Arab Laws Reform

Conference Friedrich Naumann, Cairo, Feb 11, 2010

Presentation FIDH

Freedom of Association : Opportunities, challenges and a future roadmap from an international perspective

It is a great pleasure for the International Federation for Human Rights to be invited and to participate in this important conference tackling one of the most pregnant issues not only in the Arab region but all over the world.

As shown in the last annual report of the Observatory for the protection of human rights defenders (joint programme FIDH/OMCT), repression of demonstrations, trade union members arrested, NGOs under surveillance: for years these facts have been related to situations of economic and social imbalance and inequity. The rise in social discontent linked to the world economic crisis has increased the repression recorded in recent years.

The inflation of freedom-killing practices and laws relating to the control of the social body was one of the significant characteristics of the problems encountered by human rights defenders last year.

The social tension that has spread to all continents has had, all over the world, consequences in terms of freedoms of assembly, association and expression, which largely go beyond the mere framework of the defense of labour or social rights.

Going back to the Arab world, human rights defenders were not spared in the persistent and resurgent internal conflicts in certain countries of the region: they were subjected to assassinations (Iraq), arbitrary detentions and obstacles to their freedom of movement (Israel/Occupied Palestinian Territories) throughout the year in these countries.

Several countries in the region – Syria since 1963, Egypt since 1981 and Algeria since 1992 – remained under a state of emergency. Inherent emergency legislation provided a legal framework for certain attacks on human rights, especially the right to a fair trial. Indeed, civilians, including human rights defenders, continued to be tried by special

courts set up through emergency legislation (Egypt, Syria).

There was also widespread recourse to the law to restrict defenders’ fields of activity and to criminalise their work or silence them.

Several countries armed themselves with a legislative arsenal intended to restrict freedoms of peaceful assembly (Algeria, Bahrain, Egypt) and of association (Bahrain, Egypt, Jordan, Kuwait, Syria). Other countries, such as Libya and Saudi Arabia, still did not recognise or, as was the case with Qatar, Oman and the United Arab Emirates, continued to severely restrict the right to freedom of association.

Added to this were smear campaigns (Bahrain, Tunisia), arbitrary arrests and routine obstacles to freedom of movement (Bahrain, Israel/ Occupied Palestinian Territories, Syria, Tunisia, Yemen), physical attacks (Tunisia), torture (Bahrain, Egypt) and enforced disappear-

ances (Syria). In certain countries, the almost systematic repression of any dissenting voice acted as a dissuasive to any attempt to embark on public human rights activities and put those who tried to do so in considerable danger (Libya, Saudi Arabia). The absence of any independent human rights organisations in most of the Gulf States, with the exception of Bahrain and Kuwait, additionally makes it difficult to monitor human rights violations on a daily basis.

It is in this context, that we decided to develop our activities in the Arabian Gulf in cooperation with our partner the Arab Human Rights Institute, and in the framework of a programme supported by the European Commission entitled « "Strengthening the capacities of the civil society in view of participating in democratic transformations and elaborating and implementing national strategies for the promotion of human rights in the Arab world » .

The first activity that we undertook in this programme, took the form of a report/ legal study covering the right to freedom of association in three Arab Gulf countries, in preparation of a regional seminar, aimed at building civil societies capacity to participate effectively in democratic transformations.

The legal research conducted by two experts gave birth to a report entitled « Freedom of association in the Arabian Gulf : the case of Bahrain, Kuwait and Yemen » published in Spring 2009. (www. FIDH.org)

We decided to focus on the current legal and policy framework of the right to freedom of association the three countries subject of the study. This report is limited to the study of three specific categories of associations- independent human rights organizations, workers' trade unions and political parties. It analyses the compatibility of national laws and practice with international human rights standards and assesses current trends and policies. We did not attempt to look at the historical development of these policies or legal frames, although at times this seemed relevant and necessary to gain a better undertsanding of the trends and policies.

To be more precise on the legal research that we conducted at the time, I have to underline that we limited our analysis to two fundamental aspects of the right ot freedom of association: the right to form or join an association and the right to function freely. As such we concentrated our research on the five main factors that constitute the basic and fundamental rights of the freedom of association:

 the right to exist without prior authorization

 the right ot be free from control and interference in internal management and running of the organization

 the ability to manage funding openly and transparently

 the right to be affiliated to regional and international organizations

 the right to carry out activities without fear of prosecution, suspension or dissolution.

An assessment of the right of migrants to form or join NGOs and trade unions based on the principle of non-discrimination between nationals and non-nationals, the right not to be penalized for belonging to a non-registered organization and the right to protection against anti-union discrimination were as well components of this study.

Bahrain, Kuwait and Yemen share common characteristics in terms of freedom of association. The respective government policies are largely restrictive rather than liberal and are nationalistic rather than universal. These policies reflect a severely controlling environment starting by prohibiting the formation of an association without governmental approval to openly interfering in their internal management and maintaining conditions that may lead to dissolution at will. Therefore, the ability of associations to be formed and to function freely may be seriously impaired.

We came to the conclusion that none of the three countries had initiated the process of legslative adaptation and reforms to bring the national laws, including those related to freedom of association, in conformity with international standards.

Indeed, restrictions on freedom of association of trade unions, political parties and human rights NGOs subsist in Bahrain, Kuwait and Yemen to various levels.

One has to stress that the willingness of the govenrments in each of the three countries to allow for the participation of civil society in public affairs is a fairly recent development and as a result, this relationship seems to lack a sense of mutual trust. On the one hand the government may regard these entities as a threat, having hidden political agendas. On the other hand, civil society organizations regard the government's declaration to maintain an open, pluralist society as only cosmetic.

As Bahrain, Kuwait and Yemen are still amending several of their respective laws of association, the effective participation of the civil society in the elaboration of more liberal laws that would guarantee freedom of association in theory and in practice would indeed be seen as a positive and encouraging sign of greater cooperation.

During the seminar that FIDH and the Arab Institute for Human Rights organized in Kuwait city in November 08, where the study was frist presented to the Mps, associations, political parties and representatives of governments from the three countries, some recommendations were adopted.  The set of recommendations related to trade unions, NGOs and political parties was an attempt to bring some technical imput in the drafting of the respective legislations in the countries at stake and remain, I believe, totally valid as the situation has remained the same  (even though the Kuwaiti Minister of Social Affairs recently affirmed the need to amend several laws, including the one on cooperative associations, "These laws are outdated and their rulings do not meet the needs of citizens". The Minister says he's discussed the forthcoming amendments with a parliamentary committees and expects it will only take one session to pass the laws) .

Finally, we believe that the international community, and regional institutions such as the League of Arab States in the first place, should extent their endeavours to the Gulf States in by involving governments and civil society in real and fruitful dialogue to further reforms especially in view of bringing national laws in conformity with international standards.

The office of the High Commissioner for Human Rights and the ILO committee on freedom of association should be more active in providing technical assistance to these countries for the elaboration of appropriate legislations and training on human rights.

The UN Special rapporteur on human rights defenders should be sollicited in order to examine the situation of freedom of association more closely; establish cooperation and conduct dialogue with governments and other interested actors on the promotion and effective implementation of the right to freedom of association.

We also recommend that the European Union, based on its guidelines on human rights defenders of 2004, addresses the issue of freedom of association in the framework of its dialogue with the members of the Gulf Cooperation Council.