28/11/2002

Nothing New but Restrictions

SUMMARY

This report, ‘Nothing New but Restrictions’, examines the Executive Regulations of Law 84 of 2002 on Non-Governmental Organizations (the NGOs law).  The NGOs law was passed on June 5, 2002. In this report, EOHR warns that the Regulations represent the last link in the chain restricting non-governmental organization activities in Egypt as they place heavy burdens on civil participation and activity.

The report highlights four main areas of restriction placed on NGOs by the Regulations: restrictions on the establishment, activities and funding of NGOs and the authority of the administrative body to ultimately dissolve NGOs.

The Regulations were issued in order to deal with procedural aspects of the NGOs law. Egyptian legislation states that ‘the regulation is called to describe a number of sub legislative rules concerned with specific subject. The regulations are divided into three types; executive, regulative and regulations of control and safety. Regulations include both the detailed and partial rules required for the implementation of the main legislative rules. Usually law is confined to the fundamental standards while executive authority is concerned with the necessary partial details’.

Whilst Regulations play a subordinate role in the legislative framework, they may restrict or facilitate the implementation of some procedures of the law. Generally, regulations reflect the spirit of the law that they elaborate upon.  For example, if the principle law has a restrictive effect, the attached regulations will serve the same function.

EOHR has formerly argued in its report ‘The Confiscation of Civil Work in Egypt 2002’ that the new law is merely a replication of previous laws that restrict civil activity, namely Law No. 32 of 1964 and Law No 153 of 1999. Each of these laws is underpinned by the same philosophy of imposing State authority on civil society through usurping the will of NGO members and imposing penalties on the activities of voluntary civil society.

EOHR calls for the abolition of the current NGOs law and urges the Government to enshrine the rights and freedoms contained in the international covenants to which it is a party.  Such legislation would remove state control of civil society, a necessary pre-condition for democratic reform.

 One: Restrictions on the establishment of NGOs

The Regulations affirm that the establishment of an NGO requires governmental authorization from the Ministry of Social Affairs (MoSA) who is designated as the relevant administrative body. This requirement is stipulated in the Regulations from Article 18 to 24. Specifically, Article 23 provides that ‘the juridical personality’ of the NGO is established from the date its statute is placed on the register with the administrative body (MoSA), or by the force of law sixty days after presenting the registration application.  Accordingly, an NGO is deemed registered if the ministry fails to process the application (including a refusal to register) within the prescribed 60 days. Additionally, the administrative body is obliged to publish, for free, a summary of the NGOs statute in Government Bulletin within 60 days.

 The Regulations thus affirm the restrictions contained in Article 6 of the NGOs law. Article 6 provides that the administrative body is required to record a summary of the NGOs incorporation documents into the register within 60 days of their submission. Similarly, the registration will be deemed effective by law if no decision is made within the 60 day period.

However, the administrative body must refuse the registration of an NGO where it becomes known to it that the NGO intends to engage in any prohibited activity listed in Article 11 (or Article 24 of the Regulations).  Prohibited activities include:

·        Forming detachments or military formations;

·        Threatening national unity, violating public order or morals;

·        Any political activity which is restricted to political parties, any unionist activity which is restricted to unions.

In the case of an NGO refused registration, the NGO has the right to challenge the refusal before the Administrative Court within 60 days of the refusal notification (Regulations Article 27).

EOHR is of the view that the court should be the only authority with the power to establish or refuse registration to NGOs. The requisite approval of the administrative body for the establishment of an NGO represents an unwarranted interference in civil society. NGOs should be considered established as soon as the founders agree on key principles of the organization (the informing principle). The Egyptian courts have previously considered this matter when examining the earlier Law on Private Associations and Institutions (Law No 32 of 1964). In that case, the Court held that Government recognition for the establishment of NGOs was not necessary as long as it had legible objectives that avoided conflicts of interest with its members and as long it is organized itself to fulfill such objectives. The Egyptian primary court abolished the verdict of the lower court which had denied the recognition of the NGO Al Nadi Al Sa’di.

 Two: Restrictions on the activities of NGOs

The Regulations impose restrictions on the activities of NGOs using a number of provisions that lack specificity. Clearly, legal provisions that are potentially broad, ambiguous or non-specific create potential for misuse by the authorities and may be utilized to increase the penalties applied.

For example, as mentioned above, Article 24 of the Regulations provides that the administrative body must deny the registration of an NGO if it transpires that one of the organizations’ activities violates ‘public order’. Egyptian legislation defines public order to include public safety, public stability and public health. EOHR is of the view that the expression public order is a vague and broad term that may be misused by the administrative body to deny registration of certain groups.  Additionally, the Egyptian Government has demonstrated a tendency to broadly define public order and to prioritize it over the protection of individual rights and freedoms.

The penalties prescribed in the Regulations are also ambiguous.

The High State Constitutional Court has held that statutes prescribing punishment should be clearly defined.[2]  It also held that articles prescribing punishment must be drafted in a limited way to guarantee rightful implementation. The court warned against the use of vague sentences that could be interpreted to include punishments other than those originally intended.[3]

There are a range of penalties applicable under the new NGOs regime. Article 76 of the NGOs law prescribes a 3-tiered punishment system with maximum penalty of 1 year imprisonment and/or a fine of 10,000LE. However, the penalty provisions are ‘subject to any stricter penalty’ in the Penal Code or ‘in any other law’.

Therefore, NGOs face potential prosecution from several legal sources. NGOs may face penalties from the NGOs law, the Penal Code or the application of the emergency law. It was the emergency law for example, which was used to bring Dr Saad Ibrahim before the courts on charges of obtaining foreign funds without authorization. 

Article 25 of the Regulations includes a list of ‘political’ and hence prohibited activities for NGOs. An NGO seeking registration is prevented from exercising any unionist activity. Such activity is defined as claiming or advocating for rights for members of specific professions in relation to their employers.  The penalty for assuming a unionist activity is imprisonment for up to one year and/or a 10,000LE fine (under the NGOs law) or between 7 to 15 years imprisonment under the emergency law regime such as Military Decree (No 4 of 1992).

The prohibition against NGOs claiming specific professional rights (unionist activity) appears to contradict Article 48 of the Regulations. Article 48 provides a list of permissible NGO activities which includes promotion of ‘legal rights … or human rights, such rights considered by the legislation to fall ‘within the field of developing the society’. EOHR is of the view that human rights are indivisible and the right to work is fundamental. As Article 6 (1) of the International Covenant on Economic, Social and Cultural Rights states, Member States ‘shall recognize the right to work …. and will take appropriate steps to safeguard this right’. However, according to the NGOs law defending the rights of workers could be illegal. Article 25 of the Regulations usurps of the role of human rights NGOs by preventing them from advocating on behalf of certain professional or social groups.  It also violates the right to freedom of association (including the right to form associations for the protection of certain interests) and the right to enjoyment of just and favorable conditions of work (Article 22 of the International Covenant on Civil and Political Rights and Article 7(1)-(3) of the International Covenant on Economic, Social and Cultural Rights).

The Regulations also contradict the UN International Labour Organization Agreement on the Implementation of the Right to Syndicate Organizing (No 98) to which Egypt is a party. Article 1 of this Agreement provides that sufficient ‘protection is to be provided for the workers from any discriminatory practices that target their syndicate freedom’. Additionally, a number of Egyptian civil and women’s organizations defend the rights of workers in the informal sector, as such workers lack any institutional safeguards for their protection.  The prevalence of this kind of work has only become more pressing due to the present economic conditions. The Regulations penalize NGOs from defending the rights of vulnerable workers in the situation where the Government neglects its duties towards them.

 Three: Restrictions imposed on funding

The Regulations prescribe many restrictions on the receipt of funding whether from national or international sources. In relation to donations from foreign organizations, three applications are required to be prepared to the administrative body: two by the NGO itself and one by the donor who must apply to the Ministry of Foreign Affairs. 

Donations from foreign NGOs in Egypt

Article 56 of the Regulations permits the receipt of donations from approved foreign NGOs within Egypt.  In order to for foreign NGOs to provide funding to Egyptian NGOs their activities in Egypt must be authorized under Articles 3-5 of the Regulations.  Foreign NGOs must first apply to the Ministry of Foreign Affairs providing details concerning their establishment, activities (including duration) and means of finance.  The application is passed by the Ministry of Foreign Affairs to the Ministry of Social Affairs, who is required to provide a response to the foreign ministry within 15 days. There is no penalty stipulated in the case where MoSA does not provide its decision within the15 days.  The Ministry of Foreign Affairs, assuming it approves the request, then signs an agreement in the form of an exchange of letters with the NGO. The MoSA then issues the authorization for the relevant foreign activities.  The relevant Agreement between the foreign NGO and the ministry may provide for the giving of donations. The relevant arrangements for the Agreement are required to take place within 60 days, however, the Regulations do not stipulate what occurs in default of this timeframe.

 Donations from the public- fundraising

Article 57 of the Regulations permits the receipt of donations from the public upon approval from the administrative body. An application must be presented by the NGO indicating the activity, or project for which the donations are intended. It must also indicate the method for collecting donations, the geographical location and of duration of the process. The administrative body is required to provide a decision within 15 days of the request. However, the Regulations do not stipulate the consequences of non-compliance with this decision timeframe. The Regulations also make it necessary for the NGO to submit fund raising receipt books to the administrative body for stamping with its seal. Such requirements are not intended for improving transparency, rather they are designed to create large bureaucratic obstacles to NGOs achieving their work.

 Receipt of funds ‘from abroad’

Article 58 authorizes an NGO to receive funds from abroad or send funds abroad upon obtaining approval from the Minister of Social Affairs. Foreign embassies in Egypt would presumably fall under this provision. The application must provide details concerning the foreign person or body and the activities it engages in, including the amount of funding.  A final decision is required to be given within 60 days. However, unlike in the case of registration of the NGO, the Regulations do not clarify what occurs in default of this timeframe. The Regulations also state that money obtained prior to the authorization from the Minister will be ‘reserved pending issue of the permission’. This involves placing the fund in a special account in an approved Egyptian bank. In the case of a refusal of permission to receive the funding, it is returned to the donors.

The result of the new Regulations is that the process of receiving donations has been made more bureaucratic, complicated and time consuming.  Additionally, the fact that the penalties outlined in Article 76 of the NGOs law are subject to the Penal Code and ‘any other law’ means that receiving donations is potentially criminalized by a range of laws including the emergency law.

It is well known that the basic principle of making an act criminal is the requirement of necessity. As criminalizing an activity usurps citizens’ freedoms and rights it should not occur unless the balance of community interest lies in placing limits on such freedoms. Moreover, due to the social (and beneficial) nature of voluntary work it should be encouraged by the State rather than penalized and there should not be obstacles to popular civil participation from ordinary individuals and activists. It is certainly necessary for NGOs to have democratic mechanisms to guarantee transparency and effective supervision from their governing bodies to ensure accountability. However, the claim by the administrative body that its reform is necessary to guarantee NGO transparency is a false claim. The purpose behind such regulation is clearly to control and interfere in the internal activities of NGOs.

 Four: The powers of the administrative body to dissolve NGOs

The Regulations affirm the wide powers contained in the NGOs law for the Minister of Social Affairs to dissolve NGOs. Article 92 of the Regulations mirrors Article 42 of NGOs law; empowering the Minister to disband the NGOs in six circumstances:

1-            Where the NGO disposes or appropriates property for other than the purposes it was established  for;

2-            Where the NGO receives or sends money from or to abroad without complying with Article 17 of the NGOs law and Article 58 of the Regulations (i.e. without Ministerial approval).

3-            Where the NGO commits a gross violation of the law, public order or morals; 

4-            Where the NGO joins to, participates in, or affiliates with a club, association, body or organization where its premises lies abroad in contravention of Article 6 of the NGOs law and Article 55 of the Regulations;

5-            Where it is established that the NGOs virtual purposes aim or visualize the exercise of one of the prohibited activities in Article 11 of the NGOs law;

6-            Where the NGO collects donations from the public without complying with Article 17(1) of the NGOs law and Article 57 of the Regulations. 

The power to dissolve NGOs previously lay in the domain of the courts. The civilian law, issued in 1948, empowered a primary court to disband an NGO at the request of one of its board members. Alternatively, the public prosecution was authorized to dissolve a NGO in the following circumstances where:

·        The NGO was not able to hold its responsibilities.

·        The NGO devoted its finance for purposes other than for what they were intended.

·        The NGO committed a gross breach of its principles, public order or of law.

In this regard, EOHR calls for the amendment of the NGO law and Regulations to establish the court (judiciary) as the final arbiter of decisions regarding NGO dissolution. EOHR urges the Ministry of Social Affairs to dissolve associations via the court system and not by administrative decree to ensure civil and political rights are protected. 

Recommendations

EOHR calls for the abolition of the NGOs law and its Regulations which violate the right to freedom of association and stifle participation in civil society. In its place, EOHR urges the enactment of new legislation enshrining rights and freedoms provided for in the Egyptian Constitution and international human rights instruments to which Egypt is a party.  The removal of State interference in civil society is a necessary pre-requisite to any democratic reform. EOHR is of the view that the following guarantees should form the basic right to freedom of association:

     1-            The establishment of NGOs should not require State permission or approval.

     2-            The public administration should not have the right to dissolve NGOs unless the Organization members decide so, or a final verdict is issued after a fair and impartial trial. This should take place in limited cases as defined by law.

     3-            Every person should have an enforceable right to fully participate in civil society. For example, whether in establishing, leading, affiliating with, or quitting an NGO.

     4-            No restrictions should be imposed on that right other than those stipulated by law. The interpretation of the law shall be restrictive, favoring the objective of the right to assemble.

      5-            The State, in cooperation with civil society institutions, shall develop a regulative framework to foster the free practices of NGOs and promote the existence of an independent, democratic, active and civil society. The State should deal with NGOs on a non-discriminatory basis.

     6-             The objectives, activities, identity of the establishers of the NGO should not be reason for restricting the establishment of an NGO.

     7-            Any administrative procedures should not form obstacles to the establishment of an NGO.  Procedures should be fast, clear, simple and cost free.

     8-            An NGO should enjoy its independent identity soon after notifying the competent authorities of its establishment. It should have the right to control its independent finances, the right to access court regarding its own interests the right to have assets and to receive gifts, donations and aid.

     9-            An NGO should have the right to amend its internal systems, including its objectives and activities, at any time in conformity with its founding principles. The administrative body shall not interfere in such procedures.

 10-            The NGO should be managed by its board members and the administrative body should have no right to intervene or influence meetings, elections and activities of the NGO.

 11-            NGOs should have the right to receive financial donations from its members, and grants of aid offered by any institution or individual, nationally or internationally. The NGO shall have the right to fundraise in order to gain profits to fulfill the objectives and purposes of the NGO. Profits should not be distributed to its members for personal gain or use.

 12-            The State should grant tax incentives to NGOs (exemption from tax and duties). It should encourage donors by deducting the donations they give from the duties they have to pay. Such exemptions should not be used by the State to justify undue interference in an NGO’s affairs.

 13-            No criminal penalties should be imposed on the civil work of NGOs or its members. Such penalties, if any, should be determined by the judicial system following a fair and impartial trial.

 14-            The freedom of NGO activity does not mean a lack of accountability. The NGO must be responsible before:

A: the members of its NGO through its General Assembly;

B: the public in cases related to the activities of the NGO through transparency concerning the collection of donations;

C: the normal judicial system;

D: the administrative body in regards to financial supervision where the NGO benefits from tax benefits.