, lawyers, trade unionists and journalists being prosecuted and arrested. Civic space is shrinking every day and civil society organisations seem to be the next target. The independent institutions created by the 2014 Constitution, such as the Supreme Council of the Magistracy (CSM), the Constitutional Review Body for draft legislation (IPCCPL) and the Anti-Corruption Commission (INLUCC) have also been meticulously dismantled. The ISIE, the body in charge of elections, which is now subservient to the government, organised legislative elections in December and January to which the overwhelming majority of Tunisians (89%) refused to participate. Finally, the rise in xenophobia, fuelled by the President’s racist and conspiratorial remarks in February 2023, has generated an unprecedented wave of violence against black people, mainly sub-Saharan migrants.

Furthermore, an economic and social crisis continues to worsen, generating impoverishment and the departure, at the risk of their lives, of many Tunisians and migrants from the coast. The country is also still struggling to reach an agreement with the International Monetary Fund (IMF) and the prospect of default is getting dangerously close.

« 500 days after article 80 » : The monitoring of the Alliance Sécurité et Libertés

Since 25 July 2021, ASF and the members of the Alliance Sécurité et Libertés have been monitoring the consequences of President Kais Saied’s actions on the situation of the rule of law and freedoms in Tunisia. Through a qualitative and quantitative analysis, four periodic bulletins have already been published 50, 100, 200 and 365 days after 25 July 2021. The next bulletin to be published, which will cover developments since the vote on the new Constitution unilaterally drafted by President Saied, will offer an analysis of the serious deterioration of the country’s situation in recent months.

The analysis of the political and institutional landscape (I) will focus on the new distribution of powers under the 2022 Constitution, the massive abstention in the last year’s elections following electoral processes that flouted all standards of free elections and the emergence of new institutions of dubious legitimacy and independence, as well as on the situation of the judiciary and the socio-economic crisis the country is going through.

Rights and Freedoms (II) will address the instrumentalisation of justice against opponents of the regime, the repression of the press and media and of trade union work, as well as the migration situation in Tunisia and the massive violence suffered by black people in the country.

Finally, the positioning (III) will analyse the recompositions of the Tunisian political scene and their positions regarding the President’s “roadmap”. It will also analyse foreign reactions to the regime’s excesses as well as Tunisia’s diplomatic policy, in particular its efforts at rapprochement with the Arab states and Italy.

ExPEERience Talk

How did it come to this? What is the state of resistance to these abuses? What are the prospects for the future?

In order to provide answers to these questions and provide an analysis of the authoritarian turn in Tunisia, we will welcome Lamine Benghazi (programme coordinator for ASF in Tunisia) and Mahdi Elleuch (coordinator of the research department for Legal Agenda in Tunis) on Thursday 30 March for our 8th ExPEERience Talk. Entitled “Authoritarian drift in Tunisia: diagnosis and power mapping“, this Talk will take the form of a dialogue between our two guests, followed by an exchange with the participants, concerning the current situation in Tunisia, its stakes and its consequences, based on the analysis carried out within the framework of the report “500 days after article 80” which will be published soon.

You can register now at the following link.

The Alliance Sécurité et Libertés

The Alliance Sécurité et Libertés (ASL) is an alliance of Tunisian and international civil society organisations based in Tunisia which, in the continuity of the Revolution of Freedom and Dignity, reflects, mobilises and acts so that Tunisia consolidates the construction of a democratic state whose public policies are at the service of the citizens guaranteeing peace, respect for their human rights and equality between all.

Reports

Find all the reports of the Alliance Sécurité et Libertés. The report ‘500 days after Article 80’ is currently being written and will be available soon.

365 days after article 80

200 days after article 80

100 days after article 80

50 days after article 80