It was with customary gusto that Egyptian President Mohamed Morsi proudly announced that he had submitted his first draft law to the Shura Council under the new constitution that came into effect in December of 2012.
Speaking at the “Takamol” conference of mostly charitable non-government organizations held in Cairo last Wednesday, Morsi declared that the draft law, drawn up by an advisory legal committee, heralds a “new era of partnership between the state and society.” He added that his presidency seeks to “activate the role of NGOs and enable them to become partners in public policy making.”
Less than a week later, on Tuesday, 4 June, 43 foreign NGO employees were given prison sentences of one to five years after being found guilty of illegally receiving foreign funding and other offenses. The trial is the culmination of a crackdown that began in December 2011, when six foreign NGO offices that had operated openly for years were raided by security forces.
Morsi’s draft law, which Human Rights Watch’s Egypt director Heba Morayef says “reflects the thinking behind the NGO trial and 2011 crackdown,” is the latest in a tortuous process that began immediately after the 2011 revolution and that has seen a flurry of draft proposals submitted first to the People’s Assembly and then to the Shura Council, following last year’s court-ordered dissolution of the People’s Assembly.
At stake is the already-curtailed freedom and independence of Egypt’s community of independent human rights groups, groups that have played a crucial role in revealing state abuse and supporting its victims over the last three decades. Since 2002, these organizations have been governed by the provisions of Law 84, a draconian piece of legislation that has been used to control and contain Egypt’s civil society via Orwellian bureaucratic trickery and thinly veiled interference from security bodies.
Law 84 prohibits NGOs from engaging in activities that “threaten national unity or violate public order or morals”—a recurring leitmotif in deposed president Hosni Mubarak’s arsenal of laws whose vagueness allowed politically-motivated legal charges to be brought against regime opponents. To institutionalize such control, Law 84 made both the creation and funding of NGOs contingent on approval by the Ministry of Social Affairs, which also has the power to dissolve the organizations. As such, the ministry frequently denied or stalled registrations, often in the name of “national security.” In order to circumvent this problem some NGOs registered as law offices, but in doing so risked imprisonment for violation of the law.
Law 84 is the legacy of a policy that is at best state suspicion of, and at worst out and out aggression toward, civil society. One of its principal architects was former Minister of International Cooperation and Mubarak stalwart Fayza Abul Naga, whose task was to oversee foreign aid entering Egypt—upon which human rights groups depend.
A February 2010 cable from the U.S. Embassy in Cairo states that “Abul Naga has been the most vocal and unrelenting advocate of restructuring the U.S.-Egyptian assistance relationship…She is the originator of the mega-endowment proposal that would eliminate [U.S. aid to Egypt] over ten years, and, in her view, significantly limit the likelihood of political conditions being placed on endowment funding.”
An inherent distrust of foreign funding and its Egyptian benefactors underpinned the Mubarak regime’s treatment of civil society and, like other aspects of Mubarak’s rule, it is an approach that has been appropriated by his successors.
On 12 July 2011 Abul Naga announced that a fact-finding committee would be formed to investigate direct foreign funding of civil society. In April of this year, el-Magalla, a state publishing house, released the fact-finding committee’s report on the investigation begun in 2011. It stated that tens of high-profile Egyptian and international NGOs operating in Egypt had received funding illegally in violation of Law 84.The committee stated that “the objective of foreign funding of NGOs is of a political nature and seeks to interfere in state affairs via aid…and of course this isn’t in society’s interests.” It recommended that the state respond by toughening the penalty for infringement of Law 84.
“This is part of the philosophy of the Egyptian legislator whether under Mubarak or the Muslim Brotherhood,” says Mohamed Zaree, Egypt Program Manager at the Cairo Institute for Human Rights Studies. “They consider foreign funding a crime in itself.”
Zaree adds that in the early days of the drafting process, Muslim Brotherhood representatives met with civil society leaders and accepted liberal proposals for other aspects of the law—but they always remained intransigent on the matter of foreign funding, insisting that it must be tightly controlled.
The result is “boringly familiar authoritarianism,” says Morayef.
In fact, its 74 articles go further on control of foreign NGOs and foreign funding than Law 84, investing enormous powers of control in the coordinating committee formed under the law. In a statement issued on 30 May, Human Rights Watch describes the provisions as “extraordinarily restrictive.”
The nine-member coordinating committee headed by the minister of social affairs and appointed by the prime minister monitors the activities of foreign NGOs. Four members are drawn from “relevant ministries and authorities”—what critics allege is doublespeak for security bodies—while the remaining four are civil society representatives chosen by the General Federation of Civil Society Work, whose composition, Zaree alleges, is easily controlled by the government.
Foreign NGOs not established pursuant to a treaty must gain permission from the coordinating committee to operate. If a foreign NGO is approved, it must submit annual financial and activity reports as well as any other reports or information demanded by the committee. The committee has the right to object to any activity or allocation of funding by the foreign NGO. In addition, Egyptian NGOs seeking funding from foreign NGOs operating in Egypt must seek the permission of the committee. The committee also has the power to object to monies acquired by Egyptian NGOs through domestic fundraising campaigns.
Notably and ominously, the law is silent on direct funding of Egyptian NGOs by foreign governments. Mohamed Akef, a member of the board of the Federation of Civil Society Associations and Federations who was involved in the drafting process, dismisses this and other concerns about the draft law.
“We talk about foreign funding in general, we don’t specify,” he says. “[Foreign funding] will be treated as ordinary funding as long as the [foreign] government isn’t spreading propaganda and doesn’t have an agenda.” Akef adds that funding will be considered by the coordinating committee “in the framework of the law and the constitution.”
Akef argues that the trouble with foreign funding is due to the dishonesty of NGO workers rather than repression by the state. “The problem is that the funding that human rights NGOs received didn’t [legally] go through the Egyptian government but rather went into their personal bank accounts,” he says.
Akef insists that the law’s requirement that the authorities provide a reason for their rejection of foreign funding or NGO activity will protect NGOs from government abuse of the law. However, Law 84 had the same requirement, and it was customary for politically troublesome NGOs to receive notice that they could not be registered or that a project had been banned “for security reasons.” Such an admonition was virtually unchallengeable in court.
Zaree sees the law as “part of the Muslim Brotherhood’s attempt to control the public sphere,” a point echoed by Morayef.
“The Muslim Brotherhood doesn’t want civil society to operate independently,” he says. “They want to be on top of foreign funding. If you can control funding, you can shut an NGO down.”
Even more worrying is the signal that the verdict issued on Tuesday sends to Egypt’s domestic NGOs.
Zaree anticipates that the ongoing investigation into Egyptian NGOs will gather steam soon now that “phase one” of the crackdown on Egyptian civil society is complete. He also believes that the government will use the verdict as propaganda to push the draft law, pointing to an unscheduled discussion on 4 June of the draft in the Shura Council's Human Development Committee.
Will the verdict have a chilling effect on civil society? Zaree anticipates that it presages a grim immediate future for Egyptian NGOs, who will face possible funding shortages from abroad, politically-motivated cases raised against them, and legal restrictions on their work under the existing, and possibly new, NGO law.
 Dina Tawfiq, “Israa, El-Borai and Abo Saeda Amongst Them…Exclusive: The Secrets of the Forbidden Funding of the Revolution’s Representatives,” El-Araby magazine (in Arabic), 30 April 2013.
 Human Rights Watch, “Egypt: New Draft Law an Assault on Independent Groups,” 30 May 2013, http://www.hrw.org/news/2013/05/30/egypt-new-draft-law-assault-independent-groups.