New Associations Law in the Works is a Potential Way Out
March 7, 2012

Egypt’s judges have in the past protected nongovernmental groups and dismissed politicized charges against dissidents. This is an opportunity to end a politicized saga by throwing out the case while parliament drafts a new law that will decriminalize peaceful activity by nongovernmental groups.

Joe Stork, deputy Middle East and North Africa director at Human Rights Watch

(New York) – The Egyptian authorities should drop the charges against 43 workers with nongovernmental organizations who are charged with operating “unlicensed” groups under a repressive law, Human Rights Watch said today.

The trial before the South Cairo Criminal Court is scheduled to re-open on March 8, 2012, after the previous panel of judges recused itself and the appeals court president referred the case to a new circuit. In the meantime, the Egyptian parliament is drafting a new law governing nongovernmental organizations to replace the Mubarak-era law, which grants the government excessive powers to regulate and restrict these groups.

“Egypt’s judges have in the past protected nongovernmental groups and dismissed politicized charges against dissidents,” said Joe Stork, deputy Middle East and North Africa director at Human Rights Watch. “This is an opportunity to end a politicized saga by throwing out the case while parliament drafts a new law that will decriminalize peaceful activity by nongovernmental groups.”

The lifting of the travel ban against foreign nationals accused in the current trial has caused an outcry in Egypt, with contentions by parliament members that there was executive interference. But that should not be grounds to punish the workers, Human Rights Watch said.

The investigation of the groups on trial, along with dozens of other Egyptian human rights organizations, was first initiated by the international cooperation minister, Faiza Abul Naga. The cabinet ordered an investigation into groups not registered under Egypt’s Law 84/2002 on associations. The referral to court came after four months of investigations led by investigative judges Sameh Abu Zeid and Ashraf Ashmawy, both former prosecutors in the special State Security courts created under the emergency law imposed in Egypt for the last three decades.

The trial of 43 NGO workers, 16 Egyptians and 27 foreign nationals, opened on February 26 before the North Cairo Criminal Court. The two investigative judges had ordered a travel ban on the 16 foreign nationals who were in Egypt at that time. The other 11 were out of the country.

Two days after the trial opened, the panel of judges recused themselves, with Presiding Judge Mohamad Shoukry explaining only that there was “uneasiness” with the case. The next day, the state MENA news agency announced that all of the travel bans had been lifted.

The investigating judges brought charges under article 98(c)(1) of Egypt’s penal code, which states: “Anyone who creates or establishes or manages an association or organization or institution of any kind of an international character or a branch of an international organization without a license in the Egyptian Republic shall be punished with imprisonment for a period of not more than 6 months or with a fine of 500 EGP [US$82].” The defendants were also charged with receiving funds without authorization, which can carry a penalty of up to five years in prison.

The notorious 2002 Law 84 on Associations  impedes the right of Egyptians to operate independent associations. It gives the government broad leeway to refuse or withhold licenses and to otherwise intervene in the registration, governance, and functioning of nongovernmental organizations. Reforming the associations law has been a long-term demand of Egyptian civil society.

“Under Mubarak the government and security agencies would frequently accuse NGO workers of espionage or threatening national security or unity to de-legitimize them,” Stork said. “The smear campaign by Egyptian officials played out in the state media over the past months is further confirmation that not very much has changed in Egypt.”

The announcement that the travel ban had been lifted on the foreign workers caused an outcry in parliament, since Egyptian law appears to state that only the presiding judge in the case can make a determination on lifting a travel ban once prosecutors or investigative judges have referred a case to court. This would mean that since the panel of judges had recused themselves, only the next appointed panel of judges would have the right to make that decision. The following day seven Americans, two Germans, three Serbs, one Norwegian, and one Palestinian left the country.

Committees in both the upper and lower houses of parliament debated the issue, with some members calling for an investigation and claiming the travel ban lift came about as a result of executive interference. Parliament convened emergency sessions on March 6 to question cabinet ministers about how the ban came to be lifted and has scheduled a hearing on March 11 to question the prime minister.

“At a time when Egyptians need to have faith in their judiciary, it is vital that judges are, and are seen to be, independent of the executive,” Stork said. “But this doesn’t change the fact that no one should be prosecuted under Mubarak-era laws that violate the right to freedom of association.”

Under Egyptian law, the foreign nationals accused in this case can be tried in absentia and will be automatically convicted because of the failure to appear in court. Judges usually impose the maximum sentence. Article 388 of the Law of Criminal Procedure explicitly denies a defendant being tried in absentia the right to be represented at the trial. A lawyer is only allowed to represent such a defendant for the limited purpose of explaining the person’s absence and arranging an in-court appearance. If the defendants return to Egypt, the sentence cannot be implemented until they are retried by other judges.

International law looks with disfavor on, but does not absolutely prohibit, trials in absentia. National systems that maintain the practice should, at a minimum, institute procedural safeguards to ensure the defendant’s basic rights, Human Rights Watch said. These include the right to representation in their absence and the automatic reopening of the trial if notice was not served personally to the defendant or if the notice was otherwise inadequate.

The criminal investigation of the NGO workers began last July and was based on Law 84. Under Mubarak, the government had declined to register most independent human rights and democracy organizations, usually based on a veto by security agencies. Most recently, during their August 2, 2011 press conference, investigative judges Ashmawy and Abu Zeid said that the registration of the international NGOs on trial had previously been rejected by the National Security Agency of the Ministry of Interior and Egyptian intelligence but these organizations continued working despite that fact, thereby confirming the role of security agencies in determining which NGOs could operate legally.

Drafting a new Associations Law is on the legislative agenda of the People’s Assembly Human Rights Committee, which has held two sessions – that government officials and representatives of human rights NGOs attended – to discuss the law. The committee is currently reviewing a number of draft associations laws submitted by NGOs and political parties, and is working on a draft to submit to members for debate in the next few weeks.

In February 2010 Egypt had its first Universal Periodic Review before the United Nations Human Rights Council. The Mubarak government at the time accepted four recommendations to reform Law 84/200,2, including a recommendation to “[r]evise the procedures governing registration of civil society organizations to ensure transparent, non-discriminatory, expeditious and affordable procedures that conform to international human rights standards.”

“The Mubarak government’s acceptance of the need to reform Law 84 shows recognition of the repressive nature of the law.” Stork said. “This law should never have been enforced after the overthrow of Mubarak and should not be enforced now until a new law is adopted that respects basic rights.”