Undermining Standards of Good Governance: Egypt ’s NGO Law and Its Impact on the Transparency and Accountability of CSOs
In Egypt, government restrictions on the activities of civil society organizations (CSOs) have stifled their ability to advocate. Organizations are not permitted to fulfill their missions openly without risking government interference. Government suppression of CSO activities has undermined both government’s and CSOs’ efforts to institute good governance practices among CSOs.
This article considers the effects of Law No. 84/2002 on Non-Governmental Organizations (hereinafter “ Egypt’s NGO Law” or “Law No. 84”) on Egypt’s civil society from two perspectives. First is the ability of CSOs to advocate and conduct activities pursuant to their missions. Second is the law’s influence on good governance practices among CSOs.
There is a direct tension between an organization’s ability to adopt good governance procedures in compliance with the Egyptian NGO Law and the organization’s ability to advocate. The NGO law commingles provisions that allow the government to interfere directly in an organization’s activities with rules about the internal governance and accountability of an organization. Egyptian CSOs are therefore in the unfortunate position of having to decide between being effective advocates, vigorously pursuing their missions, or acting accountably according to the law.
The background research for this article is derived from interviews with civil society figures and experts, as well as advocates and activists working in Egyptian CSOs. Each of the organizations chosen for the study is engaged in advocacy or lobbying and is confronting changes and challenges in implementing good governance practices. An overview of these organizations follows.
The Association for Health and Environment Development (AHED) is a non- governmental organization founded and registered in the Ministry of Social Affairs in November 1987, and reregistered as a nationwide organization in 1998. AHED’s general assembly includes about 100 members from diverse backgrounds. AHED’s mission is the development and application of proper systems in the fields of health, environment, and disability. The association is competent to respond to community needs and to defend the rights of the community, either as a whole or focusing on its most deprived and marginalized groups.
The New Woman Research Center (NWRC) began as a group without official legal status, until it was registered as a civil non-profit company in 1991. It subsequently changed its legal position to an institution registered with the Ministry of Social Affairs. NWRC advocates for the feminist movement in Egypt, seeking to raise the priority of women’s issues on the social and political agendas. NWRC networks with a number of Egyptian and Arab feminist groups in order to coordinate messages on women’s issues. NWRC also coordinates with the global feminist movement on common issues. In addition to its work on advocacy for democracy and civil society values and principles, NWRC supports marginalized women, empowers women through knowledge, forms lobbying groups, and raises awareness of women’s issues. 2
A third form of organization that plays an important role in Egypt’s civil society is the human rights center, which registers in a foreign country but operates in Egypt as a civil for-profit company. The Cairo Institute for Human Rights Studies is an example. Most human rights centers choose to register as civil companies because the laws governing businesses are less restrictive than the laws governing CSOs. Human rights centers often choose to register as branch offices of international organizations (e.g., Cairo Institute for Human Rights Studies) or as law firms (e.g., Hisham Mubarak Law Center).
The study uses interviews with Hisham Mubarak Law Center members to represent these forms. Hisham Mubarak Law Center is a human rights center that is registered as a civil company. Its objective is to improve human rights conditions in Egypt. The Center provides legal aid, conducts legal research, and offers advice on human rights issues. In addition, the Center publishes studies and reports. The Center works to raise the awareness of lawyers, judges, and the public of human rights violations. Further, the Center seeks to integrate international human rights law into the Egyptian Constitution. 3
The first part of this article describes the historical context within which Law No. 84 was passed. It describes the social and political circumstances surrounding the legislative process. The second part of the article provides an analysis of the provisions of Law No. 84 that govern the powers of the regulatory authority and the internal governance of CSOs. Third, the article explores good governance and advocacy in the Egyptian context, as well as the key obstructions to their full implementation. The final section makes recommendations for enabling the advocacy and good governance of CSOs in Egypt.
II. Historical Context of Law No. 84
When considering the difficulties that civil society organizations experience as a result of government policies, it is important to understand the legal and political context in which CSOs have developed.
A. The Evolution of Civil Society Organizations
The current composition of civil society in Egypt – a sector that includes advocacy, social service, philanthropic, and human rights organizations – is relatively recent. Egyptian civil society has witnessed three major stages of development.
The first stage of civil society development dates from the late 19th century until the end of World War II. During this stage, civil society consisted primarily of philanthropic organizations that were under the auspices of royal family members. Therefore, there was no need for a public code, only individual laws to facilitate the fundraising campaigns of these organizations as needed, such as the 1905 Lottery Law and the Sport Clubs Law of 1929. At the end of World War II, on July 12, 1945, the government issued the first Charities and Social Institutions Code. The aim of this law was to coordinate the efforts of charities, whose objectives were merely philanthropic, with the work of social institutions that were providing humanitarian services. 4
The second stage of civil society development began under the rule of President Gamal Abdel Nasser and continued until the early 1980s. Nasser, who was in power from 1954 until 1970, was especially noted for his Arab nationalist and anti-colonial foreign policy. During this stage, the state exerted totalitarian control over society in a way that might be described as a “social pact of development.” As long as the state was developing economically and providing for its citizens in a basic way, citizens did not demand democracy. Neither open political opposition nor an independent sector existed in Egypt during this time. This is reflected in the Civic Association Code, Law No. 32/1964, which gave government officials the authority to reject the formation of organizations. In addition, the government had discretion to amalgamate or dissolve groups at any time. 5
Egyptians have been living under an Emergency Law (Law No. 162/1958) since 1967, except for an 18-month break in 1980. The emergency was imposed during the 1967 Arab-Israeli War, and reimposed following the assassination of President Anwar Sadat. The law has been continuously extended every three years since 1981. Under the law, police powers are expanded, constitutional rights suspended, and censorship legalized. 6 The law sharply circumscribes any non-governmental political activity: street demonstrations, non-approved political organizations, and unregistered financial donations are formally banned. Some 17,000 people are detained under the law, and estimates of political prisoners run as high as 30,000. 7 In 2005, the Emergency Law was extended two more years or “until anti-terrorism measures are passed and enacted,” according to Egypt’s upper house, a stipulation giving the state the right to renew the law beyond the two-year period suggested by President Hosni Mubarak. 8
The most recent stage of civil society development started at the beginning of the 1980s, 9 with the emergence of a new role for civil society as a participant in the processes of development and democratic evolution. 10 During this stage, the Egyptian government has focused on economic development. To achieve economic progress, the government has made strides in instituting liberal, market-oriented economic reforms, but not similar political or democratic reforms. Laws did not change to allow explicitly more freedoms for civil society organizations and democratic political activity. Rather, there was a gradual and selective recognition of certain political rights. For example, certain groups regularly demonstrate in opposition to the government’s relationship with Israel without disruption. Egyptians experience fewer restrictions on their freedom of speech than ever before. Nevertheless, Egypt has continued to renew the Emergency Laws, described above.
During the past five years, Egypt has adopted and amended a series of laws in order to liberalize the rules on trade and labor, and has even amended certain constitutional provisions, such as Art. 76. 11 It has also passed a new law governing civil society organizations, Law No. 84, issued on October 23, 2002. While this law allows greater recognition of civil society than any previous law, it also severely restricts civil society. Law No. 84 has been the subject of many critical legal studies and work papers.
Since the middle of the 1980s, during President Mubarak’s rule, several types of civil society organizations have evolved in Egypt: charities, service providers, environmental, and human rights organizations. 12 This development represents a part of what the government has propagated as “step-by-step democracy.” At the same time, President Mubarak has instituted a policy allowing his regime to exert control over any organized group that might express opposition to his policies. 13 For example, the President controlled the press by appointing newspaper chairmen who were willing to censor heavily the reporting of their publications. 14 Trade unions, labor syndicates, and universities were under similar control. With the exception of Islamic groups, the Mubarak regime successfully managed to squelch most forms of dissent. Entities that might have voiced opposition simply ceased to exist in Egypt. Though not all of them presented viable alternatives, faith-based organizations were the only type of CSO that remained and played any sort of significant role. 15
B. Law No 153: The Precursor to Law No. 84
In 1999, the Egyptian government invited civil society organizations to discuss a new NGO law, Law No. 153. The Civil Society Development Forum was convened to form a coalition that would collaborate with the government to achieve the best possible draft law. However, this attempt failed when the government sent its own copy of the draft law to the Parliament, one that was different from the draft agreed on with the Forum. The Association for Health and Environmental Development (AHED) published a book, “The Development of Civil Society and the New Civil Associations Law,” exposing the government’s conduct and revealing the documents and details of the meetings between the government and the civil society representatives. 16
The government did not consult with civil society in drafting subsequent laws, including those that govern their work. Moreover, the government retaliated against NGOs that participated with human rights agencies in the Forum. For example, the government restrained funds to AHED, threatening the survival of the association. The government also replaced some members of the board of the Upper Egypt Association with others whose vision for civil society is religious charity work—an example of the government’s tendency to use religious groups to neutralize democratic opposition groups.
The law was widely criticized as unconstitutional for both procedural and substantive reasons. In 2000, the Supreme Constitutional Court declared Law No. 153 unconstitutional for procedural reasons, on the grounds that it was not discussed and voted on in both houses of the parliament. 17
C. Issuance of Law No. 84
Law No. 84 is very similar in content to Law 153. It was quietly issued and very quickly discussed and passed by both houses of Parliament. There was no coverage in the press, unlike similar laws often used as indicators of democracy and respect for human rights in Egypt. 18 In contrast to the earlier law, civil associations and institutions were not consulted. 19 In fact, civil society representatives first learned of the subject from individual members of Parliament after the draft was scheduled to be discussed in the Parliament. 20
Law No. 84 did not emerge from a dialogue between the government and society. Rather, it is seen as a tool for the governing elite to control CSOs. 21 The law was justified in the parliament, despite its deficiencies, on the grounds that it “balances freedom and social peace.” 22 This argument echoes those of other leaders seeking to evade their earlier promises for democracy to their citizens and the international community. In Russia, for example, money laundering and terrorism are used as pretexts to fetter civil society. 23
Nevertheless, it is not unusual for such laws to appear before elections, with the hope of hindering CSOs from challenging the ruling regime. 24 The parliament passed Law No. 84 two years prior to the presidential and parliamentary elections. The law was opposed by human rights organizations and political parties, which issued a joint statement titled “Civil Associations Law Assassinates the Voluntary Civil Society.” 25 NGOs and political parties demanded more discussions about the law with all segments of society involved, and identified certain articles as “freedom restraining” and unconstitutional. 26
Surprisingly, the law was preceded by a meeting held by the Ministry of Social Affairs, in which NGOs and donor institutions were invited to discuss the draft law. Soon after, the Minister of Social Affairs met with the American Ambassador and the European Union representative in Cairo and urged them, as the biggest funders, to increase donations to NGOs. This is inconsistent with parliament’s suggestion that foreign funding threatens national security.
D. Palestinian Influence
It is useful to consider the political situation facing the Egyptian government when Law No. 84 was adopted, particularly the complicated situation created by the Palestinian Uprising (Intifada) and the brutal Israeli escalation in response. It appeared, at least in theory, as if the Israeli reaction would unite the Egyptian government and people against these threats. In time, it became clear that the situation was more complicated, and that the increasing activism of the committees supporting the Intifada and opposing normalization of relations with Israel was creating a political impasse. Popular solidarity with the Palestinian people stood in the face of government restraint on popular political activities.
The impasse resulted from the Egyptian government’s treatment of democratic development for the last two decades. Over that time a partial “social contract” arose, in which the state provided a relative margin of freedoms, and a promise to widen them, if only terrorism could be fought successfully. This social contract was accepted by political activists and intellectuals, given the insecurity caused by the threat of terrorism as well as the economic crisis. Political activists and intellectuals accepted the need to postpone integrated democratic development until the fears of terrorism and economic crisis could be allayed, as it was thought that “excessive democracy” might strengthen fanatic and violent groups.
From the official point of view, popular activism in solidarity with the Palestinian people exceeded the government’s margin of tolerance for freedoms, and, for the first time in two decades, led the government to question the appropriate limits on peaceful expression and association. The adoption of Law No. 84 was clearly intended to reduce the margin of freedom of association and expression. While some thought that the political environment would create an opportunity to widen the margin of freedoms, in order to mobilize society against the threats of terrorism and economic crisis, the enactment of the Law affirmed the continuation of a social contract that provides little space for individual freedoms.
The social contract became censured and doubted due to the domestic and regional situations, particularly after the Iraq Occupation. Egyptian society increasingly developed a strong faith in more democracy as a means of fighting terrorism and solving the economic crisis. The government’s increasing dependence on state security bodies to limit freedoms, and its disregard for civil society and the political parties, have not only failed to eliminate extremism, but also have brought the political impasse to a climax.
Some argue that policies based on genuine democracy, government transparency, the elimination of corruption, and a reasonable level of social justice are the only way to face and overcome the crisis. 13 Current political developments in Egypt, such as bombings over the past two years, the protest of the Egyptian judges’ club, the violent responses of the regime and its harassment and detention of activists who supported the judges, and the renewal of the emergency law through 2008, suggest this may be true. Western governments overlook these actions to give the Arab regimes the authority to face the growing Islamic role in the Arab political scene. In fact, however, this approach has proven misguided, as attempts to build the regime’s authority at the expense of democratic freedoms have only increased the influence of fundamentalism.
III. Legal Analysis of Law No. 84
The Egyptian NGO law establishes a system of government interference that undermines the freedom of association guaranteed in the Egyptian Constitution 27 and in international human rights instruments to which Egypt is a signatory. 28
A. Power of the Regulatory Authority
Law No. 84 grants the state regulatory authority a great deal of power and discretion to grant or deny registration, interfere in the operations and fundraising of an organization, and order its dissolution. 29
1. Mandatory Registration
Law No. 84 refers to an “Administrative Authority” responsible for registration and oversight of NGOs. Article 2 of the Introduction to the Law designates the Ministry of Social Affairs as the Administrative Authority. The Office of State Security maintains a presence within the Ministry of Social Affairs and plays a significant role in CSO oversight. The Office of State Security sees itself as responsible for preserving social peace and general security of the state, which provides its pretext for interfering substantially with civil society in Egypt.
Registration is mandatory under Law No. 84 for all groups with at least ten members that form “for a purpose other than gaining a physical profit” (Article 1). The Ministry of Social Affairs has 60 days to process requests for registration. The Ministry will deny registration if it determines that the association’s purposes constitute an activity prohibited under Article 11 of the Law. Among the prohibited activities are forming military groups, threatening national unity, violating public order or morals, and undertaking any political actions. These terms are not defined in the law, leaving the Ministry of Social Affairs full discretion to decide whether an association’s activities fall into a prohibited category. For example, the Ministry denied the Land Center for Human Rights’ application for registration. A note from the Office of State Security was attached to the rejection letter—demonstrating clearly that the decision was made by State Security rather than Ministry officials, in clear contravention of the law.
The Ministry of Social Affairs can object to any provisions in an association’s articles of incorporation that it determines violate the law, and it can also object to the organization’s founders (Article 8). The law does not provide clear criteria for approving or rejecting founders. The only guideline in the law is that a founder may be disqualified for having been convicted of a crime of “moral turpitude and dishonesty … unless … rehabilitated” (Article 2).
NGOs have commented that during registration, they dealt with the Office of State Security more than with the Ministry of Social Affairs. In some cases, the State Security tried to convince NGOs, including the Hisham Mubarak Law Center, to register as associations under the law, so that they could be monitored and controlled. In other cases the security apparatus refused to register NGOs unless they agreed to register as institutions; one example is the NWRC.30
2. Government Interference in the Operations of Associations
Even after an organization is registered, the Ministry of Social Affairs has the authority to interfere in its operations. The Ministry can send representatives to an organization’s meetings and even call a meeting of the general assembly (Article 25(d)). Moreover, an organization must provide the Ministry with a copy of the minutes of the general assembly within thirty days of the meeting.
Law No. 84 requires associations to have a board of directors made up of an odd number, between five and fifteen, as determined in the articles of incorporation. The board of directors must provide a list of board nominees to the Ministry of Social Affairs within a day of their nomination and sixty days before the election. The Ministry has the authority to remove a board nominee for “non-fulfillment of nomination requirements” (Article 34). These “requirements” are not defined, allowing the Ministry unfettered discretion to remove potential board members. The Ministry removed two political activists from the board of directors of Bashayer for Integrated Development.
The Ministry also exercises control over the affiliation and activities of associations. Article 16 of the NGO Law states that an association may join or affiliate with an international organization, and conduct activities consistent with its purposes, provided that it notifies the Ministry at least sixty days in advance and does not receive a written objection from the Ministry. This requires planning activities at least sixty days in advance, making it virtually impossible under the law to react quickly to events. Pursuant to this authority, the Ministry directly banned a celebration of the World Day for Women’s Rights organized by the Egyptian Center for Women’s Rights. Similarly, the celebration of the World Day for Habitats organized by Egyptian Center for Housing Rights was stopped when the State Security ordered the Upper Egypt Association to refuse to host the celebration in 2005. 31
Although the NGO Law does not vest the State Security with legal authority to regulate CSOs, it nevertheless remains the key player. Surprisingly, the role played by the State Security is not authorized in the law or constitution, either. The NGO Law designates the executive authority (the Ministry of Social Affairs, not the State Security), the right to refuse an NGO registration only if it included in its activities one that is banned by Article 11 of the law. 32
As noted above, State Security has directly issued denials of registration. Other times, rather than explicitly issuing orders, State Security influences the Ministry to delay approvals. 33 At best, such tactics result in an interruption of activities. At worst, they slowly starve an organization out of existence. For example, the second installment of funding for one of AHED’s programs was purposefully delayed for more than five months, an entire year after the launch of the program. This strategy also aims to distract NGOs with procedural and bureaucratic matters. Nawla Darwish, one of the founders of NWRC, says, “We are busy addressing the procedures planned by the Egyptian government to fetter the human rights movement. This distracts us from addressing the real problems in society…. For example, when we were discussing the Civil Associations Law No. 153 we forget to discuss issues at the heart of our interest in NWRC such as the Khola law (divorce at the instance of the wife).” 34
The 2005 Human Rights Watch report describes cases in which the Office of State Security rejected registration applications from NGOs, refused candidates for boards of directors, harassed their activists, and blocked their funding. The report reaffirmed that organizations in Egypt suffer from difficult constraints under the NGO Law, and stressed the involvement of the security forces in investigating and harassing civil society activists, more often than not with no legal basis. 35
Associations may not accept foreign funding without explicit authorization from the Ministry of Social Affairs (Article 17). All other contributions are governed by executive regulations. This provision undermines the sustainability of many organizations. Foreign funding is the most essential financial source for civil human rights and development associations, especially because financing from Egypt’s private sector for such organizations does not exist. In addition, associations must provide a detailed report of expenditures and revenues, including donations and their sources, to the Accounting Auditors Register. Acquiring or distributing funds in violation of Article 17 is cause for involuntary dissolution of an association and criminal penalties of up to six months’ imprisonment and up to 2,000 pounds in fines (Articles 42, 76).
Unlike associations, charities are able to accept donations without prior approval. “The new civil associations law has no impact on the charity’s activities, as it is meant only for human rights organizations…. Our charity receives about 30,000 EGP [about $5,200 USD] monthly in donations, and we are not obliged to obtain approval from the administrative bodies,” declared Dr. Mohammad Al-Fangary, the Chairman of the Islamic Charity Association in Al-Ahrar on June 13, 2002. In contrast, AHED must obtain approval from the Ministry of Social Affairs before receiving funds from United Nations bodies, even though these international bodies have agreements with the government.
As indicated above, violation of the law can result in criminal penalties, including imprisonment, fines, and the involuntary dissolution of the association. Setting up an association whose activities are determined to be “clandestine” is punishable by up to a year in prison and up to 10,000 pounds in fines. As mentioned above, activities that are prohibited in Article 11 are ill-defined, leaving the government full discretion to determine whether a violation has occurred. For example, activities are prohibited if they are deemed to threaten national unity or violate the public order or morals. All political activities are prohibited as well.
An association may face involuntary dissolution as a result of an Article 11 violation, affiliation with a foreign organization without prior approval, or accepting donations without following the requisite approval procedures. The law seems to allow the government to dissolve an association based on the actions of an individual, even if he or she was acting without the authority of the board of directors.
Similarly, the law imposes collective punishment on general assembly members by permitting dissolution of an association based on transgressions of a single member. Collective punishment to the whole organization is applied in cases of individual and personal infringement of the law, such as individual wrongdoing. 36 The policy of punishing all members of an association for the transgressions of one member appears to be aimed at deterring citizen participation in CSOs. 37
Moreover, the imposition of criminal penalties has directly undermined participatory governance practices by influencing some heads of associations to monopolize authority. Expanding democracy within an association, including delegation of authority, increases the risk that someone will act improperly, thus exposing the organization to penalties. The threat of penalties also causes some associations to keep certain activities secret or unpublicized. Harsh penalties represent a real obstruction to transparency, accountability, and participation as a component of good governance.
B. Internal Governance
The Egyptian NGO Law closely regulates the internal governance of civil society organizations. The law intermingles proper transparency and accountability measures with overreaching controls and modes of interference.
Some provisions of Law 84 conform to international standards for regulating internal governance practices. For example, associations should have a general assembly and board of directors (Articles 24, 32). These bodies must have regular meetings and provide proper notice of meetings in advance (Articles 27, 38).
However, other provisions in the law provide excessive controls and opportunities for government interference. For example, the law requires that the association submit the agenda for a meeting of its general assembly to the Ministry of Social Affairs fifteen days in advance of the meeting, and provide minutes of the meeting to the Ministry within thirty days after the meeting (Article 26). The Ministry must be notified of candidates for an association’s board of directors, and it can remove candidates from consideration (Article 34).
C. Egyptian Law and International Standards
The trend toward restricting civil society organizations is not unique to Egypt. Over the past year, nineteen countries have introduced restrictive legislation aimed at weakening civil society. 38 These countries join more than thirty others with existing laws, policies, and practices that stifle the work of CSOs. 39 The International Center for Not-for Profit Law (ICNL), an organization dedicated to promoting freedom of association, civil society, and citizen participation worldwide, presented a study which set out a typology of nine legal barriers used by government to constrain civil society and the challenges that these barriers pose to CSOs. 40 As described below, Egypt employs seven out of these nine constraints. 41
1. Inability to register and insure the advantage of legal personality
Repressive governments often closely guard the process by which an organization can register and thereby gain legal personality. Governments may require all organizations to register, ensuring the ability to keep a close watch on a group’s activities, while making registration difficult and limiting the ability of certain groups to exist. 42 In Egypt, the government limits freedom of association by requiring registration of all groups, no matter their size or purposes, and by giving both the Ministry of Social Affairs and the Office of State Security substantial discretion over whether to grant registration applications.
2. Inability to receive foreign funding or to raise domestic funding
One of the most common tactics used by governments to restrain civil society is to restrict the access of CSOs to foreign funding. 43 The Egyptian NGO Law requires the approval of the Ministry of Social Affairs for the receipt of any foreign funding. The executive authority uses this condition to pressure associations and hamper their activities. The government can cause the closure of an organization dependent on foreign funds, simply by withholding approval for foreign funding. This gives the government the power to dissolve arbitrarily organizations that depend on foreign funding by starving them of resources.
3. Arbitrary or discretionary termination and dissolution
Some countries retain substantial discretion to shut down CSOs, and use that discretion to quash opposition groups. 44 Egyptian law vests the Ministry of Social Affairs with the power to dissolve an association after consulting the Federation of Civil Associations and the association itself. The ability to dissolve an association gives the Ministry added leverage over associations, especially because grounds for termination are ambiguous in the law. The Ministry also has the right to instruct the executive authority (represented in the governors) to dissolve associations located in governorates.
4. Inability to advocate for certain issues
The NGO law prohibits associations from engaging in political activities and activities usually conducted by labor unions. The accompanying regulations to Law No. 84 indicate that prohibited political activities include advocating the program of one of the political parties, contributing to electoral campaigns, and putting forth candidates for office (Article 25). The government could thus prevent a CSO from advocating for issues within its mandate if those issues match the program of a political party. Moreover, associations are prevented from advocating for labor issues, since the government may consider these issues to be under the exclusive purview of unions. Further, and as discussed throughout this article, the Law allows the government broad authority and discretion to implement ambiguous provisions, which makes organizations likely to avoid advocating issues that might trigger an oppressive government response.
5. Authoritative and restricted monitoring
Even after an NGO has been formed and registered with the proper authorities, the government may continue to restrict its activities through unchecked oversight authority and interference in its activities. The Egyptian NGO Law gives the Ministry of Social Affairs the right to examine an association’s records at any time, allows for government representatives to attend an organization’s meetings, and even allows the government to add items to the agenda of a meeting. This allows the government to continuously monitor any organization. The same is true of cumbersome requirements for authorizations and approvals of directors, activities, and financial transactions.
6. Foundation of “parallel” associations
Restrictive governments have sometimes sought to undermine the CSO sector by establishing captive CSOs. Governments use these organizations to channel government funding to preferred causes and away from opposition groups, to discredit opposition groups by claiming that its captive organizations are the only “legitimate” civil society, or to appear supportive of at least some portion of civil society. 45 The government has created such associations in Egypt that work in the same field or in the same area as independent CSOs and receive government funding.
7. Imposing criminal penalties against founders and members of the associations
Individuals who are found responsible for certain NGO activities can be held criminally liable and fined or imprisoned. Such penalties have a chilling effect on the right of association. 46 Under Egyptian law, such penalties may include a year in prison and a fine of 10,000 EGP (about $2,000 USD) for a founder of an association that is deemed to threatens the national unity or the “public order.” Individuals are subject to six months in prison and a fine of 2,000 EGP (about $400 USD) for conducting activities without following the prescribed procedures (e.g., registration, approvals).
IV. The Ability of Organizations to Advocate While Maintaining Good Governance Practices
Working outside the law hinders the internal administration of an organization. Absence of governing rules turns organizations into individual initiatives, reliant on the good intentions of their founders.
A. The Concept of Good Governance
some believe that the concept of “g ood governance” arose as a result of pressure from international funders, and therefore equate the concept with foreign pressure. 47 Though it might have been coined by the World Bank, the phrase grew out of the need to transform civil society in the Arab region. Arab NGOs were for the most part the initiatives of individuals or a few activists. Good governance practices, including the adoption of transparent and democratic mechanisms that balance executive power and institutional accountability, were introduced in attempt to make such organizations into sustainable institutions, free of corruption and integrated into society.
It is difficult to define “good governance” in a way that applies in practice to both civil society and the state. The Arab Group for Good Governance tried to introduce a definition tailored to civil society: “Governing/Good Governing in different institutions is an authorization made by a group to smaller representative bodies, with the latter being held accountable. It involves effective participation of the group in making decisions, and empowering the larger marginalized segments in participating, by making the needed information, tools, and means, therefore available.” 48 This definition specifies the basic elements of good governance – namely, authorization, transparency, accountability, participation, and empowerment.
The elements of good governance have not been well integrated into the work of Arab NGOs. “Field work indicators unveil limited democracy and a lack of transparency and accountability inside some civil society institutions. This sometimes leads to the personalization of the institute (being known by the name of its founder, manager, or head of the board), making the circulation of power almost impossible, and affecting authorization, participation and empowerment. In other cases, decision making is limited to a few members.” 49 At times it is difficult to apply transparency principles, even if good intentions exist, because of the lack of institutional mechanisms for documentation.
The 2002 UNDP Human Rights Development Report observes many deficiencies in Arab NGOs, such as lack of democracy (reflected in the slow circulation of power), inadequate representation of youth and women on the boards of directors, and the personalization of these institutions. In terms of transparency, the report finds a lack of clear administrative and decision making rules, which leads to weak accountability. 50 The report, however, admits that these problems are not exclusive to Arab NGOs, but characteristic of Arab institutions in general, including governments and private organizations. 51
Rather than justify the absence of good governance in civil society by pointing to a similar lack of accountability in the public sector, it is important to address the root of deficient governance practices. For NGOs to adopt good governance practices, they must first overcome the misconception that they are bending to foreign pressures. Good governance can help advance their primary missions – causing positive changes in the lives of beneficiaries – and improve the policies determining their fate.
Concededly, though, the legal and regulatory umbrella under which NGOs work makes it difficult for them to implement good governance practices while pursuing their objectives. The new law does not foster accountability and participation, let alone the legitimacy of representation and the limits of powers. Although some NGOs have tried to enforce these principles by widening the scope of participation and accountability in the targeted group at large, by establishing consultative councils, cases of corruption and misuse of power have severely damaged the reputation of civil society. In other words, even though some organizations have made strides toward good governance by widening member participation and decision making, corruption and misuse of power among other CSOs that lacked such reforms have harmed the reputation of civil society as a whole.
The deficiency of good governance among NGOs stems partly from the legal and regulatory atmosphere in which they operate. The main problem is the requirement that an NGO obtain permission from the Ministry of Social Affairs to do its work, rather than simply notifying this body, working freely, and being held accountable by its members, the judiciary, and public opinion. Many other challenges limit the freedom of NGOs.
Furthermore, some articles in the law seem to hinder hamper the application of good governance, such as the article providing that the administrative bodies agree to (not merely be notified of) the establishment of an NGO. This article hampers empowerment, an integral part of good governance. Similarly, Article 17’s restrictions on sending money abroad or receiving money from abroad without prior approval make operating by the letter of the law all the more cumbersome.
B. Advocacy and Lobbying Campaigns
Historically, policy initiatives in Egypt came from within the government. CSOs functioned as service providers and charitable institutions. The first type of CSO in Egypt to take on a different role was the human rights organization. Human rights organizations launched organized advocacy and lobbying campaigns to influence government change. Advocacy and lobbying were at first considered a methodology exclusive to human rights organizations, but other CSOs gradually caught on and began to develop their own advocacy and lobbying activities. Today, of course, CSOs all over the world have made substantial strides in campaigning to eliminate or reduce poverty, protect against HIV/AIDS and other diseases, defend the environment, and so on.
The term “campaign” as defined by Action Aid Organization is the process of seeking to influence decision makers and movers of public opinion (individuals and organizations) to change policies and practices. 52 The main components of the concept are planning, advocacy, networking, and lobbying. The term “campaign” in Arabic, however, is still understood as competing for office. The concept of a human rights campaign is a modern understanding of the word that has not caught on in Arabic, such that the English word is substituted when referring to an organized set of activities meant to effectuate change. 53
However, the Egyptian government does not differentiate between a political campaign for office and an advocacy campaign. Both types of conduct are considered political activity prohibited by Article 11 of the NGO Law. One example is that of the State Delegates Authority in the case of the Egyptian Association Against Torture. The Administrative Judiciary Court refused to register the association on December 15, 2005. The reason was that the group aimed to pressure the government to eliminate torture in police stations and prisons, which the judiciary considered to be political activity. Consequently, the association was prohibited from launching its activities. 54
C. Civil Society Campaigning and Egyptian Law
Law No. 84 does not explicitly address campaigning. This reflects the drafters’ ignorance about the nature of civil society and social movements. In reading the entire law, only one article seems somewhat relevant to the idea of creating issue-oriented campaigns: Article 65 allows non-governmental organizations and associations to establish specific and regional unions to support networking. However, Article 68 restricts such a union to seven tasks, thus preventing the full development of networks and unions among civil society organizations.
At the root of most campaigns in Egypt is the authoritarian regime – the government stands on one side and the forces of democracy and reform on the other. The more the latter dominate, the broader the change that advocacy groups and individuals can make. In turn, civil society becomes more sophisticated and capable of campaigning.
Article 11(2) of Law 84, prohibiting political activity, poses the most important restriction on civil society’s campaigning initiatives. As discussed above, campaigning may be deemed a political activity. The regulations define political activity in a clause concluding with “or any activity leading to this.” With such broad language, it is easy for the government to deem almost any activity it wishes to prevent as something that might lead to prohibited political activity. As a result, registered organizations avoid such words as campaigning, advocacy, and lobbying in their reports to the Ministry of Social Affairs. However, the organizations use such words in other spheres, such as issuing books, printing stickers, and otherwise seeking to “raise awareness.”
The ban on political activities has restricted the activities of many civil society organizations and kept them from participating in major events crucial to their missions. For example, the government prohibited the New Woman Foundation from campaigning in support of female nominees in the 2005 parliamentary elections. 55
One method of campaigning for change in an authoritarian regime is networking with individuals in foreign countries. Such communications can be an effective way of collaborating with individuals involved in similar causes (e.g., women’s coalitions) or encouraging the international community to advance an issue (e.g., environmental regulations). International collaboration and networking is chilled by Article 76 §3(B), which bars an NGO’s board of directors, members, and managers from participating, contributing to, or affiliating with any club, association, organization, or authority outside the Arabic Republic of Egypt, without notifying the administrative authority or despite its refusal. Violators face the possibility of being sentenced to prison.
Based on the provisions of the law and examples of their implementation, it is concluded that campaigning is at best barely permitted by Law No. 84. Subjecting associations to the supervision of administrative authorities restricts their ability to advocate or lobby, especially if such campaigns oppose governmental policies. The open-ended interpretations of the law give the government the opportunity to stifle any campaign or even to dissolve the association.
Furthermore, networking activities continue to be restricted by laws and regulations. The introduction of criminal penalties is a significant deterrent to those who might otherwise consider not complying with the law, or attempting to change it through campaigning. Participants in the human rights and women’s rights organizations’ campaign to amend Article 17 of the Penal Code on “clemency in harassment cases” mentioned that unregistered associations had substantial freedom and consequently were much more effective than registered organizations. 56
D. The Choice between Good Governance and Effective Advocacy
Good governance practices are essential to CSOs’ ability to conduct successful advocacy campaigns. Transparency is vital to earn credibility, and participation is necessary for successful networking. In addition, individual empowerment, as a principal component of good governance, is a goal of campaigning. Good governance lends credibility and efficacy to any campaign. However, when organizations institute transparency and accountability measures, they become vulnerable to the interference and control of government authorities and bureaus.
This presents CSOs with a difficult dilemma. The first option is to abide by all laws and regulations, and campaign within the limits stipulated by the executive authority. Such campaigns rarely produce results. The second option is to avoid good governance procedures or to avoid forming an NGO altogether. This option permits advocates to campaign in an effective way. However, it may weaken the credibility of the organization’s advocacy campaign and subject activists to criminal penalties.
The introduction of internal governance practices in Law No. 84 became a tool for government control rather than a means of strengthening the management and governance of NGOs. This produced an inverse relationship between the application of good governance practices and the ability to launch effective advocacy campaigns. Legislating internal governance practices, particularly to the extent of Law No. 84, is not appropriate in a regime that suppresses organized dissent. The rules that purport to promote good governance are bound to stifle political activity.
It should be noted that some people praise aspects of Law No. 84, including the ability to found human rights organizations and the lack of mandatory minimum criminal sentences. Some drafters in fact would have preferred harsher criminal penalties.
Nevertheless, the law should be revised to eliminate the three main features that impede NGOs: the excessive power of the regulatory authority, the ambiguities in the law, and the criminal penalties. To achieve democracy, Egypt needs more legislative changes in the political realm that parallel its economic liberalizations. 57
There is a national demand to change the civil society law in Egypt, but CSOs are generally avoiding the topic. They are not bringing legal challenges to Law No. 84 or any of its articles, forming assemblies to work on changing the law, or proposing alternative legislation. CSOs will be all the more successful at advocating for their individual causes once they take on the task of modifying Egypt’s NGO law.
V. Findings and Recommendations
Based on the foregoing analysis, we conclude the following.
1. Egyptian CSOs should campaign for an improved NGO law, one that will allow organizations to advocate effectively while maintaining good internal governance procedures. A new civil society law should provide a balance between appropriate oversight and freedom of association. Such a law should include provisions that accomplish the following objectives:
- Permit NGOS to receive donations and grants from abroad without prior permission from the government. The government may still wish to monitor foreign funding through oversight and reporting procedures, but it no longer would have the discretion to interrupt CSO activities.
- Remove government intrusion into internal governance procedures of organizations. Officers and directors of associations should be free to adopt good governance practices that make them accountable to their members. The government should not interfere in the internal governance of associations by attending meetings, reviewing agendas, reading minutes, or approving board candidates.
- Leave room for CSOs to create and adopt their own internal governance and accountability procedures. If the government takes a step back, organizations are likely to institute procedures on their own that enhance their credibility with their members, without subjecting themselves to government retribution. Moreover, organizations should have the freedom to amend internal statutes without the state attempting to influence how they operate.
- Assign the judiciary as a mediator between the supervising authority and civil society. No party may take final legal action against the other unless through the judicial authority. The Ministry of Social Affairs could not deny registration, restrict board members, block activities or funding, or impose criminal penalties unilaterally. Civil society groups would be free to appeal decisions of the Ministry to an impartial court of law.
- Clearly define concepts, terms, and procedures to be followed by civil society. Ambiguity allows for unfettered government discretion in interpreting the law and vests too much power in the regulatory authority. Moreover, the law must be clearly written so that it cannot be manipulated to stifle views that are unpopular with the government.
- Allow for penalties in proportion with violations and attributed to the wrongdoer. Penalties for violations of the law should not deter participation in civil society organizations.
2. The state uses NGOs as a façade, to create a false image. Egypt talks of 15,000 NGOs working freely inside its borders, to demonstrate that it has taken large steps towards democracy and progressed on human rights issues. In reality, organizations function only to the extent that they fit within a plan set by the state. NGOs cannot escape this plan, whether they were founded by individuals or collective initiatives to serve communities. Egypt should be true to its promises to promote democracy and allow CSOs the freedom to operate regardless of their political views.
3. The international community has a role to play in improving civil society in Egypt and other Arab countries. At a 1999 a workshop of legal experts and Arab civil activists in Amman, participants established a set of principles. 58 Advancing the following principles would improve the climate for civil society in Egypt:
- The international community should create a global body to enforce the freedom of association. When bilateral relationships are used to pressure the Egyptian government and others on human rights issues, the influence is often perceived as inappropriate political pressure and causes great sensitivity. This intrusion allows regressive forces (religious or governmental) to position themselves as defenders of the home country against external interference, 59 while civil society is portrayed as an agent of foreigners. It would be far more effective for pressure to come from an international, multi-party framework, without the dominance of any particular countries, and with its own decision-making procedures – in other words, globalizing the freedom of civil society and human rights.
- The international community should support a social welfare agenda in which CSOs are central. International society must show more encouragement and interest in developing a meaningful social welfare agenda, including creating more independent, non-governmental funding sources for CSOs. This would enhance the credibility of CSOs and help protect individuals hurt during economic transition.
- CSOs should not be grouped with terrorists and money launderers. The international community should not buy into government propaganda that portrays civil society as an opaque sector, a haven for terrorism and money laundering, or a mouthpiece for foreign governments.
- Donors must not punish CSOs for unfavorable political developments in their countries. Rather, the CSOs should be treated as partners with constructive roles to play. The international community should perceive the separation of civil society and government, recognizing that the two often pursue different agendas. Relationships between donor institutions and recipients should be insulated from political developments. The most prominent example is the decision of many donors to cut financial aid to civil society organizations in Palestine after the Hamas Movement won the election. The withholding of funds was perceived as a mass punishment, which will have dramatic and long-lasting influence on civil society all over the world. This action undermines the credibility of civil society and weakens it relative to other groups, including extremists. In such circumstances, civil society organizations are in a dire need for support.
- In the midst of global threats of terrorism and violence, governments must stay true to their democratic principles and their commitments to uphold individual rights. Countries all over the world are backsliding. In developing countries, this can take the form of mass arrests, as have occurred in Egypt. Developed countries as well have failed to uphold individual rights. Economic and social rights, as in the French Labor Law, have been abridged. So have civil liberties in the United States. The two realms are interdependent. Without a democratic, liberal society, no meaningful, influential civil society can develop. Without an active civil society, democratic gains will be modest and fragile.
1 Mohamed Agati is Executive Manager of the Development Support Center for Consultancy and Training, based in Cairo, Egypt. Mr. Agati was a Middle East Senior Research Fellow during summer 2006 at the International Center for Not-for-Profit Law (ICNL). This article was edited by ICNL staff.
2 For more information, see http://www.dscegypt.org/ar/partnersprofile.shtml#NWF.
4 Amir Salem, Legal Framework of Civil Society, Egypt as a Case Study, Organizing Association in Arab States, Benian program/ WB, Lebanon, 172.
6 Farid Zahran, “New Civil Associations Law and the Current Political Times,” Al-Ahram Newspaper (July 23, 2002).
8 Pakinam Amer, Brotherhood Speaks Out on Renewal of Emergency Laws, The Daily Star Egypt (May 4, 2006), available at http://www.dailystaregypt.com/article.aspx?ArticleID=1372.
9 Alaa Shokrallah, Mohamed Agati, Current ProblemsiIn Civil Association Work in Egypt, Civil Society’s Future, Medhat Al-Zahed, 58 (Development Support Center/ Al-Fostat Center, Cairo, 2003).
10 See Alfin Toffler, “The Third Wave” (William Morrow & Co., 1980).
11 Many papers have been written on these developments; see, e.g., the works of Amir Salem, Ahmed Seif, and the Egyptian Organization for Human Rights.
12 Amany Qandil, Modernizing Associations and Modernizing Egypt, Al-Ahram (December 26, 2002).
13 Basma Kodmani, The Dangers of Political Exclusion: Egypt’s Islamist Problem (Carnegie Papers, 2005), 9 .
15 Id. at 18.
16 Interview with AHED. Notes on file with the author.
17 See, e.g., “Egyptian Court Strikes Down Controversial Law,” International Journal of Not-for-Profit Law (Vol. 2, Iss. 4, July 2004), available athttp://www.icnl.org/journal/vol2iss4/cr_mideast.htm.
18 For example, the Law on Media and the Election Law received wide local and international press coverage.
19 In first preparing Law No 153, the government entered a prolonged debate with the CSOs, in which several joint committees were formed. To the CSOs’ surprise, though, a different law was submitted to the people’s assembly.
20 Interview with AHED. Notes on file with the author.
21 This is confirmed by the author’s interviews with Egyptian CSOs, all of which confirmed that they were unaware of many of the details of the law.
22 Interview with the Minister of Social Affairs, Al-Ahram Newspaper (12 June 2002).
24 Interview with the Minister of Social Affairs, Al-Ahram Newspaper (12 June 2002).
26 “The Minister of Social Affairs Approves the New Law for NGOs,” Al-Ahram Newspaper (6 March 2002).
27 Article 55 of the Constitution of the Republic of Egypt guarantees the “right to form societies” and Article 56 guarantees the “right to form syndicates and unions.”
28 Egypt is a signatory to the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social, and Cultural Rights.
29 For more information, see Farid Zahran, New Civil Associations Law and the Current Political Times, Al-Ahram, July 23, 2002.
30 For more information, see Hisham Mubarak Law Center, Facts of Shutting Down New Woman Institution (2004).
31 The author was a participant in both of these events and knows firsthand that the activities were halted by the government.
32 Democracy Defense Committee Report, Al-Ahaly (February 7, 2003).
33 Negad Al-Bora’ai, The Guillotine and The Pit, Freedom of Expression in Egypt 2002-2003: Problems and Solutions (United Groups, Cairo, 2004), 265.
34 “Interview with a Feminist Activist,” Sot Al-Ommah, March 17, 2003.
35 Human Rights Watch, Margin of Repression – State Limits on NGO Activism, July 2005.
37 Similar deterrents to citizen participation exist in the Political Parties Law passed in June 2005.
38 International Center for Not-for-Profit Law, Recent Laws and Legislative Proposals to Restrict Civil Society and Civil Society Organizations, 8 International Journal of Not-for-Profit Law 4 (August 2006), available at http://www.icnl.org/knowledge/ijnl/vol8iss4/art_1.htm.
41 ICNL based its typology of the nine legal obstacles on a survey of country practices from around the world. The study considers practices as obstacles to freedom of association to the extent they violate established international norms, including the International Covenant on Civil and Political Rights and the International Covenant on Economic Social and Cultural Rights. Id. Egypt is a signatory to both of these treaties.
42 Id. at §2(A)(1).
43 Id. at §2(B).
44 Id. at §2(C).
45 Id. at §2(G).
46 Id. at §2(H).
47 Gordon Crawford, Foreign Aid Political Conditionality: Issues of Effectiveness and Consistency, vol. 4, No. 3 (1997), 69.
48 Alaa Shokrallah, Leadership and Good Governance in Civil Society, A Training Manual, Development Support Center and the Arab Group for Good Governance, p.21 (Cairo, 2005).
49 Amany Qandil, Modernizing Associations and Modernizing Egypt, Al-Ahram, December 26, 2002.
50 United Nations Development Program, Arab Human Development Report 2002, 105.
51 Id. at 107.
53 Dr. Amany Qandil, Civil Society and Social Change, Al-Ahram Center for Political and Strategic Studies (Cairo 1998), 67.
54 A Verdict by the Administrative Cause Court, 2nd Circle, in case No 9585 Judicial Year No 58, December 25, 2005.
55 Interview with employees of the New Women Foundation. Notes on file with the author.
56 Interviews with the New Woman Foundation and the Hisham Mubarak Law Center. Notes on file with the author.
57 Basma Kodmani, 21.
58 Civil Association Regulation in Arab World, 9.
59 Bassma Kodmani, at FN 9, p. 20.