Link between drug sentencing and prison overcrowding
In 1992, the Tunisian government enacted Law 52, which strengthened drug criminalization and imposed harsh mandatory prison sentences. For simple possession of small amounts of marijuana, a first-time offender was to receive one to five years and a fine between $400 and $1,200. Those charged with growing or distributing narcotics faced six to 10 years with a fine of $2,000 to $4,000. Those linked to smuggling groups faced mandatory sentences of 20 years to life, in addition to fines ranging from $40,000 to $400,000.
Judges were given no discretion to reduce any of these minimum sentences in light of mitigating circumstances or the availability of alternative disciplinary measures.
By the end of 2016, Tunisia housed over 23,000 prisoners — while the official capacity of the Tunisian prison system is an estimated 18,000. One-third of these prisoners are there for drug offenses — and the majority of drug cases involve young men caught with small amounts of marijuana. In 2016 alone, over 56 percent of those arrested were detained for drug use, primarily cannabis.
Efforts at reform in the region
In the Middle East and North Africa, penalties associated with the possession and use of cannabis remain harsh given global movement toward depenalization. The death penalty is allowed for drug offenses in 14 of the 19 countries in the region (though only a handful of those countries regularly carry out such executions). Like Tunisia, many countries also experience prison overcrowding.
But there are growing reform efforts in several Middle Eastern and North Arfican countries. In Lebanon, Skoun, a Beirut-based civil society organization, has been working since 2011 to reduce criminal sentences associated with drug use and improve addiction services in the country.
In Morocco, one of the world’s largest marijuana producers, the government oscillates between cracking down and offering tacit acceptance of cannabis farming, particularly in the impoverished Rif region — where marijuana cultivation represents a pillar of peasant farmers’ livelihoods. In 2014, Morocco’s Party of Authenticity and Modernity, whose founder Fouad Ali El Himma is a close adviser to King Mohammed VI, released a draft law to legalize marijuana cultivation for medicinal purposes but maintain a ban on recreational use.
In Tunisia, the government doubled down, passing a law in 2015 reaffirming Law 52. At the same time, human rights groups and civil society activists, escalated calls for reform. These civil society organizations highlighted how Law 52 targets young men from marginalized communities — and called attention to the economic and social costs. Often, those with past drug convictions — however minor — have no path toward reintegration into the Tunisian workforce.
While the members of Tunisia’s different political parties did not agree about whether to fully repeal Law 52, a consensus formed around reducing prison sentences for first- and second-time offenders accused of marijuana consumption.
On March 15, 2017, Tunisia’s government issued regulations allowing judges to pardon defendants as soon as their judgment is announced so that prison time is avoided. Law 52 was modified — and judges now have discretion in sentencing for the first two drug offenses. They can consider mitigating circumstances and recommend alternatives to prison, such as medical evaluation and treatment. On May 15, 2017, a criminal court in Tunisia handed down the first modified sentence: a suspended prison sentence of one year and a 1,000 TND fine. Human rights groups and civil society activists commended the change but also endorsed further changes, arguing that judicial discretion has its own limitations and risks.
Since then, several of the government ministers expressed a need for further reform. Leading members of Ennahda, the main Islamist political party, also expressed support for reform. While many say they want to reduce harsh sentences, full decriminalization of marijuana-related offenses appears a very distant prospect.
Pathways to building greater public support
In ongoing public opinion research in Tunisia, we examine the public’s support for or opposition to criminal justice reform policies. In July 2017, we fielded a public opinion survey asking respondents to report the extent to which they agreed or disagreed with a variety of policies proposed to address violent extremism in Tunisia.
Although our question framed decriminalization in the specific context of extremism and prison overcrowding, the results indicate that, given that framing, approximately 60 percent of respondents oppose decriminalization of low-level drug offenses, with nearly 45 percent of respondents saying that they strongly oppose such measures.
Changes to the way that the government conducts and reports drug-related arrests would represent an important step in building more public support for the depenalization of drug use.
As Tunisia moves toward reducing the criminal penalties associated with marijuana, our survey responses also suggest that work by civil society activists should focus on making the case for depenalization or decriminalization to the public directly, in addition to advocating for change among the political elites.
Alexandra Blackman is a PhD candidate in political science at Stanford University.
Farah Samti is a Fulbright fellow and MA candidate in International Studies at the University of Oregon.