2 December, 2019
Libya: CSOs must challenge executive authorities’ denial of freedom of association
he Libya Platform encourages all local and international associations operating in Libya to appeal all legislation and regulations aimed at civil society issued since 2016 by the executive authorities throughout the country., even if the legally stipulated 60-day time limit[2] to challenge them has passed. A ruling[3] by Libya’s Supreme Court (Administrative Appeal 49-163 /2005) considers that: ” the executive decision, if tainted by the defect of lack of jurisdiction, is null for the reason of a serious defect and can be challenged without time limit.”
The Platform underscores that the decrees and executive orders issued for regulating or governing the freedom of association possess a “severe legal defect” and are thus “considered non-binding’ because they represent a usurpation of power by Libya’s executive from its legislature. Libya’s executive has no right to regulate freedom of association on its own; it is only sanctioned to issue decisions and regulations concerning the application of laws issued by the legislature regulating freedom of association. As confirmed by a ruling of Libya’s Supreme Court ( Administrative Appeal: 37-39 /1991) which considers that the “executive act loses its correctness and validity” and is “ ‘considered null’ when the executive act is affected by a severe and substantial defect. This is the case when the executive authority exercises an act belonging under the jurisdiction of the legislature or the judiciary.”
Executive restrictions on Libya’s civil society is reaching an unprecedented level and represents a significant threat to international and local organizations. These restrictions do not only harm rights groups but they also harm associations working on education, humanitarian relief, social work, and development. Over the last four years, the two vying Libyan authorities in the east and west, despite their political and armed conflict, have restricted freedom of association and expression without any consideration of Libya’s constitutional and international obligations to uphold these rights.
The Libya Platform is deeply concerned by the circular issued this month – on November 11th – by the Civil Society Commission in Tripoli, which is affiliated to the Government of National Accord (GNA).[4] This circular gave INGOs an ultimatum to renew their registration in Libya according to Executive Order 286 issued by the Presidential Council in March 2019. It also gives international organizations a deadline of next month – before December 15, 2019- to submit annual financial reports. If INGOs fail to adhere to these conditions, their registration is considered to be cancelled according to the Commission, without any review by Libya’s judiciary.
The Civil Society Commission offices in the east and west have already forced local CSOs to re-register according to executive orders and decrees in 2016 and again in 2019. The Civil Society Commission branch in Misrata issued a decision n°29 on May 2018, which dissolved nineteen local organizations; and the Civil Society Commission branch in Benghazi suspended 37 local organizations under decision n°3 issued on February 2019.
The Platform reminds the executive authorities of the Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, presented to the UN General Assembly in May 2012:[5]
“The suspension and the involuntarily dissolution of an association are the severest types of restrictions on freedom of association. As a result, it should only be possible when there is a clear and imminent danger resulting in a flagrant violation of national law, in compliance with international human rights law. It should be strictly proportional to the legitimate aim pursued and used only when softer measures would be insufficient. 76. According to ILO jurisprudence, decisions to dissolve labour organizations “should only occur in extremely serious cases; such dissolutions should only happen following a judicial decision so that the rights of defence are fully guaranteed.”
In addition, the Civil Society Commission of the GNA issued decrees 1 and 2 in January 2016, and the GNA’s Presidential Council issued executive order 286 in 2019. The two decrees and executive order regulate the work of local and foreign associations in terms of establishment, registration and organization in a detailed and restricted manner, giving the executive authority extensive powers to restrict, suspend, and dissolve associations. All these acts by the executive authorities in Libya violate Article 15 of Libya’s Constitution, which stipulates that the freedom to form political parties, associations and other civil society organizations be guaranteed by the State.
The intervention of the executive authorities and their restriction on the legitimate freedom of association has exceeded the limits of their competence, not only including the powers to dissolve, restrict or suspend activity, but also to interfere in the nature of the work authorized to be done by associations and CSOs in Libya. On the 31 of August 2019, the Commission of CSOs Tripoli issued circular banning members of Libyan organizations from participating in any events outside Libya, without receiving approval from the Commission at least 15 days prior to the event.
In May 2018, Dar al-Iftaa in western Libya published a fatwa banning contact with foreign organizations except through the Libyan Foreign Ministry, which has the decision to approve and ban. In March 2018, the head of the Civil Society Commission in Benghazi issued a declaration requiring organizations to report any activity with international organizations ten days before the event, to grant authorization or denial.
With the crackdown on civil society further imperiling Libya’s stability and putting its most vulnerable populations at even greater risk, the Libya Platform calls upon the Special Rapporteur on the right to freedom of peaceful assembly and association to urgently appeal to the Libyan authorities to stop violating freedom of association, together with publicly addressing these violations. The Platform underscores that the crackdown on civil society in Libya eliminates its vital role in improving the country’s dire humanitarian, social, and political situations.
[1] The Libya Platform is a coalition of Libyan CSOs aiming to create a safe space for Libyan civil society organizations working on the protection and promotion of human rights to engage in dialogue and coordination, and aiming to raise the capacity of those organizations to actively promote public freedoms and human rights in the country.
[2] 60 days is normally the time limit to contest a legal act. However, in this case, this limit is not applicable since these acts were issued by non-competent authorities (the executive authorities) so it considered that these legal actions – decisions, decrees, and executive orders – never existed and therefore don’t any legal effect.
[3] According to the verdict issued by the Libyan Supreme Court, dated 23/11/1997 in the administrative appeal No. 91/42 BC
[4] The Civil Society Commission is currently divided between two institutions that issue conflicting decisions. The Board of Directors of the Commission is formed by the decision of the interim government in 2016 and has 27 branches to which commit to the rule of the interim government in the east, except the Tripoli branch. On August 8, 2018, a decision was issued by the interim government to remove the chairman of the Civil Society Commission, Abeer Amnina, from her post, and to appoint Ali Al-Obeidi instead. This was after the Presidential Council issued decision No. 160 of 2018 on August 2, to form the Board of Directors of the Commission.
[5] Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, submitted to the United Nations General Assembly in May 2012, p. 25, para. 75.