If Article 95 of the draft constitution on defense and internal security is unamended, Tunisia risks seeing the establishment of armed groups, some legal experts argue.
“No armed organizations … that are not under the flag of the national army or internal security shall be formed except under a law,” reads the article.
Tunisian lawyer Abdessatar Zaafrani stated to Tunisia Live that Article 95 not only poses a threat to the civil state, but also civilians themselves. The presence of armed organizations – operating outside of the state – would detract from the government’s authority, posited Zaafrani. According to German socialogist Max Weber, the state has a monopoly over the legitimate means of violence. In such a way, the state’s capacity to protect civilians would be undermined as well, he asserted.
The given article does not serve the ends of the state, Zaafrani asserted.
“The article 95 cannot be further from everything judicial, since the constitution is written by unqualified people,” he said.
Ziad Laathari, a member of the ruling Ennahdha at the National Constituent Assembly (NCA), explained to Tunisia Live that the debate over Article 95 has arisen due to a general misinterpretation of the phrasing in the text.
“There has been confusion in understanding the article. What was meant by the exception is armed entities like jail personnel, customs, and security providing firms,” Laathari said. “They do not fall under the army or National Guard category, but they are still the state’s responsibility.”
Article 95 will nevertheless be rectified to avoid loopholes and misinterpretations, assured the NCA member.
The potential authorization of armed groups is not the only area of concern in the article. Another provision allows for the legal prosecution of security forces in the event that their work performed “overthrow[s] the democratic regime or electoral legality.”
Such a phrasing would hold army and National Guard personnel accountable for their judgement of whether certain commands from their superiors undermine the authority of the democratically-elected government or not, pointed out Zaafrani.