Carter Center Calls for the Adoption of Local Government Code and Related Legal Texts in Advance of Polls

FOR IMMEDIATE RELEASE
Contact: In Atlanta, Soyia Ellison, [email protected]
In Tunis, Fida Nasrallah, [email protected] +216 94 556 461

En français

بالعربية

TUNIS — The Tunisian Revolution was triggered by disadvantaged populations who demanded a development strategy that was just and sustainable, which would redress unequal development among Tunisia’s regions. One way of achieving this is through local governance. This, however, requires the prompt adoption of an appropriate legal framework. The law on decentralization, currently under review in parliament, is the most critical component of that framework. In this context, The Carter Center calls for the adoption of the local government code and related laws as early as possible in advance of local elections, and in the spirit of respect and support, provides several recommendations regarding the draft code and the processes required to finalize the legal framework.

Local Governance and Current Context
Under the 1959 Constitution, the Tunisian state consistently pursued an extremely centralized development strategy in which decisions on strategic plans and models took place in the capital, with negligible consultation or input from the greater population in Tunisia’s interior. Although the 2011 revolution resulted in a new constitution, the social protests that Tunisia experienced in January 2017, repeated in January 2018, show the urgency of the demands of Tunisians who are living in a precarious situation. Responding to these demands requires the implementation of new policies, the consultation and inclusion of the population, and the formulation of a legal framework to provide greater decision-making and budgetary authority to the municipal, regional, and district levels.

Chapter VII of the 2014 Constitution, which focuses on decentralization, addresses these demands. This chapter was the first to enjoy consensus among the National Constituent Assembly (NCA) members. It highlighted the key role of the participation of citizens and civil society in formulating regional development projects and monitoring their implementation. However, the transitional provisions of the constitution made the implementation of Chapter VII contingent on the adoption of several laws, the most important of which is the local government code, known in French as the “Code des Collectivités Locales” (CCL). Also necessary is a law on de-concentration, defining the powers of appointed authorities representing the national state at the regional and local levels (governor, delegate, and omda), and 34 decrees to implement the two laws.

The national electoral law has been amended to include local elections. While it is possible for elected municipal councils to operate under existing laws, this would contravene the text and spirit of the new constitution. Indeed, if the laws aren’t updated, municipal councils will not enjoy administrative and financial autonomy, and will be unable to implement the mechanisms of participatory democracy and principles of open governance.

Although the constitution requires regional elections, there are no provisions in the current legal framework for organizing these structures or defining their responsibilities. Even the forthcoming municipal elections alone cannot meet the expectations of citizens in terms of development, employment, the environment, and quality of life. This will require the full implementation of the decentralization process in the local governance framework. The government has proposed extending its implementation over a period of 27 years. This prolonged process is at odds with the urgency of citizens’ expectations.

Shortcomings in the Draft Law
The Carter Center welcomes the relevant legislative committee’s current examination of the draft local governance law. In this context, The Carter Center notes several shortcomings in the bill, including:

• Contrary to the spirit and principles of Chapter VII of the constitution, the bill adopts a minimalist approach. The constitution enshrines the principle of autonomous administration and financial independence, yet the draft law proposed by the government maintains state controls in several areas, including financial decision-making. While the government has a legitimate interest in maintaining the unity of the state, the failure to modernize municipal structures reduces the ability of local authorities to fully exercise their constitutional mandate.
• The High Council of Local Authorities, created as an alternative to a second chamber of parliament to represent local authorities, was given only advisory powers. The bill also fails to incorporate the principles of gender equality and positive discrimination towards marginalized municipalities in determining its composition.
• The constitutional principle of subsidiarity is not clearly established in the bill and could lead to conflicts of competence. Subsidiarity means that when different authorities are present in the same territory (municipality, region and district), the body that will exercise its authority is the one who enjoys both proximity and technical competence. For example, the division of competences between the regions and the districts in development planning and execution is imprecise. More generally, the constitutional principle of positive discrimination toward marginalized areas is not concretely addressed in the bill.
• The mechanisms through which payments between the state and local communities are equalized to assist the less fortunate are not defined by the draft CCL. This makes it difficult to determine the best approach to implement the constitutional principle of “solidarity.”
• The proposed governance and internal structures of the local communities do not appear sufficient to ensure effectual democratic functioning, as they do not promote greater administrative efficiency or dynamism. There is no mention of a local civil service, which could be sensitive to the specificity and demands of the new local structures, enabling them to function well. As drafted, the law would retain current administrative municipal structures, including the role of an appointed secretary general in the administration of each municipality.
• Constitutional principles normally empower local communities to determine their own methodology for the implementation of participatory local democracy. The draft law limits their ability to do so, as the methodology will be determined by decree from the head of government, and will empower the state over local institutions.

Recommendations
In a spirit of mutual respect and support, The Carter Center makes the following recommendations to help advance the process:

For the Government:

• Submit to the Assembly of the Representatives of the People a draft bill defining the responsibilities of the authorities representing the state at the regional and local levels as soon as possible.
• Issue all regulatory decrees necessary to enable the implementation of the laws relating to decentralization and de-concentration.
• Conduct an extensive outreach campaign explaining the new principles of decentralization and the progressive nature of full decentralization with stages extending over 27 years.

For the Assembly of the Representatives of the People:

• Adopt the CCL and define the responsibilities of the authorities representing the state at the regional and local levels within a reasonable timeframe that would allow their implementation before the local elections.
• Amend the CCL bill to:
  • Ensure a more equal composition of the High Council of Local Authorities through the implementation of the constitutional principle of gender parity in elected assemblies and that of positive discrimination measures for the representation of historically disadvantaged municipalities. The High Council should also be given some decision-making powers, including joint decision-making with state authorities on choices for economic and social development strategies and on the implementation of the principle of positive discrimination for disadvantaged regions.
  • Clarify the modalities for the implementation of the constitutional principle of subsidiarity, including the division of responsibility between regions and districts in the planning and implementation of development projects, to avoid confrontation or blockage during their execution.
  • Define the mechanisms of equalization among advantaged and disadvantaged local authorities to allow for the implementation of the constitutional principle of solidarity.
  • Revamp the internal structures of the local communities to reduce outdated bureaucratic practices and instill in these institutions a spirit centered on participatory democracy and renewed work ethic.
  • Empower local communities to determine freely the methodology, modalities, and mechanisms for the implementation of participatory democracy.
  • Create a local public service corps specifically dedicated to the new local authorities.

Translations

Le Centre Carter appelle à l'adoption du Code des Collectivités Locales et des textes juridiques connexes en prévision des élections

مركز كارتر يدعو إلى اعتماد مجلة الجماعات المحلية والنصوص القانونية ذات الصلة، قبل الانتخابات

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A not-for-profit, nongovernmental organization, The Carter Center has helped to improve life for people in over 80 countries by resolving conflicts; advancing democracy, human rights, and economic opportunity; preventing diseases; and improving mental health care. The Carter Center was founded in 1982 by former U.S. President Jimmy Carter and former First Lady Rosalynn Carter, in partnership with Emory University, to advance peace and health worldwide.