Beirut — Infringes on Basic Freedoms as Elections Loom
National elections scheduled for December 2021 make it imperative for Libya's Government of National Unity to revise or revoke sweeping restrictions on nongovernmental organizations, Human Rights Watch said today. The Presidential Council decree violates Libya's international obligations to protect basic freedoms.
"This decree unjustifiably restricts and muzzles civic organizations working in Libya and is particularly worrisome in view of the need for a robust civil society ahead of planned elections in December," said Hanan Salah, Libya director at Human Rights Watch. "Libyan authorities need to revise or revoke this regulation that would shut out groups doing vital human rights and humanitarian work."
Human Rights Watch reviewed the decree that was passed in 2019 by the former Presidential Council of the Government of National Accord (GNA) and found that it includes burdensome registration requirements and stringent regulations on funding. The decree also mandates onerous advance notification for group members wanting to attend conferences and other events.
The Commission of Civil Society, a Tripoli-based body established earlier by the GNA's Presidential Council [Decree 1605/2018] is tasked with registering and approving civic organizations and their activities. It has sweeping powers to inspect documents, control funding, and cancel the registration and work permits of domestic and foreign organizations. The commission is managed by a board of directors consisting of a president, a vice president, and three members, all appointed by the Council of Ministers. The board appoints the commission's executive director.
Two activists with Libyan organizations who spoke with Human Rights Watch raised concerns about the independence of the Tripoli-based commission, which is under the Council of Ministers' direct supervision.
The activists said that the decree's burdensome notification requirements for most activities amount to prior approval rather than just a notification and involve long delays in the approval processes and financial reporting requirements that surpass the capacity of modest-sized organizations. One of the groups had to suspend its work owing to the difficulty in complying with the regulations.
Mohamed Najem, executive director of the Libyan Center for the Freedom of the Press (LCFP), said his organization has faced major administrative hurdles because of the wide-ranging powers of the commission: "We were told that we cannot carry the name Libya in our name and that no NGO can call itself a press freedom NGO. I was told to change the objectives and the name of the organization and then we will register you. Our NGO was established some seven years ago and now they want to change the name? This is nothing to do with the law or order."
The commission's ability to reject applications compounds the burdensome registration requirements. International groups are further required to obtain the commission's advance work authorization before they conduct any activities or do any work. This is inconsistent with the preference under international law for a simple notification rather than an authorization system, in which legal status is presumed upon notification.
The decree also requires groups to give advance notification before organizing or attending seminars, conferences, and workshops. These provisions violate Libya's international obligations on the right of freedom of association.
One activist said that their work had been made impossible to manage: "It's not just notification, it's getting approval. The way things are now, you have to spend all day at the commission just getting approvals. I am against us being controlled this way. It's exhausting. We are not operating until this is sorted out. The work of civil society is vital, especially during the elections period. They don't want us to work."
The decree allows the commission to cancel the registration and work permits of foreign organizations based on sweeping criteria that include, for example, using funds for activities other than those specified by the group when declaring the receipt of funds. International standards provide that authorities should not arbitrarily suspend the activities of associations, and such interference in freedom of association should be subject to review by independent courts.
Fundraising inside Libya is prohibited and so is fundraising outside of Libya when done in the name of the Libyan branch of an organization.
The commission retains the power to review all financial and administrative documents related to an organization's activities. Regulations, with few exceptions, prohibit hiring experts and services from outside Libya. The commission can decide whether expertise is locally available. Such provisions appear to be blatant interference in the work of associations and undermine their independence.
A group is required to notify the commission within one week of any funds transferred to its bank account. Groups also must obtain prior approval to receive funds.
The decree includes other overly broad and vague prohibitions including for carrying out work "in violation of public order and morality," any activity not preauthorized, and activities beyond the time limit they were authorized for; activities related to political, military, and security matters as well as communicating with "political parties and entities" inside Libya, without defining whom these entities represent.
Both Najem and the other activist said that the commission had asked them to sign pledges to comply with the regulations.
The Libya Platform, a coalition of 14 Libyan organizations working to protect and promote human rights, along with the Cairo Institute for Human Rights Studies, warned in March that the "Civil Society Commission's persistence in applying Presidential Council Decree No. 286 issued in 2019 despite its unlawful and repressive nature" impedes the work of civil society and restricts public freedoms.
Other restrictive Gaddafi-era laws still on the books undermine freedom of speech, assembly, and association. Libya's Penal Code levies severe punishments, including the death penalty, for establishing "unlawful" associations without defining the term unlawful, and prohibits Libyans from joining or establishing international organizations unless they receive government permission without establishing the criteria for such permission. The authorities can also dissolve and close offices of organizations deemed illegal without offering a reasonable approach to legalize their status.
Public information on the use of these prerevolution laws since 2011 has been scarce, but their existence continues to instill fear and seriously impede freedom of association, a right enshrined in international law and guaranteed by Libya's provisional constitution, Human Rights Watch said.
The International Covenant on Civil and Political Rights (ICCPR), which Libya ratified in 1989, guarantees the right to association. Under article 22, "no restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order ('ordre public'), the protection of public health or morals or the protection of the rights and freedoms of others." The UN Human Rights Committee has stressed that a government should be no more restrictive than is absolutely required in the extent of any limitation on freedom of association, the detriment suffered, and the time the limitation lasts.
Article 10 of the African Commission for Human and People's Rights states that "every individual shall have the right to free association provided that he abides by the law" and "no one may be compelled to join an association."
"Libya's decree on associations appears designed to prevent groups from carrying out activities in an independent manner," Salah said. "Given the scheduled December elections, Libyan authorities should urgently come up with regulations that accord with Libya's obligation to protect freedom of association."