‘ON PROGRESSE’ – Justice Leadership in Tunisia

Sam Muller, CEO of HiiL and former Chairman of the Executive Board of the Justice Leadership Group, visited Tunisia earlier this year to meet with Judge Kalthoum Kennou, member of the Justice Leadership Group. In a column that was previously published by Slaw Online Legal Magazine (Canada) on July the 20th, 2016, he recounts the impression that Tunisia left on him – a country in progress, where inspiring leaders are at the forefront of change. Kalthoum Kennou is one of those leaders: as Judge at the Court of Cassation, she has been a strong advocate for the independence of the judiciary and rule of law, which are essential to any democracy.

Avenue Bourghiba was closed off. A statute of the founding president of Tunisia on horseback was being reinstated in the square. The current President Essebsi was going to inaugurate it in two days. The taxi dropped me off as close as he could get. Hotel Africa is a high seventies hotel with large wooden panels, brown carpets, and huge chandeliers. As I made my way, urban Tunisia walked by and ordered drinks on the terraces: hip youngsters, women with blond hair, women with headscarves, families, groups of boys, and groups of older men. She picked me up later and we drove to Sidi Bou Said in her car. Kalthoum Kennou is one of the members of the Justice Leadership Group, a judge in the cour de cassasion, and was an independent candidate for the first presidential elections in free Tunisia. Walking with her through town is like walking though our main shopping street with my wife, one of the village-family doctors: people walk up to her, greet her, and ask her things. And unlike in most Western European countries, the Arab culture takes time to greet. There are no quick ‘How-are- you? – Fine’s’ on the streets of Tunis.

“On progresse,” she said with confidence in her voice, when we were sipping tea in Café De Delices and I asked her how things were going. Slowly but surely, the house of democracy and rule of law is being built. But, she said, it is a twenty-four-hours-seven-days-a-week job. And she started telling me the long and complicated story of the adoption of the recent law on the judiciary. A proposal that had been left lying for a while, then had been picked up and redrafted by the wrong group of people, after which an attempt had been made to hurriedly push it through. Then, a constitutional challenge by a group of NGOs before the caretaker-commission that preceded the conseil constitutionnel (which would be created by that law). The main point of contention: the principle of judicial independence. Who appoints and fires who? Who has control over the budget? These are the things the revolution was about: never again, lackey judges who do the bidding of an oppressive regime. In the end, the law was adopted, Judge Kenou told me, but there will be challenges before the conseil. It is not perfect yet – and it has to be. She told me how some of the old elites are coming back – wanted for their expertise and protected by their old power base. We also talked about the huge economic challenge Tunisia faces – with unemployment still high.

I visited the Tribunal de Premier Instance, a stately palace of justice that is about to be renovated. As it now stands, its old-fashioned courtrooms radiate formalism and project distance between those seeking justice and those that pronounce it. None of them had visible IT facilities. “That too, must change!”, Thouraya Tijani, an active attorney in Tunis, told me. Lawyers ride high in current Tunisia. She took me to the offices of the mighty barreaux, the bar association of Tunisia, where I met with its impressive president, Mohamed Fadhel Mahfoudh. Its leadership played a critical role in the 2011 revolution by taking an unequivocal stance that the sitting president should go. Then, in 2013 and 2014, its leadership joined with the leadership of the trade unions, the employers association, and the human rights league to form the Nobel Peace Prize winning Quartet that ensured a peaceful transition to a full constitution and shared, democratic government. But bluntly: a ‘Morsi’ was avoided. Justice leadership in action.

The cour de cassasion, the pinnacle of the judicial system, was housed in a terribly worn-down building. Judges shared desks, I heard, and worked from home to have Internet. On my way to meeting the procureur-general, I saw a clerk wheeling a broken desk chair through the corridors on which piles of dossiers had been stacked. But these judges keep working their huge workloads.

On progresse. What I saw was lots of argumentation, strife, maneuvering, and debate. Daily, the new constitution is being invoked and interpreted. For good and for bad. Everyone I spoke to knows that one can’t take a day off in a land where that is being done. The laws that bring the constitution to life must be drafted, redrafted, promulgated and, most importantly, used so that a rule of law culture starts to take shape. Some want to continue doing what they did in the old Tunisia: use the law as they see fit. But others, a lively, divergent group of people and institutions, led by impressive people like Judge Kalthoum, invoke the constitution where they can. Slowly, culture is shifting. Rule of law is being built. That is fascinating to see at close hand. And painful for a Western European from a so-called ‘old’ democracy, in which I so often see a hardly noticed, nor cared about, erosion of rule of law. Judge Kalthoum would know what to do.