II. The Legal Framework for Associations

Moroccan law

Morocco's constitution in article 9 guarantees freedom of association.[9] In 1979 Morocco ratified without reservation the International Covenant on Civil and Political Rights, which guarantees, in article 22, "Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests."

The establishment and functioning of associations in Morocco is governed by a 1958 decree, dhahir 1-58-376. This law affirms the right of persons to form associations "freely and without authorization in conformity with the provisions of article 5."

Article 5 begins by stating, "Every association must declare itself to local authorities in the jurisdiction where the association's headquarters are located." Thus, associations are required to register, although Moroccan law does not sanction individuals merely for belonging to, or acting within, an association that has not declared itself to the authorities. The law does, however, penalize activities conducted on behalf of an association that has not respected the formalities specified in article 5, when such activities involve certain financial or real property transactions (for this and other consequences of being considered "undeclared," see chapter III of this report).

Procedures for declaring an association and maintaining its declared status

Article 5 sets forth the procedure for declaring an association and maintaining its declared status. It involves furnishing authorities a list of specified documents about the association (including its bylaws and objectives, its address, and photocopies of the identity cards of members of the executive bureau) and then waiting up to 60 days.

Article 5 states that upon receiving the required documents from a representative of the association, the local administrative authority issues a provisional receipt that is stamped and dated. The law states that the local authority is to issue the provisional receipt "on the spot"; it gives the authority no discretion to refuse to accept the documents or to refuse to issue a provisional receipt for them. The provisional receipt is the key enabling document: Within the 60 days the authorities may formally authorize the association to begin operating by issuing a final receipt for its documentation. At the end of the 60-day period an association possessing a provisional receipt can also operate legally if, absent a final receipt, state authorities have not opposed the association's declaration (see below).

Administrative obstruction of the declaration process

The most commonly reported form of abuse occurs when local administrative authorities, who are employees of the Ministry of Interior, refuse to receive an association's founding documents, or accept these documents but refuse to issue the provisional receipt confirming the place and date of their submission. Without a dated receipt, an association cannot prove that it submitted its founding documents in compliance with the law, and hence cannot establish the expiry of the 60 days post-submission when, absent a ruling against declaration, it should become free to operate. Some associations argue that, according to their reading of the law, as long as they made a good faith effort to file their required founding papers and authorities did not object within 60 days, they are legal. However, members of several associations have told us that officials insist that associations that cannot produce either a provisional or a final receipt are not legally constituted, and treat them as such.

An association can challenge in the administrative court a local authority's refusal to receive documents or issue a receipt. However, the administrative court cannot force authorities to behave differently, as it has no enforcement powers; it can only rule that administrative authorities exceeded their powers and order payment of damages to an injured party. Thus, a ruling in the administrative court in favor of an association does not necessarily lead to it getting its documents accepted or a receipt issued. This was the case with two of the organizations featured in the case studies in chapter IV-the ASVDH and the Union of Promotion Nationale Workers in al-Ayoun.

Obstacles when existing associations file updated declarations

The problem of administrative obstruction arises not only at the time of an organization's founding but also at other times when it is required to notify authorities in writing of specific internal developments. The law on associations requires in article 5 that an association formally notify authorities in writing, within 30 days, of such developments as a change to the composition of its leadership body or administration, amendments to its statutes or bylaws, or the creation of branches or chapters. An association also must inform authorities if it decides to keep in place, rather than replace, office-holders upon the expiry of their terms as stipulated in the association's bylaws. The authority receiving such notification is supposed to issue a stamped and dated receipt for it, but the notification requirement has become another occasion for authorities to exercise further pressure on the association by refusing either to accept the written notification or refusing to issue a receipt.

Legal grounds for refusing or withdrawing legal recognition

By law the local authority has no role in evaluating and determining the eligibility of an association that seeks to declare itself. Rather, it should simply forward a copy of the file of founding documents to the office of the state attorney (le parquet) at the court that has geographic jurisdiction. It is the state attorney who may, "if warranted," issue an "opinion" on the association's founding document. Opposition by the state attorneywithin the 60-day period means that the association is not legally declared. Its members can appeal that opposition to the administrative court. The limitations of that option are the same as when appealing in court the administration's refusal to receive documents or failure to issue a receipt, noted above.

Article 3 of the law on associations defines types of associations that may not exist legally: "Any association is void if it is founded on a cause or with an objective that is illegal, contrary to good morals or that aims to undermine the Islamic religion, the integrity of national territory, or the monarchical regime, or that calls for discrimination."

Article 3's enumeration of prohibited objectives conflicts with Morocco's obligations under the ICCPR, which in article 22 states, "No restrictions may be placed on the exercise of [the right of association] 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 of others." These article 22 restrictions should be interpreted narrowly. For example, terms such as "national security" and "public safety" refer to situations involving an immediate and violent threat to the nation, which should not be confused with situations that threaten only the continuance in power of those who presently govern the country. "Necessary" restrictions must be proportionate: that is, they must be no more broad in scope than is strictly necessary to address the specific reason for their being put in place.

Moreover, when restricting the right of association, the burden falls on the authorities to demonstrate that the measure is both justified and proportionate.[10]

The permitted limitations to the right of association under ICCPR article 22 are in any event far narrower in scope than the broad concepts that form the basis in Moroccan law for banning an association, and that lend themselves to all kinds of politically self-serving interpretations by authorities. For example, the government refused to allow a Sahrawi human rights organization, the Collective of Sahrawi Human Rights Defenders (CODESA) to declare its creation on the grounds that its focus on the rights of Sahrawis constituted an illegal call for discrimination (see case study in chapter IV). An association that favors a secular Morocco could be seen as undermining Islam; one that favors independence for Western Sahara could be seen as undermining the integrity of national territory; and one that advocates redistribution of power in Morocco so as to reduce the king's prerogatives could be seen as undermining the monarchy.

Once an association has obtained its final receipt, or 60 days have passed without a ruling against recognition, the association can only be dissolved by order of a court of first instance, according to article 7 of the law on associations. Article 36 states that "any association that conducts activities other than those provided for by its statutes can be dissolved" and its leaders subject to fines. Authorities in 2003 successfully petitioned a court of first instance in al-Ayoun to dissolve a Sahrawi human rights organization, the Forum for Truth and Justice – Sahara section, on the grounds, among others, that its activities were harmful to Morocco's "territorial integrity."[11]

Absence of explicit reasons for blocking recognition

A problem with the law on associations itself is that it does not require that state authorities provide a reason when they refuse an association legal recognition. Morocco does have a law that, more generally, requires authorities to state the justification behind any individual administrative decision that disfavors an interested party.[12] In practice, however, they do not always furnish an explanation. As described in one of the chapter IV case studies, below, authorities formally objected to the creation of the Assa section of the Amazigh Network for Citizenship without stating the reasons.

It is a prerequisite to the enjoyment of the right to an effective remedy under international human rights law that a person or an entity with legal personality is able to know the reason for the authorities interfering in any of their rights (in this case freedom of association). Only if the harmed party knows the basis for the refusal can that party effectively challenge that refusal in court. Therefore authorities should ensure that any refusal to recognize an association comes with a substantive justification for that refusal.

It is hard to tell how often authorities use article 3 and article 36 criteria when opposing an association's right to exist. This is because it is less common for authorities to formally oppose the creation of an association, or to seek its dissolution in court, than it is for authorities to consign an association to legal limbo by refusing to take the association's documents or to issue a receipt for them. In those two latter scenarios, authorities rarely provide a motive for depriving the association of its right to declare itself legally.