Legal Framework on Freedom of Religion
Tunisia has been a State Party to the International Covenant on Civil and Political Rights since 1969 and has signed, in 2011, the Optional Protocol accepting individual complaints procedures.
Tunisia is a predominantly Sunni Muslim society although it has a very small Shi’a Muslim community. Among the minority religions, the Christian communities stand out in number with 23,090 members (of which 19,000 are Catholics and 1070 are Protestants), although their number has increased recently as a result of an influx of foreigners from about 70 different countries, mostly from sub-Saharan Africa (students, young professionals, domestic, and construction workers, etc.) but also from Europe and the Middle East. The other faithful, apart from women from “mixed” marriages and from the former resident community who sometimes have dual nationality, are generally representatives of foreign states or companies or development workers. There were 100,000 Jews in Tunisia before the country's independence from France in 1956; today, there less than to 2000. With these departures, a large part of the Jewish heritage was abandoned. In Sousse, Monastir, and Nabeul, the Tunisian Jewish community, supported by the local authorities, is working to restore the sites of a neglected religious culture. There is also a small community of Baha’is (2,364).
There were several changes of note in the law during the period under review. The application of the law was affected by the state of emergency declared on 24 June 2021 due to the pandemic, which was subsequently prolonged to 31 December 2023. More importantly, after two presidential decrees issued in July 2021 terminating the functions of the government and suspending the powers of the Assembly of People's Representatives, the President announced a roadmap on 13 December 2021, including a continued freeze of the Assembly of People’s Representative, the holding of elections on 17 December 2022, and a referendum on a draft revision of the constitution. President Kaïs Saïed had already dissolved the Superior Council of the Judiciary in February 2022 and dismissed 57 judges in June 2022. The new Tunisian Constitution was adopted by referendum on 25 July 2022 and entered into force on 17 August 2022. Approved with 94.6 percent of the votes, the turnout was very low at 30.5 percent. Even lower was the participation in the 17 December 2022 legislative elections (only 11.22 percent of voters) after most political parties boycotted the vote. The second electoral round of 29 January 2023 also saw a weak participation at around 11.3 percent.
The new 2022 constitution declares that the state guarantees freedom of belief and conscience (Article 27) and protects the free exercise of religion (“cultes”) “as long as it does not endanger public safety” (Article 28). It stresses in its Preamble the concern of the Tunisian people “for the human dimensions of the Islamic religion”, considers Tunisia to be a “part of the Islamic nation”, and declares its intention as a state to work “in a democratic regime, to achieve the vocations of authentic Islam, which are to preserve life, honor, property, religion and freedom” (Article 5), and to guarantee “that the younger generations are rooted in their Arab and Islamic identity and national belonging…” through compulsory education (Article 44, paragraph 3). The religion of the President of the Republic as the Head of State is declared to be Islam according to the constitution (Article 88).
Concerns have been expressed regarding the extraordinary presidential competences enshrined in Articles 80 (the use of presidential decree-laws in the event of the dissolution of the Assembly of People's Representatives) and 96 (an imminent danger threatening the institutions of the Republic, the security and independence of the country, and impeding on the regular functioning of the public authorities) as these articles don’t explicitly mention the limits for the derogation of certain human rights (including the right to freedom of thought, conscience, and religion) that are proclaimed as non-derogable in Article 4.2 of the International Covenant on Civil and Political Rights. The adoption, in September 2022, of a new presidential decree combating crimes related to information and communication systems intensify the fears of a shrinking civic space and ascribes a punishment, in Article 24, for producing, promoting, or publishing undefined “false news or rumors”, of up to five years in prison and 50,000 Tunisian dinars (15,000 euros), and up to 10 years if such action is deemed to target public officials.
Article 317.1 of the Penal Code (Section III: Offences relating to Public Safety or Public Tranquillity) punishes, with 15 days’ imprisonment and a fine, anyone who serves alcoholic drinks to Muslims.
Antiterrorist legislation punishes by up to five years’ imprisonment and a fine of 10,000 dinars (3,000 euros), any person “accusing or calling for apostasy, or inciting or advocating hatred or animosity between races, doctrines and religions” (Article 14.8), and 20 years’ imprisonment and a fine of 100,000 dinars (30,000 euros) if there is personal injury. Hindering or disturbing the practice of religion is punished by six months’ imprisonment and a fine of 120 dinars (36 euros) (Article 165). Forcing someone by violence or threats to practice or refrain from practicing a religion is punished by three months’ imprisonment (Article 166). Article 226 of the Penal Code penalizes public indecency by six months’ imprisonment and a fine of 48 dinars (14 euros), but it is also used to punish eating and drinking during Ramadan.
The provision of the Code of Personal Statute governing custody declares that “the holder of custody rights of a denomination other than that of the child’s father may only exercise this right as long as the child has not reached the age of five and there is no reason to fear that the child will be brought up in a religion other than that of his father”. In terms of succession, a will is valid even when the testator and the legatee are not of the same faith.
Incidents and Developments
In August 2021, Slimane Bouhafs, an Algerian Christian convert and a refugee living in Tunisia since 2018, was kidnapped in the city of Ettahrir and was forcibly returned to Algeria to face terrorism charges. In 2016, he had been sentenced to three years in prison for “insulting the State’s religion and the Prophet” on social networks.
In early February 2022, the launch of a “National Charter for Peaceful Coexistence”, promoted by the local NGO Attalaki, was signed by representatives from religious communities including Jews, Evangelicals, Ba’hais, Sufis, and Shi’a. The Charter, which is not legally binding, urged an end to violence, extremism, and hatred, and called for guarantees to the rights of religious minorities to differ and to demonstrate their beliefs in public.
In April 2022, four individuals — two employees and two customers of a café in the Manouba district of the metropolitan area of Tunis, also called “Grand Tunis”— were arrested after citizens alerted their presence to the police. The defendants were arrested for public indecency, according to the provisions of Article 226 of the Penal Code, and for violations of municipal regulations since the establishment opened its doors during fasting hours without prior authorization. The case was dismissed by the cantonal judge.
Among the legal provisions, local authorities also rely on the famous “ghost circular” of July 1981 issued during the administration of former Prime Minister Mohamed Mzali. This edict is used every Ramadan to force cafés and restaurants to close their doors and to punish non-fasters at the same time. Each year, the police inspect bars and restaurants that are serving alcohol, even tourist restaurants, and force them to close on the grounds that it is a religious holiday (either Fridays, Ramadan, or another religious feast). This has provoked controversy in some parts of society. Some cafés and restaurants remain open, but they no longer serve alcohol, which is otherwise unavailable in supermarkets.
Some media have been curtailed in their freedom of expression by Tunisia’s media regulator HAICA (in English, High Independent Authority for Audio-visual Communications), including the Quran Kareem religious radio station that has operated for years without a license, and has been accused of “promoting hate speech to incite violence and hatred.” On 17 March 2022, the HAICA sent a letter to the Tunisian television el-Wataniya 1, drawing attention to its program "Religion is Value", which was broadcast on 3 March 2022, for the “instrumentalization of religion for political propaganda”, on the basis of the provisions of Decree-Law No. 116 of 2011, and the rules and ethics of the journalistic profession. HAICA singled out the 3 March program "Eddin Kiyam", which addressed the lack of interest from young people in the national consultation by insisting on the importance of the Shura in Islam in order to persuade them to participate. The same TV channel received another formal notice on 20 October 2022, for a 7 October program "Naby Errahma", regarding an inappropriate treatment of a religious figure on the date of the celebration of “Mawlid” (the birthday of the Islamic Prophet Muhammad). Tunisia’s media regulator also shut down Zitouna TV, a local television backed by parliament’s largest party Ennahdha, for operating without license.
Nearly 5000 visitors attended the traditional Jewish Ghriba pilgrimage on the island of Djerba, Tunisia, which ended on 22 May 2022, after a two-year hiatus due to the coronavirus. The oldest African synagogue attracts Tunisian Jews from all over the world. Although the overall Jewish community has shrunk considerably in the Maghreb, it remains strong in Djerba.
Although proselytising has been forbidden in Tunisia since it became independent, each year a handful of Tunisians convert to Christianity and celebrate Christmas, more often in community than with their families, as the issue is still taboo. There are currently nine Catholic schools integrated into the Tunisian school system that are under the jurisdiction of the Archdiocese of Tunis. The traditional annual procession of the Madonna of Trapani in La Goulette, to mark the Feast of the Assumption on 15 August, was relaunched in 2017. Since then, it has attracted hundreds of Christians, Muslims as well as the mayors of Tunis and La Goulette. It started after Tunisia’s Muslim ruler Ahmed Bey —whose mother was a Sardinian Christian — donated a piece of land for the building of a church in 1848.
In November 2022, the UN Special Rapporteur on freedom of religion recommended that Tunisia ensure that the Baha’i community be able to secure a legal personality to enable members to manifest their faith in accordance with Article 18 of the International Covenant on Civil and Political Rights.
Prospects for Religious Freedom
Although some cosmetic gestures toward the acceptance of aspects of the fundamental right to religious freedom have taken place – most notably signing of a “National Charter for Peaceful Coexistence” – the facts that apostasy and proselytism are still criminal offenses, and that there is no opportunity to choose a religion other than that of the father, undermine measures towards “peaceful coexistence”. Tunisia is still a country with only some freedom of worship, and there is no reason to believe this will change. The prospects for freedom of religion remain dim.
Tunisia