Book extract: The urge to control

The right of people to act collectively – and independently of governments – for the sake of shared interests, purposes and values is one of the building blocks of a free and open society.

Arab governments have traditionally sought to restrict such activity, though the Arab Spring protests that erupted in 2010-2011 raised hopes that this would change.

In Tunisia, Egypt, Libya and Yemen, dictators have fallen but new leaders are still hankering after the old ways. One example is the new associations law proposed by the Islamist-led government in Egypt which in some respects is as bad as the Mubarak regime's old law – if not worse.

Below is an extract from my book, What's Really Wrong with the Middle East, which explains the nature of the problem and why freedom of association is vital if Arabs are to achieve accountable government. Though written in 2009, before the outbreak of the Arab Spring, most of it still applies today ...

Hisham Kassem was planning to launch a weekly news magazine. In Egypt that requires the government's permission, so he paid a visit to the Higher Press Council, the official body that grants licences to publishers – if and when it feels inclined to do so.

A polite bureaucrat met me and explained the licensing procedures. I needed nine other partners holding equal shares to be listed on the licence application. We would need to deposit LE100,000 (approximately US$25,000) for a monthly publication, LE250,000 for a weekly, and LE1 million for a daily.

The money would be set aside in a designated account and no interest would be paid on it while the application was being processed. Applicants could withdraw the money at any time, but in that case the application would immediately be nullified ...

The problem was, as I explained to the polite bureaucrat, that I did not know nine other people who might be interested in investing in a startup press business with me. He told me I was lucky, because a recent amendment had reduced the total of founding members from two hundred to ten.

I asked him about the time frame for processing the application and he replied that he had not the slightest clue...

I asked, "When was the last time a publication was granted a licence?" He said he could not remember.

I asked when the Higher Press Council had last convened. "Two years ago," he said. 

The question here is why, in any sensibly-run country, such rules should be thought necessary. Obviously a new magazine needs funds to cover its production costs – otherwise it cannot be published – but why should publishers be obliged to demonstrate the fact by providing the government with an interest-free loan until the Higher Press Council can summon up the energy, at some indeterminate point in the future, to hold a meeting? Why should a publishing company need ten investors, all holding equal shares, let alone two hundred? Why, indeed, should anyone wishing to publish a weekly magazine need the government's permission at all?

Recognising that in the previous ten years only four political weeklies and one monthly had been granted licences, and that the founders of all four weeklies had strong connections with the government, Kassem decided not to bother applying for a licence. Instead, he did what most independent publishers in Egypt do, and established his magazine, the Cairo Times, across the sea in Cyprus. Flying the printed copies back to Cairo was expensive and turned it into a "foreign" publication (meaning that each issue had to be approved by the censors before being allowed into the country), but at least it made publication possible.

The Egyptian press law, like those in most Arab countries, is designed to make independent publication difficult, to keep public debate in the hands of "responsible" elements and to provide an excuse for punishing those who stray over the red lines of permissible expression. The press, though, is only one element caught up in a web of absurd restrictions that also stifle creativity in films and theatre and regulate the activities of political parties, trade unions, professional bodies and all kinds of non-governmental organisations.

At one level the purpose of this is very clear: to keep a lid on political discourse and activity – especially any that might be perceived as a threat to the established order. At another level, though, it reflects a very old-fashioned notion of the function of governments and what they can legitimately seek to control. It may also fill a psychological need of the regimes themselves, generating a sense of power that helps to allay doubts about the level of support they actually enjoy. Meanwhile, their heavy-handed regulation means that people continue to be treated as sheep. Instead of encouraging them to become mature citizens, engaged in the affairs of their country and capable of making their own judgments, Arab states still play the role of a remote father-provider who forbids and permits, protects his children from their own foolishness and the bad influences of others, and occasionally grants privileges which can be taken away again if the children misbehave or appear not sufficiently grateful.

"[Forming] any kind of civil society group in Saudi Arabia requires the permission of the king himself," said Kareem Elbayar, Middle East legal adviser at the International Center for Not-for-Profit Law. "You would basically have to go and petition the king and the king would make a determination on whether or not he approved the group. There are very few groups for that reason." In 2003, under pressure for reform, the king finally gave permission for a non-governmental human rights committee to be set up, which his foreign minister insisted would be "totally independent", with its independence guaranteed by the king. Others have been less fortunate. In 2006, Musa al-Qarni and three other men petitioned King Abdullah for permission to form an Islamic organisation to discuss "freedom, justice, equality, citizenship, pluralism, [proper] advice, and the role of women." They never had a reply. A few months later, Qarni was arrested and carted off to jail after secret police commandos stormed a villa in Jeddah where several men "widely known for their advocacy on issues of social and political reform" were meeting.

Although freedom of association is enshrined in international law, many ordinary Arabs share their rulers' view that it is not a natural entitlement. Hoshyar Malo, a lawyer and director of the Iraq-based Kurdish Human Rights Watch, noted:

In many countries, especially in the Middle East, neither the governments nor the people believe that the rights of association and assembly are among the fundamental rights ... Even where the government allows individuals to establish associations, this is seen more like a gift or a bonus from the government to the people than a recognition of the human rights protected by international conventions ... This false understanding of human rights in the Middle East is due to many factors – mainly cultural, religious, and historical – that prop up the idea that the government grants rights and freedoms to the people. 

The right of people to act collectively for the sake of shared interests, purposes and values is one of the building blocks of freedom, and exercising that right is the essence of civil society activity:

Civil society commonly embraces a diversity of spaces, actors and institutional forms, varying in their degree of formality, autonomy and power. Civil societies are often populated by organisations such as registered charities, development non-governmental organisations, community groups, women's organisations, faith-based organisations, professional associations, trades unions, self-help groups, social movements, business associations, coalitions and advocacy groups. 

Definitions of civil society usually treat it as a separate space, distinct from the state, the family and the market – and therein lies its value. Civil society, Ziad Abdel Samad notes, is "situated between state and market, monitoring the powers and roles of each to assure a balance between them". In a Middle East context, clans and tribes are considered to be "family". Abdel Samad, who is executive director of the Arab NGO Network for Development, continues: "Accordingly, just as civil society monitors the powers of the state and the market, it also has the potential to monitor tribal and clan relations in order to assure a balance among market, state, and family." That can only happen, of course, if the state recognises the value of civil society and provides a suitable framework for it to function properly. A booklet of legal guidelines produced by the Open Society Institute begins

The governmental and political structure of an open society may take many forms, but fundamental to them all is the principle that the state exists to serve the people, not the people to serve the state or the party that controls it. Achieving such a society requires laws that protect the rights of individuals to express their views freely and to come together freely to organise their efforts in pursuit of a common objective. The freedoms of expression, association, and peaceful assembly are the hallmarks of an open society. Law alone cannot create an open society, but no open society can exist unless the law gives meaningful protection to these and other fundamental freedoms. The law must recognise the right of individuals to join together to pursue shared interests or to pursue shared notions of the public good, free of state interference. 

This, it need scarcely be said, is anathema to most Arab regimes – which helps to explain why civil society in the Middle East is so weak. A flourishing civil society promotes active citizenship, undermining the idea that the ruling elites know best – with the result, as Abdel Samad notes, that they become "defensive and jealous" at the prospect. Active citizenship also advertises that government is not all-powerful. Even charitable work, unthreatening and apolitical as it might seem, can be a sensitive matter if it highlights the state's own failure to provide basic services. One way to neutralise that is for the ruling elite to claim the credit for themselves, often by establishing the ruler's wife as prime mover behind the nation's charitable efforts. Suzanne Mubarak, Asma al-Asad, Queen Rania of Jordan and Shaikha Mozah of Qatar are all notable examples. Independent initiatives are easily commandeered or stifled, either by taking them over or setting up a government-controlled organisation with a similar name and purpose – a practice known in Yemen as cloning. "This is very, very common throughout the region," Elbayar said:

There will be an environmental group in Jordan and then the king will set up a royal environmental group with ten times more money. It's very common for gathering international attention and support, especially in a country like Jordan which is taken to be a liberal regime. 

These are not civil society bodies in the normal sense and, though they often resemble non-governmental organisations, they cannot properly be described as NGOs (since that would be a contradiction in terms). With hefty government backing, though, they can easily co-opt and squeeze out genuine domestic NGOs. In Qatar and the Gulf states, almost all the NGO-type organisations are government-run, Elbayar continued: "In Bahrain there are at least five national human rights organisations and three of them are government-run, so they say things are great – the government's human rights record continues to improve."

Most Arab constitutions pay lip-service to freedom of association but in practice the regimes use a variety of devices to restrict it. Worldwide, civil society organisations usually start out as informal groups of people who have banded together for a common purpose. Many remain like that, without any practical need to be formally constituted. However, those that become larger and employ staff or seek grants and donations benefit from having a formal legal status – which can open the door to government interference. Almost all the Arab countries require non-governmental organisations to be registered whether they wish to or not, and legally speaking this can apply even to children's clubs and hobby groups. Abdel Samad writes:

Despite the numerous initiatives for modernisation and democratisation in the region, most Arab governments still heavily restrict, through law and procedure, the establishment and activities of civil society associations. Laws in most of these countries prevent any group of people from conducting public activities unless they are registered as an association. In some cases, associations are subject to excessively cumbersome registration procedures. An association's activities are restricted to those set forth in its founding documents, which cannot easily be altered. Moreover, the types of organisations are often defined by their activities as perceived by the state, regardless of the perceptions and objectives of a given association's members and constituency.

In many countries, the government demands that the association obtain advance permission each time it organises any public activities. Permission is also required if the association wishes to join any regional or global network or to receive funding from foreign donors. The government also has the right to monitor the financial status, public activities, and private activities of the association's members, and it may dissolve the association for any reason. 

The difficulty of registering a civil society organisation varies from country to country. In some it means seeking official approval (and the possibility of rejection), while in others, at least in theory, the law treats it as little more than a formality. However, one common tactic for blocking applications, reported in Syria and Saudi Arabia, among other places, is simply to ignore them – which also spares the authorities the bother of having to think up reasons for a refusal.

In Lebanon, Egypt and Tunisia the law anticipates that applications may well become "lost" in the bureaucracy and states that if the authorities fail to make a decision within a specified period the application is deemed to have been approved. This is what happened with Helem, the Lebanese gay and lesbian organisation. Presumably because of its controversial nature, the authorities did not respond – which meant that Helem could operate lawfully though without an official registration number. Among other things, the lack of a registration number meant it was unable to open a Lebanese bank account. In Tunisia, however, officials circumvent the legal time limit by refusing to give receipts for applications. A report by the US State Department described this as routine practice: "Without such a receipt, NGOs were unable to counter the government's assertions that they had not applied to register and therefore were not allowed to operate. In such cases NGOs could be shut down, their property seized, and their members prosecuted for 'membership in an illegal organisation'."

Often, there are complex and vaguely-worded rules which allow the authorities to refuse permission if they disapprove of an organisation's aims or the people involved, or to close it down subsequently if they dislike the way it is developing. In Bahrain and Oman, for example, they can refuse to register an organisation on the grounds that "society does not need its services" or, in the case of Oman, "for any other reasons" decided upon by the Ministry of Social Affairs. In Qatar, which like most Gulf states depends on its large foreign workforce, non-Qataris are effectively excluded from freedom of association: the law allows them to participate in "private societies" only where this is deemed necessary. Participation by non-Qataris requires approval from the prime minister himself and non-Qataris must not exceed 20 percent of the total membership.

In Egypt the revised law on non-governmental organisations, introduced in 2002, "created a legal regime that gives the state excessive latitude to dissolve, reject, or slowly choke any organisation financially, should it wish to do so," according to Human Rights Watch. "Worse still is the significant but unwritten role of the security services, which routinely reject applications to register new groups or candidates for board member elections, despite having no legal basis for doing so. Even groups that have successfully registered continue to endure close monitoring and sometimes harassment from security service agents."

The problems often start with obstructive quibbles about the application:

[They] kept sending back our papers with changes. For example, we could not have activities in "Egypt," we had to say "Cairo". The most significant thing in the application is that you must list all your activities. For the six activities we specified, they asked us to add "after approval of the relevant authorities". Six times! We wouldn't. We eventually settled on the fact that we would only apply for approval from another ministry if we did a trade fair.

They wanted to have it as an open field for them [to intervene]. They would keep on sending us back the papers with written amendments. They were on paper, in pencil, no personal communication about it. They finally agreed to accept the papers on October 28. It had taken us five months to complete the forms. 

Article 11 of the Egyptian law forbids non-governmental organisations from "threatening national unity" and "violating public order or morals" – which provides an excuse for meddling by the security services. Threats to national unity, public order and morals are interpreted very broadly: the New Woman Foundation, for example, was informed that its list of objectives (research, publication of periodicals and research papers, providing expert advice on women and human rights, opening of a cultural centre; training programmes and conferences on women's issues, different kinds of public events; charity markets and exhibitions of women's handiwork, and other projects and services that serve the organisation's goals) included "items that breach Article 11". As often happens in such cases, there was no further explanation. An NGO's choice of board members is also subject to approval by the authorities:

If an individual has a history of peaceful social activism, has spoken out on political issues, or was a member of a political organisation, for example, a student political group, then he or she appears likely to trigger security force objections. 

Organisations that successfully negotiate these hurdles face continuing supervision by the Egyptian authorities in what Human Rights Watch likens to a parent-child relationship. The numbers of board members and their terms of office are set by the authorities, as are procedures and quorums for annual general meetings, procedures for executive committee, fundraising requirements and methods of record-keeping. "At best these requirements are heavy-handed. At worst they provide ample means for selective enforcement and blatant political interference," Human Rights Watch says.

The level of detail in this regulatory framework provides ample scope for government intervention and even harassment – either by junior officials seeking bribes in return for leaving them alone, or at a higher level. A surprise inspection of the Nadim Centre in Cairo, which provides medical and other support for victims of torture, was apparently triggered by a senior health ministry official coming across its website and disliking what he saw. It was then threatened with prosecution on a host of charges, including possession of a questionnaire about torture and books about human rights, without a permit. Following a public outcry, the list was reduced to just two alleged violations: not having a first aid kit or a fire extinguisher (both of which were on the premises at the time). Not all NGOs are treated in this way, however. As in other parts of the Arab world, if they stay clear of human rights and other issues that impinge on politics, if their organisers do not have a history of political activism and the authorities have no other reason for wishing to discourage them, they are likely to meet fewer obstacles.

Some countries have begun to recognise that the bureaucratic complexities surrounding NGOs can hamper social development and, at the time of writing, Oman, Yemen, Iraq, Egypt and Morocco were said to be preparing new and, hopefully, less restrictive laws. "The emerging trend is to remove many of the major obstacles for civil society but to keep one major one in place – and that is foreign funding restrictions," Elbayar said. Restrictions on foreign donations are one of the key features of the Law on Societies approved by the Jordanian parliament in July 2008. Article 17 states that if a society "wants to obtain any contribution, donation or funding from non-Jordanians, whatever its form, it must submit an application to obtain the approval of the relevant minister". Since no criteria for approving or rejecting foreign donations are specified in the law, whether or not to allow foreign funding appears to be entirely at the minister's discretion.

Some governments seek to justify this on the grounds that they are trying to prevent money laundering and terrorist financing but that argument, Elbayar says, does not hold water. The amount of money entering Arab countries via NGOs is very small compared with the amount coming in through business transactions, and if the aim is to stop money laundering it should be done through a general law applied across the board, not by singling out NGOs for special scrutiny. A more plausible motive for restricting foreign donations emerged in 2006 when the Jordanian government announced a series of new restrictions for non-profit companies which included a prohibition on receiving foreign donations without the cabinet's approval. This was intended to close a loophole used in Jordan and some other Arab countries whereby organisations working in controversial areas such as human rights and press freedom register themselves as non-profit companies rather than submitting to the hazards of registering as an NGO. Those that had registered in this way in Jordan included Mizan (a lawyers' group for human rights), the Amman Centre for Human Rights Studies, the Centre for Defending Freedom of Journalists, and the Adaleh Centre for Human Rights Studies. Explaining the new restrictions in a newspaper article, Jordan's controller-general of companies wrote:

These [non-profit] companies [have] become a Trojan horse for spotlighting criticism and for insulting national and official institutions ... on the pretext of promoting human rights [through] written reports sent to [foreign] donors pretending to show ... that they are a watchful eye on what is going on with the issue of freedoms [and] rights. 

In the poorer Arab countries there is not enough funding from local sources for most NGOs to survive, so they often depend on western donors or the UN. By vetting all foreign donations, governments thus acquire the power to strangle NGOs more or less at will.

Posted by Brian Whitaker
Saturday, 1 June 2013