The Problem with Tunisia’s New Constitution

After two and a half years of work, Tunisia’s National Constituent Assembly (NCA) is scheduled to approve a final version of the country’s new constitution by Jan. 13. The vote will take place just before the third anniversary of the fall of former dictator Zine Abidine Ben Ali, who fled the country on Jan. 14. 2011.

International observers have praised a provision in the draft Tunisian constitution known as Article 6, which grants freedom of conscience. But many have failed to notice that the article has a significant flaw. The second clause of Article 6 stipulates that the state has a duty to protect religion, paving the way for future laws prohibiting blasphemy and curbing freedom of expression.

Article 6 has been made even worse by Tunisia’s secular opposition, which pushed for a revision to prohibit takfir, the act of declaring a Muslim to be a kafir, an "infidel" or apostate. Apostasy is taken seriously in Muslim societies, many of which deem it a crime worthy of death. Declaring their enemies to be apostates is thus a convenient way for religious extremists to justify their assassination.

The clause to prohibit takfir was endorsed by opposition members of parliament after Habib Ellouz, an NCA member affiliated with the Ennahda party (the moderate Islamist party that swept Tunisia’s first post revolution election), called MP Mongi Rahoui an "enemy of Islam." Rahoui, a member of a populist opposition party, had spoken out against Article 6, which initially established Islam as the religion of the state. (The photo above shows Rahoui voting during an NCA session on Jan. 8.)

Ellouz, the Islamist politician, told a local radio station that Rahoui’s alleged anti-Islamic ideas were a product of secular thinking: "The word Islam makes [Rahoui] nervous. He wishes the constitution did not include any reference to Islam or religion."

Rahoui claimed that he received death threats following Ellouz’s statements. In response, he accused the Islamist MP of stirring "strife and division" in an already polarized Tunisian society.

"I am Muslim. My father is Muslim. My mother is Muslim. My grandfather is Muslim. And I don’t need a certificate from you or anyone else," the secular opposition member said when addressing Habib Ellouz and other MPs during a plenary session of the NCA on Jan. 5.

The incident prompted opposition members to demand that Article 6 be revised to ensure freedom of religion and freedom of conscience. The amended version now reads, "The state protects religion, guarantees freedom of belief and conscience and religious practices, protects holy places, and ensures the neutrality of mosques and places of worship from partisan instrumentalization. Accusations of apostasy and incitement to violence are prohibited."

Constitutional expert Slim Loghmani said that Tunisia does not need to criminalize apostasy because incitement to violence is already banned in the Tunisian penal code. Instead, he said, NCA members should seek to strengthen those sections of the draft that guarantee rights, liberties, and checks and balances.

Others saw the new provision as a potential threat to freedom of expression. Amna Galleli of Human Rights Watch said the constitution is not a place for prohibitive legislation. "We all know that incitement to violence is not freedom of expression, even in international law," she said. "But Article 6 as it is now bears a contradiction. The first part grants freedom of conscience, including the freedom to be an apostate or atheist — but then it prohibits deeming someone to be an apostate."

This article limits the freedom of expression, because it fails to provide a clear definition of apostasy, and does not specify whether apostasy is prohibited in all cases, or only when it implies an incitement to violence. The opposition presents itself as a bulwark against creeping Islamization and conservative attempts to curb liberties. But in their efforts to prevent themselves from being dismissed as infidels, members of the secular opposition have actually pushed for a provision that limits freedom of speech — specifically, the freedom of speech for Islamists. The secularists did this by taking away the Islamists’ most powerful rhetorical tool: religion.

The secular opposition has always felt targeted and demonized by its rivals for advocating separation of religion and state. Tunisia’s relatively conservative society still confuses secularism and atheism, and a sheikh can easily turn the public against the opposition by interpreting secularism as "an enmity to Islam."

This incident proves that Tunisia still has a long way to go to before it can openly discuss the relationship between religion and state. Religion still plays a prominent role in public life in Tunisia; faith is almost never considered a private matter. The first article of the constitution enshrines Islam as the religion of the country, and the newly passed provision establishes the state as the protector of the sacred realm. Even though the new constitution grants the freedom of religion and conscience, secular politicians still feel compelled to announce their adherence to Islam just to avoid being labeled an "enemy of Islam." The debate over the proper role of religion in Tunisian society is central, and reveals, like few other issues do, just how polarized Tunisian society remains.

Asma Ghribi is a freelance journalist based in Tunis. She was formerly managing editor of the Tunisia Live website.