Beirut — The resignation of President Abdelaziz Bouteflika on April 2, 2019 provides an important opportunity for Algeria to dismantle its repressive laws and enshrine public freedoms in legislation and practice, Human Rights Watch said today. It was the first time since the uprisings of 2011 that street protests have forced a leader in the Arab world to resign.
Millions of Algerians have marched since February 22 in various cities to oppose a new term for their ailing president, in defiance of a ban on demonstrations that had been among the many restrictions on human rights enforced for decades by Algerian authorities.
"Bouteflika's departure is at most a first step in ending autocratic rule," said Sarah Leah Whitson, Middle East and North Africa director at Human Rights Watch. "The next steps should be to release prisoners held for peaceful expression or assembly and to revise the laws used to put them behind bars."
Under article 102 of the Algerian Constitution, in case of the president's resignation, the speaker of the Council of the Nation, the upper house of Parliament, becomes interim president for a maximum of 90 days. During that time, presidential elections should take place.
Some opposition parties and activists welcomed Bouteflika's resignation but called for development of an alternative political structure during the transitional phase, one that they believe would allow for a more genuine transition to democracy.
During any transitional phase, authorities should fully respect the rights of Algerians to speak, assemble, and associate with one another, Human Rights Watch said. The authorities should, at the earliest appropriate moment, plan to overhaul those provisions of the penal code and the laws on association and assembly that stifle rights. The authorities have relied on these laws to silence critics, crack down on protests, and weaken independent organizations. Existing law also gives the executive branch an undue measure of control over the judiciary, which lacks the independence necessary to make it a true guarantor of rights and freedoms.
Algerian authorities should eliminate all provisions of the criminal and press codes that criminalize nonviolent speech, such as for "insulting the president," and "defaming state institutions." They should rescind the effective ban on all demonstrations in Algiers that was in effect before the current wave of protests and lift all unreasonable obstacles in law and practice to peaceful gatherings, including by changing the requirement of prior authorization to one of notification. They should end the practice of arbitrarily arresting peaceful demonstrators.
The authorities should also revamp the law on associations, which effectively allows authorities to withhold legal recognition arbitrarily from associations that displease them.
Bouteflika, who first took office in 1999, had announced his candidacy for a fifth term on February 10. On March 11, in a message published by the official news agency, Bouteflika announced that he would not seek a fifth term and that the presidential election, scheduled for April 18, would be postponed. The announcement did not calm the weekly protests calling for him to step down. On April 2, Bouteflika officially submitted his resignation to the Constitutional Council.
"As Algeria finds itself at a crossroads, reform will be genuine only if it involves dismantling the repressive legal machinery that the authorities have used for years to repress dissenting voices," Whitson said.
Freedom of Assembly
Algeria's 2016 Constitution states that "the right to peaceful assembly is guaranteed within the framework of the law, which sets forth how it is to be exercised" (article 49). In practice and relying on a range of laws, Algerian authorities routinely violate the right to freedom of assembly. The penal code punishes organizing or participating in an unauthorized demonstration in a public space with up to one year in prison (article 98). This article served, for example, to sentence labor rights activists to prison in 2016 for engaging in peaceful protests to support unemployed workers.
Parliament in 1991 amended Algeria's 89-28 Law Governing Public Meetings and Demonstrations, enacted in 1989 during a period of political and legal liberalization. The 1991 law significantly interfered with the right to assemble and to hold meetings. Under the law, a group planning a public gathering must seek authorization from the governor in advance.
Authorities often withhold authorization, making it impossible for the organizations to hold meetings. For example, the Mouwatana movement, which opposes a fifth term for Bouteflika and calls for a democratic transition, made requests to hold meetings in October 2018 and January 2019, but never received authorization.
The law prohibits "any assembly or demonstration to oppose Algeria's 'fundamental principles' (constantes nationales)," or "to cause any harm to the symbols of the revolution of November 1 [the date of the start of Algeria's war of independence against French colonial rule], the public order or public morals." Organizers may appeal a denial of permission for an assembly to an administrative court.
Authorities in Algiers, the capital, banned, de facto, public demonstrations indefinitely in 2001, when the country was under a state of emergency. Authorities did not rescind the ban when they lifted the state of emergency in 2011. Until the recent events, authorities strictly enforced the ban, breaking up even small demonstrations and often arresting participants.
The UN Special Rapporteur on the rights to freedom of peaceful assembly and of association writes:
Best practice dictates that States may, at most, require prior notification for peaceful assemblies, not authorization. The purpose of prior notification is to allow authorities to facilitate the exercise of the right to freedom of peaceful assembly, and to take measures to protect protesters, public safety, order and the rights and freedoms of others.
Freedom of Association
On April 15, 2011, Bouteflika promised a package of political and legislative reforms, including a new association law, after popular uprisings in Egypt and Tunisia had ousted authoritarian rulers, and an uprising in Libya was shaking the rule of the strongman Muammar Qaddafi. But the new law, Law 12-06, promulgated in January 2012, has in numerous ways proven more restrictive than the law it replaced.
Law 12-06 requires associations to obtain a registration receipt from the authorities before they can legally operate. The authorities can refuse to register an association if they decide that the content and objectives of a group's activities are contrary to Algeria's "fundamental principles and values, public order, public morals and the applicable laws and regulations." These vague criteria give authorities broad leeway to block a group's legalization.
The Algerian League for Human Rights (Ligue Algérienne des Droits de l'Homme, LADDH), Youth Action Rally (Rassemblement Action Jeunesse, RAJ), and the Algerian section of Amnesty International, all of which submitted applications under Law 12-06 in 2012, have not been given a receipt certifying their legal existence. The absence of a receipt impedes groups administratively and financially, as they are unable to open a bank account, rent an office in their own name, or hire a public hall for a meeting. Members of an association that is "non-accredited, suspended, or dissolved" risk prison sentences of up to six months for conducting activities in its name.
Law 12-06 empowers the government to suspend an association if it "interferes with the internal affairs of the state or violates national sovereignty." The law also makes any "cooperation agreement" between an Algerian association and international groups conditional on the government's prior approval.
Authorities should replace Law No. 12-06 with a law that complies with international standards by allowing groups to form an association by introducing an effective declarative regime for the creation of associations that erects no arbitrary barriers to the exercise by any group of individuals of their right to form an association.
Freedom of Speech
Algeria's laws governing freedom of expression, access to information, and audiovisual production fall short of the international standards. The "information code," adopted on January 12, 2012, contains several articles that constrain freedom of expression and of the press. Article 2 states that news journalism is to be "a freely practiced activity" but that it must conform to broad concepts such as "national identity, the cultural values of society, national sovereignty and national unity, as well as the requirements of national security, national defense, public order, and the country's economic interests, among others."
The penal code is also rife with articles criminalizing free speech, such as articles 144 on insulting a public official, article 144bis on "defaming the president," and article 146 on "insulting and defaming state institutions."
The Algerian authorities have used criminal prosecutions as a means of silencing critics.
For example, on June 21, 2018, a court in Bejaia sentenced Merzoug Touati, a blogger, to seven years in prison for incitement to an illegal gathering, for urging public protests against a new finance law, and for "intelligence with a foreign country aiming at harming Algeria." The latter charge relates to nothing more than an interview he published with an Israeli government spokesperson. Touati was imprisoned on January 22, 2017 and spent two years and two months in prison in Bejaia. Authorities released him on March 4 after an appeals court set his sentence at five years in prison, two of which were suspended.
In July 2016, a court sentenced a freelance journalist, Mohamed Tamalt, to two years in prison for "offending" the president and public institutions in comments he published on Facebook and on his blog alleging corruption and nepotism among leading officials. An appeals court confirmed his sentence in August 2016, following a hearing at which he accused prison guards of beating him. He began a protest hunger strike at the time of his arrest in June, became comatose in August, and died in a hospital in December 2016.
An appeals court in Relizane, on June 6, 2018, upheld a two-year prison sentence against Abdullah Benaoum, a blogger for social media publications, for accusing the authorities and the Algerian army of responsibility for several massacres of civilians and the disappearance of thousands of people during the internal armed conflict of the 1990s. The charges were based both on penal code articles prohibiting the defamation of public institutions and on article 46 of the Charter for Peace and National Reconciliation, which prohibits "exploiting the wounds" of the "National Tragedy" [meaning the civil war in the nineties, during which security forces battled militant Islamists and more than 100,000 people were killed] to harm the institutions of Algeria" or tarnish its image internationally. Benaoum is serving his prison term.
Article 156 of the 2016 Constitution states that "the judiciary is independent." It reinforced fair trial guarantees by introducing the right to a lawyer in pre-charge detention and other reforms.
However, the structure of the judiciary undermines its potential independence. The country's president presides over the Supreme Judicial Council, the body that oversees the judiciary and is responsible for judicial appointments, disciplinary measures, and dismissals of judges. The prime minister is the council's vice president. The president appoints 6 of the council's 20 members.
The September 2004 law pertaining to the appointment of judges states that the justice minister proposes candidates and then the president appoints judges by decree after consultation with the Supreme Judicial Council. The president controls the appointment of judges, while the council's role is only consultative.
Independence of the judiciary is a cornerstone of the rule of law and the protection of human rights. The UN Basic Principles on the Independence of the Judiciary state:
The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.
The Principles and Guidelines on the Right to Fair Trial in Africa state:
The process for appointments to judicial bodies shall be transparent and accountable and the establishment of an independent body for this purpose is encouraged. Any method of judicial selection shall safeguard the independence and impartiality of the judiciary.
While international law provides no unique model for assuring independence of the judiciary, it encourages countries to create an authority for the supervision of the judiciary that is not dominated by the government and the administration. Several international instruments recommend that the appointing body should have a mixed composition of judges and non-judges, with a substantial proportion, or even a majority, of the members elected by the judiciary itself.
The United Nations Human Rights Committee has emphasized that the exercise of power by a Justice Ministry over judicial matters, including its powers of inspection of the courts, can constitute interference by the executive and a threat to the independence of the judiciary.