Mubarak plays Pharaoh: Egypt's 'new' NGO law

On 3 June 2002, Egypt's Shura Council (People's Assembly) passed Law 84 of 2002 (the NGO Law). The NGO Law provides the Executive with a number of political controls over the work of NGOs, including restricting their access to foreign funding, restricting their ability to join international associations and wide powers of dissolution. The passage of the law marks a return to legislative restrictions on the operations of NGOs in Egypt, following the 2000 repeal of its predecessor, Law 153 of 1999. Law 153 was found unconstitutional by the Egyptian Constitutional Court in June 2000 on the basis of procedural shortcomings in its adoption. The 2002 reincarnation of Law 153, however, is more draconian and invokes the powers of the Executive over NGOs to a much greater degree.

A direct affront to the right to freedom of association, the NGO Law invests the Ministry of Social Affairs with wide powers over the operation of NGOs. NGOs must be registered by the Ministry. The Ministry must also approve nominees to the boards of directors of associations in advance of their appointment (article 34) and NGOs may not be affiliated with any international organisations without the prior approval of the Ministry (article 16). The Ministry of Social Affairs can liquidate any association--including seizing its property, confiscating its papers and freezing its assets--if it violates certain conditions (article 42). Conditions which may lead to dissolution include: allocating resources for a purpose outside the organisation's mandate, if it joins any institution or association outside of Egypt without prior permission from the authorities, if it accepts foreign funding without prior permission, if it violates any aspect of the law and if its general assembly is not held for two consecutive years. Dissolution is by an administrative decree and is conducted without a judicial determination.

Article 17 of the NGO Law significantly tightens the executive's control over the purse strings of NGOs. While the equivalent provision in Law 153 allowed funding from foreign institutions operating within Egypt (in light of their agreements with the Ministry of Foreign Affairs), article 17 prohibits any funding from a foreign body, whether it is based in or outside of Egypt, without the prior permission of the Ministry of Social Affairs.

Under the new law the Ministry is given a wide discretion to make determinations on the 'political nature' of NGO work. Article 11 bans NGOs from practising "political and union activities that are restricted to political parties and trade unions and professional syndicates". However the legislation is silent on the scope of 'political and union activities'. A recent Al Ahram article illustrates how Article 11 stands to risk political manipulation. According to the report when a Member of Parliament asked whether NGOs raising funds for the Palestinian cause would be considered political under the new law. Kamal El-Shazli, Minister for Parliamentary and People's Assembly Affairs stated that it would not be considered political, in that the entire Egyptian population is behind Palestine. At the same time, El-Shazli reported attacked "associations which work to promote democracy" in Egypt, claiming that this was not "their job". Finally, the NGO Law also exposes NGO activists to the threat of criminal punishment for exercising their right to freedom of association. Members of NGOs that are not registered under the law of association--which includes most Egyptian human rights NGOs--can be subject to prosecution for carrying out their work. Penalties include large fines (up to US$2,000) and imprisonment up to one year.

Such restrictions upon NGO freedom are not new in Egypt. The government has acknowledged that the NGO Law is largely based on the repealed Law 153 of 1999. Law 153 was enacted in May 1999, with the intention that it would replace the similarly restrictive Law 32 of 1964. It mandated excessive restrictions on the activities of NGOs and criminalised any "political" activities by NGOs. In its May 2000 Concluding Observations on Egypt's periodic report the UN Committee on Economic, Social and Cultural Rights expressed its concern over the NGO Law's 1999 predecessor. The Committee noted that it "is deeply concerned that law 153 of 1999 (Law on Civil Associations and Institutions, popularly called the "NGO Law") does not conform to article 8 of the Covenant and contradicts article 55 of the 1971 Egyptian Constitution affirming the right of citizens to form associations, and gives the Government control over the right of NGOs to manage their own activities, including seeking external funding" (E/C.12/1/Add.44, 23 May 2000, paragraph 19). On 3 June 2000, Egypt's Constitutional Court struck down the law following which the Ministry of Social Affairs announced that Law 32 of 1964 would remain in force, and that the text would be reintroduced with amendments suggested by the Court, without further NGO consultation.

The NGO Law marks the renewed efforts of the Egyptian government against NGOs. The Minister of Social Affairs Amina El-Guindi has noted that the text based on Law 153, includes new articles "aimed at enhancing NGOs' capacity to work effectively". She has noted that meetings were held with NGO representatives before the Cabinet reviewed the bill. In fact, two meetings were held with a limited number of NGO representatives. Those NGOs in attendance have stated that none of the suggestions to emerge from those meetings were incorporated in the draft that was presented to the People's Assembly.

While, the Peoples' Assembly did introduce an increased NGO presence to the arbitration committee empowered to mediate disputes between NGOs and the Ministry of Social Affairs (from one NGO representative on a four-member committee, to one on a three-member committee), its other amendment to the draft tightened restrictions on NGOs. The Peoples' Assembly amendment to--the already draconian--article 42 empowers any ministry to liquidate any NGO that operates within its field.

Egypt ratified the International Covenant on Civil and Political Rights in 1982 and in late 2001 submitted its third and fourth periodic report pursuant to its treaty obligations. As emphasised to the United Nations' Human Rights Committee, article 55 of the Egyptian Constitution provides that citizens have the right to establish associations in the manner specified by law. The Constitution does not permit the formation of associations that engage in activities inimical to social order or secret or military in nature. The report notes that the law of associations is otherwise governed by Law 32 of 1964.  According to Law 32, it is forbidden to establish associations that undermine public order or morals or the aims of which are unlawful or inimical to the State or social harmony. The procedures and methods for founding an association and the reasons for its dissolution are also laid down in the Law.

In its report to the Human Rights Committee, the Egyptian government emphasises domestic safeguards for the protection of the right to freedom of association as provided in Article 22 of the ICCPR. Specifically, the Egyptian submission notes that: "[t]hrough the Ministry of Social Affairs, the State supports the role of private associations in various spheres with a view to strengthening the role of the voluntary sector in such a way as to increase the benefits for society and expand the tremendous range of services that the sector offers to citizens." (CCPR/C/EGY/2001/3, 15 April 2002, paragraph 526). The report to the Human Rights Committee makes no mention of the role of the Ministry of Social Affairs in regulating NGOs, as Cairo submitted the report prior to the adoption of the NGO Law. The Human Rights Committee is scheduled to consider Egypt's report at its 76^th session from 21 October to 8 November 2002.

The NGO Law is clearly in violation of article 22 of the ICCPR. Article 22 provides for the right to freedom of association with others. Paragraph 2 of the provision states that: "[n]o restrictions may be placed on the exercise of this right other than those which are prescribed by 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 others…". How the NGO Law falls within this claw-back clause is unclear.

As indicated by the Committee on Economic, Social and Cultural Rights, the NGO Law is also in violation if article 8 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which provides for trade union rights. The NGO Law is also antithetical to the UN Declaration on the Rights and Responsibilities of Individuals, Groups and Organs of Society to Protect Universally Recognized Human Rights and Fundamental Freedoms (the Human Rights Defenders Declaration). In her latest report, the UN Secretary-General's Special Representative on Human Rights Defenders, Hina Jilani has expressed concern that “the use of laws that could restrict access to resources for the promotion and protection of human rights and could be used for penalizing human rights defenders for soliciting, receiving and utilizing funds for this human rights activity." (E/CN.4/2002/106, paragraph 161) The adoption of the NGO Law only confirms the Special Representatives fears about freedom of association. Hina Jilani has requested an invitation to visit Egypt. Cairo has yet to respond to the request.

The NGO Law has been enacted at a time when the retrial of academic and human rights defender Saad Eddin Ibrahim is already drawing attention to the issue of NGO freedom and funding. While the Egyptian government is the recipient of large amounts of foreign--"Western"--aid, it denies its NGOs similar opportunities. The Egyptian government's ability to control NGOs boards of directors, stop foreign funding and dissolve NGOs if they are 'political', seriously threatens meaningful human rights work in Egypt.

The NGO Law undermines the very foundations of NGO independence in Egypt. NGOs, by their very nature, must be free of executive control or influence. Now, the danger is that NGOs in Egypt will either be legally registered, or independent. Increasingly it will be difficult for them to be both.

- Human Rights Features

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