On June 4, an Egyptian criminal court sentenced 43 people to prison on charges of membership in illegal organizations. It was a familiar scenario for anyone who worked on human rights under Hosni Mubarak, when activists regularly criticized the roundup of hundreds of Muslim Brotherhood members and their prosecution on the same charges. This time, however, the defendants were Egyptian and international staff of U.S. and German nongovernmental organizations. International law is clear on the issue: Membership in an unregistered organization should not in and of itself amount to a crime.
Yet the Egyptian presidency's latest draft of the new law governing NGOs would not prevent a repeat of the June 4 verdict. The presidency claims that the new draft law has no criminal penalties, yet this is misleading. The draft clearly states that the law's penalties would not supersede the harsher penalties in the penal code. By this means, the draft law incorporates the vague language of the penal code criminalizing "membership in an illegal organization," allowing staff of these organizations to be charged with a crime for simply going into the office.
The presidency's May 29 draft is better than an earlier horrific draft from the Justice Ministry, and the draft has improved somewhat over the past two months. The draft, however, is still deeply repressive and violates Egypt's international obligations. This is a technical, not a political, assessment. The key test of an association law is whether organizations will be able to operate freely, without interference from the executive, and independently, with access to funding to enable their survival.
I have followed the passage of this NGO law for two years. Initially, I was cautiously optimistic because the first draft produced in April 2012 by the Freedom and Justice Party, the Muslim Brotherhood's political party, was relatively liberal. By this February, however, when the party submitted its new draft eight months into President Mohamed Morsy's rule, it became clear that the party had changed course. The new draft incorporated some of the worst language on foreign organizations and foreign funding taken from the draft prepared by the Social Affairs Ministry, long a front for the security agencies that monitor NGOs.
The presidency's draft would reinforce and formalize state control over NGOs by empowering the authorities to deny them access to both domestic and international funding. Last week, when I spoke at a side event at the U.N. Human Rights Council in Geneva, the U.N. special rapporteur on freedom of association stressed that the right of association goes hand in hand with, and depends on, the right to access funding. The presidency's draft law would give the Egyptian government unlimited power to object to any group's domestic fundraising or its right to obtain foreign funds.
The draft law would also give the authorities complete discretion to object to any of the activities of Egyptian and international organizations. If the organization did not comply, the government could take it to court.
Contrary to what a representative of the Egyptian presidency has claimed, the authorities' discretion to object is unlimited in both these provisions. The only requirement is that the objection must be "justified." Under Mubarak, the government's security agencies would often refuse human rights organizations' requests to seek foreign funding to carry out projects on torture, citing unexplained "security reasons" -- and this was deemed sufficient.
The draft law contains no safeguards if the government should decide to cripple an organization working, say, on projects related to early marriage or the rights of religious minorities, by consistently denying it access to funding. Egypt's own human rights community will be particularly vulnerable. Foreign funding has always been its lifeline because, under Mubarak, Egyptian businessmen didn't dare fund a human rights organization.