(Picture Credit: Universal Periodic Review Report)

By Ramy Khouili and Daniel Levine-Spound

On December 4, 2015, Tunisian police arrived at a student apartment in Rakkada, a small town just outside of the holy city of Kairouan. Ostensibly searching for a missing college student, the officers arrested six men, all between the ages of 18 and 21, found in the apartment. According to the official report, police made the arrests after receiving information about “homosexuals” using a house in Kairouan for “sodomy.” After a night of abusive interrogations at a local detention center­, in which the men were beaten, subjected to continuous homophobic slurs, and repeatedly pressured to admit their homosexuality­­­, police forced students to undergo abusive “anal examinations,” by which doctors use a finger or a tube to “test” whether or not someone has been anally penetrated.

At trial, the judge continually referenced the medical report, interrogating the students as to whether they had had sex with one another. The court ultimately found all six defendants guilty of sodomy under Article 230 of the Tunisian penal code and handed down the maximum penalty: three-years imprisonment followed by three years of banishment from Kairouan. [1] In explaining the heavy sentence, the judge referenced the “impact of the crime on society,” and accused the defendants of engaging in “unnatural sexual intercourse” and seeking to “turn against the teachings and foundations of our society.”

Tunisian civil society organizations, LGBTIQ activists, and national and international human rights organizations reacted swiftly. Tunisian LGBTIQ advocacy groups Damj, Mawjoudin and Chouf rapidly joined with 12 other domestic and international organizations to issue a widely-disseminated declaration, criticizing the sentence as “medieval” and reiterating “their call on the Tunisian authorities to abrogate Article 230 and to revise all draconian provisions of the Tunisian Penal Code.” As growing numbers of lawyers, activists, and journalists publicly denounced the students’ sentence, prominent international media outlets and other INGOs picked up the story.

In spite of mounting public pressure, government representatives defended the prosecution­­­. Interior Ministry Spokesman Walid Lougini notably stated that Tunisia’s war on terrorism did not mean “that we are going to permit calamities in our society,” emphasizing further that it was the job of the legislature (and not of the executive) to change the law. ­­­But on appeal, an appellate court ultimately commuted the students’ sentences to one month’s imprisonment and a 400 dinar fine. The banishment charge was quashed.

Though striking in the severity of its initial sentence, the case of the “Kairouan six” is not unique. Human Rights Watch recently noted that at least seven Tunisians were prosecuted for sodomy under Article 230 between October 2015 and March 2016. And in a climate marked by “pervasive discrimination” and threats to the “personal safety” of LGBTIQ Tunisians, the government’s refusal to decriminalize homosexuality (or abandon anal examinations) represents a “leading challenge in the LGBTIQ quest for equality.”

Since the 2011 revolution, LGBTIQ Tunisians have increasingly made their voices heard. Numerous newly formed advocacy organizations, some with explicit government authorization and others operating informally, have played a critical role in shedding light on the violent consequences of Article 230. The rapid response and pressure campaign around the “Kairouan Six,” for example, is indicative of organizers’ growing ability to effectively mobilize human rights organizations, lawyers, and journalists immediately following Article 230 arrests.

Nonetheless, a full repeal of the law seems unlikely in the short-term. President Essebsi stated in a 2015 interview that modifications to Article 230 “have not taken place and will not take place.” But the government’s refusal has not stopped continuous efforts to challenge Article 230, with a repeated emphasis on the law’s unconstitutionality.

Upon the ratification of Tunisia’s new constitution in 2014, Tunisians and internationals alike celebrated a document widely hailed as of the most progressive constitutions in the Arab world. But the Tunisian Constitutional Court, tasked with ensuring the constitutionality of laws currently on the books, has yet to be implemented. In other words, Tunisia still operates under myriad laws and regulations which clearly contravene the country’s constitution. The 1913 penal code­­–and Tunisia’s century-old sodomy law­–remains in effect. [2]

THE UNIVERSAL PERIODIC REVIEW PROCESS

On February 21 2017, over 300 people gathered in downtown Tunis at the Cinema Le Rio, just behind the Ministry of the Interior, for a historic event. After months of intensive research and documentation, a coalition of five Tunisian LGBTIQ rights organizations presented a comprehensive human rights report specifically dedicated to LGBTIQ rights in Tunisia. Written for submission to the UN Human Rights Council in the lead-up to Tunisia’s 2017 Universal Periodic Review (UPR), the report marked an important first – the Human Rights Council had never received a report centered entirely on Tunisian LGBTIQ rights. The tri-lingual document meticulously detailed the ways in which Article 230 flagrantly violates Tunisia’s constitution and international legal commitments. [3] Among numerous arguments, the report stipulated that:

  • Article 230 constitutes discrimination on the grounds of sexual orientation in violation of Article 24 of the Constitution (equality before the law)
  • Enforcement of Article 230 necessarily includes infringement on personal privacy, a clear violation of Article 24 of the Constitution (the right to privacy)
  • Conducting anal examinations constitutes torture and is thus inconsistent with Article 5 of the Universal Declaration of Human Rights, Article 7 of the International Covenant on Civil and Political Rights, and Article 23 of the Constitution (protection of dignity and prohibition of torture)

The report called for the immediate repeal of Article 230, the prohibition of anal examinations as a form of evidence gathering for homosexuality, and a major overhaul of the penal code towards protecting the rights and freedoms of individuals.

After explaining the content of their research and the relevant legal provisions, the event’s hosts announced an ambitious and multi-faceted advocacy effort for the months ahead. While several activists would head to the UN in Geneva, others would remain in Tunis, engaging in consultations with Tunisian authorities and meeting with foreign embassies. A third group would undertake perhaps the most politically sensitive task of presenting the report in cities and towns across Tunisia, including in the country’s most religiously conservative regions. The strategy was simple: Tunisian LGBTIQ activists and their allies would engage, forcefully and publicly, with all relevant national and international stakeholders, making it known that Article 230 had no place in post-revolutionary Tunisia.

Their advocacy efforts bore fruit. During Tunisia’s UPR hearing before the UN Human Rights Council in May, 18 different countries (including the United States, France, Brazil, the United Kingdom, Argentina, and Germany) challenged Tunisia on human rights violations committed against LGBTIQ Tunisians, discrimination based on sexual orientation and gender identity, and anal testing. Though the Tunisian delegation did not accept recommendations specifically tied to homosexuality and gender equality, it did recognize the broader principles in question:

“Concerning discrimination on the basis of sexual orientation, under the constitution all forms of discrimination, hatred, and incitation to hatred are unconstitutional. Any person of any sexual orientation has full rights…Any act of aggression committed against any person on the basis of his sexual orientation is criminal and can be prosecuted.”

The delegation’s response marked the first time that a Tunisian government representative officially recognized discrimination on the basis of sexual orientation. The representative further stated that the President would soon propose a new “individual liberties” code, providing an opportunity for a larger debate about violations of personal freedoms currently enshrined in law.

Nearly two months after the UPR hearing, the repeal of Article 230 is hardly foreseeable in the short-term. But for the country’s increasingly visible LGBTIQ movement, major international attention focused on Article 230, official admission of the unconstitutionality of discrimination on the grounds of sexual orientation, and growing civil society engagement are critical steps in the right direction. If Tunisia is to live up to the promise of its 2014 Constitution, Article 230 cannot stand.

Ramy Khouili is a Tunis-based consultant for the United Nations Population Fund as well as for several international human rights NGOs. Twitter: @khouiliramy

Daniel Levine-Spound is a rising 2L at Harvard Law School whose research interests include International Human Rights law and transitional justice. Twitter: @dlspound


[1] One of the students received an extra six months for pornography discovered on his computer.

[2] Though it has undergone some revision since its initial promulgation, the 1913 code remains in effect.

[3] In addition to the report submitted by the country under review, the UPR Process allows civil society organizations to submit parallel reports to the UPR Working Group.

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