Civil society plays a crucial role in pluralist and participatory democracies. Composed of non-governmental organisations and actors such as human rights groups, trade unions, and the media, civil society ensures participation of a wide range of stakeholders in policy and decision-making processes by putting pressure on, and cooperating with, the authorities at different levels. Nevertheless, its fundamental contribution to democratic debate is not fully recognised by many states, and the environment in which civil society operates has been progressively deteriorating in various parts of the world.
Particularly in countries where there is an erosion of the rule of law and fundamental rights, civil society activities are not just stifled by the laws overly regulating the formation and functioning of NGOs, but also deliberately targeted by the abuse of the criminal justice system and other measures at the disposal of the authorities. Where democratic institutions are weak, government actors freely delegitimise and criminalise civil society actors and human rights defenders (HRDs) and tighten their control over them through restrictive laws posing entry and/or operation barriers. The oppressive governments use similar tactics all over the world to silence legitimate criticism expressed by civil society actors and HRDs. This global trend is also very much felt by the civil society actors and HRDs in the Middle East and North Africa, where citizens have been actively asking for greater democratic participation and respect for fundamental rights for over a decade.
RESTRICTIVE AND OVERLY BUREAUCRATIC LEGAL REQUIREMENTS
One of the most commonly used tactics by governments is to drown civil society in overly restrictive and bureaucratic legal requirements in an attempt to render the work of HRDs ineffective. Indeed, the laws regulating civil society activities across the Middle East and North Africa remain hostile and provide a system of governmental control over such activities. For instance, in Egypt, Law no. 149 Regulating the Exercise of Civil Work, adopted in 2019 under the military regime, imposes significant limitations on formation, access to funding, cooperation with international entities, as well as internal governance of NGOs. Law no. 149 requires registration of all NGOs, including those who were registered under the previous law, and bans the activities of unregistered NGOs, which provides the authorities with the opportunity to pick the actors who are allowed to operate in the civic space. This also enables the government to portray unregistered groups as illegal actors refusing to comply with Egyptian laws. In reality, the process is not only burdensome and time-consuming but also allows the authorities to reject registration on the basis of broad criteria, which amounts to an authorisation system.
Once an NGO can surmount this entry barrier, its activities are also strictly regulated. They are limited to “the fields of societal development” (article 14), and approval of the authorities is needed for conducting essential civil society activities such as field research, opinion polls, and the publication of results (article 15(j)). Non-compliance with the above stated provisions may result in severe fines for individuals involved in those activities, suspension of the NGO’s activities, and even dissolution. Indeed, under the overly regulating conditions set by Law no. 149, it is impossible for an independent NGO to concentrate its resources on human rights activities and freely advocate against human rights violations and criticise the government without fear of retaliation.
Similarly, in Algeria, Law no. 12-06, relating to Associations adopted in 2012, severely restricts freedom of association and fails to respect Algeria’s international obligations. It requires the permission of the authorities for many essential activities and procedures, including formation, receiving foreign funding, and cooperating with foreign or international NGOs. It also sets forth measures such as suspension of activities, dissolution, fines, and prison sentences in case of non-compliance with these requirements.
ABUSE OF THE CRIMINAL JUSTICE SYSTEM
Judicial harassment and arbitrary detention of civil society actors and HRDs is another tool widely used by governments to hinder independent civil society’s work. For instance, the civic situation in Turkey has deteriorated since the attempted coup in July 2016 and the following two-year-long state of emergency period. Civil society actors and HRDs have been regularly demonised on the media, judicially harassed, and arbitrarily detained primarily on terrorism-related charges. A climate of fear, established by the abuse of the criminal justice system and increasing political control over the judiciary, has stifled civil society work at many levels. While the legislative framework is increasingly restraining their work, the major problem has long been the arbitrary and abusive implementation of laws.
The abuse of the criminal justice system goes hand-in-hand with the relentless smear campaigns against civil society actors and HRDs, associating them with “terrorists” and “foreign agents,” both on pro-government media and by government actors. Discrediting civil society and HRDs helps the authorities to justify the disproportionate use of criminal measures against them. On the other hand, as the stigmatisation and delegitimisation of civil society intensifies, more and more restrictive legal provisions are adopted, tightening the grip on civil society activities. Most significantly, in December 2020, a controversial bill came into force: Law no. 7262 on the Prevention of Financing of the Proliferation of Weapons of Mass Destruction. This law introduced several amendments with the potential to severely curb civil society activities and treats them as potential security threats. Among other measures, it allows the Minister of the Interior to suspend staff members and/or executives of civil society organisations who are being prosecuted on terrorism-related charges. In a context where an overwhelming majority of civil society actors are prosecuted over bogus charges, this provision can easily become a tool to disqualify critical actors from civil society work.
RESTRICTIONS ON ACCESS TO FUNDING
Finally, another major strategy commonly used to silence civil society is to drain its financial resources through restrictive legal provisions as well as by stigmatising and criminalising foreign funding. Going back to Law no. 149 of Egypt, it requires NGOs to notify the authorities within 30 days of the receipt of foreign funding; the authorities may then object to the funding without showing any specific grounds for such decisions. Failure to comply with these requirements may result in severe fines, suspension of activities, and dissolution of the organisation. Furthermore, article 78 of the Penal Code provides severe penalties for the act of receiving foreign funding “with the aim of harming national interest, national unity and independence, or public peace”.
The vague wording paves the way for abuse by deeming the funding of peaceful civil society activities as harmful to the country’s interests. Those acts are disproportionately punished by life sentence and severe fines, effectively deterring civil society actors from conducting their human rights work due to fears of retaliation. The infamous case no. 173 in Egypt, also known as the “foreign funding case,” is a shocking example of how far the authorities can go when it comes to labelling civil society work as a threat to so-called national interests. Numerous prominent civil society organisations have been targeted under this caselaw for their allegedly incriminating funding statuses; the assets of some organisations and their executives were frozen, travel bans were issued, and some organisations were dissolved.
In Algeria too, the authorities use elaborate strategies to restrict NGOs’ access to funding, in addition to express limitations requiring lengthy procedures for receiving foreign funding under the abovementioned Law no. 12-06. Registration of NGOs is subject to the permission of the authorities, and, in practice, they often fail to register independent NGOs in a timely manner. Many international donors, including the European Commission and foreign embassies, require legal status to enter into funding agreements; thus, denial of registration creates a major barrier for accessing funding to conduct vital human rights work. Indeed, many well-known human rights organisations, which were registered before Law 12-06, including Algerian League for Human Rights (Ligue Algérienne de défense des droits de l’Homme, LADDH) and Youth Action Rally (Rassemblement Action Jeunesse – RAJ) still haven’t been officially registered by the authorities.
The above mentioned examples are only a small glance into the restrictive and abusive practices used by the authorities to stifle civil society activities and silence independent voices in various parts of the world, including in the Middle East and North Africa. This global trend not only directly affects the civil society members and human rights defenders facing restrictions and harassment, but it also poses a larger risk to democratic debate by undermining the role of a civil society and silencing independent voices in public space. The international community should swiftly react to this worrying trend before it becomes the new normal. As members of this international community, we should all show solidarity and support for those who are under relentless harassment and who face immense risks just to defend basic human rights for all.
Nilsun Gürsoy is a lawyer qualified to practice in Turkey and a consultant, with a strong emphasis on human rights research and advocacy. In addition to civic space issues, her work also focuses on environmental and climate justice. She holds an LL.M. degree from Harvard Law School and an LL.B. degree from Galatasaray University.