Civil society legislation in Libya
Civil society legislation in Libya
A history of harassment, a confounded present, and an unknown future
By Mohamed Omran
Those who make deep researches in the affairs of civil society in Libya can easily detect a change in the way of thinking of the authorities and their administrative and organizational relationship with civil society. Although the beginnings are often good, stimulating, and based on the concept of support, partnership, and organization, it quickly turns into the concept of organization, Surveillance, command, and control. In February 2016 the Libyan Civil Society Commission [2]initiated and activated two laws; one for local[3] and the other for foreign[4] organizations. These laws were arbitrary and crippling, recruitment for example must get the approval of the commission and for each activity the names of participants, speakers, and trainers must be sent to the commission two weeks before, and each activity must get the approval of the commission.
There is a problem as well when dealing with Libyan civil society organizations, for the commission, it is only represented by associations and organizations discrediting syndicates, leagues, and unions. Trade Union’s work is still managed by the law No 23 of 1993.
Legislative regulation of civil society before February 17th , 2011
Libya witnessed a legislation that organizes associations even before declaring its independence by the United Nation in December 21st, 1949. The Libyan legislation encyclopedia includes a legislation issued in the state of “Barqa “ in january 10th, 1950, and in November 1953[5] the civilian law has been established and it included fifteen items related to associations; items 54 to 68[6].
The study of Libyan civil society during the era of the departed dictator “Muammar Gaddafi” (1969-2011) requires going back to the beginning of the state harassment of freedom of assembly and freedom of association. In February 9th, 1970 , law No 16 of 1970 was issued regarding some provisions about associations. And then in September 10th, 1970 law No 111 of 1970 was issued stating the cancellation of items 54 to 68 of the civilian law regarding associations.
In 1972, the freedom of assembly and the freedom of association were put to an end, law No 17 that criminalizes partisanship was issued, stating the death penalty for whoever seeks to form a banned party or grouping, or organization whether by founding or organizing or management or financing or preparing a place for meetings or joining or instigating it by whatever means or receiving or getting in a direct or indirect way any benefits of any kind from any person or any party for the sake of the establishment of the banned party or grouping, or organization, or squad, or cell, or preparing to establish it, and the penalty remains the same disregarding the rank inside the party[7] or the grouping or the organization and it is punishable by death.
This law enforcement was accompanied by mass arrests of different spectrums of society especially after what the regime called “the cultural revolution “ in 1973.
Successive and frequent mass arrests marked the era of “Muammar Gaddafi” and they targeted intellectuals, trade unionists, students and member of different political currents[8]. The regime used assassinations and prosecutions to dominate the opposition abroad and arbitrary arrests to suppress the opposition at home.[9]
The last stop before the revolution of February 2011 was to issue the law No 19 of 2001 regarding the reorganization of associations which was followed by its executive regulations that was issued by the people’s general council in No. 73 of 2002 and its accessories.[10]
For 41 years and specifically from 1970 to 2011, Libyan civil society was organized by law No 111 of 1970 regarding civil associations and by its executive regulation and this lasted until 2001 when it was replaced by the law No 19 of 2001 and its executive regulation of 2012 which lasted until February 2011. The similarity feature of the two laws is the state control through its institutions on the work of the various organizations: associations, syndicates, unions as well as the administration’s interference in their activities and their working mechanisms. For example:
Relative administrative bodies are allowed to refuse the registration of any associations if they do not see that its existence is necessary or if they think that it disrupts ethics and morality. They are also allowed to approve or disapprove any local or foreign grants or donations, they are also allowed to call for an extraordinary meeting for the association’s bodies if it is necessary. They must also be informed of any gathering or general assembly of the association before organizing it and it is imperative that the association send meetings reports and the
decisions issued to relative administrative bodies. And the administration have the authority to merge multiple association if it considers that they seek to achieve same objective. The administration also have the authority to close or dissolute the association and its branches for common interest.[11]
The same is applicable for syndicates, leagues, and work unions which underwent same domination and control. Although law No 23 of 1993[12] insists on the freedom of establishing syndicates, upon checking its articles, it became obvious how small the granted margin of freedom. The law granted the legislative council the authority to recognize the syndicate and the access to study its primary law and ,if necessary, ask for its modification or amendment. It also have the authority to interfere in the revocation of syndicates or merging them together[13], and perhaps the lawyers syndicate that has been dissolved can be a valid example for that .[14]
Civil society in Libya after the uprising of February 17 2011
The absence of the state after the uprising of February 2011 was an adequate justification to increase and spread of founding civil charities in order to fill that gap. Their activities were characterized by charity and relief especially in the months of fighting against Gaddafi forces. The associations at that time were in charge of conducting local needs of the population. However the activities of these associations shifted into a qualitative side imposed by the nature of evolution in the transitional phase in Libya as more urgent topics emerged such as observing human rights violations, transitional justice, national reconciliation, women’s rights, the role of youth, elections, and civic and culture awareness.
In general the civil society in Libya had an evident role in political movement and many organizations were polarized by different currents. And the chaotic situation in Libya left its impact on associative activity as many civil society activists were killed and others were intimidated and forced to leave the country which paralyzed the community activity that is based on observing violations and defending human rights. [15]
Since the uprising of February until now there has been no law that organizes the work of civil society in Libya as the law No 19 of 2001 has been revoked and the current procedures are only regulatory controls. Registration mechanisms of these organizations have passed through different stages depending on the transitional institutions. At first, the registration process took place spontaneously until the executive office (the first executive power after February 17) was given the duty of organizations registration and for this purpose a commission was formed. Organizations that was interested in registration must attach documents related to primary law and the record of establishment as well as the source of funding, location, and pledge not to use the association to violate the law and that its goal is against violence, racism and discrimination.[16]
After declaring the liberation of the country in October 2011, the Ministry of culture and civil society in the transitional government took over the process of registration of associations and later the ministry’s civil society organizations support center was established and its board was named in July 2012 under ministers council resolution No 12 of 2012[17] and it issued resolution No 649 of 2013 to change the name of the civil society organizations support center into the commission of civil society which was granted a legal personality and financial independence. The law also mentioned to support civil society organizations technically and logistically as well organizing the work of international organizations that wish to work in Libya, in coordination with the specialized authorities in accordance with the laws and regulations adopted.[18]
Towards a law to organize civil society organizations in Libya:
Civil society in Libya made early important steps in order to pass an associations law in Libya and the ministry founded a commission for this purpose. The commission made its first meeting in December 2011, and after consultations with Libyan civil society and the use of local and foreign expertise it presented a bill on March 31st , 2012. However the ministerial slowdown of successive governments to present it to the General National Congress (Legislative Council at the time), missed an opportunity to discuss and vote to ratify it, which led to the absence of legislative protection for civil society organizations, until the Commission of Civil Society issued restricting regulations to organize the work of local and foreign organizations.
There is still an opportunity for the deputies council (the current legislature), in order to pass a modern association bill as soon as the current division within the council ends. In mid-May 2016, a group of experts, human rights activists and legal experts, along with members of the new board of the Commission of Civil Society (Benghazi) met in Tunis in order to rectify the matter. The meeting led to the drafting the necessary amendments to those restricting regulations issued and activated by the previous board of the commission and also to the drafting of the necessary amendments to the Associations bill, which had been drafted by the committee formed for this purpose by the Ministry of Culture and Civil Society in 2011.
And now it becomes necessary the organizations and activists to be united around those amendments and stand firmly behind it in order to lobby and successfully pass the associations bill to the Deputies Council and the government of national reconciliation for discussion and approval.
This project is not only the result of the hard work of experts, but it is also the product of a dynamic participation of civil society who managed to participate in an atmosphere marked with harmony and consensus. And this makes this law among the rare laws that the official authorities did not put any hands on but where it was made by stakeholders themselves, which would give it more legitimacy.
The bill is modern and it is based on the principles of human rights, transparency, democracy, and good governance, it makes registration procedures easier for associations by using notification of establishment as a way to get the legal personality instead of demand and permission as well as it holds government institutions to refrain from locking or disrupt associations’ activities except by a judicial order.
It also gave the associations the multiplicity of funding sources and to accept non-conditional donations and grants. According to this law local and foreign organizations are equal in matter of principles however it referred the registration mechanisms of foreign organizations’ branches to a regulation list issued for this purpose that takes into account the spirit and the principles of this law.
It also gives associations the legitimacy and the capacity to challenge, before courts, any legislation or decision relative to their objectives in order to ensure their role in monitoring the legislative and executive branches.
At the end, it should be noted that civil society organizations in Libya are in constant evolution, besides many of them were forced to work from outside the borders because of the infighting. Accordingly, many of these organizations
acquired different experiences, and the regulations restricting their work may increase the obstacles and the barriers I the way of nascent but effective civil society entrusted with building new Libyan state and to transform it into a democracy and the so hoped social peace.
-Note : Democratic transition & human rights support center (DAAM) and Defender Human Rights (NDHR) have submitted the law proposal to the parliament, to view the draft law please click on the following link:http://daamdth.org/wp-content/uploads/2016/11/pdf-file.pdf
-this article was published on the legal agenda’s website dated 21/09/2016, You can view the original article through following link: http://legal-agenda.com/article.php?id=1752
[1] Mr.Mohamed Omran is the executive director of Democratic Transition and Human Rights Support Center “DAAM”
[2] it was established by law No 649 of 2013 in order to get the legal personality and financial independence to register and support foreign and local civil society organization working in libya according to the laws and regulations adopted.
[2] See resolution No1 of 2016 forthe board of the commission of civil society : http://ccs-libya.ly/Doc/Qarar-01-2016.pdf
[3] See resolution No 2 of 2016 for the board of the commission of civil society http://ccs-libya.ly/Doc/Qarar-02-2016.pdf
[4] See libyan law that was published in the official gazette in 20/2/1945 http://goo.gl/ulxWMW
[5] Azza Makhour ( libyan civil society organizations, shadow organizations) articel published in 26/9/2010 http://goo.gl/nYNBgx
[6] See law 17 of 1972 that criminalizes partisanship http://itcadel.gov.ly/wp-content/uploads/2015/12/law17-year1972.بدف
[7] Abir Amnina (political paties betwee the readiness and the dues of the participation) congress of “political parties and their role inbuilding democracy in Libya” 5\6\2012.
[8] Abir Amnina (human rights organization in western Libya: reality and challenges, part of advanced research for the arab institute for human rights about Libyan civil society needs assessment.
[9] See law No 19 of 2001http://security-legislation.ly/ar/node/33256
[10] Mohamed Zehi Mghirbi, State and civil society in Libya, Libya forum for human and political development.
[11]See law No 19of 1993 :http://aladel.gov.ly/home/?p=1238
[12] Abir Amnina, the relationship between political regime with trade unions, case study: lawyers syndicate http://www.caus.org.lb/PDF/EmagazineArticles/political_28_43- href=”http://www.caus.org.lb/PDF/EmagazineArticles/political_28_43-60%20abir%20amnineh.pdf”>60%20abir%20amnineh.pdf
[13] Under the decision of the General People’s Council lawyers became government employee affiliated to the “popular administration of law” according to law No 4 of 1984 and then they were attached to a gathering called “juristic league” along with judges , member of public prosecutors , and legal advisers and the general popular committee ( ministers cabinet) issued its initial law.
[14] Abir Amnina (human rights organization in western Libya: reality and challenges, part of advanced research for the arab institute for human rights about Libyan civil society needs assessment.
[15] Source already mentioned
[17] See resolution http://kenanaonline.com/files/0069/69228/12.pdf
[18] See resolution : http://kenanaonline.com/files/0075/75575/649.pdf
For Arabic version click here: http://daamdth.org/archives/741
