Tunisia’s proposed drug law spurs debate

As Tunisia grapples with prolonged economic stagnation and a 30 percent youth unemployment rate, officials have warned that drug use is on the rise – and so is the country’s prison population.

A draft law has proposed the abolition of prison terms for first and second-time offenders arrested for drug consumption or possession for personal use. However, the proposed law – expected to go to a vote in the coming months – contains a number of controversial provisions that have been criticised for infringing civil rights.

In a recent televised interview, President Beji Caid Essebsi lauded the draft law, noting that an individual imprisoned for consuming cannabis “would enter prison clean and leave it as a criminal”, referring to the dangers of mixing petty offenders with hardened criminals in jail.

The draft legislation seeks to replace Tunisia’s current law on narcotics, Law 52, which imposes a mandatory minimum one-year prison sentence and hundreds of dollars in fines for anyone who possesses or uses illegal drugs, including cannabis, for the first time. Repeat offenders are sentenced to a minimum of five years and larger fines. 

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Last year, 6,700 people were arrested and detained for drug consumption in Tunisia – eight times more than in 2000, according to official figures from the Ministry of Justice. Those arrested for drug-related offences account for a third of the overall prison population.

Human rights groups say that Law 52, adopted in 1992 under former President Zine El Abidine Ben Ali, has provided a legal pretext to arrest and detain activists critical of the government. Law 52 “does not require any evidence” that a crime has been committed prior to arrest, said Amna Guellali, the Tunisia director at Human Rights Watch – a problem that is not remedied in the new draft law. 

People can be arrested on streets or in cafes “on the very vague suspicion that they have consumed drugs”, Guellali told Al Jazeera, noting that even if police fail to find any evidence on suspects, they often force them to take a urine test. The active ingredient in cannabis, known as THC, can be found in a person’s urine as long as 67 days after consumption.

“This is quite telling about the widespread use of this law as a tool to arrest, detain, and imprison the population, especially young people, just for smoking a joint,” Guellali said. “It is basically the easiest way to convict people in Tunisia.”

The draft law, initially passed to parliament for legislative revision in late 2015, has been stalled for more than a year now as legislators have failed to reach a consensus. It has faced criticism for a number of controversial provisions.

While judges would have discretion under the draft law in allowing first-time offenders to choose between going to a public health institution for drug treatment or paying a monetary fine, second-time and third-time offenders would not have that option.

“For second-time and third-time offenders … this relation between health and criminalisation is broken,” Guellali said, citing a shortage in public health facilities in Tunisia and a lack of investment in health policies dealing with drug use.

In addition, the draft law criminalises refusing to take a urine test, making it punishable by up to a year in prison. The current law contains no such provision, even though police have been accused of using coercive tactics to make people take the test.

The concept of a mandatory urine test “violates a person’s freedom and undermines human dignity,” Ghazi Mrabet, a lawyer and activist calling for the decriminalisation of cannabis, told Al Jazeera.

The draft law also adds a new offence of “public incitement to commit drug-related offences” – a vague provision under which those who advocate for the decriminalisation or legalisation of drug use could be prosecuted. This kind of provision could be used to silence activists and human rights groups, Guellali noted.

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Although Ben Ali was ousted in January 2011 amid widespread protests, some see Law 52 as a remnant of his authoritarian regime.

In September 2013, police raided the home of filmmaker Najib Abidi, arresting eight activists on suspicion of drug possession, just as they prepared to release a controversial documentary about the alleged involvement of police in the coastal city of Kabaria in people-smuggling to Europe.

Slim Abida, a Paris-based Tunisian musician who was among the activists arrested that night, said police did not find any drugs in the apartment, but he and three other artists were sentenced to a year in prison after being forced to take urine tests at the police station.

“I don’t smoke cannabis. I was certain that my test result was going to be negative. It came out positive,” Abida told Al Jazeera. “You could refuse to take the test. Then you would be beaten up and forced to take it. If you still resist and do not take it, you still test positive,” he said, accusing police of falsifying test results.

A spokesperson for Tunisian police did not immediately respond to Al Jazeera’s request for comment.

I don't smoke cannabis. I was certain that my test result was going to be negative. It came out positive.

by Slim Abida, musician

The detention of the four artists triggered an outcry among human rights groups, including Reporters Without Borders, and raised questions about the real motives for the raid, during which police confiscated two hard drives containing footage for the documentary.

Others have argued that reforming Law 52 is necessary on security grounds. The country has faced an increase in cross-border weapons and drug smuggling with neighbouring Libya and Algeria, and with the return of Tunisian fighters from the ranks of the Islamic State of Iraq and the Levant group (ISIL, also known as ISIS), experts fear that prisons are becoming hotbeds for radicalisation.

A 2016 report by the Office of the UN High Commissioner for Human Rights cited significant overcrowding in Tunisian prisons, with some facilities running at 150 percent capacity. Overcrowding can lead to offenders in jail for minor drug offences sharing cells with people convicted of “terrorism”-related crimes.

Abida said that he shared a 40 square metre cell with 123 other prisoners. “I shared the cell with returnees from Syria, with murderers and with paedophiles. You don’t differentiate [between inmates] in prison. You’re all together,” he said.

The infamous case of a rap singer, Marwen Douiri – better known by his stage name “Emino” – who joined ISIL in 2015 after eight months in prison for drug possession sent shock waves across the country. Douiri died last November during a battle in Mosul.

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Meanwhile, the legislative debate around the Law 52 reforms remains highly divisive, with opposition parliamentarians arguing that drug use would skyrocket if the draft law passes – an argument rejected by proponents of the law.

However, wider issues, such as Tunisia’s economic malaise and high levels of unemployment among its large young population, could exacerbate drug use, experts say. 

“The problem is not the drug consumer; it is the environment and community that surround the drug consumer. You spend 19 years of your life getting an education to be unemployed at the end. Of course some people would escape to drug use – they want to forget their misery,” Abida said.

“It is time for the country to focus on the big fish,” he said, “not the addicted.”