June 2017
Tunisia

LAW 52 : THE NEVER-ENDING DEBAT

By Frida DAHMANI
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Every year, thousands of people, often young, end up in jail for smoking a joint, shattering their lives. Yet amending the repressive legislation seems impossible.

In 1992, Tunisia’s parliament passed Law 52 penalising drug use, a tool Zine el-Abidine Ben Ali’s regime used to crack down on youth and opponents. But the 2011 revolution neither slowed the arrest rate nor stayed the judges’ heavy hand. On the contrary, nearly one-third of Tunisia’s prison population is serving time for drug use. The average sentence is a year. Casual smokers convicted of being found with a few grams of grass on them share cells with hardened criminals and extremists. At El Mornaguia prison, near Tunis, 12% of the inmates convicted of terrorism had previously served time for using drugs.

Civil society is raising awareness of Law 52’s impact on individuals and demanding its repeal. During the 2014 election campaign, Beji Caid Essebsi promised to amend it, but the bill submitted to parliament was hijacked by political parties and lawmakers who seem to know little about the issue, especially its social impact and the collection of data necessary to formulate a public policy. They confuse prevention and lighter or reduced sentences with laxity. Today, amending Law 52 is a matter of public debate. Attorney Ghazi Mrabet, 37, leads the charge on behalf of NGOs demanding amnesty for all those convicted under the law. He discussed the divisive issue in an interview with AM.

 

Ghazi Mrabet : “Taboos must be broken”

An activist lawyer and prominent member of the bar since the Revolution, he is the leading defender of the accused and the spokesperson for those campaigning to change the law.

 

AM: What does Law 52 say, and why did Ben Ali have it passed?

Ghazi Mrabet: The 4 November 1964 law criminalising drug use in Tunisia remained in force until 1992, when Ben Ali seems to have enacted Law 52 as we know it today with a view to quieting criticism after a Paris court sentenced his older brother, Moncef Ben Ali, to 10 years’ imprisonment for money laundering and drug trafficking in the “couscous connection” case. The crackdown, which targeted users and not traffickers, established mandatory sentences of one to five years’ imprisonment and a fine of 1,000 to 3,000 dinars with no possibility of taking extenuating circumstances into account. The number of convictions has risen since the authorities started using urine test kits.

Although Law 52 requires neither screening nor urine tests, according to criminal law they are admissible as evidence in court. Suspects have the right to refuse to take the test, but the police compel all those arrested for use to provide a urine sample, sometimes by force and torture, sometimes just by spraying their necks with water, causing a urination reflex. Despite repression and sanctions, the number of users is rising at a steady pace. The number of arrests has led to shady deals and corruption. Judges, lawyers, bailiffs and other third parties have been mixed up in clearing or releasing suspects.

Law 52 has been challenged often since the Revolution.

Reform was mentioned even before then, but campaigners really started making their voices heard in 2011. Slim Amamou, then Secretary of State for Youth, was the first to broach the subject and come out in favour of depenalisation. That did not keep the pace of arrests from picking up, especially of artists, like the rappers Weld El 15, Emino and Madou Mc. On 7 March 2012, the police forced around 40 protesters opposed to Law 52 to end the first sit-in in front of the national Assembly and arrested three young people.

Since then, we’ve brought every arrest of an artist, activist and blogger, such as Azyz Amami, Sabri Ben Mlouka and Adnen Meddeb, to the media’s attention. The issue was back on the front page, giving us an opportunity to tell some stories and show the need for reform. On 14 March 2014, an open letter was sent to Prime Minister Mehdi Jomaa.

It was entitled “Stop the Hypocrisy” to underscore the fact that casual users are arrested while traffickers are left alone. Tunisia does not produce cannabis—it mainly comes in over the Algerian border—but not a single drug baron or big trafficker’s name is known. That’s quite odd in a small country where everybody knows everybody. Before 14 January, Moncef Ben Ali or the Trabelsi family, Ben Ali’s in-laws, were mentioned. They’re gone, but use continues to soar. Why? It’s also necessary to break taboos, alert families, warn parents: “If your children smoke, don’t be shocked if they’re arrested.” Strangely, just when debate of the new bill began in the National Assembly on 3 January, cannabis started running short; supply dried up because of tighter border controls in Algeria. It took the smugglers nearly two weeks to find a new way in.

If reform is inevitable, why is the bill stalled in the National Assembly?

There are two bills. One, which I call the Beji Caid Essebsi (BCE) bill, was adopted by the Council of Ministers chaired by the President on 30 December 2015. The part on sanctions is acceptable. It proposes escalating penalties. The first time a person is arrested, he’ll just have to pay a fine of 1,000 to 2,000 dinars if he agrees to medical and psychological counselling. The second time, the fine rises to 2,000 to 5,000 dinars. The third time, the penalty is six months to a year and a fine, with the judges able to take extenuating circumstances into consideration. A prison sentence can also be replaced by community service.

This is acceptable. The bill was on hold for nearly a year while the National Assembly’s general legislation committee took it up. The hearings of officials, including the Interior, Justice, Health and Sports and Youth Ministers, only began on 3 January 2017. Arguing that they don’t understand some legal terms, the MPs asked experts from the Ministry of Justice to revise the bill and return it to them.

They wanted it to be more explicit on the meaning of addiction, traffic and personal use. A bill adopted in the Council of Ministers and presented to a committee normally does not return to the ministry, but this one did without following the proper procedure, which requires it to take the same path and return to the Council of Ministers before returning to the National Assembly.

So this was a technicality, but not wanting to hold the bill up any longer than it already was we didn’t make a fuss about it. Meanwhile, the bill was amended; the 84 articles were reduced to 76 and the articles on escalating penalties disappeared. There was just one article on use, which says that users or possessors can receive a minimum of one year in prison and a 5,000-dinar fine, with the possibility of taking extenuating circumstances into account. Knowing how conservative the judges are, they will apply the maximum sentence.

This new bill, which is similar to Law 52, is the one that was submitted to the MPs. Consequently, several civil society organisations, including Al Sajin 52, ASF, EuroMed and FIDH, asked to be heard by the committee. Taieb Madani, the committee chairman and a member of Nidaa Tounes, turned down their request without offering any explanation. Civil society and the media pressured him into changing his mind. Some committee members, like Nadhir Ben Ammou, switched their positions on criminalisation and prison after the hearing.

Hasn’t the issue become political? Shouldn’t the Nidaa Tounes MPs who refuse to go back on the bill side with the position of their founder, Beji Caid Essebsi?

A part of Nidaa Tounes is convinced, rightly or wrongly, that the future belongs to Ennahdha, practically the only party that hasn’t stated an opinion on the bill. They’re waiting to find out what its position is before coming around to it. Lotfi Zitoun (Rached Ghannouchi’s political advisor) spoke out in favour of individual freedoms.

Although this is just a vote-getter, his comments are revolutionary compared to those of the other parties, even in the democratic family. He rejects any form of punishment, preferring therapy. Almost everybody wants depenalisation, but a Nidaa Tounes leader, Lazhar Akremi, calls for imprisonment with a discretionary right for judges; that means nothing. Ennahdha has not expressed an opinion. It is listening to the fears of families and the suffering of parents whose children are in jail, while MPs like Bochra Belhaj Hamida are against incarceration.

Was the first bill satisfactory?

It proposed escalating penalties, which remains debatable, but sanctioned the refusal of urine tests with prison. No distinction is made between different drugs and the current classification table is simply appended to the bill. It should be separated from the bill and presented in a decree so that it can be updated and new drugs included as they appear. Otherwise, the law would have to be constantly amended.

It also provides for creating a registry held by State prosecutors listing those who appear in court on a drug charge regardless of whether or not the appearance results in a conviction. Knowing our courts, how will this registry be used? A secure database must be created for those convicted in a court of final instance.

 It also includes an incitement clause, which may infringe upon freedom of speech. For example, a judge will be able to consider that posting a photo of marijuana with “Legalize it” on social networks is an incitement to use. The BCE bill calls for 10 to 20 years’ imprisonment for dealers, while the 12 January 2017 bill provides for 20 years to life.

That’s absurd when you stop to think that only small-scale neighbourhood dealers, the small fry, are arrested, never the big shots, and penalties range from six to 10 years. The second bill punishes those who roll a joint and share it with two to six years in prison. It calls for a double penalty for foreigners: in addition to a fine or a year in prison, the convicted person is barred from entering Tunisia for 10 years in the case of use, life in the case of trafficking. Lives and entire families will be ruined just for a joint. When I demonstrate how nonsensical these measures are, I am met with populist arguments: “What do you want us to do with them? We obey our laws, why can’t they!”

The president has announced that arrests will be suspended until a new law is passed.

Discussion of the bill has stalled. The president has acknowledged that we’re in a dead end and a consensus must be reached. He was alarmed by the growing number of arrests, such as of the two boys in Siliana who were taking the baccalaureate exam in June and were taken into custody because they had a somewhat empty look in their eyes: an arbitrary detention that can ruin their lives.

Beji Caid Essebsi’s initiative is ill-defined. By saying “no more arrests”, he seems to be proposing that suspects will no longer be taken into custody, which amounts to letting them off. They will walk into court as free persons after making a deposition. But in his speech, the president also said, “there will be no more prosecutions”, which can mean that prosecutions for drug use would be suspended until Law 52 is amended.

In any case, this initiative complies with article 115 of the Constitution, which allows the Minister of Justice to draw up the State’s penal strategy and intervene accordingly on the application of Law 52. In all the lower courts, State prosecutors may be asked to stop prosecuting and arresting, because those two decisions depend on them and not the police. That is an important step. With drug users making up a third of the prison population, it will reduce overcrowding in jails, unclog the criminal justice system and let the police focus on finding real criminals.

Beji Caid Essebsi also wants to draw up a Civil Liberties Code. Is that necessary, given that the Constitution already guarantees freedom of expression and conscience and the protection of individuals and minorities?

The code suggested by Beji Caid Essebsi would repeal certain articles in the Penal Code, notably article 230, which punishes homosexuality with three years in prison without the possibility of parole. He had already mentioned that initiative a year ago without going into any details on its content.

 

WHEN KIF WAS LEGAL

Sadok Bey outlawed the planting of cannabis on 31 January 1875. The planting of hemp became illegal in 1900. But consumption was a long-standing tradition, especially since sales and distribution were a State monopoly. Many Tunisians can still remember when takrouri, or kif, was available at any tobacco shop in packets kept in leather pouches. It was reduced to a powder with a chopper before being tucked into waterpipes and smoked in cafes or with friends, a ritual common in both high society and poor neighbourhoods. Consumption was outlawed in 1964 but did not cease, and many people can remember an idealistic image transmitted by certain photographs from the colonial period: the takrouri smoker, or tkarli, a bouquet of jasmine sticking out of his chèche, who raised canaries to enjoy their singing. A somewhat bohemian character, an aesthete and a gentle dreamer, he had a “kif”, which in Tunisian dialect still means “to enjoy”. ■ F.D.

 

TESTIMONY

Rakia, 48, originally from Sfax, lives in an upscale Tunis neighbourhood. True to her values, she reported her child to the police for using drugs.

“I turned in my daughter”

“I often noticed a sweetish smell in Manel’s room after her friends stopped by. It didn’t take long for me to figure out what it was, and even less time to decide to stop her. It’s shameful that young people spend their time getting high while their parents make big sacrifices to ensure their future.

My daughter was in high school, going through her adolescent crisis; she ignored all our efforts to convince her to stay away from that group of friends, so I decided that the only solution was to report her. It unleashed a tidal wave in our lives. Since the policeman I reported her to was friend of mine, I was sure they would just go through the motions and give my daughter a good dressing down to scare her.

The sad irony is that Manel didn’t smoke but spent so much time with smokers that she had traces of THC in her urine. The law makes no distinction between passive and active smokers. With all her friends, she was convicted of using drugs and spent a year in jail, a year when I saw my daughter regress, lose her social bearings and adopt those of prison, a year when we couldn’t interact much during the 15 minutes a week we were allowed to see her in the visiting room, a year when I hid what had happened to Manel from everybody.

I told people she was away doing a hotel traineeship, even though she didn’t have her baccalaureate yet. I embroidered, made up stories, avoided family occasions and lied. After her release I wanted her to leave Tunisia and start a new life in Canada, where nobody would know anything about that awful year. I also thought of finding her a husband and organising an arranged marriage. My husband still holds a grudge against me. He blames everything on me and constantly says I’m a bad mother, a woman who just wants to impose her will.

He no longer speaks to me. Neither does Manel since coming out of jail. She’s lost all her joy in life and interrupted her education. The only thing she’s said to me is, “In fact, I smoked my first joint in prison.” Of course, I regret what I did. If I had only known. I did what my conscience told me to without realizing how monstrous it was to report my own daughter as though she were a criminal. I think I’ve ruined three lives.” ■ F.D

 
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