Observing the National Constituent Assembly

Amira YAHAYOUI Interview with UNDP

No power without checks and balances

Before the revolution, I was part of the opposition to the Ben Ali regime, and we were always demanding the same thing: checks and balances on the regime's power. At the time, the was a dictatorial power, and checks and balances were impossible. After the revolution, when we held the and set up the National Constituent Assembly, the fact that we had elected the ruling power democratically, through free elections, eliminated that necessity. Everything took place as if the demand for checks and balances was no longer important, and as if, in the name of the rules of , people had forgotten what we had learned before.

As far as I was concerned, there was a clear need to create checks and balances, to observe, to make information available to everyone, to archive, monitor and hold to account. That is why I created Al-Bawsala, or "the Compass". I was still living in Paris at the time, but the organization was created in Tunis. Al-Bawsala's initial raison d'être was not parliamentary transparency, but rather the need to push for a human rights agenda in the constitution. When Al-Bawsala was created, it was not a monitoring association, but a human rights association.

But very quickly, everything changed: after a few days in the , the project evolved. I very quickly realized that no one knew what was going on in the assembly, that no one knew its operating rules and no one was taking part in it apart from the 217 elected Assembly members, and even they weren't largely present at the time.

When the National Constituent Assembly started meeting after the elections of 23 October 2011, it did so without transparency, without communicating about its work. Granted, the plenary sessions were broadcast live on national television, but most of the work that went into drafting the Constitution took place in the committees, whose meetings were not televised. The Assembly members were not reporting back to citizens. What is more, the citizens did not know who these Assembly members, charged with drafting the new constitution, were. Some Assembly members, the best known, had a Wikipedia entry, appeared on television, were invited on the radio, etc., but most of them were unknown to the general public. There was no systematized information platform for the 217 Assembly members. We didn't even know if they were in line with the ideas they had defended during the campaign. And we didn't know if they were still members of their parties or if they had changed allegiance, with many members switching parties or parliamentary groups.

This way of doing things seemed to me to be quite simply suicidal. The Assembly members had to be urged to answer to the citizens, and that is why our project took a new direction. At that point, there were lots and lots of NGOs, associations and members of working on topics and making proposals on the content of the constitution. Some focused on women's rights, others on the media, on freedom of speech... I thought that instead of working on topics, on the content, I would work on the form: the structures and the methods. I thought that that would be a more impactful way to proceed and a good way to get into the subject. In fact, as we began to work on the form, on the operation of the Assembly and the practices of Assembly members, we ended up, with the Marsad project team and the Al-Bawsala office, working very closely on many substantive matters. We met two objectives: firstly, we enabled people to be informed on what was going on,

1 and researchers and professors relied heavily on our work and our publications; and secondly, we convinced the Assembly members of our positions on human rights. It was a matter of keeping a record of events and making them accessible, but it was also about pushing our agenda.

Building democracy on solid foundations

The first difficulty we encountered was in getting the Assembly members to understand that they were not above us, but below us. We had to patiently explain to the Assembly members what public service meant, to show them that their role was to serve the citizens. Being an elected member of parliament isn't about doing what you want; it is about doing what the citizens want. They needed to understand what "representing" meant, and that "representing" someone was not at all the same as "having power over" someone. It was difficult, but that is only natural; we were emerging from a fifty-year , and before that, there had been the subject of colonization; had never been democratic.

What was difficult was making sure that the foundations on which Tunisia was to be built after the revolution were sound and stable. It was for those reasons that we were extremely rigorous in our behaviour with the Assembly members; it was crucial that we never show that we were in a position of weakness, even though sometimes we were. We never showed that we were daunted by the institution, even if we were. We had to present ourselves as their equals, as citizens whom they were meant to be serving.

Entering the Assembly

The first thing to do was to get into the Assembly. At that point, I found myself quite isolated. We were quite shocked by the small number of civil society activists present at the Assembly's first sessions. Tunisian civil society was not accustomed to entering institutions and places of power, and the revolution had not changed that. Civil society's place continued to be the street, and the number of mobilizations was truly impressive: the associations organized demonstrations with thousands of people, civil society created national and international pressure; it managed to keep up substantial media pressure throughout the constitution-making process. And yet, the overwhelming majority of these associations and NGOs did not enter the institutions. The only ones to enter the Assembly were those who were used to doing so: the two trade unions, the General Union of Tunisian Workers (UGTT) and the Tunisian Union for Industry, Commerce and Crafts (UTICA), which were accustomed to interacting with the public authorities. Civil society therefore had little presence in the Assembly. I realized this when we were criticized for being the only ones to have access to the Assembly. It wasn't true: we were the only ones to have access to the Assembly because we were the only ones who had requested access from the relevant authorities. Very few associations had asked to be accredited by the Assembly. The list of requests was much shorter than the list of people who said they couldn't get in.

We started to come to the Assembly every day, and at first we had an easy relationship with the members, until, that is, we published information on the position of one member, which caused problems within the parliamentary groups. That was when we encountered resistance for the first time. The Assembly members tried to drive us out by manipulating the rules of procedure. We were forbidden from entering the Assembly, under the pretext that only journalists were allowed to observe the constituent committees and to follow the work in its entirety. It was for that reason that we recruited Meriem, a journalist, who had a press card. She got press cards for all our team members. We had to stand firm and refuse to negotiate. It was essential to make the Assembly's members and President understand that they could not keep us out. During that episode, we beat them at their own game: it wasn't about getting around the ban; it was a way of showing them that,

2 whatever happened, press card or no press card, we would be there. At that point, they realized that it was futile to ban us from coming. At the beginning, I was on my own, and soon there were three of us: Emna, who was working with me on the project, and Sélim, who looked after the administrative and financial aspect. My brother Nabil helped us set up the site, then we started to recruit a few people, such as Meriem. Ghada – who became the leader of the Marsad Majles project – joined us a year later.

Being accepted by the politicians

Our relationship with the Assembly, and particularly with its presidency, remained very complicated. I knew some of the members from the Ben Ali era, and they supported the project. However, the vast majority of members supported us until we published something that might backfire on them. When what we published was in their interests, they considered us as allies, but each time what we published was to their detriment, we once again became an enemy to be defeated. Things continued in that vein until March 2016, when, for the first time, what we published was not attacked by the party concerned. When we wrote about the irregularities in Samia Abbou's voting record, her party, Attayar Democrati, apologised, saying that we were right. However, it took us five years to get to that stage. With the president of the Assembly, it was worse still. I very quickly found myself at war with Mustapha Ben Jaafar. I threatened him in his office, which he took very badly. The fact that I had known him since I was ten years old made it even more shocking for him. I told him that if he published the information, he would be the president who published everything, who strove to ensure transparency, but if he did not publish it, that information would be published without him anyway, and that would tarnish his image. He took the second option. At the time, I didn't know how I was going to go about it, but I said it anyway. I also lodged a complaint against him for obstructing information, along with a group of other NGOs (the members of the Nawaat alternative citizen information platform and several members of the OpenGov.Tn collective). We were uncompromising, and we negotiated nothing. That was our way of showing the Assembly members that we, the people, the citizens, now held the power, and that they represented the people, that community of citizens. That was very important; every one of our actions was guided by that principle, and we wanted to emphasise that point as much as we could.

Transparency and advocacy

We conducted various types of activities in the Assembly. We should draw a distinction between our Assembly monitoring activities, and our legal expertise and advocacy activities—which were often conducted outside of the Assembly. The Marsad Majles project team, which was recruited to run the project of observing the National Constituent Assembly and reporting on the work of its elected members, took action to promote transparency in parliamentary life, the aim being to instil in Assembly members a culture of accountability and transparency. Such measures included finding out what members' salaries, which were the subject of much wild speculation, really were; introducing vote traceability to find out how our Assembly members were voting; putting the Assembly's diary online, when the Assembly itself published nothing on its website; publishing the biographies of Assembly members; publishing member absences; and live-tweeting the plenary sessions in French to enable dual nationals who did not have a sufficient knowledge of Arabic to follow the debates. With the aid of some of the Assembly's administrators, we translated and posted online several documents on the functioning of the Assembly, as well as the working drafts of the Constitution. The project was developed with the assistance of many volunteers and with logistical support from other organizations such as Parliament Watch GmbH, whose members helped us to build the web portal by showing us how to process the data and organize them in a readable way, particularly with regard to vote traceability.

3 From then on, the whole team provided legal expertise to Assembly members. Throughout the constitution-making process, we sent legal notes, recommendations and documents to Assembly members. We started very early, when we realized that Assembly members had little legal knowledge and few resources. As soon as we understood that international organizations, oil companies and certain embassies were trying to push their own agendas, we decided we had to provide the Assembly members with the legal weapons they needed. If you look at our documents, about the rules of procedure, for example, we produced recommendations, but we explained them and showed how they could be implemented. The research dimension was very important. We worked with everyone: the Assembly members one by one, the committees, the parliamentary groups, those who were influential, those who were not, those who were likely to constitute a stumbling block. We spoke with all 217 Assembly members in the same way, except those who did not want to talk to us. At the Assembly, every vote counts: the vote of a group president is worth exactly the same as that of an independent member with no group affiliation. Some members, including leading figures from the former opposition to Ben Ali, struggled to get used to that. We were also blind to the Assembly members' political affiliations, and we were one of the few NGOs not to take a party-political stance.

In addition, we were constantly lobbying Assembly members. In this respect, we should delinate between the elected members of our bureau, who got involved in lobbying, and the employed members of the Marsad project, who did none. There was a strict separation of the two missions: I was the only member of the bureau in Tunisia at the time, so I was the only one who could engage in political lobbying. What was innovative about what we did was that, instead of seeking to convince prominent elected figures, the star Assembly members, I concentrated my efforts on the soft underbelly of the Assembly, the fifty or so members with no group affiliation, most of whom were not even attached to a anymore. I am a mathematician by training, and it seemed more efficient to me to invest in the Assembly members who were never invited to appear on television, the ones nobody knew. Sometimes, during receptions at the Assembly, the people at the reception desk didn't even recognize them, and refused them admission. As far as I was concerned, they were the solution. I worked a lot with them, and I think few other NGOs did as much work with them as we did: they were very knowledgeable and very present. They were delighted that we were taking an interest in them and were much more receptive. I knew a lot of them from before. They often came from the southern and inland areas of the country, and the fact that I am from Tataouine worked in my favour. I was criticized by the members of other parties, such as the people from Massar, whom I saw less of: for me, it would have been a waste of time, as we had the same ideas, but they took it as a sign of disrespect. It was a strategy we still use today. We talk to the stars because they have clout, but we talk much more with the others.

We had quite an intelligent approach, which involved trying to use everything we could to build a relationship. We tried to meet them through mutual friends, through their families... They were also in need of legal assistance and we provided it to them. We worked with the Assembly members on legislation drafting techniques, article by article, word by word. We knew how to make ourselves useful: we babysat for them, brought them food when they didn't have time to go out and get it themselves, printed out the documents they needed. We always had to know which rooms the committee meetings were being held in and at what time. We had to know what documents they needed and to be able to provide them to them… Sometimes, it was as if we were the parliamentary assistants of the entire Assembly. Some of them thought we were their friends, but we looked at things differently: we considered ourselves colleagues. What helped us in that task was that we were never against the Assembly, whereas many other organizations were, even calling for it to be dissolved. We never criticized the legitimacy of the Assembly; we simply made sure it was doing its work properly.

4 At the same time, we pursued projects that aimed to develop a culture of citizenship, such as the project on access to water in Foussana. Ons Ben Abdelkarim, who is now President of Al Bawsala, and Mehdi Ben Youssef, now Secretary-General, met during a project on water management in Foussana. The project aimed, among other things, to offer local people ways of resolving internal conflicts and to provide them with legal and logistical support in lodging complaints with the competent authorities. Ons also organized a series of debates between Assembly members and citizens from several marginalized areas in the outskirts of Greater Tunis (Kabarria), as well as delegations from more distant and isolated communities (Sidi Bouzid, Menzel Jmil near Bizerte, etc.).

Working alongside the Assembly members

Gradually, the Assembly understood that we were with them, not against them. They got into the habit of seeing us every day. We stayed at their side when civil society was in the street: we didn't take part in the Rahel sit-in when work was suspended at the Assembly. We took a stance against the national dialogue and we were not part of the negotiations. In Tunisia in 2013, there was one institution legally elected by the people and that was the National Constituent Assembly: going and organising a meeting of twenty unelected, co-opted people at the presidential palace in Carthage, behind closed doors, and allowing them to vote alone without any discussion with the Tunisian people was, I thought, anti-democratic. Tunisia's "national dialogue" was national in name only; there was nothing national about it. The people were not involved.

The most dangerous thing for Tunisian democracy is the consensus-based approach. I am completely opposed to it. I have always thought, and I continue to think and observe today, that we went from a dictatorship of thought to a dictatorship of consensus. That consensus-based approach is part of a paternalistic conception of power and a process of infantilizing the people: everything is done as if we were too young to disagree or to accept debate, opposition and competition. Until we reach a stage where the winner wins and the loser loses, I don't think we're going to get anywhere. What is more, the dictatorship of consensus crushes the minority even more emphatically. For instance, each vote is passed with 180 votes out of 217, which makes the rest of the opposition members of parliament feel they are unimportant, and that they are not taken into consideration. I find that hugely disconcerting, because it is what happened at the Constituent Assembly, but the current Assembly continues to operate in the same way.

The second thing that I find tragic is that the search for consensus leads to discussions behind closed doors. Discussions are not held in the committees. It isn't open, and that is something that I found problematic. At the time, at Al Bawsala, we tried to find out what was going on during the Consensus Committee meetings: we wanted to have the right to go inside, speak to Assembly members, and have the information published, at least after the meeting or after the vote. We did not succeed. We weren't allowed to be present during the Consensus Committee, so the Marsad team could not follow the debates. They made an exception for me. I was allowed a chair at the door, but not inside the room. That was as far as they were prepared to go. Even the Assembly members who were not members of the committee were not allowed in. It was unreasonable, because they needed our help on very specific, complicated points that required legal knowledge. The Assembly members would come and see me outside the door and ask me how things worked in , for instance. I had a whole team behind me preparing the references and documents and drafting notes on technical points.

Value added

We have to be rational and try and see to what extent we contributed to the advancement of the constitution-making process, what we added to the edifice. The first thing we contributed was transparency, which is invaluable. Thanks to us, everyone knows what happened. What is less well-

5 known is the fact that we also made it possible for a lot of articles on human rights to be passed. We worked to ensure that gender equality, transparency, the right to life – though we did not achieve our aim of having the death penalty abolished – and human dignity were enshrined in the constitution. We were also behind the lowering of the minimum age for Assembly members, and the independence of the justice system. Of course, we were not the only ones fighting on those points – there were other associations and other NGOs – but we were involved in all those battles.

Thirdly, we showed the world, and particularly Tunisians, that the youth were not just kids, that young people were capable of doing serious, high-quality work, and of achieving great things. At Al-Bawsala, are a young team, and we don't recruit anyone over the age of 30. At the time, the average age of the team was 24 or 25, whereas half the Assembly members were over fifty. Being young didn't stop us changing things, having an influence in the debate and persuading politicians who were older than we were. That is something very powerful and something I am very proud of.

Finally, we contributed to the professionalization of civil society. In the beginning, Tunisian civil society was dependent on volunteerism, so its work was not mandatory, and determined by the time its members were willing to devote to it. We have done the opposite: we have deliberately recruited very few volunteers, and then only for very occasional and short-term assignments. We have offered attractive salaries so as to persuade the best talent to join us. We have people from Harvard and Columbia on the team. That is what enabled us to be a powerful force and a real counterweight to the Assembly. To do that, we had to make sure we were financially independent: we are very rigorous about publishing the sources of our funding and we could survive for nearly a year without donors. We were very innovative in terms of funding and the way we operated – that was very important for me. We recruited a lot, like a company. We created jobs for people and for young people. We wanted to set a good example. We want a job at Al-Bawsala to be a good first step into the world of work. We want working for us to be recognized as a first job that demonstrates a whole set of skills. As we were the first to do it, we were attacked for it. Some thought the salaries we were offering were too high for civil society jobs. Others thought that we were moving too fast. That is true. The old associations found us exotic, but ended up being friendly with us. Where we had the most difficulty was with the associations who had projects quite similar to ours. My regret is not working enough with civil society, not finding another organization that was as active as we were.

Creating an NGO with International Reach

We would like Al-Bawsala to become an "institution" in the landscape of Tunisian civil society, for it to be at the same level as the great non-governmental organizations like Amnesty, Human Rights Watch, and Oxfam. We were, however, able to secure validation from these organizations; Al-Bawsala's comments on the Constitution were co-signed by Amnesty, the Carter Center and Human Rights Watch. Having the logo of an organization that has just been created alongside others that are well established on the international scene is testament to the meteoric rise of our NGO, which started from nothing. We have tried to modernize the relationship between an NGO and its donors. We have really challenged international organizations on the way they financed local NGOs, and even declined some funding from international organizations because we didn't agree with the conditionality of their financial aid and the interference in what we wanted to do. We have also tried to change the power balance between local NGOs and embassies. For instance, Al-Bawsala is financed by the German embassy, but I am at war with the German ambassador. We have tried to change the way NGO funding and aid for civil society work, and we have succeeded in being very independent, not just for Tunisia, but by global standards too. From what I have seen on all the trips and conferences I have taken part in since, few NGOs are as independent as we are.

6 Because of that, we are capable of helping other non-governmental organizations internationally: we have helped a Moroccan NGO to develop its expertise in parliamentary transparency, a Yemeni NGO, etc. While we are unable to consult full time for other organizations, when we are called upon, we put in our best effort to assist in providing expertise. Something else we have done is support Tunisian organizations to become professional. We share our modus operandi with other NGOs: for example, we have shared our by-laws and our fundraising method with the association that created the Youth week-end and with another association, Shams. At a more concrete level, we share our offices with NGOs that cannot afford their own premises. Finally, we have acted as patrons: Al-Bawsala was, for instance, one of the first patrons of the Cinévog cinema that has reopened in Kram.

We want to get ahead of events so that we are ready when the moment comes. We knew that there were going to be local elections and we wanted to know what that would entail. That's why we created Marsad Baladia, to make ourselves a key player. The idea emerged fully formed: when you are an expert in the , you need to know how the municipal assemblies work. The third project, Marsad Budget, is one that was re-launched recently by a new team.

After the vote on the Constitution, once the Assembly chamber had emptied out, there was a party. It wasn't the official ceremony with the fireworks. It was one in the morning. Everyone was singing, everyone was exhausted, and we were there. We were also there for the votes no one went to. We sometimes slept on the floor at the Assembly. There were times, late at night, when the Assembly members knew there were no journalists around and that everyone had gone home except us and some Assembly members brought us food, others gave us coffee. They all understood that we were not against them, but with them. Even those whose positions were diametrically opposed to our own knew that we were there for the Assembly, for them. At the beginning, our relations with the Constituent Assembly were complicated, but by the end they were very good. We were never unfair: our information was never called into question; we were never told that what we were doing was incorrect. We worked on the facts. After the constitution, I think things went down a notch. We carried on working on all the laws that were passed, but there was nothing special about it. It was less intense.

Today – and I say this in a personal capacity and not on behalf of the organization, as I haven't been president of Al-Bawsala for nearly a year now, and I don't have dealings with the Assembly of the Representatives of the People – I find the way the Assembly of the Representatives of the People is operating is worrying – the fact that there are businessmen on the finance committee, for instance. The Assembly members are less democratic than they were in the National Constituent Assembly, they don't believe so strongly in the basic operating rules of the Assembly and they have less respect for the constitution. Fortunately, the Assembly does not have a great deal of power today.

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