Through analysis of various counterterrorism laws in the Maghreb region, we find patterns of overly broad provisions that induce disproportionate leverage of authoritative discretion-of such magnitude, at best harbors inconsistency and at worse breed abusive interpretation. These laws have been heavily used and have placed serious restrictions on civil society in the region. This report will identify concerns and provide necessary recommendations to address ongoing human rights concerns in the wake of the Universal Periodic Review for Algeria, Morocco, and Tunisia.

In February 2019, the pro-democracy “Hirak” protest movement swept through Algeria. Overly broad provisions of the Penal Code have resulted in a mass number of arrests (+7500 arrests in 2021, for instance).[1] Presently, over 300 Prisoners of conscience are in detention due to their activity and/or involvement in the Hirak protest. Approximately two-thirds of the prisoners of conscience are in pretrial detention. Notably, in the last two years, there has been a persistent climate of serious restrictions on freedom of assembly, association, and freedom of expression due to all-encompassing legislation and overly broad provisions through:

[1] Algeria: Joint submission to the Universal Periodic Review, CIVICUS the 31 of March 2022

Article 87 bis (13 & 14) of the Penal Code is boundless legislation capable of encompassing anyone or any institution. Since the modification in 2021, baseless terrorism charges against peaceful dissent have become normalized in Algeria. Using vague language such as “by any means whatsoever” to govern high-caliber charges of terrorism and associations with terrorist entities. Through these broad provisions, the article declares any change to the system of governance as a direct violation of the law.[1] A crime is liable for a life sentence and the death penalty.

[1] GSG Algeria. (2022). People’s Democratic Republic of Algeria: The General Secretariat of the Government

Article 95 bis, Article 96 bis, Article 196 bis, and Law 20- 06 April 28, 2020, limiting individuals from foreign financing during attacks, and Article 96bis on foreign financing and publications: Carrying charges of “publications that could harm the national interest”, “dissemination, and sharing of publications”, and “dissemination of false information”. This all-encompassing law gives great leverage for authoritative discretion and abusive interpretation, where even the remittance from family members is subsumed under this article and severely punishable.

Article 146 of the Penal Code restricts freedom of expression, and carries charges of “convey hate speech”, “corporate contempt”, “dissemination of false information,” and “incitement to unarmed crowds”.Articles 77, 78, 79, 97, and 100 of the Penal Code restricting freedom of assembly and association; carrying charges of “attacks on national unity” and “undermining/compromising national unity”, “gathering aimed at undermining national security”, and “provocation of an unarmed mob”.

The outlined counterterrorism legislations are all-encompassing and contain vague provisions that induce disproportionate leverage of authoritative discretion of such magnitude, that at best harbor inconsistency, and, at worst, breed abusive interpretation. These defective legislations have infringed on the right to a fair trial and due process, which resulted in serious ramifications on civil society. This undermines Algerian authorities’ counterterrorism efforts by normalizing terrorism charges. On the Premises of defective legislations through vague provisions in the Penal Code, that infringe on the Universal Human Rights of FOAA, fair trial, a presumption of innocence, and due process, that is based on Compelling/overarching right law-we make the following recommendations for the UPR review:

• Repeal the following laws: Law 12-06-2012 on associations, Law 12-04 relating to political parties, and Law No 91-19 relating to assemblies, and adopt new legislation setting up a simple notification process in full compliance with ICCPR Articles 21 and 22.
• Repeal or review provisions of the Penal Code limiting the right to FOAA such as Articles 77, 78, 79, 96 bis, 97, 100, 95 bis on foreign funding, and Article 87bis 13 to Article 87 bis 14 relatives to terrorist and subversive activities.
• Repeal overly broad articles of the Penal Code that are widely used to criminalize non-violent free speech. These articles include 75, 79, 95, 96, 100, 144 bis, 146, 147 and 196 bis.
• Repeal Ordinance 21-09 enables the arbitrary prosecution of individuals for sharing information deemed to be an ‘offense’ or ‘undermining’ of authorities’ interests.
• Release all human rights defenders, journalists, lawyers, bloggers, and protesters currently detained for their human rights activities and drop all charges, including security-related charges against them.

Morocco has had “Significant human rights issues including credible reports of torture or degrading treatment by some members of the security forces; allegations there were political prisoners; serious restrictions on free expression and media.”[1] Furthermore, there have been reports of increased interference with the freedom of assembly and freedom of association through surveillance and intimidation of civil society. In order to protect its citizens against terrorist attacks, the Moroccan government has been making concerted efforts to create laws that will prevent such acts from taking place. However, some of the laws significantly hinge on human rights. Like Algeria, Morocco has had a persistent climate of serious restrictions on freedom of assembly, association, and freedom of expression due to all-encompassing legislation and overly broad provisions. The concerns in question are:

[1] U.S. Department of State. (2022, the 10 of May). 2021 country reports on human rights practices – united states department of state. U.S. Department of State. Retrieved the 8 of September 2022

Those who undermine the Islamic religion, monarchy, or incite the public to undermine the territorial integrity of the Kingdom could face up to two years in prison or a fine of around $20,000. Under Article 267-5, this provision also applies to online content and speech. The Penal Code could be used to silence non-violent speech that tends to criticize the monarchy or government online – including content shared on social media and YouTube channels. This raises concerns for online freedom of expression in Morocco. For example, in 2019, “at least 10 activists, artists, or other citizens who did nothing but peacefully express critical opinions via Facebook posts, YouTube videos, or rap songs”[1] were arrested for sharing content the government considered incitement. There were also various provisions of right against torture as stated in the “Anti-Terrorism Act” 03-03 of 2013 but giving maximum time in police custody[2]. The penal Code increased interference with the freedom of assembly and freedom of association through surveillance and intimidation of civil society.[3] Moreover, there was increased interference with the freedom of expression through surveillance and intimidation of civil society. [4][1] Tech Against Terrorism (2022) The Online Regulation Series | Morocco.

[2] Cndh. (2019) Counterterrorism provisions of the Penal Code and the Penal Procedure Code  MEMORANDUM on Bill No. 86-14

[3] U.S. Department of State. (2022, the 10 of May). 2021 country reports on human rights practices – united states department of state. U.S. Department of State. Retrieved the 8 of September 2022

[4] The video entitled “Morocco: Kingdom of Corruption and Despotism” incites viewers to commit terrorist acts against the country, see Amnesty International, “Morocco and Western Sahara 2019,” 2019

Draft law no. 22.20, also known as the social media Law, was passed in May 2020, requiring network providers to implement restrictive access to and suppress online content that poses “a threat to security” and “public order” within 24 hours. The 2016 Press Code has widely been applied to regulate online content, limiting journalistic content and online public speech by invoking the “special protection of certain rights.” The government can shut down any media publication “posing a risk to the public”. That is any media house that “undermines the territorial integrity of the Kingdom”, “offenses or insults the monarchy” or “incites hatred or discrimination”. Title III of the Press Code is associated with the special protection of certain rights, which also limits public speech and freedom of the press. It also lays out the restrictions on public speech and journalistic content, prohibiting slander, libel, and defamation. The 2018 Code Penal Marocain was closely similar to the Press and Penal Code. It laid out sanctions on certain non-violent speeches that show a lack of expected respect for the King, defame state institutions, and insults public agents while doing their tasks.

The outlined practices and counterterrorism legislations are all-encompassing and contain vague provisions that are designed to leverage authoritative discretion-that breeds abusive interpretation. Anti-Terrorism Act’s wide use on civil society with such colossal force that it limits function and infringes on human rights. This undermines Moroccan authorities’ counterterrorism efforts by normalizing terrorism charges. Furthermore, such legislative trajectory outputs undemocratic governance and produces dangerous precedence for future normalcy. On the premises of defective legislations through vague provisions in the Penal Code, which infringe on the Universal Human Rights of FOAA, fair trial, a presumption of innocence, and due process, that is based on Compelling/overarching right law-we make the following recommendations for the UPR review:

• Repeal overly broad articles of the Penal Code that are widely used to criminalize non-violent free speech. Anti-Terrorism Act” No.03-03 of 2013
• Repeal or review provisions of the March 2020 royal decree concerning a state of emergency that has limited the right to freedom of assembly and associations.
• Repeal or review the provision of the right against torture as stated in the “Anti-Terrorism Act” No.03-03 of 2013, proscribing maximum time in police custody.
• Release all human rights defenders, journalists, lawyers, bloggers, and protesters currently detained for their human rights activities and drop all charges, including security-related charges against them.

Tunisia has faced continuous terrorism threats in recent years. While the government is responsible for protecting its citizens from terrorist attacks, some of the recently passed laws have infringed on civil society and limited human rights. In 2019, Tunisia amended the 2015 Counterterrorism Act, which introduced the death penalty. The 2019 Amendment to the act failed to improve fundamental legal protections for suspects and detainees, including the right to have a fair trial within a reasonable timeline. Additionally, the amendment retained the death penalty, which violates human rights.

In 2019, various rights groups requested the intervention of the UN to help ensure Tunisia protects human rights while countering terrorism to ensure a draft bill that governs the state of emergency in line with international standards. Tunisia had proposed Draft Law No. 91-2018 State Emergency Law, which sought to amend the Tunisian legislation on the state of emergencies. This proposed Amendment still contained provisions that had a detrimental impact on fundamental human rights and freedoms in the country. The bill contained a democratic control issue, allowing the president to declare and extend a state of emergency without seeking parliamentary approval. The law also gives regional governors authority to ban strikes or demonstrations considered to threaten public order without authority from the public prosecutor. Moreover, the amended draft law vested exceptional powers to the Ministry of Interior to put under house arrest or administrative or electronic surveillance anyone whose activities are considered to endanger security without a court order. The loopholes contained in the draft law are of concern because it renders abusive use of state of emergency status.

Concerning Tunisia, “Experts raised concerns about the prolonged state of emergency, denial of fundamental legal safeguards in the context of counterterrorism and impunity for torture and past human rights violations.”[1] Furthermore, there have been reports of increased interference with the freedom of assembly and freedom of association through surveillance and intimidation of civil society. Like Algeria and Morocco, Tunisia has had a persistent climate of serious restrictions on freedom of assembly, association, and freedom of expression due to all-encompassing counterterrorism legislation and overly broad provisions. The concerns in question are:

[1] Human Rights Committee asks Tunisia about a state of emergency and torture and urges human rights protection in counterterrorism. OHCHR. (2020, the 4 of March). Retrieved the 8 of September 2022

• Defective legislation has infringed on the right to a fair trial and due process, which resulted in serious ramifications for civil society.
• Loopholes contained in law render abusive use of state of emergency status.
• Law enforcement officials, judges, lawyers, and prosecutors’ involvement in practices that infringe on human rights and use/ reliance on torture.
• Counterterrorism legislation infringes on human rights and fundamental freedom in several Penal Procedure and Penal Code.
• The terrorists are detained for 15 days without lawyers, and those who are suspects should be detained without charges.
• Increased interference with the freedom of expression through surveillance and intimidation of civil society.

The outlined counterterrorism legislations are all-encompassing and contain vague provisions that induce disproportionate leverage of authoritative discretion of such magnitude, that at best harbor inconsistency, and, at worst, breed abusive interpretation. These defective legislations have infringed on the right to a fair trial and due process, which resulted in serious ramifications on civil society. This undermines Tunisian authorities’ counterterrorism efforts by normalizing terrorism charges. On the Premises of defective legislations through vague provisions in the Penal Code, that infringe on the Universal Human Rights of FOAA, fair trial, a presumption of innocence, and due process, that is based on Compelling/overarching right law-we make the following recommendations for the UPR review:

• Repeal overly broad counterterrorism laws through the Amendment of the Code of Criminal Procedures.[1]
• Adopt and implement Introductory compulsory training programs for all law enforcement officials, judges, lawyers, and prosecutors based on effective investigations and training on human-related punishment instead of torture.
• Revise law No. 91-2018 State Emergency in concert with international obligations of ICCPR.[2]
• Adopt and implement programs that raise awareness of radicalization through youth and education programs on Terrorism by Tunisian Civil Society Organizations.
• Release all human rights defenders, journalists, lawyers, bloggers, and protesters currently detained for their human rights activities and drop all charges, including security-related charges against them.

Authoritative transgression implementation of counterterrorism legislation has been a trending practice in the Maghreb region. Patterns of overly broad provisions that induce disproportionate leverage of authoritative discretion, at best, harbors inconsistency and, at worse, breed abusive interpretation. Such liberties to counterterrorism measures have had contrary implications for civil society. Decrees and ordinances that declare a “state of emergency” created all-encompassing laws with vague provisions. Using broad language such as “by any means whatsoever” to govern high-caliber charges of Terrorism and associations with terrorist entities. These charges of “terrorist acts,” “false news,” and “undermining security or unity of the state” have created serious restrictions for dissent. Whether the objectives of such legislation were intentional, or collateral is futile, as the consequence of such defective legislation inherently inhibits fundamental rights. Moreover, such a legislative trajectory produces undemocratic outcomes and sets a dangerous precedence for future jurisprudence. Furthermore, this undermines states’ counterterrorism efforts by normalizing terrorism charges.

There is a need for region reform and the creation of sustainable plans that include:

• Implementation of counterterrorism strategies that include mitigated risks and in concert with international mechanisms.
• Transparency and consistency with protocols of free information exchange programs. More proactive approaches through civil society engagement, in addition to the creation of educational programs to raise awareness of radicalization practices in the region.
• Identifying gaps in implementation and coordination through the protocol in oversight mechanisms are necessary measures to ensure the full application of legal provisions in practice at local levels.