What has bitten the Tunisian authorities in power to withdraw their declaration made in 2017 under article 34.6 of the Protocol to the African Charter on Human and Peoples' Rights?

This declaration constitutes acceptance by a State of the Court's jurisdiction to rule on allegations of human rights violations brought against it by persons or associations having observer status with the African Commission on Human and Peoples' Rights. This is a historic achievement of the Tunisian revolution.

Claiming to answer the "why?" question is no easy task, given that the decision was not motivated and that no public or societal debate preceded it, just like, indeed, all the decisions of President Kaïs Saïed and his administration.
The only certainty is that the President decided to do so - which is not an answer. Indeed, the decision-making process, the "make line" of this regime's decisions, has always taken the form of oukases. This mode of governance is no stranger to the engineering of power as conceived and enshrined in the 2022 Constitution, drafted for his sole benefit. The President of the Republic is not accountable for any of his actions, and there is no effective counter-power to enjoin him to remedy his breaches of the rule of law or of his own Constitution.
This conception of power renders the motivation of presidential decisions of no practical or legal interest. Analyzing the reasons behind these decisions is therefore an almost esoteric exercise. And even if some answers can be found, the most direct reasons can only be given in the conditional.

It should first be noted that, in principle, the decision is unfortunately expected, given the national (1) and international (2) human rights context. But it can also be interpreted as a reaction to the Court's rulings (3), to ongoing litigation (4), or even to future litigation (5).

1/ The national context 

Since his coup d'état on July 25, 2021, President Kaïs Saïed has not stopped attacking human rights in Tunisia, especially after the promulgation of his infamous decree 117/2021, which has supra-constitutional rank and concentrates executive and legislative powers in the hands of the president as exceptional measures.

The President of the Republic also broke away from the independence of the judiciary with his decree-law 11/2022, which set up a provisional High Council of the Judiciary devoid of any guarantees of independence, with the President of the Executive appointing members directly or indirectly. This was subsequently modified by decree-law 35/2022, which authorizes the President of the Republic to dismiss any magistrate without cause or prior disciplinary procedure.

Decree-laws violating human rights followed one another. The Independent High Authority for Elections has been modified, and converted into the Presidential Authority for Elections. The electoral law has not escaped this distortion. In fact, voter abstention rates after July 25, 2021 are breaking world records.

Decree-Law 54/2022 muzzled the media, civil society and citizens. The 2022 Constitution marked a clear regression from the 2014 Constitution. Even its provisions relating to human rights and the guarantee of these rights remained a dead letter, due to an even more liberticidal application of the texts by the authorities in power.
UN institutions, whether the High Commissioner for Human Rights or the Special Rapporteurs, have repeatedly alerted the Tunisian authorities and public opinion to the recurrent and systematic violations of human rights in Tunisia.

Nor should we forget that these human rights institutions do not fit in with Kaïs Saïed's populist conception of human rights as "an instrumentalized Western colonialist conspiracy". The Court is an organ of the African Union, in other words, a South-South response to human rights violations, which thwarts the regime's discourse, which seeks to free itself from it.

Given this disastrous panorama of the human rights situation and the embodiment of counter-revolution by the current regime, such a procedure for denying human rights guarantees by a power concentrated in the hands of a single person is hardly surprising. The question is: why now? The timing can be explained by the international context.

2/ The international context: ignoring human rights

President Kaïs Saïed may not be a great strategist, but his tactical opportunism is quite effective. His decision is obviously not sovereign, contrary to what he claims. As a matter of fact, he only took it when the international context was favourable.

There are states that can only welcome this measure, such as the highly influential Algerian and Egyptian regimes, or the Gulf monarchies, which have a chronic phobia of anything to do with democracy and human rights, and which feared the domino effect of the Arab Spring. This decision reassures them as to the nature of the Tunisian regime - although this is no longer in any doubt.

On the other hand, the countries that traditionally lobby in favor of human rights have no head for it at the moment. On the one hand, the United States has abandoned, at least in practice, the rhetoric in favor of human rights and democracy. So Kaïs Saïed has nothing to fear from his actions. It may even be a trial balloon designed to gauge the new American administration's position on the matter. On the other hand, the European Union and its member states have only one obsession in their relations with Tunisia: to stop illegal emigration - even if it means remaining complicitly silent in the face of the serious violations perpetrated by the Saïed regime, against both Tunisians and migrants, in flagrant violation of Article 2 of the 1995 EU-Tunisia Association Agreement.

It's true that this situation has persisted at least since the signing of the 2022 memorandum. But the new US administration's attitude to the war in Ukraine and relations with NATO has heightened the concerns of Europeans, who are now preoccupied with more urgent and essential issues linked to the new dynamics of international relations.

Kaïs Saïed therefore felt that the time was right to cross the Rubicon - all the more so as the African Court is not linked to financial institutions and is therefore not necessary to seduce donors and backers, unlike the UN mechanisms. Moreover, Kaïs Saïed was content to respond lightly to the High Commissioner for Human Rights, without slamming the door as he had done with the African Court.

3/ Reaction to the African Court's decisions

Although the decision to withdraw does not directly follow on from a specific ruling, it does demonstrate a certain unease, even resentment, on the part of the regime towards the Court's decisions. The regime in power in Tunisia has never reacted or communicated publicly on these decisions, either in the media or through any other channel, despite the importance of the issues addressed.

In its decision 017/2021, the Court condemned the actions of the President of the Republic on July 25, 2021. It has punctually established itself as a constitutional court, noting violations of Article 80 of the 2014 Constitution, ordering a return to constitutional order and annulling presidential decrees, notably decree n°117/2021.

Under the rule of law, this ruling would have been a fatal blow to Kaïs Saïed's coup d'état, ruining his entire narrative and arguments. The very legitimacy of his power was called into question.

In ruling 016/2021, the Court ordered the Tunisian state to annul decree-law 11/2022 on the provisional Higher Council of the Judiciary - another blow to the regime, which failed to react. 

Provisional measures rulings have also been a setback for the authorities, as in case 008/2023 concerning political detainees, in which the State Counsel failed to convince the Court that these detainees had enjoyed their most fundamental right to a fair trial.

The Court also enjoined the Tunisian State to suspend the application of decree-law 35/2022 and the decree dismissing 54 magistrates as an interim measure in case 008/2024. 

The Court's condemnations and provisional measures appear to be the reason for the Tunisian authorities' withdrawal, which they were simply waiting for the right moment to act on - all the more so as a number of important legal cases are still pending.

4/ Ongoing litigation

A substantial number of pending cases concerning human rights violations that occurred before and after July 25, 2021 are still before the Court, awaiting deliberation or closure of the written phase.

These include the case of the political detainees, the challenge to decree-laws 11/2022, 54/2022 and 35/2022, the 2022 legislative elections - which are the subject of at least three cases - and the text criminalizing adultery.

A pending request for an order on the execution of ruling 017/2021 could also explain this withdrawal. Indeed, if the Court finds that the State refuses to comply with its decision, it may refer the matter to the African Union, whose rules of procedure provide for the suspension of any member that has experienced an unconstitutional change of power.
In this case, the African Union's margin of appreciation would be limited, since it was the Court itself that described Mr. Kaïs Saïed's coup d'état as unconstitutional.

Fortunately, President Saïed's decision to halt the "hemorrhaging" of Court convictions has no effect on the cases currently open, which should follow their normal course. But the regime's populist propaganda will no doubt seek to minimize the importance of future decisions, arguing that they no longer have any legal effect because of the withdrawal. And even if it is easy to prove the contrary, the regime will claim that these decisions are retaliatory.

5/ Future litigation

The decision to withdraw is not immediately enforceable: it only takes effect one year after notification to the Court by the Chairman of the African Union, in accordance with the principle of parallelism of forms, i.e. in March 2026. This time limit is not provided for in the Court's Protocol, which does not explicitly deal with the withdrawal of the declaration provided for in its article 34.6. It is therefore a praetorian rule.

Faced with a challenge to its temporal jurisdiction due to the withdrawal of a State, the Court had to decide: it based its solution on the Vienna Convention on the Law of Treaties to confirm the one-year time limit.

The opportunity to bring a case before the Court therefore remains valid during this period. This is why the Committee for the Respect of Freedoms and Human Rights in Tunisia has called on and encouraged victims of human rights violations to continue to submit as many cases as possible to the Court, in the hope that the Tunisian State will soon return to this instrument guaranteeing, at least in principle, effective recognition of human rights violations.