Transition and challenges to freedom of association in the Arab region Amor Boubakri1

Transition and challenges to freedom of association

                                       in the Arab region

                                        Amor Boubakri1

1
  Associate Professor in      Public   Law,   Faculty   of   Law,   University   of   Sfax,   Tunisia;   e-mail:
amor.boubakri@fdseps.rnu.tn

1. Introduction:

Freedom, in general, and freedom of association, in particular, has been always at stake in political
transition and a major challenge to the new political order after the old order was falling. Would
political transition lead, necessarily, to a genuine respect of fundamental freedoms? The question
has been, at all times, of a great concern for researchers, observers and politicians as well.

Transition raises, usually, high expectations for political reform that implies more respect of human
rights and where people could enjoy freedom. However, experience has shown that relationship
between freedom and transition is problematic and reflects, to a large extent, the complexity of the
transitional processes themselves. Thus, a general and typical answer to the question raised above
could not bear scrutiny and does not help to comprehend the political transitions in their
complexity. An overview at the outcome of these processes in Europe, Latin America, Africa, and,
more recently, in Arab region, shows well that transition leads in several cases to setting up a liberal
regime where people can really enjoy freedom. However, in other cases, transition could lead to a
worse situation where freedom becomes the first right to be sacrificed by the new rulers. Analysis
should be undertaken, then, on a case-by-case basis. This assumption is confirmed by challenges
that freedom of association is facing in Arab region in the aftermath of the political changes
occurred since January 2011 and that have triggered what is widely known now as Arab Spring.

The fall of Ben Ali’s regime in Tunisia on 14 January 2011, after more than 23 years of authoritarian
rule, prompted unprecedented mass protestations in Egypt, Libya and Yemen where the most
lasting authoritarian rules had been toppled within few months. The Arab region has witnessed the
most important political change in its recent history after being reluctant to reform attempts during
decades. Indeed, the political sclerosis in the region had been such that the Arab Spring was so
surprising for researchers and analysts who rightly indexed the Arab region as the most deficient
region in field of democracy in the world and the most resistant to democratization plans2.

Yet, the Arab Spring is facing in these particular moments serious challenges mainly after the
violent events that have taken place in Egypt after the Army ousted the democratically elected
President Mohamed Morsi on 3 July 2013. Libya, Tunisia and Yemen are struggling also to ensure
political stability and go ahead with building new efficient and sustainable democratic institutions.
However, the new transitional wave in these countries is likely to be an irreversible shift from
authoritarianism toward a democratic and accountable rule3.

The other Arab countries that are, in the meantime, staying away from this wave of
democratization have got, already, wind of this tremendous change. Thus, they have decided to

2See Amor Boubakri and Susanne Lindahl, “The European Union and challenges to democracy building in the
Arab World”, in Democracy in Development, International IDEA, Stockholm, 2009, pp. 66-78.
3Cf. Olivier Roy, “The transformation of Arab World”, Journal of Democracy, July 2012, Vol. 23, No 3, pp.5-18;
Nasser Weddady and Sohrab Ahmari, editors, Arab Spring Dreams: The Next Generation Speaks Out for Freedom
and Justice from North Africa to Iran, New York: Palgrave MacMillan, 2012.

take positive steps to reform their won regimes to avoid mass protests that could dethrone the
current rulers. The important constitutional and political reforms achieved in Morocco in 2011 are a
good example4. Actually, the political change has been so deep to such extend that no one country
of the region could be preserved from its impact5.

The status of freedom of association in the transitional processes is one of the most accurate
criteria to check the ability of the countries of Arab Spring to shift into liberal democracy. This
freedom encompasses the right to form legally registered organizations, such as associations,
foundations, and not-for-profit corporations in order to act collectively in a field of mutual interest6.
The freedom of association is one of the most fundamental freedoms in a liberal and pluralist
democracy7. It interworks with freedoms of expression and assembly and serves also as a vehicle
for both of them.

Modern legal systems enshrine freedom of association and provide adequate protection against
potential violation. It is, therefore, included as an entire part of the bill of rights of all constitutions
of the democratic regimes. The 1978 Spanish constitution, for example, recognizes explicitly the
right to associate in its article 21-2° without any restriction.

Besides, international law provides set of rules dedicated to protect freedom of association. Thus,
according to article 20 of the Universal Declaration of Human Rights, individuals are entitled to
enjoy ‘‘peaceful assembly and association”. The 1966 International Covenant for Civil and Political
Rights (ICCPR) requires States Party to adopt laws or other measures assuring protection for these
freedoms (article 22).

Freedom of association is not exempted from any kind of restriction. However, the ICCPR puts by
the same article 22 (paragraph 2) some limits on the capability of governments to restrict this
freedom. Actually, limitation of freedom of association has to be prescribed by law and considered
as necessary in a democratic society in the interests of national security, public order, the
protection of public health and morals or the protection of rights and freedoms of others. Any
other restrictions are, therefore, considered in the light of ICCPR’s provisions as abusive and
illegitimate.

This article aims to questioning the challenges that the freedom of association is facing in this
critical period of transition in Egypt, Libya, Tunisia and Yemen. These challenges are related

4
  Cf. Rachid Yalouh, The discourse of change in Morocco, Arab Center for Research and Policy Studies, Policy
analysis, Doha, October 2011
5 See Sinan Ülge, et. al., Emerging order in the Middle East, Carnegie Policy Outlook, Carnegie Endowment,

Beirut, May 2012
6 Karla Simon, “Freedom of Association”, in Helmut K, et. al., International Encyclopedia of Civil Society,

Springer, Berlin, 2010, p. 732.
7 See: Fleckenstein, Marilynn P., “The "Right to Associate" in Catholic Social Thought”, Journal of Business

Ethics, Vol. 38, No. 1/2, (Jun., 2002), pp. 55-64

basically to the reform of the legal framework and they are different from one country to another.
Before doing that, a look at the state of the freedom of association in the Arab region on the eve of
the Arab Spring is needed.

2. The state of freedom of association on the eve of the Arab Spring: liberticidal legislations and
   repressive policies

During decades people of the region have been suffering from repressive regimes that deny their
basic rights including the right to associate. Thus, associations were allowed only when they
support the ruling regimes. While associations tending to criticize the rulers and act independently
are, simply, not allowed; and when they are allowed, they face all kind of abuses and restrictions.

The 2004 Arab Human Development Report gives a clear idea about the situation of freedom of
association in Arab countries8. The Report shows well that one of the most redoubtable means
used to repress freedom of association is the legal one. Actually, the different legal systems in the
Arab region do not guarantee this freedom for citizens. Legislation is usually used to hinder the
right to associate which is not fully recognized by all Arab countries.

The constitutions of the Arab countries put serious constraints to the freedom of association as it
was the case for the 1971 Egyptian Constitution that provided in its art. 55 that:

“Citizens shall have the right to form associations as defined by the law.

The establishment of associations whose activities are detrimental to society or have a clandestine
or military character is prohibited”

The previous Egyptian constitution gives a clear idea about the legal techniques used to limit
freedom of association in the Arab countries. Thus, the competence to organize this freedom is
systemically delegated to the ordinary legislation. In an ordinary and a genuine democracy this
would be the ideal solution, since the parliament expresses, basically, the general will according to
the Rousseau’s theory of representative democracy. This is not the case, actually, for the
parliaments of Arab countries that do not represent truthfully the general will. These parliaments
have been all the time controlled by ultra-dominant parties and power is, therefore, totally
monopolized by the same long-lasting ruling party. Thus, guarantee and protection of freedom of
association, as well as other fundamental freedoms, have never been their own priority. On the
contrary, laws issued by these parliaments have been always remarkable by their liberticidal
pattern9.

8
  United Nations Development Programme (UNDP), Arab Fund for Economic and Social Development (AFESD)
and Arab Gulf Programme for United Nations Development Organizations (AGPUNDO), Arab Human
Development Report 2004: Towards freedom in the Arab World, United Nations Development Programme, New
York, 2005, pp. 87-88, 132-133 and passim.
9 See below on some liberticidal provisions in several legislations related to freedom of association.

Moreover, the situation in some Arab countries is worse as parliaments are not even elected by
people and universal suffrage is, simply, denied. This is the case mainly for the majority of Arab Gulf
countries where pseudo-parliamentary institutions are invested with a simulacrum of a legislative
power. However, the real power remains on the hand of the head of the executive branch who deal
with freedom of association as an absolute and unquestionable power. Nevertheless, the situation
is not better in Arab countries where parliaments elected by universal suffrage exist. Actually, the
elections held during decades have never led to an alternation or share of power and did not meet
with the requirements of democratic elections. Whether elected by universal suffrage or not, the
outcomes of the parliaments of Arab countries are, therefore, the same at the end.

Delegation to the ordinary legislation to deal with the right to associate is usually made without
safeguards that would avoid authoritarian drift of the legislatures. This has given the power to the
parliaments to impose restrictions that have been hindering the freedom of association during
decades. The absence of constitutional boundaries had made the constitutional review unlikely to
be able to check whether laws are respectful of the right to associate or not. Yet, an efficient law
constitutionality control system is generally inexistent in Arab countries. In Tunisia such control had
been systematically rejected when activists asked the court to review the constitutionality of the
1959 law on associations10.

Additionally, restrictions to the freedom of association are clearly included in the legal texts. To
come back to the Egyptian case, the 1971 Constitution includes an imprecise clause that allows
forbidding any association not accepted by the power. Article 55 which bans the so-called
“associations whose activities are detrimental to society”, offers to the political authorities a
redoubtable power that obviously hinders the freedom of association. Actually, the terms of the
text are so malleable and can be used to outlaw any association that the political authority does not
like it simply for one reason or another.

In other cases, the control of the freedom of association could rely on a broader variety of concepts
such as national security or national unity… etc., all of them aim to strengthening the power to
outlaw any unwelcomed association11. Along the same line, the 1991 Yemeni Constitution
recognizes in its article 57: “the right to form associations in scientific, cultural, social and national
organizations in a way that serves the goals of the Constitution”.

The right to associate has, therefore, become mostly reliant on the willingness of the political
authority which is usually reluctant to show genuine respect for the freedom of association
generally perceived by the rulers as a threat. Therefore, associations are, all the time, subject to
different kind of abusive practices when their activities are not liked by the government. Human
rights NGOs have been, always, in front line of repressive measures in all Arab countries since their

10
   Cf. Dali Jazi, Les rapports entre l’Etat et le citoyen dans la Tunisie indépendante: le problème des libertés
publiques (The relationship between the State and citizen in the independent Tunisia: the issue of the public
liberties), PhD Thesis, Faculty of Law, Sorbonne University, Paris, 1982, pp. 351-53.
11 UNDP, AFESD and AGPUNDO, op cit., p. 110.

job consists in denouncing regularly different human rights violations and acting against such
violations.

The repressive practices vary from the abusive ban of the NGO to more harsh kinds of practices
such as unfair trials, physical integrity threat and so on. Amnesty International revealed that the
abusive practices have been dramatically increased in all Arab countries during the last few years 12.
The repressive practices have not been targeting only human rights NGOs, but they even affect
cultural associations. Actually, associations of writers, artists and so on, have been all the time
subject to different kind of intimidations such as abusive inquiries and interferences from the
government13.

This situation illustrates well the deep relationship between freedom of association and other
fundamental freedoms, mainly those of expression and thought. Authoritarian Arab regimes are,
indeed, in problem with all of them by nature. Since freedom of association is always serving as a
vehicle for those freedoms, these regimes do not hesitate, therefore, to stifle mercilessly
independent associations who may allow people to enjoy freedoms of expression, conscience and
ideas.

In Tunisia, for example, thousands of people were jailed during decades in the aftermath of unfair
trails before special and ordinary courts. People were accused of being responsible for holding
associations without respecting the provisions of article 4 of the 1959 Associations Law that
subjected the right to create associations to a prior authorization from the Minister of Interior
before creating an association14. What is appalling is that the above mentioned article 4 was
contradicting the 1959 Constitution as it made the freedom of association, which was
constitutionally recognized, depending on the willingness of the Minister of Interior15.

In Egypt, the law 84 (2002) on non-governmental societies and organizations has the appearance of
a liberal legislation ruling the freedom of associations. Thus, the association does not need a prior
registration to exist16. However, this law subjects the CSOs funding to a tight control aiming to
obstruct the development of independent and critical organizations toward the regime.

Therefore, CSOs were the target of a governmental campaign intended to crush associations that
criticize the human rights record of the government. The foreign funding was used as an alibi to
tarnish the reputation of CSOs among public opinion. Associations were subject to abusive
decisions of dissolution for receiving foreign funds without permission from the Ministry of Social
Solidarity. NGOs who act in human rights issues are usually a target of such decisions. Associations

12
   Amnesty International, Challenging repression : human rights defenders in the Middle East and North Africa,
London, 2009, Index: MDE 01/001/2009
13 UNDP, AFESD and AGPUNDO, op cit., p. 86.
14 D. Jazi, op. cit., pp. 352.
15 Ibid.
16 Kareem Elbayar, “NGO Laws in Selected Arab States”, The International Journal of Not-for-Profit Law,

Volume 7, Issue 4, September 2005 pp. 8-11

were subject to abusive decisions of dissolution for receiving foreign funds without permission from
the Ministry of Social Solidarity. NGOs who act in human rights issues and who denounce torture
and other violations are usually a target of such policies17.

Libya’s Muammar Gaddafi could be considered as the country where freedom of association was
the most violated in the world. The Libyan regime took draconian measures against the right to
associate from the beginning of Gaddafi’s rise to power. The law 71 (1971) prohibited any kind of
association that contradicts the principles and ideals of the 1969 Revolution. This law was
extremely repressive to such extend that violator could be put to death18. At the same time, the law
111 (1971) on associations was adopted to detail the repressive provisions included in the law 71
(1971).

The former Libyan regime tried by the beginning of 1990s to show a new face by issuing a set of
human rights legal texts intended to display an untruthful political opening after the fall of the
former communist regimes, traditional aliens of Gaddafi’s regime, a and the lunch of the third wave
of democratization in East Europe and some African countries. Among these texts, was the law 19
(1991) on associations that increased, actually, the control upon the associations.

The registration process under law 19 (1991) could take 2 years. Alike the 111 (1971), the
associations are banned from being involved in activities that go against the principles of the 1969
Revolution. Obviously, the law 19 (1991) was violating the ICCPR, mainly its article 22, that was
ratified by the Libyan government in 1989 and could be considered even more repressive than the
previous one19.

3. The reform of the legal framework

The reform of the legal framework that governs the freedom of association is one of the most
important challenges it faces in the Arab countries that are witnessing a political transition in the
context of the countries of Arab spring. Such reform has been required by the human rights
organizations in the region even before the current political transition as a prerequisite for a
genuine democratic reform20.

Despite the big similarities that feature the transitional processes in these countries, the situation is
different from one country to another when it comes to legal reforms in general undertaken after
the fall of the old regimes. This assumption is particularly relevant as regard the freedom of

17
   Amnesty International, op. cit., p. 23 ; Euro-Mediterranean Human Rights Network, International Human Rights
Federation and World Organization against Torture, Fact-finding and Advocacy Mission on freedom of association,
22 March 2012; Euro-Mediterranean Human Rights Network, Monitoring Report on Freedom of Association in the
Euro-Mediterranean Region, Copenhagen, 2009, pp. 25-26
18 Human Rights Watch, Words to deeds. The urgent need for human rights reform in Libya, January 2008, Vol. 18,

No 1(E), p. 2.
19 Ibid., p. 73-76.
20 Cf. Cairo Institute for Human Rights Studies, Towards a Democratic Legislation Supporting the Independence of

Non-Governmental Organizations (NGOs: A Legal Analysis and Field Study, Cairo, 2009

association. Thus, Tunisia was pioneer in introducing significant legal reforms intended to reinforce
the right to associate. Libya is following with an ongoing reform process, while Egypt has witnessed
regressive reform attempt and Yemen kept the same legal framework unchangeable.

     i- The new association legal framework in Tunisia

The first decision made by the Tunisian government after the fall of Ben Ali regime on 14 January
2011, was to set up a Commission for political reform and democratic transition that was mandated
to prepare the legal framework considered as indispensable to hold the first-post-transition
elections21. Thus, a set of legislations were issued to organize the political parties, associations,
freedom of printing press and expression and freedom of audiovisual media22. It is widely
recognized that these legislations met well the requirements of the international standards
guaranteeing these freedoms.

Obviously, the Tunisian government was very willing at the beginning of the transitional process to
insure a genuine democratic transition and to create a new political climate build on respect of
human rights and fundamental freedoms. At the same time, key international instruments
dedicated to protect human rights were promptly ratified by the provisional government including
the Rome Statute on the International Criminal Court, the Optional Protocol to UN Convention
against torture, the first Optional Protocol to the International Covenant on Civil and Political
Rights23. All these positive steps were a sign of a genuine political opening in Tunisia after the fall of
Ben Ali’s regime.

The decree-law 2011-88 organizing the associations was adopted in this new political context
featured by a big change that Tunisia has witnessed. It replaced the law 1959-154 dated 7
November 1959 on associations24, which had been serving as a main tool to repress the freedom of

21
   The Commission was led by Yadh Ben Achour composed at the beginning basically by independent legal
experts. But enlarged in a second step in include members representing political parties and civil society
organizations. Cf. Decree-law n° 2011-6 dated 18 February 2011, creating the High Authority for the Achievement
of the Revolution Objectives, Political Reform and Democratic Transition, The Official Gazette, 2011, No. 13, p.
96; cf. also Hatem M’rad et Fadhel Moussa, La transition démocratique à la lumière des experiences comparées
(The Democratic Transition in the light of the Comparative Experiences), proceedings of the international
colloquium of the Tunisian Association of Political Studies, Tunis, 5-7 May 2011, Tunis, 2012.
22 Decree-law 2011-87 dated 24 September 2011 on political parties, The Official Gazette, 2011, No 74, p. 1973;

decree-law 2011-88 dated 24 September 2011 on associations, The Official Gazette, 2011, No 74, p. 1977; decree-
law 2011-115 dated 2 November 2011 on freedom of press, printing and publication, The Official Gazette, 2011,
No 84, 2559; decree-law 2011-116 dated 2 November 2011 on freedom of audiovisual communication and the
High Independent Authority of audiovisual communication, The Official Gazette, 2011, No 84, p. 2568.
23 See: Decree-law n° 2011-2 dated 19 February 2011, approving the International Convention for the Protection of

All Persons from Enforced Disappearance, The Official Gazette, 2011, No 12, p. 88; Decree-law n° 2011-3 dated
19 February 2011, approving the accession of the Republic of Tunisia to Optional Protocol to the International
Covenant on Civil and Political Rights, The Official Gazette, 2011, No 12, p. 88; Decree-law n° 2011-4 dated 19
February 2011, approving the accession of the Republic of Tunisia to the Rome Statute of the International
Criminal Court and to the Agreement on the Privileges and Immunities of the court, The Official Gazette, 2011, No
12, p. 89; Decree-law n° 2011-5 dated 19 February 2011, approving the accession of the Republic of Tunisia to the
Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or
Punishment, The Official Gazette, 2011, No 12, p. 89.
24 The Official Gazette, 1959, No 63, p. 1534.

association in Tunisia during decades under the authoritarian regime. The drafters of the new
legislation were basically inspired by liberal ideals and decided to put the maximum of guarantees
in the law that would pull up any attempt to jeopardize the freedom of association.

The freedom of association had been subject to the Minister of Interior’s prior authorization under
the law 1959-154 until its amendment on 2 August 198825. However, the prior authorization
withdrawn by the 1988 amendment returned back via subterfuges used by the old regime to
obstruct the freedom of association26.

The decree-law 2011-88 has closed the door towards the past practices that had been hindering the
right to associate. Its liberal spirit was obvious from its 1st article stating that “this decree-law
guarantees the right to create and join associations, and act within their frame and to reinforce the
role of the civil society organizations and their development and the preservation of their
independence”27. Also article 6 states that “it is forbidden to the public authorities to obstacle the
activity of associations or hinder it directly or indirectly”28. Besides, the draft constitution date 1st
June 2013, expected to be adopted by the National Constituent Assembly with the coming few
weeks, guarantees in its article 34 a full enjoyment of the right to association29.

The decree-law 2011-88 removed all the obstacles to the registration in the 1959 association law.
Therefore, the registration has become an easy and efficient process that offers genuine
guarantees for persons seeking to create a new association regardless their nationality.
Furthermore, any decision that bans the foundation of an association is subject to judicial review
that represents a real guarantee against any abuse or misuse of power according to the decree-law
2011-88.

Under the new legislation, the right to associate is guaranteed for nationals and foreigners as well
who can create associations locally or act in Tunisia under the umbrella of a foreigner or an
international NGO30. On the contrary, the old legislation required a prior authorization from the
Minister of Interior before an international NGO could work in Tunisia. The authorization was used
by the old regime to control the international NGOs’ activities in Tunisia and limit their
establishment in Tunisia. The new positive change in the law has encouraged a big number of

25
   The Official Gazette, 1988, No 52, p. 1100.
26
   See: Kristina Kausch, Tunisia: The Life of Others, Working Paper, FRIDE, Madrid, June 2009, p. 6.
27 Translated by the author from the Arabic
28 Idem.
29 The article 34 states that: “The liberty to found political parties, unions and association is guaranteed.

The law fixes the procedures of constitution of political parties, unions and associations without affecting the
substance of this liberty
The political parties, unions and associations commit themselves in their status and activities to respect the
provisions of the constitution and the law, and financial transparency and the reject of violence as well”.
30 Organic law 1993-80 dated 26 July 1993 on the establishment of the Non-Governmental Organizations, The

Official Gazette, 1993, No 56, p. 1057

famous international human rights NGOs to open local sections in Tunisia. This is the case, among
others, for Human Rights Watch, Euro-Mediterranean Human Rights Network31.

     ii. The reform attempt in Libya

Libya started the transition with positive steps to reform the association legal framework. The right
to associate is now explicitly included in the Constitutional Declaration adopted by the National
Transitional Council of Libya (NTC) on 3 August 2011 that states in its article 15:

“The State shall guarantee the freedom of forming political parties, associations and all civil society
organizations, and a law shall be promulgated to regulate them”32.

The liberticidal law 17 (1991) on associations should be considered as caducous now, giving that
article 34 of the Constitutional Declaration has cancelled all documents and laws belonging to the
old regime and that have a constitutional nature33. Besides, laws that contradict the Constitutional
Declaration are cancelled according to its article 35. This is, obviously the case for the law 19 (1991)
that goes against article 15 of the Constitutional Declaration.

Besides, the new constitutional provisions well remain with legal effect until a new constitution is
adopted according to the Constitutional Declaration as amended on 5 July 2012. Undoubtedly, the
new Libyan authorities have shown a liberal approach towards the freedom of association totally
different from this that had prevailed under the former regime.

Along the same line, NTC drafted a new legal text to organize the associations in 201234. The draft is
largely inspired by the Tunisian decree-law 88-2011, mainly as regard registration process and
funding regime that allows the association to receive funds even from abroad. However and unlike
the Tunisian legislation, article 15 put some restrictions on the international and foreign
organizations as it is required a prior authorization for these organizations that need to be managed
by Libyan citizens. Anyway, the draft was not adopted by the NTC and it is not clear, now, if the
present parliament, the General National Congress, will adopt this draft or not.

On other hand, certain new legislations were positive as regard CSOs and have recognized several
rights for them. This is the case, for example, of the law 65 (2012) organizing the right of peaceful
demonstration, who has explicitly recognized the right of CSOs to demonstrate. Also, CSOs are

31
   Kristina Kausch, ‘Foreign funding’ in post-revolution Tunisia, Working Paper, FRIDE, Madrid, 2013, pp. 3-4.
32
   The NTC was created on 27 February 2011 just 10 days after the uprising that led to the fall of Muammar
Gadhafi regime on 23 October 2011. See: Democratic Reporting International, The Constitutional Declaration: a
basis for democracy?, Briefing Paper 22, December 2011
33 Libya under Gaddafi’s rule was one of the rare countries without a written constitution. Thus, the constitution

was made of scattered texts that contained declarations and laws, among them was the law 19 (1991) on
associations. See: Moncef Ouannes, “The constitutional Libyan experience”, in Ahmed Essoussi, ed., Maghreb
constitutional studies, Tunis, University Publications Center, 2011, pp. 105-118.
34 The text of the draft is available in Arabic and English in the International Center for Not-for-Profit Law (ICNL)

website: http://www.icnl.org

represented, per se, in the electoral commission by 4 out of 17 members according to article 8 of
the law 3 (2012) on the High National Election Commission.

Furthermore, the right of the CSOs to observe the elections was accepted in Libya. However, the
legal vacuum resulting from the absence of a special legislation on associations, right now, created
some difficulties for the Electoral Commission to deal with the associations interested in observing
the elections. The inexistence of registration procedures that provide the association with the legal
status had put the Commission in a challenging situation. This is why the High National Election
Commission required the association to be registered by the Ministry of culture in order to be
accredited to observe the elections35.

     iii. Regressive attempt in Egypt

Civil society in Egypt has played a very positive role in Egypt by raising the culture of protest mainly
during the last decade. Also, CSOs have played very important role at the breakout of the 25
January 2011 Revolution by providing different kind of assistance to citizens while the state failed
even to guarantee security36.

Unlike Tunisia, the transitional authorities in Egypt did not manage to enhance the freedom of
association by the adoption of new laws. Yet, the Constitutional Declaration of 2011, and the 2012
Constitution as well, have recognized the freedom of association in a more or less acceptable way.
Thus, article 4 of the 2011 Declaration stated that: “Citizens have the right to establish associations,
syndicates, federations, and parties according to the law”37. While article 51 of the 2012
Constitution, which replaced the 2011 Constitutional Declaration, was more liberal when it provides
that:

“Citizens have the right to establish associations, civil institutions and parties, subject to notification
only. Such institutions shall operate freely, and be deemed legal persons.

Authorities may not disband them or their administrative bodies without a court order, in the
manner prescribed by the law”38

However, the 2012 Constitution has been suspended since the major political crisis that occurred in
Egypt in June 2012 and that had led to the coup on 3 July 2013. The President Mohamed Morsi was,

35
   See the High National Election Commission Decision 51 (2012) on the accreditation of observers: articles 2 (1-2)
and 3 (9); available at :
http://hnec.ly/en/uploads/publisher/8_Regulation_No51_Accreditation_of_Observers_and_Agents.pdf
36 Jennifer Ann Bremer, “Leadership and Collective Action in Egypt’s Popular Committees: Emergence of

Authentic Civic Activism in the Absence of the State”, The International Journal of Not-for-Profit Law, Volume
13, Number 4, December 2011pp. 70-92
37 The Constitutional Declaration of 30 March 2011: available at Egypt's Government Services Portal:

http://www.egypt.gov.eg/english/laws/constitution
38 The Constitution of 22 December 2012: text available in the Egyptian State Information Service’s website:
http://www.sis.gov.eg/En/Default.aspx

therefore, ousted by the Egyptian army 3 July 2013 and the state of emergency declared in the
country39.

During the rule of Mohamed Morsi, a law on association was drafted in February 2013. The draft
generated a wave of criticism against the government and was seen as more repressive than the
law 84 (2002)40. Actually, fewer guarantees are offered to the associations and more restrictive
measures were included in the draft to tightly control the foreign organizations and their funding41.

The 2013 draft amendment on associations was cancelled after the political deep crisis occurred in
Egypt as stated above. However, there is no guarantee that such liberticidal law on associations will
not be drafted in the future to amend the law 84 (2002) and even adopted by the future Egyptian
parliament.

     vi. The status quo policy in Yemen

In Yemen, the freedom of association is ruled by the law 1 (2001) concerning associations and
foundations that was the outcome of a fruitful cooperation between the Yemeni government and
the international community, mainly the donors42. This is why Yemen has one of the most liberal
legislations on association in the Arab region.

The registration is an easy and quick process in Yemen and it provides associations with strong
guarantees against any attempt of power abuse. Besides, international and foreign organizations do
not need prior authorization to exist in Yemen. Associations can also act freely without interference
from the government. Thus, prior authorization is not needed to receive fund from internal or
external donors.

Yet, the Yemeni association legislation is not as liberal as the Tunisian decree-law 84 (2011). Some
improvements are needed, actually, to insure genuine enjoyment of the freedom of association in
Yemen. Specially, the reference to the Islamic values passim in the law could be used as a tool to
exercise a tight control on the activities of the associations as these values are subjects to different
and even contradict interpretations. This is the case for example for article 23 that states in
paragraph 3 that:

“Any association or foundation may receive technical or scientific books, publications and
magazines that are not in conflict with Islamic values and this Law and the other effective applicable
laws”43.

39 See: David Kirkpatrick, Army Ousts Egypt’s President, New York Times, 3 July 2013
40 Mohamed Elagati, Foreign Funding in Egypt after the Revolution, FRIDE’s Working Paper, Madrid, FRIDE,
2013, pp. 4-5.
41 Elagati, ibid.

42 Elbayar, op. cit., p. 24.
43 See also in the same line articles 79, 80 and 81. An English version of the law 1 (2001) is available in The

International Center of Not-for-Profit Law website: http://www.icnl.org

The current transition that Yemen witnesses after the fall of the authoritarian regime and the
removal of the long-lasting president Ali Abdullah Salah in February 2012 would be a good
opportunity to reform the association legislation. However, the Yemeni transitional authorities did
not express willingness, until now, to go ahead with the expected reforms. Yet, the transition in
Yemen is facing several difficulties to deal with the damaging legacy of the old regime and major
political step are yet needed to be taken in order to start a genuine democratic transition in the
country44.

4. Conclusion

The study of the freedom of association in the countries of the Arab Spring shows that the ongoing
political change in these countries has pushed forward the efforts to reform the legal framework to
enhance this freedom. However, the reform effort in these countries is a continuing task that will
take time. Undoubtedly, the process could progress rapidly in one country, while it would take
more time in other one country. This depends on the particular context of each country and the
capability of the transitional authorities to put the insurance of the freedoms in general and
particularly the freedom of association at the top of their agenda.

The recent events that took place in the Egypt have proven that transition is top and down process
and not a linear process. Freedom of association has been always at stake in the transitional
processes. Thus, any democratization effort would require a genuine respect of freedom of
association.

Besides, freedom of association needs not only legal reforms but also a new culture based on
tolerance and respect of the diversity and human rights. This new culture is mainly needed to
ensure a genuine enjoyment of freedom of association in the four countries. This will remain the
main challenge the freedom of association will be facing during in the future.

44
  Cf. Thomas Juneau, “Yemen and the Arab Spring: Elite Struggles, State Collapse and Regional Security”, Orbis,
A Journal of World Affairs, Summer 2013, Vol. 57, No 3, pp. 408–423

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