Egypt: New Draft Law an Assault on Independent Groups
|Publisher||Human Rights Watch|
|Publication Date||30 May 2013|
|Cite as||Human Rights Watch, Egypt: New Draft Law an Assault on Independent Groups, 30 May 2013, available at: http://www.refworld.org/docid/51a86a954.html [accessed 19 November 2017]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
The draft Associations Law that Egypt's president put before the country's legislature on May 29, 2013, would allow the government and its security agencies to arbitrarily restrict the funding and operation of independent groups if it is adopted in its present form.
Despite some improvements compared to previous drafts, the May 29 draft falls far short of Egypt's international human rights obligations. It would reinforce and formalize state control over nongovernmental groups by empowering the government to deny them access to both domestic and international funding. It would also give the authorities complete discretion to object to activities of Egyptian and international organizations, including human rights groups that document or criticize rights abuses by the government.
"This draft law dashes all hopes that independent groups could operate freely and independently after the revolution," said Sarah Leah Whitson, Middle East and North Africa director at Human Rights Watch. "Egypt's proposed NGO law would allow the government free rein to cut off funding and halt activities of groups that it finds inconvenient. It is hostile to the very notion of independent civil society."
The draft law has been several months in the making. The presidency took over drafting the law initially prepared by the ruling Freedom and Justice Party after the Shura Council, Egypt's legislative body, discussed an earlier version for two months without adopting it. Human Rights Watch attended a Shura Council hearing session on March 28 and subsequently met with the members of the Shura Council's drafting committee and presidency officials to discuss the law in light of Egypt's obligations as a party to key international human rights treaties.
The Shura council will now discuss the presidency's draft, with no announced time frame for adoption.
The Presidency has said that the controversial new draft aims to "maintain the balance between Egypt's openness to the world ... and its sovereignty and independence."
The most significant improvement in the current draft is that it no longer would require all funding obtained by Egyptian and international nongovernmental groups to be considered public funds. That provision would have subjected groups to the supervision of the state Central Auditing Agency and made them subject to disproportionate penalties.
However, the new draft still would give the government excessive powers over civil society groups. Article 18 would grant the government absolute discretion to object to the internal decisions and activities of groups, and to block the decisions if they disapprove. Groups would have to submit an annual financial report, as well as copies of all internal decisions and a report on annual activities to the authorities, who could object and order a halt to any of the group's activities. If the group did not comply within 15 days, the government could take the group to court.
Article 14 would require groups to notify the government in advance every time they wish to raise money through TV campaigns, charity events, or mail campaigns. It would empower the government to object on any ground and to thereby block legitimate fund-raising.
The provisions on foreign funding are extraordinarily restrictive, Human Rights Watch said. A Coordination Committee would be created to determine all matters related to foreign funding and foreign organizations. Groups would need to obtain permission from the Coordination Committee before they could accept funds from abroad and could be fined or shut down by court order if they didn't. The committee would include officials from four government ministries and "concerned entities" - a reference to security and intelligence agencies - and four representatives of civil society organizations.
The committee would have absolute discretion to block all access to foreign funding, without any requirement to link the objection to a specific offense, opening the way for the authorities to cut off financial support for any project to which it objects, Human Rights Watch said. Similar provisions in Law 84 have led to arbitrary denials of access to the foreign funding that represents a lifeline for Egyptian human rights groups, often on the grounds that a proposed project addressing torture or abuses of women's rights was unwanted, Human Rights Watch said. The committee must respond within 30 days and groups would be able to appeal a rejection before a court but since the law grants the Committee an absolute right to object a court is unlikely to limit that right.
Egyptian government officials have claimed that tighter restrictions on foreign funding are necessary for security reasons and because of alleged concerns that that these groups could be used for money-laundering. However, countries with flourishing civil societies address such concerns with regular criminal laws, laws on corruption, and anti-money laundering laws, Human Rights Watch said.
"The Egyptian government may legitimately want NGO finances to be transparent, but it should be ashamed of a law that would allow the government to strangle civil society by arbitrarily banning crucial sources of funding," Whitson said. "Instead of balancing oversight with facilitating support for civil society, this draft seems to view any and all foreign donations as potential threats to national security."
The draft law is even more repressive for international organizations than for domestic groups, Human Rights Watch said. The Coordination Committee would have absolute discretion to reject or approve an international organization's application for registration, without providing justification, although a group would be able to appeal in court. The committee would monitor these groups, including provisions that it could "object to any of the activities" and order a halt. It also says that foreign groups may not conduct "activities conducted by political parties or those that violate national sovereignty." These terms are not defined and would be open to abusive interpretation by the authorities, Human Rights Watch said. Under the ousted former president, Hosni Mubarak, the authorities frequently condemned critical human rights reporting as a threat to Egypt's sovereignty and interference in its domestic affairs.
International law requires that there be no discrimination, including on the grounds of nationality, on organizations' freedom to associate and operate.
Human Rights Watch closely followed the various drafts of the law discussed by the human rights committee in the lower house of parliament, the People's Assembly in 2012. The first draft of the Freedom and Justice Party's law, presented in April 2012, was far more progressive on international organizations, for example, with no distinction between them and Egyptian groups in the law other than requiring international organizations to apply to the ministry of foreign affairs for registration.
"If President Mohamed Morsy and his Freedom and Justice party want to allow international organizations including human rights groups to continue to operate in Egypt, where they have worked for years, they could decide tomorrow to revert to the fairer previous language on international groups in their draft." Whitson said.
Egyptian and international human rights organizations have unanimously criticized the draft law. The Forum of Independent Human Rights Organizations, a coalition of Egypt's most active human rights groups, issued a joint statement saying that the proposed law would "stifle civil society." In a March 28 news release, the United Nations special rapporteurs on freedom of association and human rights defenders warned the draft law would "ultimately impede associations from fulfilling their crucial function in the promotion and protection of human rights." Amnesty International called the law "draconian" and UN High Commissioner for Human Rights Navi Pillay said it was a "blow to the hopes and aspirations that were raised during the 2011 'Egyptian Revolution.'"
"The extent to which a government allows for a healthy and critical civil society to operate freely is a test of its democratic credentials," Whitson said. "Egypt should be empowering independent groups to help alleviate the impact of the worsening economic crisis and instead it is imposing even more control."
Selected Provisions of the Current Draft Law
The preamble to the draft law states in article 1 that all entities involved in "civic work" must register under this new law or face dissolution. This provision would appear to force existing groups legally operating as law firms or clinics or civic companies to register under the new law.
Arbitrary Limitations on Fund-Raising and Foreign Funding of Egyptian Groups
Fund-raising inside Egypt would be limited by article 14, which would allow the government to object within 15 days of being notified to any fund-raising campaigns by Egyptian groups whether on TV or by mail or by holding events. The law does not state on what basis the government could object, giving it absolute discretion to intervene and halt legitimate fund-raising activities or to pick and choose favorite groups to be allowed to raise money. A group would be able to appeal the rejection before a court, which would be required to rule within 30 days.
The penalties section of the draft law makes it absolutely clear that no group would be able to receive foreign funding without Coordination Committee permission.
The draft law is extremely restrictive on funding and provides for heavy penalties for any violation. Article 70(3)(2) would provide a fine of between 20,000-100,000 Egyptian Pounds (US$2,864-US$14,322) for any leader or members of an organization regulated by this law who receives funding from abroad or sends money abroad without the committee's permission.
Article 72 would allow a court, in cases involving the receipt of funding or donations in contravention of the law's provisions, to order a halt to an activity, the suspension of certain members of an organization, the suspension of the activities of an organization for a specific period, and ultimately the dissolution of the organization and seizure of its funds.
Article 63 regulates how to obtain permission to receive foreign funding from outside Egypt. It states that Egyptian groups wishing to receive foreign funding would have to apply to the Coordination Committee for permission. The committee's failure to respond within 30 days would be considered approval. It leaves determining the procedures for obtaining a "funding permit" to the executive regulations and states that the fee for this permit should not exceed 1,000 Egyptian Pounds.
Article 13 states that groups seeking funding from foreign non-governmental organizations not based in Egypt or foreigners not resident in Egypt would have to notify the committee if they wish to receive funding. If the group does not receive a response within a month or if the committee rejects its request, it would be able to appeal to a court, which would be required to rule within 15 days.
Article 13 and 63 set no limits on the discretion of the Coordination Committee to bar incoming funds, without any requirement that their objection must be related to a violation of any law. The government could object to particular forms of activity, such as human rights monitoring, that entails criticism of the government, and could engage groups in costly and time-consuming court procedures to impede their work.
It would also appear to be disproportionately onerous, in particular for small organizations, to have to notify the government about every fund-raising campaign and every receipt of foreign funding, since they will in any event by required to produce annual accounts.
Governments may have a legitimate interest in ensuring that groups manage their accounts transparently, but governments should not grant their security agencies absolute discretion to reject funding since that will ultimately allow them to deny any human rights work they deem controversial, Human Rights Watch said. Freedom to obtain funding is a guarantee of independence.
Under Mubarak, security agency surveillance of all human rights groups meant that the Egyptian business community shied away from funding what it saw as controversial groups, so foreign funding was a lifeline for human rights groups. Since the January 2011 uprising, security agencies have denied legally registered groups, such as the New Woman Foundation, some incoming funds, including from long-term donors, without giving any reasons. The New Woman Foundation has told Human Rights Watch it has laid off staff as a result of the serious drop in its income.
The UN Declaration on Human Rights Defenders, adopted by consensus in the General Assembly in 1998, provides in article 13 that countries must ensure "the right, individually and in association with others, to solicit, receive, and utilize resources for the express purpose of promoting and protecting human rights and fundamental freedoms." The United Nations special rapporteur on the situation of human rights defenders has specifically stated that this includes the right to seek foreign funding and that, "Governments should allow access by human rights defenders, in particular non-governmental organizations, to foreign funding as a part of international cooperation, to which civil society is entitled to the same extent as Governments."
Government Interference in Internal Governance
The draft law would allow the government to object to particular activities or internal decisions of Egyptian groups. Article 18 would obligate a group to submit annually to the government a copy of its accounts, all decisions of its general assembly and board, and an activities report to the government. It states further that if the government "objects to any of these decisions it shall inform the NGO within 15 days of the date of being notified." If the group does not respond to these objections within 15 days, the government would be able to take the matter to court.
The draft provision does not in any way limit the basis on which the government could object to internal decisions by a group's board or general assembly, allowing the government to force the group into a time-consuming, potentially expensive and uncertain court proceeding.
According to the UN special rapporteur, "Authorities should not be entitled to: condition any decisions and activities of the association … or request that an internal decision be withdrawn," among other illegitimate intrusive actions.
The draft law also establishes excessive requirements for internal governance, which amounts to governmental interference, Human Rights Watch said. Article 25 states that each group shall have a "general assembly" consisting of everyone who has been a member for more than three months. Article 26 states that the group's general assembly may call for a meeting based on an invitation from the board or a quarter of the members of the organization. Determining the details of internal governance structures should be based on the choices of the members of the group not dictated by the authorities, Human Rights watch said.
Severe Restrictions on Operations of International Groups
The draft law is especially restrictive when it comes to the role of international organizations in Egypt. Article 57 of the draft law says that international groups would have to apply for registration to the Coordination Committee. Previous drafts of the law stipulated that Egyptian General Intelligence Services would sit on the committee, but the latest draft would leave it to the prime minister to appoint four representatives from government ministries and "concerned entities," a clear reference to security agencies. The draft provides no limitations on the committee's discretion to reject the registration request. Article 53 also states that these groups could appeal a rejection before the administrative court.
The draft law would allow the Coordination Committee to arbitrarily block legitimate activities of foreign organizations by giving it an unrestricted right to object to activities. Article 62 states that foreign organizations shall be subject to the supervision of the committee and that the committee may "object to any of the activities or funding of projects" of foreign organizations.
The draft would give the government, and in effect security agencies, discretion to halt or limit the groups' work at will, in violation of non-nationals' right to freedom of association, which is guaranteed to them on a non-discriminatory basis under the International Covenant on Civil and Political Rights (ICCPR), Human Rights Watch said.
Other provisions would set additional limitations on the activities of foreign groups using vague terms that will be open to abuse. Article 59 says that their activities must not be "activities conducted by political parties" or those that "violate national sovereignty." Article 60 bans foreign groups from using their funds, and Article 61 their premises, for objectives other than those authorized. The law leaves the definition of a legitimate objective and of how many objectives a foreign organization may specify to the executive regulations, which have traditionally introduced more restrictions in Egypt.
The law also states in article 12 that Egyptian groups would only be allowed to conduct activities in cooperation with foreign organizations after they notify the Coordination Committee.
Evolution of the Draft Law
Under Mubarak, the authorities used Law 84 of 2002 on Associations to arbitrarily prevent human rights groups and other organizations critical of government policies from registering and from receiving grants from foreign governments and foundations.
In a March 24 news release, the presidency stated:
Regrettably, prior to the January 25 revolution, civil society work in Egypt was limited due to authoritarian practices as well as the absence of a conducive legislative environment. In the new Egypt, we are determined to ensure that civil society is empowered to play a vibrant role in the development of Egypt. Our primary objective is to facilitate, rather than limit, the work of NGOs so they can operate freely and within the bounds of the law.
With the convening of the newly elected parliament in January 2012, the human rights committee in the People's Assembly started to debate various drafts of the law. The drafts submitted included a joint draft by Egyptian nongovernmental groups aimed at implementing protection of freedom of association, and a draft by the Social Affairs Ministry that would have violated the basic right of freedom of association, reflecting the views of the security agency establishment. The Freedom and Justice Party submitted a draft in April 2012, and the committee began to work on it.
However, the draft law being discussed in the Shura Council, introduced on March 24, 2013, is a serious regression in terms of protection of rights from the April 2012 draft, Human Rights Watch said. The April 2012 draft's provisions on foreign funding and foreign organizations were replaced in the new draft by far more restrictive provisions from the Insurance and Social Affairs Ministries' drafts.
The Shura committee responsible for drafting the law, the Human Development and Local Administration committee, headed by Abdelazim Mahmoud from the Noor party, held at least 15 hearing sessions between February and April to which selected groups were invited. The state news agency, MENA, quoted Dr. Mahmoud on March 30 as saying that, "The law will not be brought to the plenary session until there is consensus on the provisions and we have listened to all views." In April however, the presidency took over the drafting of the law and announced on May 28 that it had finalized a draft and would submit it to the Shura council the next day.
Post-January 2011 Law Reform Initiatives
The Mubarak government used a complex set of interlocking laws, decrees, and emergency powers to stifle freedom of association. In its 2005 report "Margins of Repression," Human Rights Watch documented how the Interior Ministry routinely reviewed and rejected registration applications from human rights groups, despite the fact that it had no legally mandated role in the registration process, and that the State Security Investigations (SSI) agency scrutinized leaders of rights groups, as well as activities and funding, without any legal authority.
Egyptian and international human rights groups had for years criticized the 2002 Associations Law, and in the aftermath of January 2011, amending it was one of the priority reforms human rights groups called for. In June 2011, Human Rights Watch met with then-Prime Minister Essam Sharaf and then-Justice Minister Abdelaziz al-Guindy. Both agreed that the government needed to amend the Associations Law to meet international standards alongside reforms governing political parties and trade unions laws. Al-Guindy told Human Rights Watch that the government planned to amend the law but that it would require a broad consultation process and was not among his legislative priorities. There was no subsequent attempt to start a process to amend the law.
Instead, in July 2011, the government, led by the then-international cooperation minister, Faiza Abul Naga, initiated an investigation of groups not registered under Law 84 of 2002, under which the Mubarak government had arbitrarily refused to register many such organizations. This was followed by police and military raids on Egyptian, European, and US groups in December 2011 and the prosecution of Egyptian and international staff of four US groups.
The trial of the 43 workers for these groups opened in March 2012. Almost all of the international staff were able to leave the country in February 2012 after an escalation of US pressure and threats of conditioning US military aid to Egypt. However, 13 Egyptian and two international workers for these groups are still on trial. The verdict is scheduled for June 4.
Egypt's International Obligations
Egypt is obliged to respect and ensure the right to freedom of association, set out in article 22 of the ICCPR and article 10 of the African Charter on Human and People's Rights. Egypt may only limit this right through regulations "prescribed by law and that are necessary in a democratic society." Any limitation should respond to a pressing public need and reflect basic democratic values of pluralism and tolerance. "Necessary" restrictions must also be proportionate - that is, carefully balanced against the specific reason for imposing the restriction and not discriminatory, including on the grounds of national origin or political opinion or belief.
As it stands, the draft law does not meet Egypt's obligations to protect and ensure freedom of association, Human Rights Watch said.
In February 2010, Egypt had its first Universal Periodic Review before the United Nations Human Rights Council. The Mubarak government at the time accepted four recommendations to reform Law 84/2002, including a recommendation to "[r]evise the procedures governing registration of civil society organizations to ensure transparent, non-discriminatory, expeditious, and affordable procedures that conform to international human rights standards." Egypt will face its second Universal Periodic Review in mid-2014.