Adala for All Association : Repeal Decree 286 regulating the work of the Civil Society Commission and respect the rights of peaceful assembly and free association in Libya

The Hague, Paris, Tunis – 3 June 2022

 

Open Letter to Libyan authorities:

President of the Presidential Council Mr. Mohamed Al Manfi,

Prime Minister of the Government of National Unity Mr. Abdul Hamid Dbeibah,

Prime Minister Mr. Fathi Bachagha

Libya’s Parliament Speaker Mr. Aguila Saleh

 

Adala for All association (AFA) calls on Libyan authorities to respect the Libyan state’s obligations under the International Covenant for Civil and Political Rights (ICCPR) and to put an end to the fierce systematic campaign against local and international civil society organizations in Libya. Since November 2021, the Civil Society Commission (CSC) in Tripoli and Benghazi has adopted repressive practices targeting fundamental rights, especially freedom of association and assembly. AFA warns against the dire consequences of the current escalation of these repressive practices, which are causing a severe shrinkage in civic space and have reached the level of defamation of civil society activists, wherein detainees -shown in video clips under clear coercion – confess to “encouraging the desecration of Islam” and working with foreign organizations. Other alarming developments include a ban on peaceful demonstrations in Tripoli for a month and a systematic arrest campaign in Sirite by the Internal Security Agency (ISA) in eastern Libya.

 

AFA additionally calls on the Libyan Presidential Council to repeal Decree 286 regulating the work of the CSC, issued in 2019, due to its contravention of the Libyan Constitutional Declaration. Decree 286 regulates the formation of associations through administrative decision undertaken by Libya’s executive governing authorities. Articles 14 and 15 of Libya’s constitution stipulate that the formation of associations is regulated by law, and thus inherently falls under the jurisdiction of Libya’s legislative and judicial authorities. By positing that the right to free association is to be governed by Libya’s executive authorities rather than its legislative and judicial authorities, Decree 286 flagrantly violates Libya’s constitution, as affirmed by a Libyan Supreme Court ruling in 1991[1], which stated that “if the executive authority were to undertake an act under the competence of the legislature or the judiciary,” then that act is “fundamentally flawed” and thus rendered null and void.

 

Not only does Decree 286 violate Libya’s constitution and national law, it also violates international law and Libya’s obligations and duties thereunder. AFA reminds Libya’s executive authorities of the report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association Maina Kiai [2], submitted to the United Nation General Assembly in May 2012, which states that members of associations should be free to determine their statutes, structure and activities and make decisions without State interference.

The Decree 286 is also in violation of the UN Human Rights Committee’s interpretation of General comment no. 34, Article 19, of the International Covenant on Civil and Political Rights, which warns against that unilateral administrative practices by state executive authorities, without judicial oversight, constitute violations of freedom of association. Accordingly, the following aspects of the Decree 286 are all hostile to free association, as they give the Civil Society Commission- an executive governing authority – unilateral decision making power over the establishment and operation of associations. The specific authorities given to the CSC by the Decree 286 are as follows:

• The CSC has the sole right to accept or deny registration and approval of associations;
• The CSC has the jurisdiction to freeze bank accounts and reject funding for associations;
• Associations are required to obtain prior authorization from the CSC before engaging with international organizations and institutions, and association members are required to obtain prior authorization to travel for civil society events and activities abroad.

All of these authorities amount to egregious breaches of the fundamental right to free association, while bolstering other draconian legislation in Libya, namely the Penal Code, Article 206 on “Unlawful Organisations and Formations”, in which the punishment for exercising the right to free association can amount to the death penalty:

 

“Anyone who promotes, founds, organises, funds, or directs any assembly, organisation or formation prohibited by law, or allocates a location for its meetings; anyone who joins or incites the same in any manner, provides any assistance therefor; anyone who receives or obtains directly or indirectly in any manner money or benefits of any type from any person or entity with the purpose of establishing a prohibited assembly, organisation, or formation or prepare therefor, shall be punished with the penalty of death.”

 

AFA further emphasizes that the Civil Society Commission has strayed from its mission of protecting rights and freedoms since its establishment in 2019. The CSC was and still is a tool used by the executive authorities to conduct defamation campaigns against Libyan civil society – labeling its members as “foreign agents” or “morally corrupt”. Thus the CSC has undertaken a policy of repression and impunity violations, while imposing numerous restrictions on the work of hundreds of civil society activists.

 

Meanwhile, the Internal Security Agency considers the work of associations and lawyers in regards to the defense of rights and freedoms as a “conspiracy against the agency” and has disregarded the political agreement reached by the Libyan Political Dialogue on 9 November 2020, under the supervision of the United Nations Support Mission in Libya (UNSMIL). The agreement states – in Article 6, point 8 -that:

 

“The executive authority shall support the Civil Society Commission to perform its

functions and remove the obstacles and restrictions on the work of civil society institutions

without prejudice to public order. The executive authority shall also take the necessary

measures to ensure respect for civil and political rights and shall ensure their regulation in

a manner that ensures freedom of expression and political organization and action.”

 

Recommendations:

 

Adala for All reminds Libyan authorities that they are obligated under national and international law to uphold the right of every individual in Libya to freedom of assembly and association, which encompasses the right to establish or form an association and is protected under Article 20 of the United Nations’ Universal Declaration of Human Rights. The right to peaceful assembly is a founding principle of democracy and includes the right to peacefully conduct meetings, sit-ins, strikes, gatherings, events, and protests. Freedom of association constitutes a tool through which to exercise a set of additional rights guaranteed by international law, including the right to freedom of expression and the right to participate in public affairs. In consideration of aforementioned facts, Adala for All calls for Libya’s executive authorities to:

 

• Repeal of Decree 286 of the CSC due to its violation of the Interim Constitutional Declaration and the International Covenant on Civil and Political Rights
• Put pressure on the General Authority for Endowments to put an end to hate speech and incitement against civil society organizations
• Commit to the political agreement (Article 6, point 8) produced by the Libyan Political Dialogue Forum under the supervision of the United Nations Support Mission in Libya.
• Adopt the draft law submitted by the Libya Platform coalition to Parliament
• Respect Libya’s Constitutional Declaration and the International Covenant on Civil and Political Rights signed and ratified by the Libyan state since 1978
• Uphold the right to freedom of association and peaceful demonstration and the right of individuals to interact and organize among themselves to collectively express, promote, achieve, and defend common interests, in accordance with Article 20 of the Universal Declaration of Human Rights.

 

AFA holds the Presidential Council responsible for all rights violations committed by the Civil Society Commission against civil society activists in Libya, as the Commission is affiliated to the presidency of the Presidential Council in accordance with Resolution no.42 of 2021.

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[1] Regarding Administrative Appeal no. 37/39

[2] Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, May 2012, Paragraph 25, article 75.