Chapter 2. Open government and decentralisation
This chapter explores key aspects of the planned decentralisation process and analyses the impact of this transition on the functioning of local administration and on open government at the local level. The experience of other OECD countries forms the basis of recommendations that can help to create an enabling environment to ensure that decentralisation and open government can lead to better local development.
Territorial organisation and the role of local authorities in Tunisia
Tunisia is a unitary state whose highly centralised character dates back to pre-colonial and colonial times, a choice that was maintained after independence. The Constitution of 1959 only devoted one article (Article 71 of Chapter VIII) to local authorities, which stipulated that “municipal councils, regional councils and structures to which the law confers the quality of local government manage local affairs in the conditions provided for by law”. Territorial organisation was based on a logic of devolution, with land divided up into governorates, delegations and sectors, and one of decentralisation, with regional councils, municipalities, districts (arrondissements) and areas without municipal organisation (Turki and Verdeil, 2015) (see Figure 2.1).
The municipalities are governed by a mayor who is elected at municipal elections. When the logic of devolution prevailed (see Box 2.1), there was an absence of real, local democracy (EU Committee of the Regions, 2014). The prerogatives and competences of the municipal authority were limited and restricted, and the municipalities’ work was framed by the governors, the regional directorates of ministerial departments and national agencies (OECD, 2017a). These limitations, which were compounded by a lack of resources and expertise, resulted in the inability of municipalities to develop real public policies in the key areas of urban and land planning. This hampered their ability to plan the development of their municipalities, promote development projects, and provide quality public services. Furthermore, the manner in which the elections were held, with the dominance of the party in power, contributed to municipal councils being insufficiently representative. Finally, the absence of communication between the municipality and citizens did not allow for good relations to grow between the two. As a result, even today, the municipalities are faced with a refusal by citizens to pay local taxes and citizens’ non-compliance with urban and environmental regulations (Turki and Verdeil, 2015).
Decentralisation: “Decentralisation consists of transferring competences from the State to institutions that are distinct from it, also known as local authorities. These latter enjoy autonomy of decision-making and have their own finances, to a greater or lesser extent depending on the country” (OECD, 2017a). A distinction can be made between political decentralisation (transfer of political power), fiscal/budgetary decentralisation (reallocation of financial resources) and administrative decentralisation (transfer of decision-making power and responsibility for the provision of public services) (OECD, 2017b).
Devolution: “Administrative devolution consists of delegating the powers of the State to local agents or bodies that remain subject to the authority of the State and only enjoy limited autonomy” (OECD, 2017b).
The decentralisation (see Box 2.1) provided for in Chapter 7 of the 2014 Constitution represents a response to this lack of local democracy and municipalities’ limited capacity to take charge of their own development. To address these shortcomings, Tunisia chose to enshrine in its Constitution concepts such as local power, decentralisation, local interests, self-government, financial and administrative autonomy, the principle of subsidiarity, the election of councils and the autonomy of competences (EU Committee of the Regions, 2014) (OECD, 2017a). The Constitution lays out three categories of local authorities, namely municipalities, regions and districts. In this way, it creates a new territorial organisation, adding districts (see Figure 2.1). A district (iklim) consists of more than one governorate and is managed by a district council elected by members of local authorities. However, the division of districts has not yet been decided (EU Committee of the Regions, 2014). In addition, the municipalities have witnessed a development with the creation of 25 new municipalities in 2015 and 61 new municipalities in 2016, increasing the total number from 264 to 350. Following a constitutional provision, Government Decree No. 2016-602 dated 26 May 2016 completes the full coverage of Tunisian territory in terms of municipal administration, whereas previously, some 3.5 million Tunisians, mainly in rural regions, had lived without municipal representation. The division of governorates and delegations has not, however, been affected by these changes (Drugeon, 2016).
Source: Turki and Verdeil, 2015, and author.
The municipalities were managed by special delegations up until the elections of May 2018. The municipal councils were dissolved after the 2011 revolution and replaced by special delegations, appointed in accordance with the organic law on municipalities1. Although these special delegations were initially appointed for one year, they are still in place – some municipalities have seen the appointment of new delegations – and remained in operation for more than seven years until the municipal elections.
Progress in the decentralisation process
Tunisia is currently in a transition phase with, on the one hand, a new Constitution that establishes the principles of local power and, on the other, local authorities that operate under former laws drafted under the regime of Ben Ali, pending the implementation of the newly approved Law on Local Authorities.
Chapter VII of the 2014 Constitution sets out the principles of local power. It stipulates, among other things, that:
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Local government is based on decentralisation (Article 131).
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Local authorities shall enjoy legal personality as well as financial and administrative independence. They manage local matters in accordance with the principle of administrative autonomy (Article 132).
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Local authorities possess their own powers, powers shared with the central authority, and powers delegated to them from the central government. The joint and delegated powers shall be distributed in accordance with the principle of subsidiarity. Local authorities shall enjoy regulatory powers in exercising their mandates. Regulatory decisions of the local authorities shall be published in an official gazette of local authorities (Article 134).
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Local authorities shall have their own resources, and resources provided to them by the central government, these resources being proportional to the responsibilities that are assigned to them by law (Article 135).
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Local authorities shall adopt the mechanisms of participatory democracy and the principles of open governance to ensure the broadest participation of citizens and of civil society in the preparation of development programmes and land use planning, and follow up on their implementation, in conformity with the law (Article 139).
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Local authorities may cooperate and enter into partnerships with each other with a view to implementing programmes or carrying out activities of common interest. Local authorities may also establish foreign relations of partnership and decentralised cooperation (Article 140).
Chapter VII marks a break with the old Constitution, which stipulated that local authorities should exclusively manage local affairs. The new Constitution strengthens the role of local authorities and guarantees them greater powers than the old one, among which the principle of self-government should be highlighted.
To implement decentralisation and the principles laid out by the Constitution in a progressive manner, a Code for Local Authorities was adopted by Parliament on 27 April 2018; however, the new competences will only be transferred gradually to the municipalities, over a period of nine years (Drugeon, 2016).
At the same time, progress was made regarding long-awaited local elections, the timing of which had been postponed several times. The adoption by the Assembly of People's Representatives of Organic Law No. 2017-7 on 14 February 2017, amending and supplementing Organic Law No. 2014-16 of 26 May 2014 on the elections, and the referendums of 31 January 2017 (AFP, 2017) paved the way for this ballot, which should embed the democratic process at the local level. However, the resignation on 9 May 2017 of the President of Tunisia’s Independent High Authority for Elections, together with several other members of the authority due to internal tensions linked to democratic principles (Bellamine, 2017a), triggered a debate on the date for the elections, which were postponed (RFI, 2017) (Bellamine, 2017b) and then finally held on 6 May 2018.
Pending implementation of the Code for Local Authorities and during the past seven years, the municipalities have and continue to be regulated by the 1975 organic law on municipalities (Law No. 75-33 of 14 May 1975 promulgating the organic law on municipalities amended in 2008 by Law No. 2008-57 of 4 August 2008). According to Article 21, the competences of municipalities are as follows.
Through debate, the municipal council manages the affairs of the municipality:
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It examines and approves the municipal budget.
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Within the constraints of the municipality’s resources and the means made available to it, it decides the local authority’s investment programme.
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Decisions are made in line with the national development plan for the area.
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It gives its opinion on all matters of local interest, particularly on economic, social and cultural issues, and at all times when this opinion is regulated by laws and regulations, or is required by the supervisory authority.
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It convenes in advance for all projects to be carried out by the State or any other public authority or body on the municipal territory.
In addition, the municipality is responsible for developing, implementing and monitoring the development plan (Article 119). The municipality’s principal prerogatives are listed in Article 118, which sets out the traditional competences of basic public services in the area of road maintenance and municipal works, including the development of urban roads, gardens and green spaces, lighting, waste treatment, cleaning of public places, and the maintenance of municipal buildings. At first glance, few competences are given to municipalities in the area of strategic planning. The spirit of the new Constitution reflects a fresh approach that assigns a more prominent role to municipalities in the field of municipal management. Box 2.2 shows the competences of subnational governments in the OECD countries.
Note: The statistical data for Israel are supplied by and under the responsibility of the relevant Israeli authorities. The use of such data by the OECD is without prejudice to the status of the Golan Heights, East Jerusalem and Israeli settlements in the West Bank under the terms of international law. Includes only subnational government with general competencies. **Netherlands: 403 municipalities as of 1 January 2014. *** The regional level in Portugal includes only two overseas regions: Madeira and Azores.
Sources: OECD, Subnational governments in OECD countries: Key data (2016) (brochure); OECD, Regions at a Glance 2016, OECD Publishing, Paris (2016), Decree No. 2.15.40 of 20 February 2015 (Morocco), and www.hcp.ma/Repartition-geographique-de-la-population-d-apres-les-donnees-du-Recensement-General-de-la-Population-et-de-l-Habitat-de_a1796.html.
According to the Code for Local Authorities, municipalities’ competences will be extended by adding their own competences, those shared with the central government, and competences transferred to them by the latter. The competences will be distributed according to the principle of subsidiarity. The transfer of competences must be accompanied by a proportional transfer of funds and resources. Own competences include the supply of local services and amenities. In addition, the municipal council is responsible for managing the affairs of the municipality, including its financial commitments, and for setting taxes. It is charged with drawing up the investment and equipment programme and the urban development plan. The shared competences include tasks such as developing the local economy, while transferred competences focus on the construction and renovation of certain public facilities. In addition, local authorities have regulatory power. This involves a decentralisation that extends past a simple devolution (IACE, 2015).
The current context places municipalities in a complex situation. They must find a balance between, on the one hand, the demands of citizens and the new competences that they should receive, and, on the other, the tutelage of old laws. This situation generates a lack of legitimacy linked to inadequate capacities and to the appointment of special delegations, which had managed the municipalities until the local elections were held. Furthermore, since the revolution, municipalities have lost their authority over the municipal police, which has deprived them of an executive power and further reduced their scope for manoeuvring in response to citizens’ needs, and especially in halting the various violations of municipal regulations, such as unauthorised constructions or illegal land occupancy by cafés, businesses and restaurants. Since 2011, the police has been placed under the authority of the district chief of security (Ministry of Interior), while the municipality retains responsibility for providing the logistical support necessary for the performance of its duties. The fact that municipalities no longer have authority over the police, coupled with the assignment of police to other tasks, creates a situation that is difficult for municipalities to manage (Lajili, 2016). Once the decentralisation policy is set in place, the municipalities should regain authority in this area.
While the reforms for decentralisation are slow to come about, the municipalities also face structural problems that they have difficulty in addressing. Tunisia has experienced a wave of strikes in the urban service sector, which have resulted in tenure being granted to contract staff, and an ensuing increase in the total wage bill. Furthermore, municipal resources have fallen following a decline in payments of local taxes. For example, in 2011, municipalities suffered a 37% decline in their own resources and, in certain municipalities, the wage burden exceeds their revenues (Turki and Verdeil, 2015). Regional disparities persist, although the share of the state budget allocated to regional development has more than quadrupled since 2011 (Ben Raies, 2015). Against this backdrop, the special delegations, which lacked democratic legitimacy since they were not elected, have responded to citizens demanding the right to participation by trying to become more open and by experimenting with new forms of interaction with communities. In addition, pending the adoption of the Code for Local Authorities and the holding of municipal elections, the central government has implemented programmes and initiatives for regional development, namely the Urban Development and Local Government Programme described in the first chapter, which imposes requirements and conditions on the municipalities, in terms of implementing a participatory process. This situation has an impact on their open government initiatives, particularly on participatory budgeting as discussed in greater detail below. Tunisia is still today in a transitional stage of defining its model of open government at the local level, with citizen participation at its centre. On this point, the principles of the Council of Europe could serve as a source of inspiration (see Box 2.3).
In 2008, the member states of the Council of Europe approved principles of good democratic governance to be promoted at the local level. They recognised, however, that “a necessary precondition for the implementation of these Principles is that local authorities have the powers, responsibilities and resources enabling them to regulate and manage a substantial share of public affairs under their own responsibility and in the interest of the local population”.
These principles are:
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1. Fair Conduct of Elections, Representation and Participation, to ensure real possibilities for all citizens to have their say in local public affairs.
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2. Responsiveness, to ensure that the local authority meets the legitimate expectations and needs of citizens.
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3. Efficiency and Effectiveness, to ensure that objectives are met while making the best use of resources.
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4. Openness and Transparency, to ensure public access to information and facilitate understanding of how local public affairs are conducted.
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5. Rule of Law, to ensure fairness, impartiality and predictability.
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6. Ethical Conduct, to ensure that the public interest is put before private ones.
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7. Competence and Capacity, to ensure that local representatives and officials are well able to carry out their duties.
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8. Innovation and Openness to Change, to ensure that benefit is derived from new solutions and good practices.
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9. Sustainability and Long-term Orientation, to take the interests of future generations into account.
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10. Sound Financial Management, to ensure prudent and productive use of public funds.
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11. Human rights, Cultural Diversity and Social Cohesion, to ensure that all citizens are protected and respected and that no one is either discriminated against or excluded.
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12. Accountability, to ensure that local representatives and officials take responsibility and are held responsible for their actions.
Source: Council of Europe, 2007.
However, establishing and implementing decentralisation remains a key ingredient for the success of open government at the local level. Certainty regarding competences and resources would enable local administrations to develop long-term approaches, and thereby help to build trust among citizens. Social movements that have developed in recent years, particularly in the most marginalised regions, attest to the importance of implementing a decentralisation reform that responds to citizens’ needs. That requires inter-ministerial coordination, including between the Ministry of Local Affairs and Environment, the Ministry of Finance, and especially the unit responsible for open government within the Presidency of the Government. Such coordination would ensure the alignment between the local development and decentralisation policies, and human and financial resources.
References
AFP (2017), “L'Assemblée vote la loi relative aux élections et aux référendums, les élections municipales en point de mire”, HuffPost Tunisie, http://www.huffpostmaghreb.com/2017/01/31/loi-elections-municipales_n_14524362.html (accessed on 29 January 2018).
Bellamine, Y. (2017a), “Face aux députés: Chafik Sarsar craint que l'ISIE ne puisse plus garantir des élections démocratiques”, HuffPost Tunisie, http://www.huffpostmaghreb.com/2017/05/10/chafik-sarsar-assemblee_n_16537870.html (accessed on 29 January 2018).
Bellamine, Y. (2017b), “Démission de Chafik Sarsar: Quel avenir pour les élections municipales?”, HuffPost Tunisie, http://www.huffpostmaghreb.com/2017/05/09/elections-municipales-tun_n_16509074.html (accessed on 29 January 2018).
Ben Raies, M. (2015), “De la décentralisation en question, Quelle Tunisie ?”, Leaders, http://www.leaders.com.tn/article/17501-de-la-decentralisation-en-question-quelle-tunisie (accessed on 29 January 2018).
Council of Europe (2007), Extrait de la Déclaration de de Valencia de la 15e Conférence des Ministres européens responsables des collectivités locales et régionales, https://rm.coe.int/168070169a%20et%20www.coe.int/fr/web/good-governance/12-principles-and-eloge (accessed on 29 January 2018).
Drugeon, A. (2016), “La Tunisie en passe de créer 61 nouvelles municipalités”, HuffPost Tunisie, http://www.huffpostmaghreb.com/2016/05/26/tunisie-61-municipalites_n_10140830.html (accessed on 29 January 2018).
European Committee of the Regions (2014), Tunisie: Fiche Technique - Répartition verticale des compétences, https://portal.cor.europa.eu/arlem/Documents/Tunisia%20Fact%20Sheet%20No%201%20FR%20_%208%20May%202014.pdf (accessed on 29 January 2018).
IACE (2015), Guide de Bonnes Pratiques de Gouvernance Locale, http://www.iace.tn/wp-content/uploads/2017/02/Guide_gouvernance-locale_version-finale.pdf (accessed on 29 January 2018).
Lajili, T. (2016), “Tunisie: Police municipale - Un statut ambigu - allAfrica.com”, La Presse.tn, http://fr.allafrica.com/stories/201610210888.html (accessed on 29 January 2018).
OECD (2017a), Un meilleur contrôle pour une meilleure gouvernance locale en Tunisie : Le contrôle des finances publiques au niveau local, Examens de l'OCDE sur la gouvernance publique, OECD Publishing, Paris, https://doi.org/10.1787/9789264265967-fr.
OECD (2017b), Towards a New Partnership with Citizens - Jordan's Decentralisation Reform, OECD Publishing.
RFI (2017), Tunisie: des ONG dénoncent le report des élections municipales - RFI, RFI, www.rfi.fr/afrique/20170919-tunisie-ong-denoncent-le-report-elections-municipales (accessed 29 January 2018).
Turki, S. and Verdeil, E. (2015), “Tunisie: la Constitution (du Printemps) Ouvre le Débat sur la Décentralisation”, dans Local Governments and Public Goods: Assessing Decentralization in the Arab World, LCPS, https://halshs.archives-ouvertes.fr/halshs-01221381/document (accessed 29 January 2018).
Note
← 1. In the event that a municipal council be dissolved, or all its incumbent members resign, or it is impossible to form a municipal council, a special delegation will take over these duties. […] This delegation is appointed by decree. […] This special delegation and its president perform the same duties as the municipal council and its president.” Article 12, Law No. 75-33 of 14 May 1975, promulgating the organic law on municipalities.