9 July 2014

Egypt: Proposed Government Law Makes NGOs Subordinate to Security and Ministry Control

press release

The undersigned rights organizations express their deep concern regarding the Ministry of Social Solidarity's latest draft of the bill regulating non-governmental organizations, and declare it a flagrant breach of the constitution and Egypt's international obligations. The law, if adopted, will criminalize the operation of NGOs and subordinate them to the security establishment, shutting down the public sphere in Egypt to all but regime supporters. The undersigned organizations demand that the president reject this and any other law that contravenes the constitution and Egypt's international obligations.

The passing of the Protest Law in November 2013 has already led to the imprisonment of a number of activists and human rights defenders for periods of up to 15 years. The adaption of the draft NGO law will most certainly also lead to the jailing of independent human rights defenders, also for periods of up to 15 years.

Several of the undersigned organizations received an invitation from the General Federation of Civic Associations and Foundations to attend the first social dialogue session to discuss the bill, sponsored by the Ministry of Social Solidarity, on Thursday, June 26, 2014, at the ministry headquarters. It should be noted that in July 2013, the Ministry of Social Solidarity formed a committee to discuss a draft NGO Law, in which many of the undersigned organizations had participated. The result of these discussions was a draft NGO bill that was far better than any of the drafts previously put forward by the government. Whilst problematic, that draft law could have been built upon and improved to be consistent with Egypt's international obligations. It appears, however, that the government had no intention of passing this draft bill. Instead, it used it to improve its international reputation. The former Minister of Social Solidarity, Ahmad al-Borai put forward that draft bill to the United Nations - Office of the Human Commissioner for Human Rights as evidence of the new post-Morsi government's ostensible commitment to democratic transition and support of civil society. With the latest draft NGO bill, it appears the government has no use for the previous bill and has instead proposed laws regulating NGOs that have not been this repressive for almost half a century (Law 34, 1964)

The undersigned organizations have submitted numerous proposals, including an alternative to the current Law 84/2002, as well as various legal proposals and analyses of several bills drafted after January 25, 2011, to familiarize legislators and the administrative body--the Ministry of Social Solidarity--with international standards and best practices in this field.

A close reading of the latest draft of the NGO law makes clear the extent to which the government seeks to impose its complete control over civic groups and subordinate them to security and administrative bodies. The undersigned organizations are extremely distressed by this prospect. After exhaustive efforts over the past three years to produce a new NGO law that would liberate civic action and concord with international standards and the constitution, the government now puts forth extremely poor proposals that would allow the security establishment to control the activities of civic associations and make the administrative body the real director of such groups. Violators of some provisions of the law are subject to at least one year imprisonment and/or a fine of at least LE100,000. This indicates that the problem is more lack of political will on the part of the government and security bodies to permit free civic action than it is lack of knowledge of how to draft a liberal NGO law than.

The Ministry of Social Solidarity's new proposal seeks to place civil society under close surveillance and control its activities, in utter disregard for Article 75 of the 2014 constitution, which states that civic associations should be able to operate "freely." This way of thinking reflects the government's view of NGOs as offices that operate under government control, if not indirect management. For decades the government has failed to provide basic services like education and health to the citizenry or establish impartial, autonomous mechanisms to monitor the performance of government bodies. Government services are poor and inadequate, and are characterized by corruption and waste of public money. Nevertheless, at the same time, it does not want to open up space for social initiatives to provide a better level of services, receive input on better policy options, or initiate a democratic social debate that would pave the way for better solutions to end the cycle of ongoing failure, resulting from the absence of an effective political force, which is a fundamental part of social action in countries with stable, successful development policies. Instead, the government seeks to curb and control these initiatives through repressive legislation, as if seeking to extend its own failure to civic associations while also gagging any independent voice that constructively criticizes the failure of government policies in various fields and proposes alternative policies to preserve a minimum threshold of human rights and social justice.

Egypt is scheduled to undergo the Universal Periodic Review in the UN Human Rights Council in October and November of this year. Meanwhile, it is seeking to adopt a new NGO law entirely divorced from the international pledges made by Egypt and the recommendations it accepted in the first UPR in 2010. During the first UPR, the government pledged to revise the NGO law to minimize the role of the administration and give these organizations greater autonomy. It accepted recommendations on state guarantees for the freedom of association and to reform Law 84/2002 to put in place simple, rapid, non-discriminatory procedures for establishing NGOs, not subject to administrative discretion and consistent with human rights standards.

If the proposed law is adopted, it will put Egypt in a class with other countries with terrible NGO statutes, such as Ethiopia, Israel, China, and Belorussia, thus belies all government claims to democratization and respect for human rights.

Our major objections to the bill are:

The bill follows the same mistakes as the proposals made by ousted President Mohamed Morsi in May 2013, just one month before he was deposed, providing for what it calls a "Coordinating Committee," which was criticized by Egyptian organizations and the UN Office of the High Commissioner for Human Rights. The bill gives this committee broad authority to regulate the activities of civic associations by controlling their funding (either authorizing or rejecting) and granting or denying permits to international organizations to operate in Egypt. The Coordinating Committee is comprised of eight government bodies, including a representative of the Interior Ministry and a representative from the general intelligence. The very existence of this committee is unacceptable, especially because the security apparatus is opposed to the freedom of civic associations in principle and continues to perpetrate grave human rights violations. The security apparatus has undergone no reform or restructuring despite repeated calls for such since January 25, 2011, and most of its members responsible for human rights abuses have faced no accountability. Instead, it has interfered with and impeded the activities of organizations that demand accountability and combat torture, or denied permits to foreign NGOs that monitor human rights violations. This leaves rights associations at the mercy of the security apparatus, instead of allowing these groups to monitor the performance of security bodies. Even now, the security apparatus continues to operate covertly to obstruct and stifle civic action. In the past, the absence of a statute sanctioning the obstruction of civic action helped NGOs to challenge the security apparatus before the Administrative Court. If the new bill is adopted in its current form, however, security interference in the activities of civic associations will be entirely legal, making the work of civic associations even more difficult. NGOs do not object to--indeed, they encourage--independent oversight of funding and transparency in sources of funding and expenditures.

The bill is a flagrant assault on the constitution, Article 75 of which guarantees citizens the freedom to form associations and acquire legal personhood simply by notice. The proposed law circumvents these guarantees. While it states that associations acquire legal personhood 60 days after notice, it gives the administrative body the right to object to the establishment of the association in this period if its activities include any activity prohibited by the law, which are enumerated in broad enough terms to permit the administrative body to object to the formation of any association.

Like the notorious Law 84/2002, the new bill sets forth prohibited activities using ambiguous language that makes it difficult to describe or circumscribe them with any precision. For example, the bill bans activities that "threaten national unity or contravene the public order or morals"--terms in the existing law that have long been criticized by Egyptian organizations. In fact, these same terms were used to deny licenses to some of the undersigned organizations, which were only established later due to court order. The draft law also prohibits civic associations from engaging in political activity, without defining whether this is limited to support for parties or candidates in elections--which the undersigned organizations support--or extends to assertions of opinion in matters of public import. The bill also prohibits associations from engaging in trade union activities, which will obstruct the work of advocacy associations that defend the rights of workers to improve their labor conditions and support them against employers' arbitrary actions. The prohibitions in the law are both vague and absolute, which will allow government interference in associations' activities or denial of a license at any time and for any reason. More seriously, the bill sets a penalty of at least one year in prison and/or a fine of at least LE100,000 for any person who establishes an association or entity performing the activities of associations in violation of the law.

Demonstrating unfamiliarity with the nature of civic work, the bill prohibits NGOs from carrying out field research or opinion polls without the approval of the Central Agency for Public Mobilization and Statistics (CAPMAS). The undersigned organizations are confused by this restriction, since part of carrying out professional civic work involves assessing the impact of its projects on society, which can only be properly done by carrying out opinion surveys designed to improve its services to the public. The bill sets forth a penalty of at least one year imprisonment and/or a fine of at least LE100,000 for violating this provision.

In contrast to rulings from the Court of Cassation, the bill considers association's assets and the funds it receives in the form of grants, aid, or donations to be public funds for in the application of the penal code. This entails harsher penalties and changes the nature of the crime of any financial malfeasance, from theft, fraud, or breach of trust to appropriation or facilitating the appropriation of public monies, embezzlement, and harming public funds. In turn, penalties for these crimes are 3 to 15 years imprisonment, instead of 24 hours to 3 years. This provision thus may act to intimidate association founders or those seeking to establish a new association.

The bill violates an NGO's right to freely choose the legal form that best suits the nature of its activities. Article 2 of the draft law prohibits licensing any entity--such as a company--that the administrative body deems to be engaging in civic work without complying with the provisions of the law. The bill thus considers any license issued to such entities by any other government body to be null and void. A term of imprisonment of at least one year and/or a fine of LE100,000 is set forth for any person who establishes such an entity without complying with the provisions of this law, even if the entity is licensed by a body other than the Ministry of Social Solidarity. The law also provides for the confiscation of the assets of such an entity in violation, the proceeds of which would go to the Fund to Support Civic Associations and Foundations.

Despite recommendations from rights organizations to institute a system of subsequent oversight of foreign funding and allow objections only on legal bases, the bill moves in the opposite direction. It unequivocally prohibits the receipt or transfer of foreign funding from an Egyptian or foreign national, or a foreign body or its representative in Egypt without a permit from the Coordinating Committee, or the elapse of 60 days without an objection from the committee, but the article lays out no legal basis on which the committee may object. The requirement for a permit from the Coordinating Committee, which, as noted, includes two representatives from the security establishment, opens up avenues for interference in NGO activities. The undersigned organizations have long supported a system that allows the receipt of funding by notice, while giving the administrative body the right to object through the courts if the purpose of the funding is for the execution of illegal activities. In addition to foreign funding and grants, the bill also stands against the right of associations to fundraise domestically, making it dependent on a permit from the Ministry of Social Solidarity. Members of associations who receive funding or engage in fundraising without a permit are subject to at least one year in prison and/or a fine of at least LE100,000; it is also grounds for the administrative body to seek a dissolution order from the courts.

The proposed law demonstrates a clear hostility to foreign NGOs, setting up restrictions and obstacles that make their presence and operation in Egypt virtually impossible. If a foreign organization manages to obtain a license, its operations in Egypt are dependent on the approval of the Coordinating Committee every step of the way. Firstly, the bill intentionally leaves the definition of the documentation required for the permit application to the law's implementing regulations. Many international organizations that have attempted to obtain a license in Egypt have complained that the documentation required changes from time to time, with the goal of complicating the licensing process. Moreover, the licensing of foreign NGOs is conditional on their activities being consistent with the needs of Egyptian society and the priorities of development while showing due regard for the public order and morals. The bill not only requires the foreign NGO to receive an operating permit from the Coordinating Committee, it sets up additional obstacles by requiring the organization to obtain the permit prior to renting any property or office from which to conduct its activity.

The bill restricts the right of associations to cooperate with or join a foreign association, organization, or agency without notifying the Ministry of Social Solidarity, which may object to this affiliation within 60 days. Offenders of this provision are subject to at least one year imprisonment and/or a fine of LE100,000. The undersigned organizations believe this provision will be used against any rights organization that seeks to acquire consultative status with the UN Economic and Social Council, or with any organization that cooperates with the system of UN special rapporteurs.

The bill allows the administrative body to flagrantly interfere in the internal matters of associations, wholly undermining their independence. The draft law allows the administrative body to object to or annul association resolutions, or object to and disqualify potential members of any association's administrative board. Under the law, the administrative body may even suspend the activity of an association, or the entire association, by administrative decree pending a court ruling.

While the bill does not permit the dissolution of associations by administrative decree, allowing only voluntary dissolution by members or pursuant to a court order in the event of legal violations, it expands the grounds on which associations may be dissolved by court order. The bill gives the administrative body the right to seek dissolution if the association is unable to realize its purposes, or if it obtains funding without a permit from the Coordinating Committee. Associations may also be dissolved if they join, cooperate with, or affiliate themselves with a foreign association or agency in violation of the provisions of the law, or even if they move to new offices without notifying the administrative body.

The bill sets forth liberty-depriving penalties and onerous fines as sanctions for offenders. It mandates at least one year imprisonment and/or a fine of LE100,000 for a broad range of actions, most of which do not constitute crimes in and of themselves. An association receiving funding without following legal procedure or due to the neglect of these procedures by a staff member does not warrant a liberty-depriving penalty, as long as the objective of the funding is not to promote the commission of a crime. Moreover, it is astonishing that the bill provides for a prison term for any person who establishes an entity that engages in the activities of associations without assuming the legal form of an association. This provision allows that the entity may be legally established pursuant to another law and licensed by another government body--that is, the entity may be perfectly legal--but nevertheless the Ministry of Social Solidarity's bill allows the imprisonment of the founders of this legal entity who are engaging in wholly legal activity.

These are but some of the many problems with the bill. The undersigned organizations are therefore convinced that the draft law needs not a revision here and there, but rather must be drafted anew in accordance with a new philosophy that seeks to liberate civil society in order to perform its role. The repressive, condescending mindset underlying the bill must be abandoned and the desire to return to a law like Law 32/1964 resisted. The president must not pass this bill because it violates the constitution and the rulings of the Supreme Constitutional Court.

The undersigned organizations reiterate that the bill proposed by the Ministry of Social Solidarity is a repressive one that aims to gag civic associations and rights organization. It is no different from the protest law adopted by the interim president in November 2013 in that it aims to quash public action and stifle voices critical of the state of human rights and social conditions in the country. As shown by events after the approval of the protest law, such laws will not bring about stability.

We affirm that closing the civil sphere to independent organizations and subordinating the remaining associations to regime control robs civic action of all meaning, denies Egypt creative energies, and contributes to further unrest in the country by shutting down all legitimate channels for public action.

Signatory Organizations 1. Cairo Institute for Human Rights Studies 2. Al Haqanya Center for Rights and law 3. AlNadeem Center for Rehabilitation of Victims of Violence 4. Andalus institute for tolerance and anti-violence studies 5. Appropriate Communications Techniques for Development (ACT) 6. Arab Network for Human Rights Information 7. Arab Organization for Penal Reform 8. Association for Freedom of Thought and Expression 9. Egyptian Association for Community Participation Enhancement 10. Egyptian Center for Economic and Social Rights 11. Egyptian Coalition on the Rights of the Child 12. Egyptian Commission for Rights and Freedoms 13. Egyptian Foundation for Advancement of the Childhood Condition (EFACC) 14. Egyptian foundation for Democracy 15. Egyptian Initiative for Personal Rights 16. Egyptian Network for Public Participation 17. Egyptian Women's Legal Assistance 18. Egyptian Women's Union 19. El-Mahrousa Network 20. Habi Center for Environmental Rights 21. Human Rights Association for the Assistance of Prisoners 22. Land Center for Human Rights 23. Misryoun Against Religious Discrimination (MARED) 24. National Community for Human Rights and Law 25. Nazra for Feminist Studies 26. New Woman Foundation 27. The Daughter of the Earth Association 28. The Egyptian Center for Public Policy Studies 29. Women and Memory Forum

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