Ibrahim Ben Mohamed Ben Ibrahim Belguith vs Republic of Tunisia
On October 21st, 2021, Mr. Ibrahim Ben Mohamed Ben Ibrahim Belguith (the Applicant), filed an application instituting proceedings against the Republic of Tunisia (the defendant State) before the African Court of Human and Peoples’ rights (the ACHPR or the Court) for alleged violations of the African Charter of Human and Peoples’ Rights (the Charter) in its articles 1 to 5, 7, 11, 13 to 15 and 20.
The Applicant alleges that the President of the respondent State abrogated the Constitution, interrupted the democratic process and arrogated more powers to himself by issuing 5 presidential decrees, terminating the office of the Head of Government and the Government, suspending the powers of the Assembly of the Representatives of the People, waiving parliamentary immunity until further notice and appointing a new Government.
As a preliminary point, Tunisia raised objections relating to the lack of jurisdiction of the Court and inadmissibility of the application. After examining the matters, the Court concluded that the case was admissible and declared itself competent to hear it. It then turned to the merits of the case.
As regards, first of all, the alleged violation of the right to a hearing (Article 7 of the Charter), the Applicant alleges that one of the decrees issued specifies that decrees issued by the President of the Republic are not subject to appeal. He adds that the organization of the judiciary and the judiciary order is now done by these decrees, which would be contrary to the Constitution and the international commitments undertaken by Tunisia. The respondent State did not conclude on this point. The Court emphasizes that Article 7(1)(a) of the Charter makes it clear that the existence of a competent court is a sine qua non condition for the enjoyment of the right to have one’s case heard, including the right of appeal. This jurisdiction must exist de jure (in law) and de facto (in fact). In the present case, however, the Constitutional Court was not yet operational. The Court notes that there was also no other court or authority in the respondent State capable of adjudicating on constitutional disputes concerning the powers of the President. The Applicant was unable to challenge the constitutionality of the presidential decrees, which constitutes a violation of his right to have his case heard.
As regards, next, the alleged violation of the people’s right to self-determination and the right to participate in the conduct of public affairs (Article 20 of the Charter), the Applicant submits that these rights were nevertheless violated by the presidential decrees. Thus, a simple decision taken by a person who is the President of the Republic, constitutes a threat and a serious infringement of rights and freedoms, especially in the absence of any supervisory authority or counter-power and in the absence of an imminent danger. The respondent State did not reply on this point. The Court has confined its assessment to the allegation relating to the right to participate in the conduct of public affairs in the light of the nature of the applicant’s arguments and does not consider it necessary to examine the allegation relating to the violation of the right to self-determination. The Court notes that nothing in the file shows that the prerequisite conditions, namely the presence of an imminent danger threatening the institutions of the nation or the security and independence of the country, and the above-mentioned procedural requirements, were met before the President promulgated the decrees in question, limiting the powers of the other institutions. The restrictive measures taken by the respondent State were not adopted in accordance with the law and were also not proportionate to the objective pursued, which would be a violation of the right to participate in the conduct of public affairs.
Finally, with regard to the alleged violation of human rights (Article 1 of the Charter), the Court affirms that in so far as the Applicant’s right to have his case heard and the right to participate in the conduct of public affairs have been violated, it follows that Article 1 of the Charter has necessarily been violated.
The Court therefore orders the Tunisian State to repeal the above-mentioned decrees and to ensure the operationalization of the Constitutional Court.
This summary is provided for informational purposes only, does not involve the responsibility of Dome and should in no way be used as a substitute for a careful reading of the judgment and order of the case.
