Disclaimer: This analysis is based on the most recent version of the NGO draft law. Some provisions are still under discussion.
The latest semi-final NGO draft Law begins with an ambitious mission statement explicitly describing the purpose of the Law as "encouraging the establishment of NGOs and supporting their participation in formulation, execution and monitoring of sustainable development plans, promotion of volunteerism and strengthening of democracy and governance." To my surprise, it reflects a positive paradigm shift in the government's approach towards Egyptian civil society and foreign NGOs (FNGOs) operating in Egypt.
I was walking on air when I read the draft because it is nothing like its Muslim Brotherhood's predecessor. But it does not mean that the draft is not flawed. The devil is always always in the details. The bill is being drafted by a Task Force formed by the Ministry of Social Solidarity and comprised of representatives from leading Egyptian NGOs and relevant government authorities.The current draft addresses most of the shortcomings of Law no. 84 of 2002 on NGOs that caused the catastrophic fiasco of shutting down 5 FNGOs and sentencing their Egyptian and foreign staff to prison; some with stay of execution; others without in what has become to be known as "The Foreign Funding Case - NGO Trial".
Under this version of the NGO bill, foreign and Egyptian NGOs receive the same treatment in some aspects and different in others. At one point, the draft seems to unshackle the work and presence of foreign NGOs in Egypt; but to the expert eye, some clauses are ambiguous or general that may allow the authorities to stifle FNGOs. Following is detailed analysis of how Foreign NGOs are treated and potential consequences:
FNGO Registration
The Bill establishes a Higher Committee (HC), chaired by the Minister of Social Solidarity and with the membership of representatives from the Ministry of Foreign Affairs. HC is mandated to process and approve/disapprove registration applications of FNGOs. A technical secretariat is to be established by a decree from the Minister of Social Solidarity to assist HC. The bill gives HC the right to "seek the advice of whomever it deems appropriate", which implicitly opens the door for the involvement of security authorities. The draft law fails to describe who are the members sitting on the Technical Secretariat which could be anyone selected by MOSS for this matter.
In order for FNGO to register a branch or a representative office, it must submit, to HC, a registration request supported by documentation. The Executive Regulations, to be issued by MOSS, will set forth what documents to attach to the application.
Once the FNGO submits the application and supporting documents; it will receive a receipt confirming submission and establishing the date thereof. HC is mandated to respond within nonrenewable 60 days as of the date of submission to the request. Failure to do so, is deemed approval. After the lapse of the 60 days, the receipt will be considered a legal document whereby the FNGO can open a bank account.
If HC rejects the application, the bill stipulates that reasons must be given and restricts them to "disruption of public security, order, health and morality". The bill even goes further than that by obligating HC to describe how the FNGO's activity will cause any of the aforementioned consequences. FNGO may challenge HC's rejection decision within 60 days and the court decides within 60 days as of the date of the first scheduled session.
Article 90 of the Foreign NGO Chapter is attempting to ensure no arbitrary rejections are made based on unfounded claims like destabilizing the country, threatening national security or jeopardizing public morality.
Accountability - Disclosure
FNGOs are required under this bill to submit to MOSS the following:
The issue of NGO funding, especially from foreign sources, has been a controversial one. However, this version of the NGO draft law seeks to establish a streamlined mechanism to encourage NGOs to solicit funding. It abolishes the ex-ante approval condition and replaces it with an ex-post disclosure.
Foreign and Egyptian NGOs are allowed, under Article 19 of this bill, to receive funding, grants and endowments from natural or juridical persons; Egyptians or foreigners residing in Egypt. NGOs will be able to "accept and receive funding and grants from natural and juridical persons, Egyptians and non-resident foreigners". However, NGOs and FNGOs are required to notify MOSS within 30 days as of the date of receiving the funds in their bank accounts. MoSS has the right to object within the following 30 days by submitting an injunction to the competent court specifying the reasons for its objection. If MoSS fails to respond within the aforementioned 30 days, it will be deemed an implicit approval.
With regard to collection of donations from the public, NGOs must take a 1-year prior permission, renewable.
Activities
The draft has only specified the type of activities that are not permitted for both Egyptian and foreign NGOs. It provided an exhaustive list of outlawed activities. NGOs are prohibited to undertake any of the following:
The latest semi-final NGO draft Law begins with an ambitious mission statement explicitly describing the purpose of the Law as "encouraging the establishment of NGOs and supporting their participation in formulation, execution and monitoring of sustainable development plans, promotion of volunteerism and strengthening of democracy and governance." To my surprise, it reflects a positive paradigm shift in the government's approach towards Egyptian civil society and foreign NGOs (FNGOs) operating in Egypt.
I was walking on air when I read the draft because it is nothing like its Muslim Brotherhood's predecessor. But it does not mean that the draft is not flawed. The devil is always always in the details. The bill is being drafted by a Task Force formed by the Ministry of Social Solidarity and comprised of representatives from leading Egyptian NGOs and relevant government authorities.The current draft addresses most of the shortcomings of Law no. 84 of 2002 on NGOs that caused the catastrophic fiasco of shutting down 5 FNGOs and sentencing their Egyptian and foreign staff to prison; some with stay of execution; others without in what has become to be known as "The Foreign Funding Case - NGO Trial".
Under this version of the NGO bill, foreign and Egyptian NGOs receive the same treatment in some aspects and different in others. At one point, the draft seems to unshackle the work and presence of foreign NGOs in Egypt; but to the expert eye, some clauses are ambiguous or general that may allow the authorities to stifle FNGOs. Following is detailed analysis of how Foreign NGOs are treated and potential consequences:
FNGO Registration
The Bill establishes a Higher Committee (HC), chaired by the Minister of Social Solidarity and with the membership of representatives from the Ministry of Foreign Affairs. HC is mandated to process and approve/disapprove registration applications of FNGOs. A technical secretariat is to be established by a decree from the Minister of Social Solidarity to assist HC. The bill gives HC the right to "seek the advice of whomever it deems appropriate", which implicitly opens the door for the involvement of security authorities. The draft law fails to describe who are the members sitting on the Technical Secretariat which could be anyone selected by MOSS for this matter.
In order for FNGO to register a branch or a representative office, it must submit, to HC, a registration request supported by documentation. The Executive Regulations, to be issued by MOSS, will set forth what documents to attach to the application.
Once the FNGO submits the application and supporting documents; it will receive a receipt confirming submission and establishing the date thereof. HC is mandated to respond within nonrenewable 60 days as of the date of submission to the request. Failure to do so, is deemed approval. After the lapse of the 60 days, the receipt will be considered a legal document whereby the FNGO can open a bank account.
If HC rejects the application, the bill stipulates that reasons must be given and restricts them to "disruption of public security, order, health and morality". The bill even goes further than that by obligating HC to describe how the FNGO's activity will cause any of the aforementioned consequences. FNGO may challenge HC's rejection decision within 60 days and the court decides within 60 days as of the date of the first scheduled session.
Article 90 of the Foreign NGO Chapter is attempting to ensure no arbitrary rejections are made based on unfounded claims like destabilizing the country, threatening national security or jeopardizing public morality.
Accountability - Disclosure
FNGOs are required under this bill to submit to MOSS the following:
- Annual activity report.
- Auditing Report (the bill does not specify whether it is annual or semi-annual...etc.)
- Any reports or data requested by MOSS.
This third item is problematic if is left as ambiguous and generic as it is now. Imagine a FNGO working with victims of police brutality, human trafficking or gender-based and sexualized violence, and MOSS requested disclosure of names of those victims as part of its "due diligence" process; what could be the result?! Those victims will possible be exposed to retaliation by their torturers and/or traffickers. It can also dissuade victims from interacting or seeking protection with FNGOs if they feel their personal data can be disclosed and their lives may be in danger. And this is only one example of what an ambiguous provision like this can lead to.
FNGO Staff
Egyptian staff working for FNGO will be subject to the Egyptian Labor Code.
FNGO Branches and Offices
The bill allows ONLY registered FNGOs to rent and own offices without prejudice to other "relevant" laws.
Funding
The issue of NGO funding, especially from foreign sources, has been a controversial one. However, this version of the NGO draft law seeks to establish a streamlined mechanism to encourage NGOs to solicit funding. It abolishes the ex-ante approval condition and replaces it with an ex-post disclosure.
Foreign and Egyptian NGOs are allowed, under Article 19 of this bill, to receive funding, grants and endowments from natural or juridical persons; Egyptians or foreigners residing in Egypt. NGOs will be able to "accept and receive funding and grants from natural and juridical persons, Egyptians and non-resident foreigners". However, NGOs and FNGOs are required to notify MOSS within 30 days as of the date of receiving the funds in their bank accounts. MoSS has the right to object within the following 30 days by submitting an injunction to the competent court specifying the reasons for its objection. If MoSS fails to respond within the aforementioned 30 days, it will be deemed an implicit approval.
With regard to collection of donations from the public, NGOs must take a 1-year prior permission, renewable.
Activities
The draft has only specified the type of activities that are not permitted for both Egyptian and foreign NGOs. It provided an exhaustive list of outlawed activities. NGOs are prohibited to undertake any of the following:
- Establish militant groups or organizations of military character.
- Undertake for-profit activity whose purpose is not to develop or achieve the NGO’s purpose or such an activity that is not in compliance with the commercial controls to generate income to contribute in achieving a not-for-profit purpose.
- Take part in funding, support or promote electoral campaigns of any candidate running in the Presidential, parliamentary or municipal elections or party campaigning or provide financial support to political parties or their candidates or independent candidates or have a candidate running in any of the aforementioned elections in the name of the NGO.
- Undertake any activity calling for sectarianism, inciting hatred or discriminates against citizens based on sex, origin, color, language, religion, doctrine, disability or others in contradiction with the Constitution and Law.
Nonetheless, NGOs are allowed to express its views and
positions with regard to public affairs-related issues.
This quick analysis for the potential impact of the latest NGO draft law is meant to give a perspective on the Interim Government's attitude towards the role of civil society. Although the draft has several positive aspects, it still needs further improvements. Ambiguity of some clauses may cause misinterpretation or misunderstanding.
