May 27, 1998
NGOs’ position paper on the draft Law on Associations
Over a period of more than three decades, the state succeeded in gaining complete control over civil work through the ill-reputed Association Law 32 of 1964.
Increasing opposition to the said law on the part of civil organizations, especially since the International Conference on Population and Development (ICPD) held in September 1994, compelled the state to declare repeatedly at different occasion that it intended to reconsider the law, in order to raise the level of democratic work and eliminate restrictions on the independence of civil work.
Unfortunately, state efforts have only shown increased antagonism to civil work, civil society, and democracy. This was obvious in the new draft law adopted by the Ministry of Social Affairs and submitted to the Cabinet for discussion in preparation for submission to the People’s Assembly, and the promulgation of that law by the majority that the government party enjoys in parliament.
It should be emphasized that any law is rendered undemocratic if the state excludes beneficiaries from and those governed by the law from participating in discussions related to such a law. The government, as is customary, blocked the road to participation by maintaining the complete secrecy of the draft law’s preparatory stages, and excluded representatives of civil associations and non-governmental organizations from membership of the committee formed by the Ministry of Social Affairs to prepare the draft law. The government also ignored all attempts on the part of NGOs to establish a dialogue with state institutions concerning the said draft law and the future of civil society. NGOs even addressed the president, the prime minister, and the Ministry of Social Affairs, requesting that they be allowed discuss the matter, but did not, however, receive any response.
The draft law may raise some false hopes about the government’s intentions toward civil work and civil society through those articles which seem to facilitate the procedures of registering civil associations, restrict the authority of administrative bodies to dissolve or suspend the activities of associations, or object to some of their founders or candidates being elected to boards of directors pending the issuance of court decisions. However, such hopes and illusions disappear before the myriad articles stifling civil work and granting administrative authorities the right to withdraw competencies and the authority of general assemblies of civil associations. Consequently, organizations signing this release emphasize that the current draft law only aims to tighten government control over non-governmental organizations by filling the loopholes in Law 32 of 1964 and extending the law to include, and stifle, all forms of civil work.
Following are the most significant approaches adopted by the current draft law to stifle the initiatives of civil society and work:
1- The draft law prohibits associations from carrying out any of the political activities falling under the laws governing political parties, or any activity that is political by nature. This contradicts Article 55 of the Constitution, which guarantees the right to form associations, and does not include restrictions on activities of a political nature. The enforcement of such a text will allow authorities to intervene to prohibit some cultural activities which may be linked to political activities, whether they have anything do with parties or not, for example the organization of intellectual debates, seminars to which those performing political work are invited, or some of the activities undertaken by non-governmental organizations, be it the monitoring of public elections, or following up the mechanisms of democratic development and the political obstacles to such development. The law does not restrict itself here to prohibiting such activity, or suspending the activities of, or dissolving, an association, but extends to punishing persons practicing such prohibited activities by detention for two years, in addition to a fine reaching LE 10,000.
2- Restrictions on regional and international activities: Article 65 of the draft law grants the administrative authority the right to approve or refuse any association’s request to join any Arab or international gathering. The said article imposes a two-year imprisonment sentence and a fine of LE 10,000 on violators. In addition, boards of directors should be formed by a majority of Egyptian nationals, with a maximum of 25% of non-Egyptians, with no differentiation between associations active on the local level and those active on the regional level.
3- The lawmaker used the broad restrictions which abound within the Penal Code, and other exceptional laws which prohibit the freedom of opinion and expression, to stifle the activities of associations if administrative bodies believe the said activities represent a threat to the security or safety of society, its national unity, or which constitute a violation of public order or morality.
Democratic mechanisms related to the management of civil associations assume providing broad authorities for the association members, determining membership conditions, electing boards of directors, evaluating their performance, and monitoring elected bodies, in addition to determining the fate of the association, whether by a merger with another association, joining a type union, affiliation to regional or international organizations, or even the dissolution of the association.
The draft law took the opposite direction, withdrawing the authority of the general assembly and providing administrative bodies with absolute power to manage the affairs of the association, providing the means to suffocate it if necessary. This is obvious in a number of provisions:
· The ministry of social affairs has the right to appoint two representatives to the board of directors of any association (article 36);
· The Ministry of Social Affairs has the right to request the dismissal of particular nominees for the board (article 36);
· The Ministry of Social Affairs has the right to appoint a general delegate to replace the elected board of directors in certain situations (article 41);
· The administrative body has the right to request that the association withdraw any decision it issues if the administrative body believes that the said decision not only violates the draft law, but the Articles of Association of the association, public order, or morality (article 23); and
· The administrative body has the right to object to whatever it deems objectionable in the Articles of Association of the association, or to all or some of the founding members of the association (article 7).
The law deprives associations of their right to join, in a democratic manner, type or regional unions that they freely establish. It prohibits the establishment of more than one type union for associations practicing similar activities, or more than one regional union for associations located within the same geographic area. Thus, it forces associations to gather under one type regional union, even if their objectives disagree.
The law vests the president with the authority to form the board of directors of the General Union of Associations, in charge of laying down the framework for the role and work strategy of associations (articles 71 and 72).
The draft law not only establishes mechanisms which guarantee the control of the administration over associations and hinder their activities, but also gives the administrative body the means to control the fate of the association. This was reflected in the Ministry of Social Affairs being given the right to form the board of directors of the Fund for Civil Association Aid headed by the Minister of Social Affairs. This board, formed solely from the top by the Ministry, enjoys the full authority to control the life-blood of associations. It is in charge of making general policies regarding the funding of the associations, as well as the regulations for funding and the distribution thereof (articles 74 and 76). This is coupled with the fact that the law obliges associations to obtain a license prior to collecting donations or obtaining external funding. Moreover, abstention from responding to an association’s request for funding on the part of the administrative body is considered a rejection thereof. In addition, the law do not provide any mechanism for challenging the administrative body’s decision (article 17).
The law leaves the door wide open for the administrative body to dissolve associations, with eight reasons, some of which are subjective, or prepared using broad expressions which give the dissolution decision legal form, at the body’s disposal. For example, the law allows the dissolution of an association if it is proved that the association failed to achieve the purposes for which it was established, for activities of a political nature, for violating the prohibition imposed by law on collecting donations or obtaining funding without license, or for joining or being affiliated to associations or organizations located outside Egypt without the approval of the administrative authority (article 42).
A ruling dissolving the association is the penalty for a number of the above-mentioned violations. This penalty is not restricted to the individuals who commit the violations, but extends to all members of the association and the sectors benefiting from its presence, thus representing a form of collective punishment which contradicts both with the principle that penalties are personal, and that stating that the penalty should be equal to the crime or violation for which it is imposed. In addition, It does not allow the members of associations to address such violations and correct them, even if that implies withdrawing confidence from the managing body and electing a new one. The dissolution of associations may be considered sound legal practice only when the general assembly of an association adopts measures which seriously violate the Constitution or the law. Otherwise, the provisions adopted by the draft law with relation to the dissolution of associations represent an aggressive act against civil work and the independence thereof.
The undersigned organizations realize that further restrictions may still be added to the draft law during the approval phase as previous experience has shown that the government withholds a number of provisions for last minute approval through the ready majority in the People’s Assembly. However, the draft law available suffices to show the extent to which government policy goes against democratic civil work. It is indeed an oppressive law which forcefully appropriates the rights of those concerned with civil work, shifting them to the state represented in the Ministry of Social Affairs. The law constitutes a blatant lack of respect for the right of citizens to organize themselves freely, wastes the efforts and capacities of civil society and the courts in an unending series of legal struggles between civil organizations and the state authorities.
These organizations will not be deterred from battling against any future violation, even if it takes the form of a law. Non-governmental organizations call upon all the institutions of civil society, public opinion, political parties, and honest members of the People’s Assembly to unite in the face of this crime which aims at weakening civil society and restricting its initiatives.