Draft Law for the Nationalization of Civil Society and Transforming it into a Government Institution

Joint Statement

11 Apr 2012

The undersigned human rights organizations declare their utter rejection of the new draft law on non-governmental organizations (NGOs), prepared by the Ministry of Insurance and Social Affairs and which aims to nationalize civil society. Under this law civil society would be considered an institution of the government, and NGO staff would be regarded as civil servants. Furthermore, the new law would impose several new arbitrary restrictions aiming to terrorize civil society activists.

This draft law actually epitomizes the same philosophy of tightening the firm grip on civil society organizations in general and stifling human rights organizations in particular. The new draft law goes even further in its restrictions than all of the previous laws which have repressed civil society since the proclamation of Law No. 32 of 1964. The undersigned human rights organizations warn Parliament against the adoption of this anti-civil society draft law, which is designed to undermine the already limited margin allowed for NGO activities and imposes exorbitant fees for establishing NGOs, thereby stifling the interest of citizens in establishing or participating in the work of such groups. These undersigned organizations reaffirm their support for the draft law which they presented before the Parliament’s Human Rights Committee in January of this year.

The main features of the new draft law are:

1) The philosophy of the draft law reflects the government’s ambitions to integrate civil society organizations into the state apparatus. Hence, the law considers NGO staff to be state employees. This runs counter to the philosophy and understanding of civil society in democratic societies, in which civil society is an autonomous sector independent from state control which works freely to perform the services that the state fails to provide.

2) Based on its philosophy which lacks any professional basis or reference, the draft law regards board members of associations, NGOs, and their affiliated unions and staff as civil servants as well. This anomalous classification clashes with the concept of civil servants found in jurisprudence provisions of the Egyptian law and rulings of the Egyptian courts, in which a civil servant is defined as "any person entrusted with a function of a permanent nature in a public utility run by the State; or any person who becomes subject to public law by way of his work in a position which falls under the administrative organization of the said utility." Hence, in order to acquire the capacity of a civil servant, a person must work in the service of a state-run public utility through direct employment. Therefore, even according to the reading of Egyptian law, associations and NGOs are subject to private law – just as are corporations - because these organizations are not public utilities run by the state. Therefore, it is illogical to consider their funds to be public funds, just as it is illogical to consider their administrators to be civil servants.

3) Based on the distorted line of thought of the crafters of the new draft law, who consider NGOs to be part of the state’s administrative structure, the said draft law allows the government to intervene in the minutest details of NGOs’ affairs (such as in the composition of a general assembly, method of convening such a general assembly, dates of its meetings, and method of membership and withdrawal of members, as well as in the composition or election of a Board of Directors, dates of board meetings, and competencies and functions of each board member - according to executive regulations - and even extending to include the government’s right to dissolve a NGO’s Board of Directors). Such powers are explicitly inconsistent with the logic of a civil society, since NGOs fundamentally arise from the will of their founders and run their affairs according to the vision of their constituent members, not that of the government.

Similarly, the draft law allows the government to request that the judiciary dissolve any association if the government deems that the association is incapable of accomplishing the objectives for which it was established.  Not only is the wording used here vague and easily distorted, but the only two parties which have the right to evaluate an association’s activities and whether or not it has accomplished its objectives are the association itself and the public which is served by the services of said association. What is truly ridiculous about this clause, however, is to think that the nation, its security, and its key interests could be endangered because an association was incapable of accomplishing its aims!

4) The draft law extensively enumerates the activities prohibited to associations and NGOs, including, strangely, a ban on NGOs from conducting field research. The draft law formulates this prohibition in a broad, vague manner, allowing it to denote any type of field research or opinion polls as being among the list of prohibited activities.

This prohibition hinders the activities of civil society institutions, which follow systematic and professional methods in their work by conducting field research on the particular nature of the activities through which they wish to serve society. For example, if one of the objectives of an association is to solve the problem of school dropouts, it must conduct field research on this problem to discover its root causes in order to facilitate the process of resolving it. It may also conduct opinion polls on how to solve this problem, in order to ensure effective participation of the local community.

5) The draft law also prohibits traditional rights activities, such as supporting claims of workers in a particular profession, whether from the public or private sectors, vis-à-vis employers. Therefore, NGOs would no longer be able to provide legal assistance and solidarity to workers whose rights are being abused.

The new draft law also devises further prohibitions: it provides, in imprecise language, for the prohibition of "any other political activity, whether positive or negative, considered to be the exclusive practice of political parties".  This nebulous wording provides grounds on which to wreck havoc on the right of associations and NGOs to express their views - from the perspective of civil society – on many issues of public concern.

6) The draft law retains the arbitrary powers currently enjoyed by government to grant "birth certificates" to NGOs by stipulating that the latter must obtain prior authorization from the administrative body before carrying out its activities. It also imposes arbitrary restrictions on the right of members of the association to develop the founding statutes upon which the institution is based.

In addition, the draft law raises the minimum number of founding members for an association to twenty - twice the number required by the current law - which will impede the right of citizens to establish organizations. Moreover, in order to establish a civil association, an amount of no less than 100,000 Egyptian pounds must be in the possession of the association, whereas the current law does not require any specific monetary sum. In this way, the draft law reserves the right to establish civil associations for businesspeople only.

7) The draft law prohibits associations from fundraising activities and from receiving funds from abroad - except upon government authorization - which would have serious consequences for civil society, as domestic funding sources are not adequate to sustain its activities. Furthermore, the draft law does not provide for any incentives to Egyptian commercial companies and businesspeople to contribute donations to civil associations, such as deductions from the tax base, as is commonly practiced in many countries of the world.  All of this serves to further stifle civil society by blocking its sources of funding, both domestic and foreign.

8) The draft law conforms to the same philosophy of tutelage and administrative hegemony regarding coalitions of organizations in various unions and imposes on NGOs a central union or federation. The draft law even cites the terms of reference of these unions in violation of the principles of democracy, which assume that unions are created voluntarily by associations wishing to engage in such bodies and that these associations are the ones to determine the powers and functions exercised by the union, based on their free and independent will.

9) The draft law bars associations and NGOs from establishing memberships in or affiliations with any foreign networks except upon government approval. This prohibition is contrary to international standards of freedom of association which allow associations to draw on the experience of and engage in international coalitions for the defense of national, regional and international causes. Leaving such matters to the discretion of the government will empower it to further arbitrarily hinder associations. Instead, the draft law should have set a practical standard for dealing with this matter, such as providing a list of foreign groups to which Egyptian organizations are banned membership: organizations supporting terrorism, for instance.

10) The draft law corroborates the same hostility exhibited in successive legislation on civil society since 1956. This animosity has been aimed at any institutions engaged in activities falling under civil action, including those which have chosen to register their work in other legal forms, whether acting under the umbrella of civil law, the law governing the legal profession, or any other law.

11) The draft law treats citizens who are civil society activists as if they were a group of potential offenders or suspects, until proven otherwise; The bill also grants the powers of judicial seizure to government representatives upon their visits to associations’ offices, thereby allowing them to immediately refer any persons in the association who have committed violations directly to the Public Prosecutor, simply by filing a report.

The draft law upholds the freedom-despoiling penalties provided for in Law No. 84 of 2002. Worse, it raises the maximum penalty for imprisonment and fines and provides for the possibility of imposing even harsher penalties derived from the Penal Code or any other law. The new draft law also added new acts which had not been punishable by law No. 84 of 2002. The introduction of criminal sanctions in a law regulating civil activity would terrorize civil society activists or those aspiring to support civil society or participate in its activities. Rather, sanctions imposed on civil society associations should be of an administrative nature. However, introducing and increasing freedom-despoiling sanctions as well as huge financial penalties reveals the philosophy behind this law, proving that the state is lying in wait for civil society, treating it as an unwanted opponent.

Another feature of this draft law which further exacerbates its terrorizing nature is that it considers civil association and NGO funds to be public funds and NGO directors to be public officials. This state of affairs could drive citizens away from establishing civil associations and institutions, since conferring this character upon funds and staff of these associations would entail harsh penalties for administrative offenses, including up to provisional hard labor.

12) In line with this repressive trend, the draft law indicates that the Ministry of Insurance and Social Affairs is not to be the sole government representative charged with dealing with civil society, but rather refers to the "competent authority" when speaking of government authorization in several vital matters. Thus, the new draft law is the first law on associations in Egypt to explicitly reveal the role of the security apparatus in controlling the activities of civil society associations and organizations and, indeed, to provide legal cover for this role.

In Conclusion: The undersigned organizations reaffirm their outright rejection of this draft law and stress that government attempts to pass this law through Parliament - and thereby confer upon it a semblance of legitimacy - should be aborted. Indeed, the draft law contradicts Egypt’s obligations according to the international treaties it has signed, including the International Covenant on Civil and Political Rights and the African Charter on Human and Peoples’ Rights. Furthermore, these organizations warn that if the government succeeds in passing the law, it will constitute an affront to Parliament, which is described as "the Parliament of the Revolution!" Importantly, this draft law follows the introduction of a repressive draft law on the right to protest and assemble by the party which holds a plurality in Parliament and the rejection of the draft law on trade union freedoms, which had been prepared by the former Minister of Manpower in consultation with human rights organizations last summer.

Signatories to the Statement:
1. Cairo Institute for Human Rights Studies
2. Andalus Institute for Tolerance and Anti-Violence Studies
3. Appropriate Communications Techniques for Development (ACT)
4. Arab Center for the Independence of Judiciary and the Legal Profession
5. Arab Penal Reform Organization
6. Arabic Network for Human Rights Information
7. Article 57 for Defending Human Rights Association
8. Association for freedom of thought and expression
9. Center for Egyptian Women Legal Aids
10. Center of Al-waie Al-Arabi
11. Egyptian Association for Community Participation Enhancement
12. Egyptian Center for Economic and Social Rights
13. Egyptian Center for Women Rights
14. Egyptian Democratic Academy
15. Egyptian Foundation for the Advancement of Childhood Conditions
16. Egyptian Initiative for Personal Rights
17. Egyptian Organization for Human Rights
18. Egyptians Against Religious Discrimination
19. Haby Center for Environmental Rights
20. Hisham Mubarak Law Center
21. Land Center for Human Rights
22. Nazra for Feminist Studies
23. New Woman Foundation
24. The Arab Program for Human Rights Activists (APHRA)
25. The Human Rights Association for the Assistance of the Prisoners