Abstract
The institution of the Ombudsman is aimed at defending values such as human rights and the respect for the rule of law against any form of abuse or arbitrariness. Many academic studies have been devoted to the Ombudsman in its different developments around the world, but not to the Maghreb area. This article wants to shed light on the characteristics of the Ombudsman in Algeria, Mauritania, Morocco and Tunisia. The comparative exam of the different North African Ombudsmen will point out how the institution was able to survive only in states where a transition to democracy was truly in place.
The regional context
The institution of the Ombudsman 1 was established in Sweden by virtue of the constitution of 1809 to supervise the general administrative activities of the executive branch through impartial and objective investigations, after complaints about bureaucratic conduct from the public. It is a complaint-handling institution that receives expressions of displeasure and resentment towards bad service or failed opportunities provided by an authority. This model had a deep effect on the emergence of similar ombudsman institutions all over the world, fundamentally aiming to preserve, or restore, the balance of relationship between the individual and the different bodies of the State (La Bella, 2012). It is an institution whose purpose was to defend values, rather than make decisions and exercise authority. The defence of values such as human rights, equity and justice, as well as the respect for rule of law against any form of abuse or arbitrariness, made the Ombudsman a valid tool for enhancing democracy and, according to some authors (Kuye-Kukumba, 2008), the emergence of forms of democracy in autocratic or military regimes.
The institution began to spread outside Scandinavia only in the 1960s. Well-consolidated democracies and States in transition to democracy developed it, therefore various nations in Europe, the Americas, the Pacific region and Africa created so many examples of Ombudsman (Reif, 2004: 6–7; Rowat, 1995) that is extremely hard to talk about one single model. Each country shaped the Ombudsman institution according to its culture, civilisation and historical conditions. Of course many academic studies have been devoted to the Ombudsman itself and its different developments around the world (Gregory-Giddings, 2000). The former British colonies in Africa were the first states to create models of Ombudsman in the late 1960s 2 with different results (Kampeteke, 1996). The Ombudsman in Francophone black Africa appeared later, namely in the 1990s, with a huge wave of institutions imitating the 1973 French model: the Médiateur. This phenomenon has received great attention by scholars with interesting research (Aicardi de Saint Paul, 1989; Boumakani, 1999; Mebiama, 2010; Short, 2001). Nevertheless, this did not happen for the Arab states in the Maghreb, such as Algeria, Morocco, Mauritania and Tunisia, 3 which in the same years experienced the growth of similar institutions in a political context in transition, where there was an evident lack of good governance and weakness of the jurisdictional control on the part of the administration. All of this meant that the role of the Ombudsman in the Maghreb has had an intriguing dimension of its own. In spite of this peculiarity, scholars and academics paid no attention to the slow, but significant, adoptions by these North African Arab states of forms of Ombudsman, which in theory should have set up a mechanism that had the aim to protect the citizens from the wrongdoings of the administration and improve or let democracy grow too. All this occurred in the 1990s, which is a real turning point in the political history of the Maghreb area.
Since the end of the 1980s many Arab states have powered up processes and mechanisms of democratisation in the framework of the so-called ‘Third wave of democratization’ (El-Sayyd, 1995; Hungtington, 1991). What has been defined in Arabic as damaqraṭa (democratisation), or taḥawwul dīmuqrātī (democratic transition), was a very complex phenomenon, with its shadows and lights (Sadiki, 2009), but, in any case, all the states in the Maghreb, apart from the Libyan
In other words, the Maghreb governments resorted to legal means to control the start-up process towards democracy and to support, rather than transform, the existing power system. Pluralism and democratic elections were used as a tool to maintain the status quo, by providing a legal justification for authoritarianism. In the authoritarian regimes, the representative institutions have the purpose of ensuring that the élite in government can maintain a never-ending balance of power, and achieve the so-called ‘tyranny of the status quo’ (Dahmani, 2007: 309). Therefore, the authoritarian policies meet the requirements of openness to democracy from both inside and outside the country, although they do so without questioning the power of the oligarchy. This explains why Maghreb (except Libya) experienced another democratic opening up in the decade from 1998 to 2008, marked by elections which technically adhered to Western standards of democracy, and which eventually ended up legitimising the governmental élite internally and internationally (Sadiki, 2009: 93). Maghreb experienced the instrumental use of the referendum, or the use of parliamentary majority, to get rid of the presidential term limits respectively in Tunisia (2002) and Algeria (2008). Academics described this kind of regime as ‘hybrid regime’ or ‘electoral authoritarianism’ (Brumberg, 2002; Diamond, 2002), namely countries where political pluralism, elections and guided selective repression of the opposition constitute the elements of a specific political approach to the survival of the regimes and their élite in power.
In other words, in the North African political systems there is a continuous dichotomy between the adoption of liberal institutions (free elections, Western-like constitutions, rule of law, active presence of Human Rights associations, and so on) and, to say the least, relaxed autocratic management policy (the overwhelming power of the head of state, of a political party or interest group and a permeating clientelism) (Ruiz de Elvira et al., 2018). These factors limited the prospects of a true alternation of power, creating an ineffective pluralism and a popular general distrust of the government and the institutions. Hence, a nebulous area, also known as the ‘gray zone’, ‘twilight zone’ or ‘foggy area’ was created in each constitutional level (Diamond, 1999: 22; Gilbert and Moshemi, 2011). We are not in the presence of dictatorial regimes, but neither are we on the track to democracy, because certain institutions, despite being established and endorsed by the law, are often violated or intentionally evaded. Some authors have also spoken of liberalised autocracies, or illiberal democracies, in short, a kind of authoritarianism tempered by the pluralism of liberal institutions, as the leaders, or the leadership in power not only tolerate, but also actually encourage political freedom in the press, civil society and electoral systems. In the elections, in fact, they offer the opposition the chance to sit in parliament and occasionally join the ministerial teams. However, elections alone do not guarantee a full democracy but, in fact, only an ‘electoral democracy’. Maghreb experiences a kind of virtual, or façade, democracy, described in Arabic as Dimuqratīyya Šikliīyya (superficial, formal, ‘cosmetic’ democracy) (Leca, 2001), in which a real rule of law, the alternation in power, freedom of the press, expression and association are missing. This whole process is a trend that has been set in motion in many parts of the Arab world in order to contain and disarm the demands for democracy, by adapting new strategies of governance to face new domestic and global circumstances and keep the regime alive, without changing the fundamental power structures. This process has been described as ‘upgrading authoritarianism’ (Heydemann, 2007).
The creation of several kinds of Ombudsmen in the Maghreb since the 1990s has showed that ‘political democracy’ was joined by ‘administrative democracy’. Nevertheless, it can be said that this has been part of the ‘hybrid regimes’ and the ‘upgrading authoritarianism’. As many constitutions were changed, introducing new democratic norms, the adoption of the Ombudsman by the North African countries can be seen as a symptom of the same phenomenon: the manifestation of the so-called ‘Third Wave’, and at the same time a further element used by regimes to strengthen their power, externally showing the will of a democratic transition, too. But had this been a homogeneous trend? Did all governments in the Maghreb area develop the same idea of Ombudsman? Has the Ombudsman just been a lure, an empty shell, or in some countries has it really helped to develop and enhance democracy? As we will show, the answers to all these questions are complex and articulated. They all depend on the country and they vary as different historical moments are taken into account.
A delay in the application of the Ombudsman system in North Africa?
North Africa belongs to the Arab world from the cultural, linguistic, ethnic and religious points of view. In the classical Islamic jurisprudence, the legal safeguard of the individuals is guaranteed by the concept of ‘Iṣmah (عِصْمَة literally, protection), a key notion to understanding Islamic law and the Muslim social order. According to this principle, every legal system is legitimate so long as it serves this purpose. In addition, this is not only a legal concept, but also at the same time a moral and religious requirement for the government of a Muslim state (Senturk, 2006: 42).
Several authors have pointed out that there are many clues that Ombudsman emerged in the Arab Islamic world more than 1400 years ago with the Islamic concept of ḥisbah (حسبة), 4 a polysemous word that refers to an act that is performed for the common good or with the intention of seeking a reward from God, but literally means calculation, verification or accountability. It became common in the practice of supervision of commercial, guild, and other secular affairs (Pickl, 1987), in fact, ḥisbah was carried out in the early Islamic years by the Prophet Muhammad, when he appointed muḥtasib (محتسب) for Madinah and another one for Mekkah, with the duty to survey public morals, fraudulent practices by traders and as a market regulatory tool (Buckley, 1992; Niazi, 1994). This institution spread throughout the entire Islamic world, and in Egypt, it existed up to the middle of the 19th century. Moreover, it is interesting to recall that during the second Caliph Umar al-Khattab (634–644) and afterwards, during the Abbasids era (750–847), a complaint agency called Dīwān al-maẓālim 5 (المظالم ديـوان) was established. Its function was to examine complaints and grievances brought by the public against government officials (Harsi, 2002).
In the Maghreb all the traces of this cultural and legal heritage were swept away by colonialism and the introduction of Western laws. Only in Moroccan history has something similar resisted: during the Almoravid dynasty (1106–1143) there was an ‘Office in charge of grievances and complaints’; in the Saadi dynasty (1549–1656) a council that had the task to receive grievances of the citizens operated, while the Alawi dynasty, starting in 1666, had a Ministry of grievances, which fought the unjust ruling of judges and the abuses of the public administration, punishing officials and governors for any misdemeanour.
After the colonial experience, the Moroccan Kingdom tried to revive the primitive examples of Ombudsman by creating the ‘Bureau de Recherche et Orientation’ in 1956. This was an institution that reported directly to the Sultan Mohamed V and was supposed to receive the grievances of Moroccan subjects, but in reality it was a single-headed organism, where the last decision was up to the monarch, as only two short law articles established. 6 The Moroccan institution of the Bureau de Recherche et Orientation never really worked and was easily outcast by King Hassan II during his ‘years of lead’ (Sanawāt ar-Ruṣāṣ) rule (1960s–1980s), marked by state violence against dissidents and crackdowns on popular protests. It is unlikely that the Bureau could have been something effective in investigating the fate of the many political prisoners who disappeared in the infamous secret prison of Tazmamart (Marzouki, 2000).
In short, the muḥtasib, or the ‘Islamic Ombudsman’, which some authors considered evidence of a cross-cultural heritage through different civilisation (Sadiq and Nurah, 2017), was forgotten, and gave way to the French model of Ombudsman, the Médiateur de la République, which was created in the V Republic in 1973 by the law 73-6 (JORF, 1973). The French Médiateur was appointed by the Council of Ministers for one six-year term and could not be appealed directly by citizens, only through members of the parliament. He had to report to the president of the Republic and to the parliament and could investigate complaints that the administration had failed to satisfy at local and central governmental levels, and he made a proposal for reforms that might emerge from matters that became known during the investigation (Chapuisat, 1974). It was a very advanced institution, which was reformed several times 7 and, although abolished in 2011, it can be deemed one of the first and best successes of the Swedish Ombudsman in Europe. It would have been logical for the North African states, after 1973, as Francophone nations and given the political and cultural influence of France, to adopt the Médiateur, which could have perfectly fit their constitutional and institutional systems (Oliviero, 2003). As a matter of fact, after their independence, they spontaneously drew up all their constitutions copycatting the 1958 French constitution, with the De Gaulle’s 1962 amendments. The Moroccan constitution, in the framework of a constitutional monarchy, had many articles in common as well, not to mention the administrative systems based on French codes. Nevertheless, the Médiateur was totally ignored by the North African governments. During the 1970s and 1980s in the Maghreb area there was little, or no, awareness of the protection of citizens from the State’s abuse. It should be considered that all States in the region were one-party State or military regimes, with the exception of the Kingdom of Morocco, where, in any case, the monarchy was more absolute than constitutional.
Furthermore, independent entities did not exist or had a hard time surviving in a social environment that was strictly controlled by the regime (see in Tunisia the Ligue Tunisienne des Droits de l’Homme – LTDH, founded in 1976). There was a total lack of transparency in the public administration and authoritarian regimes were not sufficiently motivated to disclose their control over the state, fearing political interference and loss of part of their power that could even have led to the breakdown of national integrity. It should also be underlined that all the regimes in North Africa were facing serious problems or were not completely stabilised. As a matter of fact, they were suffering from internal or external threats and in some cases they were struggling to survive: Mauritania and Morocco had been fighting since 1975 for Western Sahara against the Frente Polisario (Rabat fought until 1991); the Mauritanian president Moktar Ould Daddah in 1973 decided to break all ties with France and replace the CFA franc with the ouguiya, eager to show other Arab countries that Mauritania was not an artificial creature of France. In 1979 he was ousted by a military coup, setting free new political leaderships linked to the army that introduced Islamic law in the penal code; Bourguiba’s Tunisia had to control the upsurge of Islamic radicalism and the social unrest generated by the first general strike in 1978, followed by the 1983 and 1984 ‘cous-cous riots’; Algeria strengthened its socialist form of government with the 1976 constitution, which tended to keep distance from French legislation implementing the Leninist ‘democratic centralism’. From a constitutional point of view it is important to stress the fact that most constitutions of the States in the Maghreb had no real space for human rights, the paramount importance of the rule of law and the protection from the abuse of power: the basic tenets that Ombudsman aims to protect. Some constitutions dated back to the first years after independence (Tunisia 1959 and Mauritania 1961), others, such as the Moroccan, underwent several amendments (1970 and 1972) that severely limited democracy and allowed the king to maintain his main powers, which had been challenged by the military coup of Skhirat in 1971 (Tamburini, 2010).
Between the 1970s and the 1980s in North Africa, despite the deep influence of the French legislative system, there was no place to form an institution similar to the Médiateur de la République, because there was no suitable political environment. An Ombudsman, or Médiateur, needs impartiality, independence from the political power, appropriate standards of appraisal of administrative practices and adequate investigative capacities. All these characteristics were in chimerical state in Maghreb at that time. It could not be otherwise in a region where in practice Justice heavily depended on the executive branch, and in the case of Algeria, according to the 1976 constitution, there was no real separation of powers, but an ‘institutional triad’ composed by the State, the Army and the political party of the Front de Libération National (Leca and Vatain, 1978).
As it has been shown, a series of historical and political circumstances did not allow the Médiateur to break through the ‘iron curtain’ of the regimes in Maghreb in the years between the 1970s and 1980s. Nevertheless, it is true that North African States delayed the enforcement of the protection of its citizens by the abuses of the public administration, however, it is important to stress that in these countries non-governmental organisations for the protection of human rights began to flourish, such as the Tunisian LTDH, or the Moroccan Association Marocaine des Droits de l’Homme (AMDH) in 1979 and the Ligue Marocaine pour la Défense des Droits Humaine (LMDH) in 1972 (Mouaquit, 1997). It was evidence that there was a deep-rooted need for better protection of the citizen.
In any case, the Maghreb situation was not unique. It is true that the former British colonies adopted the Ombudsman faster than other former colonies, but in general the popularity of the institution increased in the African continent (in the Francophone countries as well) only in the 1990s. 8
Most post-independent states in Africa were suffering from civil wars and they were one-party states or military regimes, characterised by forms of praetorianism, disorder and insecurity. Of course, the Ombudsman is the ‘tip of the iceberg’ of the failure to introduce real instruments of democracy to the African continent. Many others tools of democracy did not grow due to the aforesaid reasons. However, it is meaningful that the Ombudsman, as a citizen’s defender with his supposed fairness, objectivity and justice, would have had many enemies in the executive branches of the developing countries in the early stage.
It is not incorrect to assert that the countries of the Maghreb developed, in a sort of parallelism with other African states, its own form of Ombudsman, but relying on the French Médiateur schemes. In any case, we have to point out that North African states did not have the same timing, in short they created their Médiateurs in different time and circumstances, revealing a lack of homogeneity as far as political maturity is concerned, as well as the real will to seriously undertake a path towards democratic transition.
After the collapse of the Soviet Union and the end of bipolarism, a combination of internal and external factors made a political change in Africa in the 1990s possible, culminating in the introduction of processes of democratisation, conceived as competitive elections and the respect (often formal) for political and civil rights (Mustapha-Whitfield, 2009). This development, as we pointed out previously, took place in the Maghreb as well (Roggero, 2019; Tamburini, 2016) and allowed the growth of several tools of democracy, such as the Ombudsman in the form of the French Médiateur.
Nowadays the importance of the Levitsky-Way’s political science theory is widely recognised. It is based on the ‘leverage-linkage’ concept that intended to explain the ‘international dimension of democratization’ after the end of the Cold War: leverage is the authoritarian governments’ vulnerability to external top-down pressure from the West, exercised by political conditionability, sanctions, diplomatic pressure or military interventions; linkage is a bottom-up form of democratising pressure represented by the ties to the West such as economy, geographic proximity, communication, transnational civil society, and social élite education in Western countries (Levitsky-Way, 2005, 2006). It can be argued that the adoption of the Ombudsman in the Maghreb (as in other Francophone African countries) was a linkage effect, induced by the cultural proximity with France, more than a leverage effect due to top-down pressures. However, leverage-linkage concepts are part of a political science theory and theories cannot fit perfectly everywhere geographically and historically. Maghreb adopted the Médiateur model for cultural reasons, but these were different depending on the political situation of the country.
The Ombudsman in the Maghreb
The first State in North Africa to adopt the Ombudsman was Tunisia in 1992. Since 1989, Ben Ali started a process of democratic openness and transparency, announcing a ‘new era’ (al-Ahd al-ǧadīd), which would have led to deep constitutional reforms (Chaabane, 1997: 79). In the framework of these changes, on 10 December 1992, the Décret 92-2143 established the creation of a Médiateur administratif (JORT, 1992). It was decided to adopt this name in the French translation of the law, although the Arabic original version was different, namely al-mūwafaq al-Idārīyy (لإداري الموفق ), or administrative coordinator. We do not know the reason, but it can be argued that the French term could be more easily understood and avoided confusion. According to the law the Tunisian Médiateur was chosen by the president of the republic among active duty or retired public officers with administrative experience. It could receive complaints presented by natural persons, local public communities, public institutions or enterprises and any organism with a mission of public service. Its intervention could not be possible in a proceeding before a court, nor question a court’s decision. On the other hand, it could propose solutions in case the court’s decision failed to be implemented. It was bound to professional secrecy and could not disclose any information he had known during his work. The task of the ‘administrative coordinator’ was supposed to be facilitated by ministers and other public authorities, who had the duty to help give it all their support with regard to its requests and authorising the administrative personnel to respond to any information asked. Nevertheless, its powers could only lead to recommendations and, in case of a delay in settling the case object of the complaint, it could only appeal to the president of the republic. Furthermore, it presented a report to the head of the State yearly, proposing measures that could enhance the administration’s performances. The Décret 92-2143 was implemented a year later by the Loi 93-51, which specified some important details: the office was established in a five-year not renewable term, and its economic budget depended on the budget of the Presidency of the Republic (JORT, 1993). This last amendment is important because the Tunisian Médiateur could schedule the budget but, in the end, there was not a real financial autonomy, depending on the president of the republic, therefore shedding doubt on its independence. The 1973 French Médiateur had some similar financial restrictions too, but his budget depended on the prime minister and not on the presidency.
Even though the administrative coordinator was sided in 2000 by regional representatives (JORT, 2000), which could have improved the extensiveness of his work,
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the real impact on Tunisian society was minimal. In any case, it is very important to remind ourselves that the Médiateur adminsitratif was just one tile in the complex legislative mosaic aimed at the reshaping of the relationship between the citizen and the administration. The structure of the mosaic was formed by another two pillars, which, together with the Médiateur administratif, should have improved the level of participation the citizen could have in the administration’s decisions, the transparency of the public sector and facilitated the access to the administrative services: the Bureaux des relations avec le citoyen and the
The
The three institutional tools (the Médiateur, the Bureaux and the team of supervisor) were conceived as a unique design to allow a conciliation between the citizen and the administration, establishing a new relationship based on trust. Tunisia in the 1990s was smothered by the lack of organisation, sluggish bureaucracy, anarchy in the administration and unchecked levels of corruption. The Ben Ali regime needed to recover the image of the state (Khiari, 2004: 117), not only in front of the Tunisian people, but also in front of the international community. However, all these measures, the Médiateur included, were alluring actions that could not be effective because they were developed in a rigid authoritarian state. They were technically excellent in view of the reconstruction of a democracy, but in practice they can be considered just a superficial measure inside a typical Dimuqratīyya Šikliīyya, that is, cosmetic democracy.
The other State that almost simultaneously created its own Ombudsman/Médiateur with Tunisia was Mauritania. This was kind of bizarre, because Mauritania was the country that had tried, at least in theory, more than others to stand out from the French legislative culture (in the 1980s Šarī’a had penetrated the national penal law). Nevertheless, since 1991 President Ould Taya, in order to break the international isolation, undertook important constitutional changes in the framework of an ‘authoritarian decompression’ and a ‘controlled democratization’ (Baudel, 1992). After a new constitution in 1991, which enshrined many democratic principles, even though in the shadow of a difficult balance with Islamic principles, the Mauritanian government decided to introduce the Médiateur de la République in 1993. The Mauritanian legislator decided to follow the French denomination. Even in the Arabic translation, the term used was Wasīṭ (وسيط) from the verb tawasaṭ (توسط, to mediate, to arbitrate), although the Mauritanian Médiateur was designed around the Tunisian model. It had almost the same features and, like the Tunisian one, depended heavily on the executive of the president of the republic (e.g. the budget). Nevertheless, there were some differences. The institution’s intervention could be asked not only by citizens, but it could also receive complaints through the members of parliament and mayors. It was able to make requests to the public administration and ministers for any documentation related to the complaints, with the exception of documents in relation to national defence, homeland security and foreign relations (these exclusions were borrowed by the art. 13 of the French Médiateur).
The assignment of the Médiateur was incompatible with any government job or member of the parliament. Moreover, the Médiateur had to keep the name of the citizen who had asked his intervention secret, however, his work and privacy were protected, since the State fined those who revealed details of the cases it was working on with a month in prison or up to 100.000 ouguiya 13 (JORIM, 1993, 1994).
Without any doubt, the creation of the Médiateur was a sign of the opening of a new institutional avenue of communication between State and Society in Mauritania (Mohamedou-Ibrahim, 1995). However, even in this case, it was just a sign. There are no official statistics on how many Mauritanian citizens have applied to the Médiateur services, but we can presume they are not so many, because traditionally Mauritanians have always preferred informal and tribal ways of settling disputes, relying seldom on state institutions. 14 Furthermore, had the Médiateur been really efficient, it would have been the right tool to solve or mitigate one of the biggest problems in the country: the ethnic discrimination between the ruling class, the white Moors (Maures) or Beidanes, caucasoid people of Arab and Berber stock, and the various black ethnic groups (Bambara, Tukolor, Sarakolé, Fulani, Wolof). For many years, the Mauritanian government has been engaged in a discrimination policy against blacks, denying for example the rights of association and assembly, favouring Arab culture to the detriment of the black African population (Fleischman, 1994). Not to mention the marginalisation and exploitation of the Haratines group, also known as the ‘black Moors’, the Arabic-speaking descendants of slaves, who were (are) still informally dependent on their former white masters (Maimone, 2012). In normal circumstances, we can presume that the Médiateur would have been flooded by complaints of black Africans and Haratines about the bureaucratic conduct of the public administration. For sure, the white Beidanes ruling élite would have never allowed it, because it would jeopardize the Mauritanian social-economic system, based on the considered social inferiority of the blacks and Haratines (Pazzanita, 1999).
In Algeria, after the 11 January 1992 military coup, one of modern history’s most bloody and brutal civil wars took place, which put a sudden halt to the democratic process started a few years before. The army and the party (FLN) ruled over civil society during the conflict against Islamic terrorism, recapturing all the instruments of authority and the bureaucratic centres of power (Martinez, 2000). In an effort to end the crisis, the military regime promised a return to the electoral process and to the civilian political institutions. The military power had to regain the trust of the Algerian people, oppressed by the injustices of the Ḥogra, an Algerian dialect expression used to describe the state’s abuses and the impunity of the élite. Furthermore, it was necessary to prove to the international community that the country was returning to civilian rule. The reforms were proposed by President Liamine Zeroual elected in 1995, who sponsored a new constitution (the fourth since the independence), and approved by referendum on 30 November 1996. Seen as an evidence of Algeria’s re-democratisation, in reality it reflected the legacies of the civil war, institutionalising the predominance of the executive branch, even though the constitution returned to bicameralism. In any case, it was the most the élite was ready to concede. The re-democratisation of the relationship between the State and the citizen had started some months before the approval of the new constitution, that is on March 1996 with the introduction in the Algerian system of the al-Wasīṭ al-
Any natural person who was deemed to be harmed by a malfunction of a public institution or administration could file a petition to the Médiateur, after having exhausted all legal recourses. The decree specified that the Médiateur was devoted to protect the rights of freedom of citizens and the correctness of the functioning of the public administration. It could investigate and ask information from the administration and, in case of a lack of response, he could appeal to the president of the republic. Like the Tunisian and Mauritanian Ombudsmen, the Algerian Wasīṭ filed a yearly report of the activities to the president of the republic, proposing advice on possible administrative changes. The term of the Médiateur was not specified, nor the professional qualities he should have had for the position. As the Tunisian and Mauritanian Ombudsman, it had a restricted field of intervention and its means of intervention were also very limited. Moreover, it did not enjoy any economic provisions, the qualification of its status was ambiguous and questionable (according to art. 3 it is an instance non jurisdictionelle, and that means that it was not an administrative institution, or a jurisdictional body). Furthermore, it was overly linked to the executive power: it was appointed and dismissed by the president of the republic (Khelloufi, 1998). A serious omission was that the Médiateur was not protected, or enjoyed any immunity.
Despite the lack of power, the Algerian institution worked hard: in its first year of activity it received 36,637 complaints (Ghaouti, 2014: 266). 17 People were attracted by the ease with which they could reach the Médiateur, in comparison to the complexity of the normal administrative procedures. People saw the new institution as a ‘miracle institution’ that could give hope and humanise the administration. That is perhaps why the life of Algerian Médiateur was the shortest among the North African Ombudsman: the institution was repealed on 2 august 1999 by President Abdelaziz Bouteflika, five months after his election (JORA, 1999). A show of force by ‘Le Pouvoir’, the Algerian élite, who all but in name was the governing force in the country. In 2001, the Bouteflika government created with the Décret 01-71 the Commission Nationale Consultative de Promotion et de Protection des Droits de l’Homme, transferring to this new organism part of the Médiateur’s mission. The art. 6 of the 01-71 established that the Commission was entrusted with the assignment at bringing about activities of mediation (activité de médiation) and to assure the enhancement of relations between the public administration and the citizens. This watered down task was not well received by the Algerians, who were to forever lose a useful tool to resist the hogra, and in the end the Commission, with its attempt to be a hybrid Ombudsman, 18 was a failure.
Morocco arrived late in the run for the establishment of an Ombudsman. As we pointed out, the Moroccan Bureau de Recherche et Orientation never did work properly. The political conditions that made possible the birth of an effective Ombudsman possible rose only after 1999, with Mohammed VI’s kingdom. The new king wanted to forever turn the page on his father’s ‘years of lead’, with the enhancement of the rule of law in Morocco and the launch of new institutions that could create a different atmosphere in the country (Jari, 2009). The establishment in 2001 of the IRCAM (Institut Royal de la Culture Amazighe), in charge of the protection and development of the Berber culture, the new family code (mudawwanat al-aḥwāl al-shakhṣiyyah), which tried to introduce women’s rights and gender equality in the framework of Islamic law in 2004, and finally in the same year the IER (Instance Equité et Réconciliation), a commission to reconcile the victims of human rights violations between 1956 and 1999, were moves aimed this purpose. Within this strategy, the Dīwān al-maẓālim (المظالم ديـوان) was conceived in 2001, an institution whose name was revived by tapping into the Islamic tradition. The legal base for the Dīwān was the royal decree 1.01.298 of 9 December 2001 (BORM, 2001), a long legislative text (17 articles), in comparison to the other North African laws, with an unusual preamble explaining the reasons of the new institution. The Dīwān was firmly controlled by the king: at the top of the institution was the Wālī (ﻭﺍﻟﻲ), appointed by the king for a renewable six-year term. The Wālī, after a royal authorisation, appointed representatives next to the prime minister, ministers and at a regional level; all its budget depended on the royal court; it had to draw up a yearly report to the king. Once again, as the other North African Ombudsmen, the Wālī al-maẓālim was not a parliamentary Ombudsman, or the ‘long hand of parliament’, like the Spanish Defensor del Pueblo (Colomer, 2013), but a ‘creature of the executive’, depending on the king. The Wālī was in charge of examining the complaints of those citizens, who considered themselves victims of wrongdoings attributed to the State’s administration. Appeals could be made to it through the Conseil Consultatif des Droits de l’Homme (CCDH), an organism created in 1990 by Hassan II, but reformed on April 2011 (Ruiz, 2002). After an investigation of the case, the Wālī oversaw a conciliation between the parts, in order to remedy the injustice, addressing recommendations and suggestions to the administration, who would have taken the proper actions. In case of silence or inactivity by the administration, the Wālī had the power to inform the prime minister. Nevertheless, many complaints were excluded; for example, grievances aimed at reviewing an irrevocable court decision, and requests relating to matters within the competence of the parliament or the CCDH. In this latter case, the Wālī had to transfer the complaint to the CCDH (Adnane, 2010).
The Wālī lacked the direct coercive force in its recommendations and its only real power was the moral authority, derived by royal appointment. However, Moroccans appreciated the institution, above all as far as human rights were concerned (between 2006 and 2007 the Wālī received 165 complaints supposedly related to human rights violations), even though these did not belong to its jurisdiction. 19
As we can observe, all the Ombudsmen in North Africa relying on the Loi 73-6 of French Médiateur, were conceived as ‘executive Ombudsmen’ or ‘quasi-Ombudsmen’, that is, they were appointed and answerable to the executive (Reif, 2004: 14), namely the president of the republic or the king. It is self-evident that there is a remarkable difference whether an executive Ombudsman operates in a hybrid regime, an electoral democracy or in a full democracy. Ombudsmen in the UK are appointed by the executive branch, but they are completely independent, moreover, they report either to the legislative or the executive powers. It is true that all the North African Médiateurs could be appealed to directly by citizens, unlike the French Médiateur that needed the intermediation of a member of parliament. Nevertheless, this advantage was lost due to the absolute power of the executive. The crucial point is that the legislators in the Maghreb took French law as a legal framework, but, in the end, they shaped it according to the local political scenery, always benefitting the executive and the ruling élite. Therefore, in general the Ombudsmen in the Maghreb grew as subdued or ‘domesticated creatures’ of the executive.
Developments after the ‘Arab Springs’
Undoubtedly what happened in 2011 in the Arab world shook many oligarchies and the élite in the MENA (Middle East and North Africa) area. Nevertheless, the harvest of the ‘Arab spring’ was modest and democracy remained elusive in many Arab states (Brownlee-Masoud-Reynolds, 2015; Ferrié, 2009). Except in Libya and Tunisia, little changed in the structure of the power and in the system of governance of the other countries (Hill, 2016; Willis, 2012). Networks of patronage, the core power of the élite and key institutions such as police, military and judiciary remained untouched. At a closer look, even in Tunisia, which converted into a pluralist democracy, representing the best result of the Arab spring, many political operators linked to Ben Ali came back in the political arena after 2014 (Bayat, 2017). What is worst, in the Maghreb institutions did not succeed in raising accepted levels of accountability and good governance. There is still a wide gap between people and governments, leaderships have demonstrated abuses of power and disregard for rule of law, alienation of the state from society with the consequences of a loss of faith in the system. In a broad sense, the Médiaterurs did not help to solve the lack of democracy in the North African regimes. The Ombudsmen proved to be insufficient to protect the citizens properly from the abuses of the administration and the executive power. It is more difficult to say if they contributed to instil in the people a new perception of justice, freedom or rule of law. Maybe they were too short lived to create any significant positive effects. It is a fact, in any case, that people, especially the youth, who crowded the streets and squares during the Arab spring’s riots, did not protest to obtain more democracy, but above all demonstrate against the corruption of the regimes, for employment, for a better life and dignity, in Arabic Karāma. The revolts were against the an-niẓām (النظام, the regime, the system), with all its structures (Filiu, 2011: 211) including the Médiateur, which was part of the corrupted state.
Médiateurs were active at the time of the Arab revolts in 2011 with different levels of efficiency in Morocco, Tunisia and Mauritania. In Tunisia the 1992 administrative coordinator, or al-mūwafaq al-Idārīyy, survived Ben Ali’s regime and the resetting of all the main institutions (on 26 January 2014 the Tunisian Constituent National Assembly approved a new constitution). In 2017 the president of the Tunisian republic appointed the new administrative coordinator, Abdessattar Ben Moussa, former president of the LTDH, showing the extreme importance given in Tunisia to the link between human rights and the institution of the Ombudsman. The survival of the administrative coordinator should not be seen as a surprise. Tunisia, after the collapse of Ben Ali’s regime, did not fall into anarchy, as Libya did, because the transition government could rely on solid administrative and political institutions, even though they were somehow linked to the former élite. The al-mūwafaq al-Idārīyy was one of these. The last annual report released by the Tunisian government shows an increase of the appeals to the Médiateur: from 3150 in 2016 to 4115 in 2017. 20
The Kingdom of Morocco experienced a huge popular unrest during the Arab spring. Even though protests never called into question the king’s authority, Mohamed VI had to meet the expectations and hopes of the population, especially the youth, before manifestations took a violent form, avoiding at the same time sudden and dangerous revolutionary changes. The result was the new constitution of 1 July 2011, drafted in a top-down scheme and in the framework of tradition, stability and continuity of the monarchy, with its entrenched prerogatives that allow the king to rule and govern (Azzouzi-Cabanis, 2017; Biagi, 2015). Notwithstanding, the constitution broadened the power of the parliament, allowing it to pass laws on most issues, it protects the independence of the judiciary and it increased the defence of individual rights as well as the role of a number of independent commissions. From our point of view, it is necessary to point out that the July 2011 constitution endorsed new important institutions, introduced by royal decrees some months earlier: the Conseil National des Droits de l’Homme (CNDH)
21
with the
Despite several undeniable improvements, the Wasīṭ al-Mamlaka remains a weak institution, without coercive power, but it is also the mirror of a slow political transition towards democracy, transparency 23 of the administration and the protection of human rights. Since its foundation, the Médiateur has received thousands of complaints yearly, 24 but unfortunately many are outside its competence and therefore they are inadmissible (in 2017, out of 9378 received grievances, only 2713 entered within its competences). This reveals that the Moroccan citizens do not know exactly the mission and the competences of the institution, proving a lack of proper communication of the government. However, it is interesting to underline that the Médiateur in its annual report has no hesitations in stressing the shortcomings and serious defects of the Moroccan administration. In 2017, for example, it noticed legally unfounded practices, lack of coordination between public administrations, disrespect for the rule of expropriation, abuses related to urban development, delay in the execution of judgements, misapplications of the new rules proposed by the Médiator, etc. This is for sure proof of change with regards to the issue of the transparency of public powers.
The Moroccan Ombudsman’s history has had by far a better result than the Mauritanian experience. In 2011–2012 protests took place across Mauritania, spurred by the same factors as in the other Arab states. The regime responded with a combination of repression and pledges of reforms, which were maintained amending the constitution. The Médiateur de la République observed all these events remaining silent and idle, ignored by the regime. Nevertheless, it was an apparent calm. President Abdel Aziz, through a referendum, which was successfully held on 5 August 2017, changed the national flag, abolished the Senate, 25 replacing it with regional councils, and, above all, merged the High Islamic Council 26 and the Médiateur de la République into an ‘old’ institution linked to the president of the republic: the Haut Conseil de la Fatwā et des Recours Gracieux. This nine-member institution dated back to 2012 (Décret n. 2012-134) and had the task to give opinions on Islamic law and solve disputes that were not being processed by justice or the Médiateur. The Council, which could be appealed to only by the head of the state, was a sort of a ‘twin brother’ of the High Islamic Council, with the main difference that it was the only allowed authority in Mauritania to issue Fatāwā (plural of Fatwā), non-binding opinions given by qualified Islamic jurists. It is unpredictable how different institutions with different missions, one originating from the Western law, and the other two from the Šarī’a, of Mālikī school, could match together (Ould Bouboutt, 2018). The worrisome circumstance is that the Council, which represents the most conservative part of the Mauritanian society, will examine for sure the long-standing problem of slavery and that the Mālikī jurisprudence in Mauritania traditionally endorses and justifies this infamous practice (Lydon, 2005; Wiley, 2018: 152).
The abolition of the Mauritanian Médiateur can be considered the long wave effect of the failure of the Arab Spring and a victory of Abdel Aziz’s autocratic regime and his already hyper presidential system.
Tunisia and Morocco on one side and Algeria and Mauritania on the other reveal that the efficiency of the Ombudsman depends on how much developed and advanced the process of transition towards democracy is. Tunisia maintained its Ombudsman and Morocco enhanced the institution with important features that would have been unthinkable a few years before. Algeria and Mauritania, at different times and with different motivations, obliterated their Ombudsmen. These countries acted according to different styles of perspective in relation to democratic principles: Tunisia and Morocco, although they do not represent forms of full democracy, but basically are electoral democracies, have undertaken several changes that tried to redefine the social contract between rulers and ruled. Mohammed VI’s Morocco in particular has a commitment to civil and social reforms that are remarkable. These two North African countries are the ‘best’ places where citizens’ rights enjoy forms of legal protections and where decisions taken by public officials are subject to oversight. However, Algeria and Mauritania are characterised by serious problems of opacity of the public administration, which affect the legitimacy in the decision-making process.
The Ombudsman can survive and grow only in a political environment that undertook a transition to acceptable standards of pluralism, equality, basic freedoms and separation of powers. In other circumstances, where the check and balances between the organs of the state are absent or feeble and corruption is widespread, the institution of the Ombudsman is a congenitally lame duck and is exposed to the attack of the executive branch, aiming to defuse its efficiency or to weaken its role in the defence of the citizen until its final dissolution. The Ombudsman is not a miracle worker and is not a ‘Deus ex Machina’ set to solve all issues and reverse actions. It is not an institution that generates or preserves democracy in hopeless situations, but it is just a cog in a complex mechanism. It is a tiny and sensitive gear that can influence change, increase public expectations for democracy and give hope to ordinary people. At the same time, it instils concern in some regimes and that is why the Ombudsman has disappeared in Algeria and Mauritania.
Footnotes
Funding
The author received no financial support for the research, authorship, and/or publication of this article.
