Introduction
On October 17, 2019, Hichem Snoussi, board member of the Independent High Authority for Audiovisual Communication (HAICAHaute Autorité Indépendante De La Communication Audiovisuelle ), declared that this Authority considers that “The 2019 elections were not impartial”[1] because some 2019 election candidates benefited from more specific media coverage than other candidates. These included appearances by Nabil Karoui, a first and second round presidential candidate, on the Nessma channel which supported his campaign and the Qalb Tounes Party. He also mentioned that the radio channel Quran supported Saïd Jaziri and the Errahma party while the Zitouna TV channel is close to the Nahdha party.
The HAICAHaute Autorité Indépendante De La Communication Audiovisuelle had sent the Independent Higher Authority for Elections (ISIEInstance Supérieure Indépendante des Elections ) a detailed report containing its finding that certain candidates had benefited from media coverage which is a violation of the equity and equality principles set out in the electoral Law[2]. This finding was not, however, taken into account by the ISIEInstance Supérieure Indépendante des Elections or even by the Administrative Tribunal.
One year after the elections, in October 2020, the Qalb Tounes, the Ennahdha party and the Karama Coalition tried to retaliate against the HAICAHaute Autorité Indépendante De La Communication Audiovisuelle by presenting a bill to amend the Legislative Decree No. 116 of November 2 2011 in order to change the composition of the HAICAHaute Autorité Indépendante De La Communication Audiovisuelle council and the licensing regime with the “undeclared” aim of addressing the illegal situation of the aforementioned channels. The ensuing parliamentary procedure was marred by several irregularities. However, under pressure from the media, civil society, professional organizations, and independent bodies, this bill was withdrawn from the agenda of the plenary of the Assembly.
The Court of Auditors’ report on the 2019 elections, published on November 10, 2020, confirmed HAICAHaute Autorité Indépendante De La Communication Audiovisuelle ’s verdict that the elections were not impartial, due to violations of the equity and equality in media coverage principles.
The HAICAHaute Autorité Indépendante De La Communication Audiovisuelle was the first body to highlight the concerning conduct of the elections of 2019, in comparison with those of 2014. “From 21 violations in 2014, we recorded more than 42 violations in 2019. The number of fines recorded, meanwhile, rose from 223,000 dinars to more than 1,200,000 dinars in 2019.”
As a guarantor of the neutrality of media coverage during electoral periods and a key player in the success of the democratic transition, HAICAHaute Autorité Indépendante De La Communication Audiovisuelle conveyed its concern about the recorded transgressions, in a press release on November 16, 2019, which it said endangered the fundamental principles of equality, fairness, neutrality, and transparency which are necessary for governing the electoral system[3]. HAICAHaute Autorité Indépendante De La Communication Audiovisuelle has seen its influence weakened and its role limited to the imposition of financial penalties. These fines, however, do not seem to concern candidates accused of violating the electoral code and conflicts of interest rules.
Audiovisual media coverage of the 2019 election period highlighted the institutional, legislative, and judicial failures of the electoral process. However, the reorganization of the Tunisian media landscape remains an essential condition for the success of the democratic transition, the consolidation of democracy, and the establishment of the bodies that guarantee democracy. Faced with a fragile democracy, a climate of mistrust, and social tension translated into a boycott of the electoral process or citizen abstention, there is a pressing need, at the political level, to accelerate reforms aimed at promoting the transparency of media coverage during election periods. Drawing lessons from the 2019 elections, this policy brief exposes the many shortcomings related to media coverage in electoral time and proposes urgent reforms in preparation for future elections in Tunisia.
The shortcomings in the electoral process and the lessons learned from the 2019 experience:
Institutional failures at the heart of the ISIEInstance Supérieure Indépendante des Elections / HAICAHaute Autorité Indépendante De La Communication Audiovisuelle duel:
It is important to mention the role and the vague prerogatives of the ISIEInstance Supérieure Indépendante des Elections which is at the heart of the institutional failures of the audiovisual media coverage during the election period, especially the management of its relations with other bodies such as HAICAHaute Autorité Indépendante De La Communication Audiovisuelle . Indeed, the ISIEInstance Supérieure Indépendante des Elections / HAICAHaute Autorité Indépendante De La Communication Audiovisuelle jurisdictional conflict in electoral matters dates back to 2014 when the ISIEInstance Supérieure Indépendante des Elections challenged a HAICAHaute Autorité Indépendante De La Communication Audiovisuelle decision in the Administrative Court relating to the dissemination of exit polls[4].
The ISIEInstance Supérieure Indépendante des Elections asserted its “general mandate” to exclusively manage the entire electoral process and, thus relegating other bodies, including the HAICAHaute Autorité Indépendante De La Communication Audiovisuelle , to a secondary role. This institutional conflict manifested itself again during the 2019 elections, but this time ended with ISIEInstance Supérieure Indépendante des Elections ’s refusal to enact texts aimed at establishing a legal framework for the electoral period. The ISIEInstance Supérieure Indépendante des Elections delayed the publication of the joint decision with HAICAHaute Autorité Indépendante De La Communication Audiovisuelle on the specific conditions governing media coverage of the presidential and legislative elections. It was eventually published on August 21, 2019, less than a month before the beginning of the electoral period, because HAICAHaute Autorité Indépendante De La Communication Audiovisuelle objected to the content and scope of Article 5. Importantly, ISIEInstance Supérieure Indépendante des Elections never published the decision on its site or its social media outlets. Article 5 aims to prevent electoral candidates from campaigning on channels whose activity is considered illegal, given their irregular situation and their non-compliance with the texts in force. However, ISIEInstance Supérieure Indépendante des Elections refused to include a fine for violation of this provision.
Neither the HAICAHaute Autorité Indépendante De La Communication Audiovisuelle nor the ISIEInstance Supérieure Indépendante des Elections has been able to draft a precise text on the conditions for imposing a fine on candidates who do not respect the ban on appearing on illegal channels. Moreover, the Administrative Tribunal overturned the ISIEInstance Supérieure Indépendante des Elections ’s decision to deprive the Rahma party of 2 seats because the decision was illogical and an imprecise calculation[5].
Also, the ISIEInstance Supérieure Indépendante des Elections has refused to comment on the dates of the electoral silence relating to the second round of the presidential campaigning period coinciding with the start of the legislative election campaigning period, thus pushing the HAICAHaute Autorité Indépendante De La Communication Audiovisuelle to legislate unilaterally on two occasions[6].
Legislative failures: a flaw in the electoral law:
The 2019 elections exposed the obvious and dangerous shortcomings of the electoral legislative framework such as the opaque regulation of political campaigning and national broadcasting that does not comply with the Law.
Unclear advertising and political campaigning rules
The lack of clarity in the legislative framework for governing advertising and political campaigning in electoral matters is a major challenge for ensuring the neutrality and integrity of the electoral process. Today, no one can apply or explain the legal definitions given by Articles 57 and Article 69 of the Electoral Law to political advertising or political campaigning respectively[7].
The fines outlined in the electoral law do not outweigh the benefits of electioneering and political advertising. This is detrimental to the principles of equality and fairness. This forced HAICAHaute Autorité Indépendante De La Communication Audiovisuelle to take advantage of Article 46 in Legislative Decree 116 to override the electoral law and impose heavy fines on channels that committed political advertising or electioneering offenses.
National audiovisual media is not in accordance with the law and electoral sanctions:
The aforementioned Article 5, which prohibits access to media that does not comply with Tunisian law, was not respected by either the candidates or the audiovisual channels (Nessma, Zitouna, and Radio Quran) for one simple reason: no fines were issued. This is because the day after Article 5 was adopted, an ISIEInstance Supérieure Indépendante des Elections member said on Tunisian radio that this provision was of no value.
In addition, Articles 73 and 74 of the Election Law have little effect as they do not result in any effective and dissuasive sanctions. Indeed, these channels did not respect the principles of fairness and equality by favoring certain candidates or certain lists to the detriment of the rest of the candidates, which affects the fairness of the elections. Thus, the Qalb Tounes Party and the Rahma Party won several seats because of the role played by the Nessma channel and the Radio Quran channel.
Based on the HAICAHaute Autorité Indépendante De La Communication Audiovisuelle report, the ISIEInstance Supérieure Indépendante des Elections withdrew the two seats from the Rahma party due to the Radio Quran’s exclusive campaigning. However, this decision was overturned by the Administrative Tribunal because the ISIEInstance Supérieure Indépendante des Elections had not justified its decision with a certain and unequivocal argument.
The HAICAHaute Autorité Indépendante De La Communication Audiovisuelle and the ISIEInstance Supérieure Indépendante des Elections should have set up a system to calculate the impact of the “allotted time” of political advertising and electoral campaigning on the number of votes obtained to sanction any violation by withdrawing votes or seat. This system must be put in place as quickly as possible and can even be extended to social media networks.
Legal failures:
The 2019 elections tested the judiciary’s ability to address the several irregularities committed by various candidates. There are many examples such as the decision of the Administrative Court relating to the lists of the Rahma Party which benefited from the services of Radio Quran station, an illegal station, during the election period. Indeed, the Administrative Court overturned the ISIEInstance Supérieure Indépendante des Elections ’s decision to withdraw seats from the concerned party.
The Administrative Tribunal should have noted that this was a violation of the equity and equality principles committed by audiovisual establishments for the benefit of certain candidates or lists and concluded that withdrawal of votes or seats was an appropriate sanction.
Several parties and candidates who took note of the HAICAHaute Autorité Indépendante De La Communication Audiovisuelle reports sent to the ISIEInstance Supérieure Indépendante des Elections were unable to convince the Administrative Tribunal of the violations and the possible impact on the vote count. The ISIEInstance Supérieure Indépendante des Elections has also taken a passive stance on the effects of the illegal political campaigning waged by the Nessma television channel.
The distinctive positioning of the Al Hiwar, Attassiaa, and Zitouna TV channels also raises the issue of judicial and administrative processing as well as the legislative and institutional framework of the electoral process.
Reforms to be implemented:
After the failures of the 2014 and 2019 presidential and legislative elections, there is an urgent need for concrete reforms. The lessons learned from 2014 and 2019 should ensure that improvements are made before the next round of national, regional, and local elections.
Institutional emergency:
Stripping HAICAHaute Autorité Indépendante De La Communication Audiovisuelle of its powers has proven to be a worrying, unjust, and unconstitutional choice because the electoral process should be governed by the principles of equality, neutrality, transparency, and fairness. These principles must be ensured through a homogeneous and coherent approach, therefore improved coordination between HAICAHaute Autorité Indépendante De La Communication Audiovisuelle and ISIEInstance Supérieure Indépendante des Elections in the joint management of the electoral process is necessary. It is therefore urgent to strengthen the coercive role of HAICAHaute Autorité Indépendante De La Communication Audiovisuelle so that it manages audiovisual disputes effectively and ensures compliance with the provisions relating to elections in accordance with Chapter 4 of Article 46 of the Decree-Law 116 by candidates and audiovisual companies.
Legal emergency:
The electoral experience of 2019 shows us that the judiciary is no longer able to manage electoral disputes over audiovisual data without the support of an independent technical committee to support the drafting of binding legislation. Indeed, only the establishment of such a committee could effectively decide on the impact of violations occurring in the audiovisual sector on the ballot and the electoral process.
Magistrates should also receive appropriate training more suited to cases relating to these violations: training that includes the analysis of rights and freedoms in force, international standards in the field, and technical aspects relating to the audiovisual sector.
Legislative emergency:
The legislative framework governing advertising and political propaganda in electoral matters must be thoroughly revised to clearly define the elements characterizing offenses and to provide for sanctions that can have a direct impact on the electoral results, such as the impact on the votes or the seats allocated, rather than only financial sanctions
Finally, two issues need to be reviewed and finalized: access to foreign media and access to pirate media.
Recommendations:
- Strengthen the power of the audio-visual regulator in electoral matters by granting coercive powers, in addition to the power to impose financial penalties;
- Establish a clear distribution of responsibilities and scope of action for the ISIEInstance Supérieure Indépendante des Elections and the HAICAHaute Autorité Indépendante De La Communication Audiovisuelle during an election period;
- Broaden the spectrum of justice to settle electoral disputes by providing better training for judges in this area and by ensuring the availability of technical expertise in the service of the courts;
- Revise the framework governing political advertising and propaganda and regulate access to foreign and pirate media.
- Add financial penalties and withdrawals of seats to the legal framework as punishment for violations of the equity and equality principles by the media and electoral candidates.
[1] Shams Fm, “Hisham Al-Senussi: The elections were not fair,” October 17, 2019, https://bit.ly/3lvUjYv (accessed on December 2, 2020 at 09:48) [2] The Commission’s reports addressed to the ISIEInstance Supérieure Indépendante des Elections regarding violations recorded by illegal channels (Nessma, Zaitouna, and Quran stations) during the legislative elections, October 10, 2019,haicaHaute Autorité Indépendante De La Communication Audiovisuelle .tn/”> https://haicaHaute Autorité Indépendante De La Communication Audiovisuelle .tn/ 2019/10/14722/ (accessed on December 2, 2020 at 09:49) [3] September 16, 2019 statement: The authority warns of the exacerbation of the influence of financial and party pressure centers on the audiovisual media, September 2019,haicaHaute Autorité Indépendante De La Communication Audiovisuelle .tn/ar/تقارير-الهيئة-الموجهة-إلى-الهيئة-العل-2/”> https://haicaHaute Autorité Indépendante De La Communication Audiovisuelle .tn/2019/09/page/3/ (accessed on December 2, 2020 at 10 08) [4] Decision of the Independent High Authority for Audiovisual Communication No. 07 of November 20, 2014 concerning the broadcasting of opinion polling results during the presidential election period by means of audiovisual communication, November 20, 2014, http://www.legislation.tn/detailtexte/Arr%C3%AAt%C3%A9-num-2014-2118-du-20-11-2014-jort-2014-104__2014104021184 (accessed December 2, 2020, 10:16) [5] Gnet, “The Administrative Tribunal cancels the decision of the ISIEInstance Supérieure Indépendante des Elections and restores the seat of Ben Arous to Saïd Jaziri”, October 21, 2019, https://news.gnet.tn/le-tribunal-administratif-annule-la-decision-de-lisie-et-restitue-le-siege-de-ben-arous-a-said-jaziri/ (accessed on December 3, 2020 at 12:31) [6] A joint decision between ISIEInstance Supérieure Indépendante des Elections and HAICAHaute Autorité Indépendante De La Communication Audiovisuelle dated August 21, 2019, related to setting the rules for covering the presidential and legislative election campaign by the mass media and audiovisual communication and its procedures, https://bit.ly/3qnr9hD (accessed on December 3, 2020 at 12:20) [7] The Electoral Basic Law, https://bit.ly/3qKWDOY (accessed on December 3, 2020, 12:20)
