In 2018, Tunisia became the first country in the Middle East and North Africa to pass a law that criminalizes racial discrimination. In a society that has long denied the existence of racism, the law—popularly known as Loi 50 or Law 50—has been applauded by local activists and international human rights organizations as a historic step.

The racism regularly experienced by Black and darker-skinned individuals of either Tunisian or Sub-Saharan African origin is both structural (as reflected in the lack of political representation of Black individuals, for example) as well as interpersonal (like verbal abuse while taking public transportation). While there is no census data about the number of Black Tunisians, estimates that are often quoted by Black activists as well as in journalistic pieces suggest that they make up around 15 percent of the population. This contested number only includes those who are defined as Black. But this definition is also unclear given that Blackness is attributed to an individual based on context and there is no stable definition of the term. There are also widely divergent estimates about the number of Sub-Saharan Africans living in Tunisia, ranging from around 8,000 to about 60,000. In 2019, the Point Anti-Discrimination network registered 76 cases related to racial discrimination in nine governorates in Tunisia. Of these, 66 were cases of discrimination faced by individuals of Sub-Saharan origin, nine cases noted discrimination faced by Black Tunisians, and one case was linked to refusal of mixed marriage.[1]

While both structural and interpersonal racism create inequalities that marginalize Black and darker-skinned individuals, it is the interpersonal racism that is most visible and most intensely felt in everyday life.
While both structural and interpersonal racism create inequalities that marginalize Black and darker-skinned individuals, it is the interpersonal racism that is most visible and most intensely felt in everyday life. Words like kahlouch (an infantilizing and denigrating manner of calling someone Black that is also sometimes translated as “blackie”) and zarga (referring to a woman with dark skin in a way that is negatively associated with sexual promiscuity and as coming from a working-class neighborhood) are regularly used to refer to Black and darker-skinned individuals. Like my interlocutors, I also face these verbal aggressions regularly in public spaces. The micro nature of these acts may imply that individually they do not have much importance but collectively they weigh continuously on my body as I move around in public.[2]

Given the widespread denial of racism in Tunisia, how did the passage of Law 50 come about? How does the law define and penalize racism? And, three years since its passing, what social and political changes has it achieved? Although Law 50 has opened up discussions about racism and race in Tunisia and provided some recourse for those who are targeted by racist acts, there are limits to what it can achieve.

 

The Societal Denial of Racism

 

The denial of the existence of racism is omnipresent in Tunisia. Under the authoritarian regime of President Zine el-Abidine Ben Ali (1987–2011), denial of racism’s existence was accompanied by an absence of freedom of expression to speak about it. When Black and darker-skinned individuals started testifying publicly on social media after the 2011 revolution about their experiences of racism, they were repeatedly delegitimized by non-Black Tunisians with accusations that they were “inventing problems” and were “separatists.”[3]

Denial of racism also comes in the form of popular discourse around the abolition of slavery. Many Tunisians proudly point out the fact that slavery was abolished on January 23, 1846 by Ahmad Bey, ruler of Tunisia at the time, two years before France. But they often erroneously assume that the legal end of slavery ended anti-Black racism. The histories of slavery and contemporary racism are intertwined in Tunisia, just like in the Americas. Territories that currently make up modern Tunisia (like Tunis and Gabès) were historically important sites in the trans-Saharan slave trade, both as places where slavery was practiced and as ports to transport enslaved individuals who were brought from Europe and from Sub-Saharan Africa. As M’hamed Oualdi’s article in this issue points out, abolition of slavery did not mean the end of marginalization and racialization of formerly enslaved Black people in Tunisia, unlike the case of the non-Black enslaved population, which could more easily integrate into society.

The histories of slavery and contemporary racism are intertwined in Tunisia, just like in the Americas.

The legacy of slavery continues in multiple forms in Tunisian society today, seen clearly in the use of terms like oussif/a and abid (both meaning slave) to refer to the Black Tunisian and Sub-Saharan African population, as well as in popular tropes such as the belief that the bodies of Black people are “athletic and built for servitude.”[4] This latter trope is used to justify hiring Black individuals for physically demanding and exploitative jobs, and contributes to the inhumane treatment and disrespect they experience. Yet, despite these obvious residues of slavery, invoking 1846 and the legal abolition of slavery has become shorthand for denying the existence of racism in contemporary Tunisia.

 

Recognizing Racism and the Making of Law 50

 

In a state that does not recognize race as a social construct through which marginalization takes place, how can one seek an official recognition of racial discrimination? In response to this question, anti-racism activists developed the idea of creating a law that penalizes racial discrimination. A law was deemed necessary because the constitution of 1959 (adopted under Habib Bourguiba, the first president of independent Tunisia) did not include the principle of non-discrimination. While the constitution adopted in 2014 stipulates that citizens are “equal in front of the law without discrimination” (Article 21) it does not state clearly the types of discrimination against which the state provides protection.

As Tunisia transitioned from authoritarianism to democracy after the 2011 revolution, anti-racism activists from the organizations ADAM For Equality and Development and Mnemty began the work of drafting the content of the law and seeking support from government ministers and civil society. Media coverage of two instances of racial violence toward a Black Tunisian woman and three Congolese students in 2016 brought support from civil society organizations and, later, also from then-Prime Minister Youssef Chahed .

On October 9, 2018, the law penalizing racial discrimination was passed by majority vote in the parliament. The goal of Loi organique no. 2018–50 du 23 Octobre 2018 is to “eliminate all forms and manifestations of racial discrimination” and “protect its victims and punish its perpetrators.” Article 2 of Law 50 defines racial discrimination as follows:

All distinction, exclusion, restriction, or preference based on race, color, descent, national or ethnic origin, or any other form of racial discrimination as defined by the ratified international conventions, which has the effect of preventing, hindering, or depriving an individual of enjoying or exercising her equal rights and freedoms, or which results in additional duties and burdens. Any distinction, exclusion, restriction or preference established between Tunisians and foreigners does not constitute racial discrimination, provided that no nationality is targeted to the detriment of others, while taking into account the international commitments of the Republic of Tunisia.

Article 5 of Law 50 explains that victims have the right to medical, psychological, and social assistance, legal protection and “fair and proportionate judicial compensation for physical and moral damage caused by racial discrimination.” In order to file a complaint, the victim or her legal guardian must produce a document that describes the act of racial discrimination (and includes any evidence) and submit it to the public prosecutor responsible for the geographic area where the complaint is being lodged (Article 6).

The penalties for acts of racial discrimination, including use of racist language, are imprisonment of one month to one year as well as a fine between $185 and $370. This penalty is doubled in cases where the victim is considered more vulnerable due to being a minor, disability or migration status. Penalties increase if the acts are proven to incite hatred or if one is found to praise, form groups or support activities that promote racial discrimination. Legal entities found to promote racial discrimination are fined from $1,850 to $5,000. While these amounts may seem insignificant in US dollars, their value is higher in the Tunisian context.

In addition, Article 11 of Law 50 proposed the creation of a commission against racial discrimination. The goal of this commission, which is attached to the ministry charged with human rights, is to collect and monitor data, and design and propose strategies and policies that would eliminate all forms of racial discrimination. A decree fixing the terms of the creation of the commission as well as its organization, working mechanisms and composition was passed on April 7, 2021.[5] The commission is, however, yet to be set up.

Law 50 is not only significant for its legal precedents but also because it marks the official recognition of the presence of racism in society as well as recognition of the work of anti-racist activists who originally initiated the project of creating the law.

 

Applying the Law

 

Less than six months after it was passed, the law saw its first penal case. In January 2019 a case was filed against the mother of a student in Sfax (southern Tunisia) who made racist remarks against the teacher. For the first time, Law 50 was used to condemn an act of racial discrimination: The woman was given a sentence of three months in prison and fined about $100. Additional penal cases have followed.

The first civil case that made use of Law 50 was more recent. On October 14, 2020, the Tribunal of First Instance of Médenine passed a historic judgement: the demand of Hamden Atig Dali, an 81-year-old man from Djerba in south Tunisia, to remove the word Atig from his name in the official papers was accepted. The case refers to descent as a basis for racial discrimination (as mentioned in Article 2). The word atig means “liberated by,” and is followed by the last name of the person who liberated the person’s enslaved ancestors (in this case, the Dali family). The term is thus a product of the history of slavery in Tunisia.

The judgement in the Atig case of 2020 is important for three reasons. First, it recognizes atig as a term that racializes and marginalizes the Black population in Tunisia and as a site of everyday social violence and humiliation. The case also provides recognition of the history of slavery (albeit indirectly) and its influence on contemporary Tunisian society. Second, the judgement passed in Médenine recognizes the harm done by the term atig to the dignity of Hamden Atig Dali and his family. In addition to its use as a last name, the term is used in vernacular Arabic (especially in the south of Tunisia) to refer to the Black population in general and carries a heavy negative stigma. In contrast, non-Black people are referred to as hur, which means “free.” Third, the Atig case sets a precedent for future cases that involve requests to remove atig or equivalents (like chouchene and abid) from last names. Lawyer Hanen Ben Hassena, who represented the case of Hamden Dali, reports that with support from the organizations Mnemty, Minority Rights Group International and the United Nations High Commissioner for Human Rights, multiple demands for removal of stigmatized last names are currently being filed.

 

Confronting Barriers to Equality

 

While laws like Law 50 act as symbolic recognition of racism and curb racial discrimination at some levels, they do little to “change the mentality,” as many Black and darker-skinned individuals point out. In the words of one of my interlocutors, a young Black Tunisian woman, “there is the law on one hand and, on the other, there are traditions.” The social construction of Black and darker-skinned individuals as inferior continues to justify the reproduction of structural and interpersonal racism.

The magnitude of the racialized violence that many individuals experience is so overwhelming that it would be ludicrous to file a case for every racializing act.
One key example of the limitations of the law is that it remains unclear how omnipresent racialized micro-violence can be targeted using legal tools. Many of my Tunisian and non-Tunisian interlocutors (who are Black or darker-skinned) face verbal racial violence every day in public spaces. The magnitude of the racialized violence that many individuals experience is so overwhelming that it would be ludicrous to file a case for every racializing act. Moreover, the burden of providing evidence also remains a barrier for victims who seek legal justice. Much like in cases of sexual harassment, it is difficult—if not impossible—to prove that an act of racial discrimination occurred. As one interlocutor joked, he would have to wear a camera to capture evidence for the everyday racial violence that he experiences in public spaces.

In addition to the difficulty of gathering evidence, there is also the problem of access to information about legal and human rights. Lawyers and activists working on racial discrimination cases report that there is a lack of awareness about Law 50 at the level of society and even within the justice system. Saadia Mosbah, the founder of the anti-racism organization Mnemty, noted during our conversations that many individuals who have faced racial discrimination have complained that the police are not aware of Law 50 and that they refuse to file cases as acts of racial discrimination.

While increasing awareness of the law will not necessarily reduce the potential for racist acts, the existence of the law does offer a recourse for protection when individuals face racism. For example, Affoue (name changed), an Ivorian woman who runs a small business in the city of Sfax, said that she invokes Law 50 and threatens to file a case when faced with either administrative or interpersonal racism. Skin color is not the only factor involved in racialized violence experienced by Sub-Saharan Africans like Affoue living in Tunisia. The migration status of an individual governs their level of access to the law. For example, migrants who are undocumented are reluctant to file a case of racial discrimination, given the fear of deportation. Law 50 needs to be accompanied by policies that ease access to legal documentation for migrants, as well as policies that target other forms of vulnerability imposed on migrant workers, such as trafficking, informal employment and exploitation, sexual harassment and assault, and non-payment of salary.

The law does little to target structural racism, which is visible in the unequal access to opportunities in education and employment. Black Tunisian activists have repeatedly pointed out the relative absence of Black officials in the public sector and Black ministers in the government. Belgacem Fadhel, a Black Tunisian who teaches philosophy in a public school in Gabès governorate, points out that among the three Black students who entered as an undergraduate along with him to study philosophy, he was the only one who finished the program. He blames the lack of financial support from the government that makes it hard for already impoverished Black families to support the education of children: Poverty is proportionally more present among Black families than non-Black families in Gabès.[6]

The law does little to target structural racism, which is visible in the unequal access to opportunities in education and employment.

The law also remains silent about racism that occurs in domestic settings, an experience that touches most of my Black and darker-skinned interlocutors. For example, many of the Black women I have been interviewing narrated stories of racialized sexual harassment in romantic relationships. Mixed romantic partnerships (especially between a Black woman and a non-Black man) are viewed negatively in society. Black individuals, especially Black women, are portrayed as sexually promiscuous in popular tropes, which are then used to justify acts of sexual harassment and disrespect toward Black individuals.

Many civil society members and human rights activists continue to hope that the establishment of coherent and complementary legal frameworks will eradicate racism from society. But the presence of racism is not only legal in nature. It is also economic, political and social. The existence of racism and racial violence is a reflection of social constructions and imaginations (like ideas of sexual promiscuity and physical strength) as well as unequal structures (like unequal access to opportunities in education and employment) that are continuously reproduced within society and which perpetuate the marginalization of the Black population in Tunisia.

Despite the significance of Law 50, legal frameworks come with their own set of limitations. Penalizing racial discrimination in Tunisia is an important step forward, but not an end to the fight for racial justice. Activists and policy makers need to go further by crafting policies that can target the sources of racism and racial violence, such as changes in textbooks to include the history of slavery and the easing of legal restrictions and increased access to work for migrants, especially those from Sub-Saharan Africa. Policies that seek to bring about more fundamental and systemic changes are needed to fully achieve racial equality in Tunisia.

 

[Shreya Parikh is a dual PhD candidate in sociology at CERI-Sciences Po Paris and the University of North Carolina at Chapel Hill.]

 


 

Endnotes

 

[1] Mohamed Amine Jelassi, “Rapport d’analyse des cas de discrimination récoltés par les Points Anti-Discrimination.” Points Anti-Discrimination, 2020.

[2] As an Indian woman with dark skin, I pass as a woman of south Tunisian origin and experience verbal racism regularly in public spaces, like many Black and darker-skinned individuals I have interviewed. Most recurrent is the use of zarga.

[3] Quotes from conversations with a Black Tunisian artist (June-July 2021).

[4] From field notes, based on conversations (April 2021).

[5] Présidence du Gouvernement, « Décret gouvernemental n°2021-203 du 7 avril 2021, fixant les modalités de création de la commission nationale de lutte contre la discrimination raciale, ses attributions, son organisation, son mode de fonctionnement, ses mécanismes de travail et sa composition,» Journal Officiel de la République Tunisienne, 33 (April 13, 2021) pp. 793–795.

[6] Conversation with Belgacem Fadhel in June 2021.

 

How to cite this article:

Shreya Parikh "The Limits of Confronting Racial Discrimination in Tunisia with Law 50," Middle East Report 299 (Summer 2021).
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