Memorandum: Assessment of Law 12-06 of 12 January 2012 on Associations

The Euro-Mediterranean Human Rights Network (EMHRN) and its Algerian affiliates – the Coalition of Families of the Disappeared in Algeria (Collectif des familles de disparus en Algérie, CFDA) and the Algerian Human Rights Defence League (Ligue algérienne de défense des droits de l'Homme, LADDH) – are of the opinion that Law 12-06, the new associations law, does not guarantee the rights of Algerian associations

i.e. non-governmental organisations (NGOs) – as defined in the international treaties ratified by Algeria, even though the country's constitution states that these treaties have precedence over domestic laws. Our concerns, on which we elaborate below, bear on five aspects of the law: 1) the fact that the establishment of an association requires prior authorisation by the government; 2) funding arrangements for associations; 3) restrictions on cooperation with foreign NGOs; 4) the regime under which foreign NGOs are allowed to operate in Algeria; and 5) the particularly broad criteria that can be invoked to suspend or dissolve an association.

1. Under the new law, the registration of associations is no longer a matter of simply notifying the authorities. Thus the creation of an NGO is no longer subject to a ‘declarative regime' based on simple notification but must be pre-authorised by the government, which must either send the association a registration receipt that signifies its approval or notify it that registration has been denied (art. 8). Thus the new legislation entrenches in law a practice that was already widely applied by the administrative authorities, and it gives them broader powers while failing to guarantee that NGOs will be governed by independent and impartial regulations.

Under Law 12-06, the government can refuse to register an association whose purpose or goals are deemed ‘contrary to basic national values and to law and order, public morality and the provisions of existing laws and regulations' (art. 39). In concrete terms, there are reasons to fear that these extremely vague criteria will allow the bureaucracy to block the registration of a large number of 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.[1]

If the government does not respond to an application, the association is deemed to be legally constituted, but it must still wait until it receives the registration acknowledgment before it can begin to operate legally (art. 11). Moreover, the law adds that in the event that an association, after having been rejected by the authorities, is able to win its case in a court of law, ‘the government has up to three months to nullify the registration of the association' (art. 10). 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 provided for prison sentences for ‘anyone administering an association that has not been approved' and which hung like a sword above the heads of activists working in associations that had not received legal confirmation of their registration, has been retained in the new legislation. Article 46 of the new law states these sentences can apply not only to representatives of an association ‘not approved' but also to those associations ‘not yet registered, suspended or dissolved'. While the same article reduces the length of prison sentences, it considerably increases the amount of fines. It is unfortunate that the provision of Law 90-31 that left to a judge the decision to choose between the two types of penalties has now been eliminated.

And finally, while Law 90-31 stipulated that 15 founding members were needed to establish a new association – a cumbersome requirement in itself that the associations had denounced at the Estates-General[2] – the new law is even more demanding, requiring a minimum of 10 members to create an association 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 no fewer than 25 members from at least 12 wilayas for a national organisation – even though, in general, only two people are needed to form an association.

2. The 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 (art.29). This particularly vague wording raises concerns that the authorities could rely on a narrow interpretation of this provision to control all NGO funding.

Contrary to the previous legislation, which allowed Algerian associations to receive donations and bequests from foreign NGOs once their request has been approved by the authorities, Law 12-06 stipulates that, ‘except in cases where duly established cooperation agreements exist', Algerian associations are forbidden from receiving donations, grants or any other type of contribution from any ‘foreign mission or non-governmental organisation' and that any funding must first be allowed by the relevant authority (art. 30). In other words, the new law deprives associations of a source of funding that is critical to their survival. In addition, by imposing a regime of so-called partnership agreements, the government grants itself additional control over the resources of Algerian NGOs, and thus over their activities and their partners, enabling it to interfere in their internal affairs and to force them to follow a preferred course of action.

At the same time, while article 18 reiterates provisions contained in Law 90-31,[3] article 19 details the information that NGOs must supply to the government after each general assembly (minutes of meetings, activities report, financial report), giving the authorities greater control over NGO activities. Associations that refuse to provide this information will face a fine (art. 20).

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 new 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 will be asked to give an opinion. In addition, the Interior Minister has 60 days to oppose the application of an Algerian association to join an international organisation. Law 12-06 also states that cooperation within a partnership with foreign or international NGOs must be pre-approved by the government (art.23), whereas Law 90-31 had no such requirement.

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' (art. 59) – are subject to a different and much more restrictive regime than Algerian associations. First, the new law gives the government 90 days to grant or refuse its approval in the case of foreign organisations, whereas only 60 days are needed for domestic associations (art. 61).

Second, article 63 of the new law states that ‘a request for recognition submitted by a foreign organisation must have as an objective the implementation of provisions set out 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. Article 65 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, law and order, public 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 voiced by foreign NGOs.

The financial resources of foreign associations are also targeted. The new law states that ‘a ceiling may be imposed' on the amount of their financial resources (art. 67).

5. On the subject of the suspension and dissolution of associations, the procedure set out in the new law results in severe restrictions on 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' (art. 39). This very vaguely worded provision deprives NGOs of the ability to review, criticise and monitor the state in the conduct of public policy, even though this is a prerequisite for the operation of any democracy. Our associations believe that all citizens, wherever they may live, have a right and a duty to be involved in the affairs of their country, and point out that, according to article 22 of the International Covenant on Civil and Political Rights,[4] ‘no restrictions may be placed on the exercise of [the right to freedom of association] other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others'.

Article 43 of the law states that an association may be dissolved if it has ‘received funding from foreign missions or NGOs' or ‘performed activities other than those stipulated in its bylaws'. The ambiguous 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, that same article allows a petition for the dissolution of an association to be submitted by ‘a third party that is in a conflict-of-interest situation with that association', which suggests that an organisation 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 new 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 in Law 12-06 and all that is needed now 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 (art. 41).

Finally, contrary to the recommendation of the United Nations Special Rapporteur on human rights defenders, which suggested 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',[5] article 70 provides that ‘associations duly constituted under Law 90-31 must now comply with the law by submitting new statutes that are in compliance with the law'. This puts in jeopardy all the NGOs that were established under the previous legislation. Those failing to meet this requirement within a specified deadline will automatically be dissolved.