Jasmine Foundation Briefing: Tunisian new elections law

JF Briefing
TUNISIA’S NEW
ELECTORAL LAW
2014
Prepared By
Jasmine Foundation Researchers
MAY 2014
www.jasmine-foundation.org

JF Briefing | TUNISIA’S NEW ELECTORAL LAW 2014
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Tunisia’s National Constituent Assembly passed, on 1st
May, a new
Electoral Law, marking a key step towards completing its democratic transition.
The new Fundamental Law on Elections and Referenda, adopted by 132 deputies
with 11 against and 9 abstentions, sets out the process for organising elections
and referenda, from registration of voters to declaration of results and
contestation mechanisms.
It comes as a result of two months of discussions within the Assembly and
intense debate in the Consensus Committee (set up last June as a forum for
political parties to debate the most contentious points within the Constitution
and the democratic transition). The law is based on draft proposals by a group
of civil society organisations, including Chahed Observatory, ATIDE, Youth
without Borders, the Foundation for the Future and the Centre for Citizenship.
The law was first discussed in the General Legislative Committee of the Assembly,
which examined the proposals article by article, collecting opinions and
feedback from Committee members. The Committee then held open hearings
with stakeholders on their views on the proposals, the electoral process and
lessons learned from the last elections. The Committee also held open hearings
with civil society organizations, representatives of the Tunisian diaspora, the
Independent Higher Authority for Elections (ISIE), the Higher Authority for
Audiovisual Communication (HAICA) and the Court of Auditors. The Committee
also held a hearing with experts from the United Nations Development Program
(PNUD), the International Organization for Elections and the Council of Europe’s
Venice Commission.
A number of deputies had proposed a draft that sought to disqualify any
individual who had held a position within a government in Ben Ali’s era from
standing, as well as those who had held a position within the dissolved former
ruling RCD party. The issue has been heavily debated among parties and the
public for months, with calls for “preserving the revolution” by excluding all
those who were closely associated with the old regime from standing and
returning to power, as was seen in a number of post-Communist states in
Eastern Europe. Those against cited Constitutional guarantees of equality before
the law, while some opposed the law on the basis that excluding old regime
figures from the race would encourage them to use all means to abort the
elections and make them fail, thus endangering the democratic transition. The
highly charged debate led to emotional scenes outside the Assembly as relatives

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of those who were killed during the revolution protested outside and deputies
inside the Assembly broke up the session after the proposal failed to be passed,
with only 100 votes for, 27 against and 46 abstentions, falling short of the 109
majority required.
The law sets all the stages and procedures relating to any party, entity or
authority involved in the electoral process, defining the powers of each of those
parties.
Below is a translation by Jasmine Foundation of the key provisions:

All Tunisians registered in the electoral register, over 18 years of age may vote,
unless they (a) have a conviction under article 5 of the Penal Code; (b) are
members of the Armed Forces or Security Forces; or (c) are mentally
incapacitated.

The law requires individuals to meet the following conditions in order to stand:
have held Tunisian citizenship for at least 10 years, be over 23 years of age and
not barred from standing by virtue of any law.

The law requires 50-50 representation of male and female candidates on all lists,
to be listed alternately, so-called “vertical parity”. A proposal to impose an
additional requirement for “horizontal parity”, i.e. that 50% of a party’s lists must
be headed by a female candidate and 50% headed by a male candidate, was
rejected.
The final text adopted states: “Candidacies are presented on the basis of the
principle of parity between women and men and the basis of alternation
between them on the list. A list that does not respect this principle will not be
accepted except in relation to constituencies having only one representative.”

The law requires every electoral list in a constituency with four seats or more to
have, among its top four candidates, at least one candidate under the age of 35.
Any list not meeting this requirement will have half of its public funding withheld.

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
The law bans individuals from simultaneously holding membership of the
legislature and the following positions:
 member of the Government;
 official position in any state institution or company in which the state has
a stake;
 member of elected official local bodies;
 official position in a foreign state institution; or
 Official position in an intergovernmental organization or international
institution.

The law requires presidential candidates to be at least 35 years of age, have held
Tunisian nationality since birth, and to be a Muslim.
Applications for candidacy must be supported by either 10 members of
Parliament, 40 presidents of local councils or by 10,000 voters from at least 10
districts.
Presidential candidates must provide a deposit of 10,000 dinars that will only be
reimbursed if they attain at least 3% of the vote.

Electoral and referenda campaigns begin 22 days before the date of voting. This
campaign period is preceded by a pre-campaign period of 3 months. The
campaign period ends 24 hours before the day of voting.

Campaigns must respect the following principles:
- neutrality of the administration and places of worship
- impartiality of national media
- transparency relating to campaign financing expenditure
- equity and equality of opportunity between all candidates
- respect for physical integrity, honour and dignity of all candidates and
electors
- respect for the private life and personal details of candidates

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- not inciting to hatred, fanaticism or discrimination.

Article 53 states that it is prohibited to distribute literature or disseminate
slogans relating to election or referendum propaganda in public administration
institutions or publicly owned companies by the head of the institution, its
employees or agents. It is prohibited to use resources of public institutions for
the benefit of a party or candidate or list, and any such use is punishable with six
months’ imprisonment.
Article 54 prohibits all election or referendum propaganda in schools,
universities, training institutions and places of worship.
Violation of these prohibitions is punishable by a fine of between 2000 and 5000
Dinars.

Article 57 prohibits political advertising throughout the campaign period. It
permits party newspapers to publish adverts for the political party to which it is
linked, during the campaign period. Violation of this prohibition is punishable by
a fine of between 5000 and 10,000 Dinars.
It is permissible for presidential candidates to use political advertising.

The publicity means permitted to candidates during the campaign period
include announcements, public meetings, demonstrations, rallies, and publicity
in all audiovisual media, print and electronic press, among others. The ISIE must
be informed of any activity in writing at least two days prior to the event.
Article 62 states that local authorities shall provide spaces during the campaign
period dedicated to campaign posters, with equal space provided for each
candidate, list or party. All campaign posters outside these spaces are prohibited.
It is prohibited to remove, cover or deface the poster of another candidate, list
or party. Any violation of this shall be punishable by a fine between 500 and
1000 Dinars.

The HAICA guarantees the right to access to media for all political groups in the
pre-campaign period, according to the principle of pluralism.

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The HAICA guarantees pluralism and diversity in the audiovisual media during
the campaign period and the removal of all obstacles to equal access to
audiovisual media for all candidates, lists and parties.
Article 66 permits candidates to use national and electronic media in their
campaign. It forbids the use of foreign media, with the exception of lists for
electors outside Tunisia during legislative election campaigns. Violation of this
prohibition is punishable by a fine of between 2000 and 5000 Dinars.
Article 69 prohibits the use of media for any campaigning during the “silent
period” (24 hours prior to voting day). Violation of this prohibition is punishable
by a fine of between 3000 and 20,000 Dinars.
Article 70 prohibits the dissemination or publication of the results of surveys,
polls or studies relating to elections or referenda during the campaign period
and the silent period. Violation of this prohibition is punishable by a fine of
between 20,000 and 50,000 Dinars.

The ISIE is charged with monitoring respect for legal rules, principles and
procedures by candidates, lists and parties during campaigns. It is empowered
to take the necessary measures to bring infringements to an end.
The HAICA is charged with monitoring compliance with the prohibition on the
use of foreign media during the campaign. It shall inform the ISIE of any
violations and is empowered to take decisions relating to violations.

Electoral and referendum campaigns can be self-financed by a candidate, list or
party, by private donations or by public financing, in accordance with the law.
All foreign financing (financing which originates from outside Tunisia) is
prohibited, except in the case of lists and candidates in districts outside Tunisia.
Any violation of this prohibition is punishable by a fine equal to 10 to 50 times
the amount of the foreign financing. All members of the electoral list shall lose
their seats in the Assembly. In the case of presidential elections, the candidate
shall be punished with five years’ imprisonment. Any person found guilty of such
a violation shall be disqualified from standing in the following legislative and
presidential elections.
Private donations can only be received from physical persons, earning over 20
times the individual minimum wage in the non-agricultural sector, in relation to

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legislative elections, or 30 times the minimum salary in relation to presidential
elections or referenda.
All candidates shall be granted an equal amount of public financing. 50% of this
is granted before the start of the campaign. The second half shall be paid one
week after the announcement of the final results of the election, on the
condition that the candidate presents proofs of expenditure and deposits their
campaign accounts before the Court of Auditors.
Any candidate obtaining less than 3% of the national vote and any list obtaining
less than 3% of the vote in the relevant district and not gaining any seat in the
Parliament shall be obliged to refund all public financing. All candidates and lists
shall return all unused public funds. Any individual, list or party violating these
rules shall not be granted any public financing in future elections.
Article 81 provides that a ceiling for total campaign financing, private financing
and public financing can be set by way of governmental decrees, after
consultation with the ISIE.

Each candidate, party or list must open a single bank account for all campaign
finances. The candidate, party or list must appoint and inform the ISIE of a single
representative responsible for managing the finances and responding to any
questions relating to finances during the campaign.
Article 84 requires that each political party presenting more than one list in the
election must maintain integrated accounts for all financial dealings in all the
districts in which they have put forward an electoral list.
Article 85 requires that all expenditure be justified with authentic and reliable
documents. Any payment over 500 Dinars must be completed by way of cheque
or bank transfer.
Each candidate, party or list must present an original set of its accounts and
proofs of expenditure to the Court of Auditors, along with accounts for each
district as well as accounts for the whole campaign, no more than 45 days after
the announcement of the final results of the election.
All electoral lists in legislative elections, all candidates in presidential elections,
and all parties in referenda shall publish their accounts in a national daily
newspaper no later than 2 months after the announcement of final results.

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
The ISIE is responsible for monitoring compliance with campaign financing rules,
and ensuring compliance in cooperation with other public bodies, including the
Central Bank of Tunisia, the Court of Auditors and the Ministry of Finance.
The Court of Auditors is responsible for monitoring the incomings and
outgoings relating to campaign finances of all electoral lists, candidates and
parties. It shall prepare a public report of its findings within six months of the
announcement of the final results.

If an electoral list, candidate or party fails to present its accounts to the Court of
Auditors as required, the Court may impose a fine amounting to 25 times the
maximum threshold for campaign expenditure and disqualify all members of the
Assembly elected from that list.
If the Court decides to reject the accounts of an electoral list, candidate or party,
without the latter having exceeded the maximum threshold for campaign
expenditure, the Court may impose a fine amounting to 10% of the maximum
threshold for campaign expenditure.
If an electoral list, candidate or party exceeds the maximum threshold for
campaign expenditure, the Court may impose the following penalties:
- a fine equaling the excess amount spent over the maximum threshold for
campaign expenditure, if the excess amount is less than 10% of the
maximum amount for campaign expenditure;
- If the amount spent exceeded the maximum threshold for campaign
expenditure by 10-30%, a fine amounting to 10 times the excess amount;
expenditure by 30-75%, a fine amounting to 20 times the excess amount;
expenditure by over 75%, a fine amounting to 25 times the excess
amount, and disqualification of all members of the Parliament elected
from that list.
Article 99 gives the Court to power to impose a fine between 500 and 2500
Dinars on any candidate or electoral list or party that obstruct its work by
delaying the submission of required documents.

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
Elections are announced by a Presidential order at least three months before the
voting day, in the case of legislative and presidential elections, and two months
in the case of a referendum.

Voting takes place on one day, either on a weekend or national holiday. In the
case of Tunisians abroad, voting shall last three consecutive days, with the last
day coinciding with Election Day inside Tunisia. The second round of presidential
elections shall be held within two weeks of the announcement of the first round
results.

Electoral districts for legislative elections shall be set by way of a law, passed at
least one year before legislative elections.
Legislative elections shall have one round of voting. Seats are allocated for each
district using the Proportional Representation with Largest Remainders system.
The electoral quota for each district – i.e. the minimum number of votes
required for a party or candidate to win a seat in that district - is calculated by
dividing the number of votes cast (excluding blank ballots) by the number of
seats available in that district.
Electors shall choose an electoral list.

The President is elected by a majority of votes cast. If no candidate wins a
majority of votes cast, a second round shall be held within two weeks of the first
round, between the two candidates who gained the highest number of votes in
the first round. The winner is the candidate with the highest number of votes. If
the candidates win an equal number of votes, the older candidate shall be the
winner.

A referendum is announced by way of presidential order, accompanied by a
copy of the subject of the referendum, and published in the Official Gazette.
The referendum is won by a majority of votes cast.

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
Voting is personal and cannot be carried out by a third party. Voting shall be by
way of a single ballot paper in legislative and presidential elections and
referenda. It shall be designed and printed in colour by the ISIE, ensuring clarity
and precision. The names of candidates and lists shall be arranged in a column,
to avoid any confusion for voters. An example of a ballot paper shall be
published on the website of the ISIE prior to the beginning of the election
campaign.
The ISIE shall establish a list of polling stations in every electoral district, and
shall seek to ensure that each polling station has a maximum of 600 voters. The
ISIE shall appoint heads of polling stations, on the basis of integrity, impartiality
and independence. No staff in a polling station may be related to a candidate or
employed by him or her, or a member of a political party. It is prohibited for
staff or head of a polling station to have held a position of responsibility in the
dissolved Rassemblement Constitutionnel Democratique Party (former ruling
party).
Each electoral list, candidate or party may appoint representatives to be present
in polling stations on Election Day. No such representative, or observers, may
display any symbol indicating affiliation to a political party.
Article 128 prohibits any campaigning inside polling booths or stations or in their
vicinity.
Article 131 requires polling stations to facilitate the participation of voters with
disabilities. Article 132 gives blind voters and voters with a disability preventing
them from being able to write the right to choose an assistant to accompany
them during voting, who shall be an eligible elector and related to them. The
role of the assistant is limited to doing those acts that it is difficult for the voter
to do.
Any violation by an assistant to a disabled voter of the voter’s right to
confidentiality shall be punishable by a 500 Dinar fine.

Ballot papers shall be sorted publicly in the presence of observers and
representatives of electoral lists (in the case of legislative elections) or
representatives of candidates (in the case of presidential elections) or
representatives of parties (in the case of referenda).
Blank ballot papers are counted as part of the election results.

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At the end of the sorting process, all staff of the relevant polling station and
representatives of lists, candidates or parties sign the minutes of the sorting
process. The observers and representatives can request for their observations
and reservations to be included as an annex to the minutes and the head of the
polling station shall document and include them.
The minutes shall be hung in front of the polling station, and a copy placed
inside the ballot box.

The ISIE monitors and collects results from polling stations, and examines any
claims of irregularities. It can order a re-count in any district, and can annul the
results in any district if it believes there are fundamental irregularities in the
voting and sorting process. If this annulment is likely to affect the allocation of
seats in a district, the ISIE shall repeat the voting process in the relevant district.
The ISIE may disqualify a winning candidate or list if that candidate or list has
violated the restrictions relating to the campaign period and financing, if the ISIE
believes such violation has had a fundamental effect on the results. In such a
case, the results shall be recalculated, excluding the disqualified candidate or list.
The ISIE shall announce the results within three days of the end of voting and
sorting of votes. Appeals against the results may be submitted to the
Administrative Court within three days of their announcement. Appeals may be
submitted, in the case of legislative elections, by the head of an electoral list or
one of its members or a party’s legal representative, and in the case of
presidential elections, by a candidate.

Staff of polling stations can be fined where they cause a delay in the election
process without valid excuse.
Any head of a polling station who fails to open a ballot box in front of
representatives or observers before the beginning of the voting process in order
to check that it is empty shall be punished with one month’s imprisonment and
a fine of 1000 Dinars.
Any person who uses fraud, or conceals grounds for disqualification or attempts
to vote at more than one polling station shall be punished with six months’
imprisonment.

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Any person who attempts to enter a polling station to violate voter
confidentiality or the fairness of the electoral process shall be punished with one
year’s imprisonment and a fine of 1000 Dinars.
Any person who abuses polling station staff during their fulfillment of their
functions, causing the suspension of voting, shall be punished with one year’s
imprisonment and a fine of 1000 Dinars.
Any person caught giving donations to voters with the aim of influencing their
vote, obstructing voters from voting or sneaking ballot papers out of a polling
station shall be punished with between six months’ and three years’
imprisonment and a fine of 3000 Dinars.
Any person who violates another’s right to vote with the use of violence or
threat of violence, whether direct or indirect, the threat of loss of employment,
or of some form of harm to the voter shall be punished with between three and
five years’ imprisonment and a fine between 3000 and 5000 Dinars.
Any person who seeks to cause chaos and disturbance at a polling station or in
its vicinity or uses public gatherings or demonstrations to disturb the voting
process shall be punished with between three and five years’ imprisonment and
a fine between 3000 and 5000 Dinars.
Any polling station staff or individual caught committing electoral fraud or
procuring others to do so shall be punished with six years’ imprisonment and a
fine of 5000 Dinars.
Any person who attacks or breaks into a polling station, election office or
counting office using violence in order to obstruct the election process shall be
punished with six years’ imprisonment and a fine of 5000 Dinars, and ten years’
imprisonment if it involved the use of weapons.
Any person punished with one year’s imprisonment or over under this law can
also be punished with disqualification from voting for between two and six years.

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Jasmine Foundation Briefing: Tunisian new elections law

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