The Euro-Mediterranean Human Rights Network (EMHRN) and its member organisations in Algeria – the Action Group of Families of the Disappeared in Algeria (Collectif des Familles de Disparus en Algérie, CFDA) and the Algerian Human Rights League (Ligue Algérienne pour la défense des droits de l’Homme, LADDH) – believe that the proposed legislation on associations does not guarantee the rights of Algerian associations as set out in the international treaties ratified by Algeria, recalling that under the Algerian Constitution, these treaties have precedence over national legislation.

Memorandum
Review of the Proposed Legislation on Associations

The Euro-Mediterranean Human Rights Network (EMHRN) and its member organisations in Algeria – the Action Group of Families of the Disappeared in Algeria (Collectif des Familles de Disparus en Algérie, CFDA) and the Algerian Human Rights League (Ligue Algérienne pour la défense des droits de l’Homme, LADDH) – believe that the proposed legislation on associations does not guarantee the rights of Algerian associations as set out in the international treaties ratified by Algeria, recalling that under the Algerian Constitution, these treaties have precedence over national legislation. Our concerns, developed in greater detail in the memorandum that follows, are centred around five major points: 1) the fact that prior authorisation is required for establishing an association; 2) restrictions on the funding of associations; 3) restrictions on cooperation with foreign NGOs; 4) regulations governing the operation of foreign NGOs; and 5) the very broad criteria governing the suspension or dissolution of associations.

1) To set up an NGO, it will no longer be sufficient to meet the formal conditions governing the registration of associations. The establishment of associations will no longer be a matter of simply notifying the authorities but from now on will be subject to prior approval by the government. While this practice was already widely applied by the administrative authorities, its entrenchment in law now gives these authorities greater power while failing to guarantee that NGOs will be governed by independent, impartial regulations.

The proposed legislation states that the authorities can refuse to register an association whose purpose or goals are deemed ‘contrary to public order, public morality and the provisions of existing laws and regulations’. In concrete terms, there are reasons to fear that these vague criteria will allow the bureaucracy to block the registration of many human rights NGOs, women’s rights organisations seeking the repeal of the Family Code, and associations of families of victims of the 1990s civil war, such as SOS-Disparus, which has been advocating for truth and justice beyond what is provided for in the Charter for Peace and National Reconciliation.
If the government does not respond to an application, the association is deemed to be legally constituted. However, the proposed legislation adds that in the event that an association, after having been rejected by authorities, is able to win its case in front of a tribunal, the government has up to three months to nullify the recognition of the association. Not only does this prerogative conferred on the government create a very cumbersome procedure, but it gives the authorities the power to control the entire range of NGOs ex post facto.

In addition, the highly controversial article 45 of Law No. 90-31, which provides for prison sentences for leaders of an association that has not been approved, and which hangs like a sword above the heads of activists working in associations that have not received legal confirmation of their registration, has been retained in the proposed new legislation. While article 47 reduces the length of prison sentences, it considerably increases the amount of fines. It is also unfortunate that the provision of Law No. 90-31 that left the decision to choose between the two types of penalties to a judge, has now been eliminated.

And finally, while Law No. 90-31 stipulated that 15 founding members were needed to establish a new association – a cumbersome requirement in itself that the associations denounced at the Estates-General – the proposed new law is even more demanding, requiring: 10 members at the local (commune) level; 15 members for a wilaya-level organisation, who must be from at least three different communes; 21 members for a multi-wilaya organisation, who must be from at least three different wilayas; and 25 members from at least 12 wilayas for a national organisation. This even though, in practice, only two people are needed to form an association.

2) The proposed new law states that the financial resources of associations are made up of, among others, subsidies ‘granted’ by the state, the département or the commune. This particularly vague formulation raises concerns that the authorities could rely on a narrow interpretation of this provision to control all NGO funding at the source. Contrary to the current legislation, which allows Algerian associations to receive donations and bequests from foreign NGOs once their request has been approved by the authorities, the August 2011 proposal stipulates that, except in the case of duly established cooperation agreements, Algerian associations will be forbidden from receiving donations, grants, or any other type of contribution from any foreign mission or non-governmental organisation. If the proposed law is adopted in its current state, this means that associations would be deprived of a source of funding that is critical to their survival. In addition, by imposing a regime of so-called partnership agreements (signed by the foreign donor and the Solidarity Ministry, on the one hand, and by the beneficiary association, on the other), the government would grant itself additional control over the foreign funds of Algerian NGOs, and thus over their activities and their partners, allowing it to interfere in their internal affairs and their work.

At the same time, the language of article 21 of the proposed new law is vague and increases the level of control that was already present in Law No. 90-31. Under the new law, NGOs will be fined if they refuse to provide the information set out in articles 19 and 20. While article 19 reiterates provisions contained in Law No. 90-31, article 20 details the information that NGOs must supply to the government after each general assembly (minutes of meetings, activities report, financial report), giving it greater control over their activities.

3) The provisions of article 21 of the 1990 law, which stated that only national associations could become members of international NGOs and that any such membership required prior approval by the Interior Ministry, have been amended. Under the proposed law, all associations that have been approved may join foreign NGOs, but the Interior Minister must be informed of this decision beforehand, and the Foreign Ministry must also give its opinion on the matter. In addition, the Interior Minister has 60 days to oppose membership of an Algerian association in an international organisation. The proposed legislation also states that cooperation within a partnership with foreign or international NGOs must be pre-approved by the government, whereas Law No. 90-31 did not require pre-approval.

4) Another source of concern has to do with the fact that foreign NGOs – that is, associations whose headquarters are based abroad or, if based in Algeria, that are partly or completely headed by foreigners – are subject to a different regime than Algerian associations. First, the proposed law gives the government 90 days to grant or refuse its approval in their case, whereas only 60 days are needed for national associations.

Second, the proposed legislation states that a request for recognition submitted by a foreign NGO must have as an objective the implementation of the provisions contained in an agreement signed between the Algerian government and the government of the country of origin of the foreign association – that is, to promote friendly relations and brotherhood between the Algerian people and the people of the other country. This is tantamount to giving the government the right to decide what activities foreign associations may perform. The next article of the new law raises the stakes by stipulating that the agreement may be suspended or terminated if the foreign association clearly interferes in the affairs of the host country or performs activities that violate national sovereignty, the established institutional order, national unity, the integrity of the national territory, public order and morality, or the ‘civilisational values’ of the Algerian people. This very vague language restricts freedom of association even further, highlighting a determination to silence any criticism made by foreign NGOs.

The funding provided by foreign associations is also targeted. The proposed law states that a ceiling may be imposed on the amount of funding that can be received.

5) On the subject of the suspension and dissolution of associations, the procedure set out in the new law results in a stringent restriction of freedom of association. An association may see its activities suspended or may be dissolved if it interferes in the internal affairs of the country or violates national sovereignty. This very vaguely worded provision, if adopted in its current state, will suppress the ability of associations to review, criticise, and monitor the state in the conduct of its public policy, although this is a primary condition for the operation of any democracy. Our associations believe that all citizens, wherever they may live, have the right and the duty to be involved in the affairs of their country.

The proposed legislation states that an association may be dissolved if it has received funding from foreign missions or NGOs, or performs activities other than those stipulated in its statutes. The imprecise wording of this provision again raises concerns about an improper interpretation by the bureaucracy. It would have been more consistent with the liberal legislations in effect in other countries of the region to allow the dissolution of an association that pursued ‘objectives’ or ‘goals’ that are contrary to its statutes.

Even worse, a petition for the dissolution of an association may be submitted by a third party that has a conflict-of-interest with that association. For example, an association supported or even created by the government (a so-called GONGO, or government-operated NGO) could launch legal proceedings to prevent an independent NGO from carrying out its activities.
With regard to the procedure for suspending an association, the proposed law nullifies a valuable legal precedent. Whereas, since 1990, a judge’s decision was needed to suspend an association, this safeguard is no longer present under the new legislation and all that would be needed is an administrative decision to suspend the activities of an association if they are deemed to circumvent certain provisions of the law – without specifying the provisions in question.

Finally, contrary to the recommendation of the United Nations Special Rapporteur on human rights defenders that ‘in the event of the adoption of a new law, all previously registered NGOs should be considered as continuing to operate legally and be provided with accelerated procedures to update their registration, article 70 provides that associations duly constituted under Law No. 90/31 must now comply with the law by submitting new statutes that are in accordance with the law. This puts in jeopardy all the NGOs that were established under the previous legislation.

For more information, go to: http://www.euromedrights.org/en/news-en/emhrn-releases/emhrn-statements-...