Nothing can be gained by turning back to Gaddafi-era law

Libya ratified the International Covenant on Civil and Political Rights (ICCPR) in 1970 and the African Charter on Human and Peoples’ Rights in 1986; Article 10(1) of which guarantees freedom of association.

Libya’s international obligations supersede any national legislation, as affirmed by constitutional appeal 57/01 on 23 December 2013 reaffirming that “the international convention ratified by the Libyan legislative authorities is superior to national law.

If there is a contradiction between national laws and international conventions, the latter [international convention] should be applied directly before the national courts”.

According to Article 4 of the International Covenant on Civil and Political Rights, the right to freedom of association is not considered absolute; in exceptional cases, restrictions may be placed on it, provided they are legal and necessary in democratic societies.

The UN Human Rights Committee’s 1999 General Comment No. 27 on freedom of movement notes: “The law itself has to establish the conditions under which the rights may be limited. State reports should therefore specify the legal norms upon which restrictions are founded”.

In other words, there are conditions that must all be met when States wish to limit this right, and any limitations must be justified on the basis of one of the limited interests referred to above (legal and necessary). The exception must have a legal basis (i.e. to be created by law or by a time-bound amendment to a law), be formulated with sufficient precision, and provide the necessary justifications. For example, according to the International Labour Organisation (ILO)’s jurisprudence, decisions to dissolve labour organizations “should only occur in severe cases; such dissolutions should only happen following a judicial decision so that the rights of defence are fully guaranteed”.

The Commission on the African Charter on Human Rights has found that any blanket restrictions on who can form associations are essentially illegal.

There is no further provision on how or when this right may be restricted, as stipulated in Article 10 of the Charter and the Guidelines on Freedom of Association and Peaceful Assembly issued by the African Commission on Human and Peoples’ Rights at the 60th session of the Commission in Niamey, Niger, from May 8 to 22, 2017.

The prolonged absence of a new law on civil society, required by the Constitutional Declaration ten years ago, has opened the door for the executive authorities to encroach upon the jurisdiction of the legislative authorities in regulating civil work and forming national and international civil society organizations.

From 2016 to March 2023, governing authorities in the East and West of Libya issued four decisions and administrative regulations that violate the right to form local and international CSOs, especially targeting human rights organizations that expose violations. These regulations and decisions, which are indicative of the persistent executive overreach seeking to undermine the fundamental right to association, are;

  • Regulations 1 and 2 of 2016 issued by the head of the Eastern Government, Abdullah Al-Thani
  • Decree No. 286 of 2019 issued by the Presidential Council in Tripoli headed by Fayez al-Sarraj
  • Resolution No. 5 of 2023 of the Civil Society Commission affiliated to the Presidential Council in Tripoli, headed by Muhammad Al-Manfi

These decrees circumscribed local and International organizations’ operation and restricted individuals’ freedom to form civic associations by instituting a licensing regime requiring approval from administrative authorities (the Civil Society Commission) instead of a notification system.

When they register, organizations are requested to sign a pledge that they will not enter into communication with any embassy or international entity without prior authorization from executive authorities.

These regulations and decisions also give the executive-led administrative authority the right to storm and ransack the headquarters of CSOs, temporarily suspend their activities or dissolve them, and freeze their bank accounts, all without a court ruling. CSOs must obtain the approval of the Civil Society Commission to receive any funding for their projects, or to implement any of their activities. Egregious overreach by the Commission into the work of CSOs is facilitated by these executive regulations, to the extent that victims of rights violations can be put at grave risk if they interact with civil society.

An organization can even be compelled by the Civil Society Commission, as the administrative authority, to disclose the names of victims of violations, violating their privacy and jeopardizing their safety.

These executive decisions and regulations are entirely invalid because they are issued by the Executive, which is not the competent authority.

The conclusion of Administrative Appeal No. 39/37 of 1991 issued by the Libyan Supreme Court, applies to these executive acts: the “executive act loses its correctness and validity” and is considered null if the act exercised belongs “under the jurisdiction of the legislature or judiciary”.

Similarly, Administrative Appeal ruling 49-163 /2005 by the Libyan Supreme Court considered that: “the executive decision, if tainted by the defect of lack of jurisdiction, is null for the reason of a severe defect and can be challenged without time limit”. In sum, the executive-issued administrative decisions regulating CSOs are invalid because such legal decisions fall under the jurisdiction of the legislative authority, not the executive authority.

The same assessment was concluded by the Urgent Matters Department of the South Benghazi Court on 18 July 2022, which approved the suspension of Decree 286 of 2019 issued by the Presidential Council of the Government of National Accord, which regulates the work of the Civil Society Commission.

The decree’s suspension followed an appeal against the decree by organizations of the Libya Platform, human rights coalition established in 2016 currently comprised of 14 human rights organizations.

The acknowledgment of the illegality of these decisions and executive regulations was the only acceptable aspect of the legal opinion issued on 7 March 2023 by the Libyan Department of Law[8], which acknowledged the illegality of Resolution 286/2019 and similar decisions issued by non-competent executive authorities.

The opinion included a statement that clearly threatens the freedom of association: “All organizations registered before the revolution according to Law No. 19 of 2001 are valid and their registration is still valid, while all local and international organizations and associations registered after 2011 are considered null and void.”

Article 6 of the executive regulations for the creation of the Department of Law states that its legal opinion “is binding unless it contradicts the principles of the Supreme Court”.

In fact, the Department of Law’s opinion regarding revoking the license of CSOs registered after 2011 contradicts the principles set out by the Supreme Court in Constitutional Appeal 57/01 of December 2013. 

It also contradicts the opinion of the United Nations Special Rapporteur on freedom of association, in Recommendation No. 96 of his report, which prohibits ICCPR signatory states from criminalizing the work of unregistered CSOs, even under national law, because the ICCPR takes precedence over national law, and Libya’s executive authorities must abide by the international legal framework to which they are signatory.

On 13 March 2023, General Decree 5803 was issued, which stipulates that all CSOs established after 2011 are illegal and must stop working.

CSOs that continue to work are subject to Internal Security raids of their headquarters and the prosecution of their members on charges of belonging to an illegal organization, through which they can incur severe penalties including a death sentence, as upheld by Article 206 of the Penal Code and the amended Law No. 80 of 1975.

On 21 March 2023, the Government of National Unity headed by Abdul Hamid Dbeibeh issued a Decree (No. 7/2023) that allows local and international CSOs in Libya to continue their work temporarily and recognizes their (temporary) legality until they can adapt and conform to the provisions of Law 19/2001 to regulate CSOs.

Thus, this repressive law, contrary to international standards (and which has become unconstitutional and invalid since 2011), is becoming the legislative framework regulating the work of local and international CSOs in Libya once again, twelve years after the 2011 revolution.



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