The International Journal
of Not-for-Profit Law
Volume 9, Issue 2, April 2007
Chafika Kahina Bouagache 1
Part I: The State of Algeria – A Short Legal History
Introduction
Written laws are the results of different processes within the culture, society, and history of a region or a country. Full understanding of Algeria’s law on associations requires taking all these processes into account. This may be a difficult task, and it is surely all the more difficult when one deals with a country that is as complex as my home country, Algeria.
Algeria has had a very difficult past. It is still suffering from the aftereffects of the French occupation and from having been at the mercy of various world powers at one point or another. Since its independence in 1962, Algeria’s domestic situation has not become any less difficult. Tensions and injustices within the society eventually brought about a very bloody and cruel civil war that nearly ripped the country apart. These events have left their mark on the laws and regulations that make up the legal framework of the country.
In the history of Algeria – whether during the fight for independence, the formative years of the republic, or the late 1980s – political and religious movements, associations, and organizations have always played a major role. The movement of Algerian nationalists had its beginnings in France during the 1930s with the creation of the “North African Star” (ENA) and the “Algeria People’s Party” (PPA). These were the first parties to cause thousands of Algerian expatriates to rally and to fight for a common cause.
During the war for independence, these political organizations would be succeeded by the paramilitary “Algerian National Movement” (MNA) and the “National Liberation Front” (FLN), which would later rule Algeria as a one-party state in accordance with its ideological model, the Soviet Union. The 1980s saw a new wave of independent movements, which opposed the secular Soviet-type state and promoted free elections. From these movements, political parties reemerged, including the “Socialist Forces Front” (FFS), which had until then been forced to operate clandestinely, and the “Islamic Salvation Front” (FIS), the first major Algerian political party with a strong religious basis.
All of these organizations were and are mass movements. Their histories underscore the importance of social, cultural, and political grass-roots movements and associations to the history of Algeria as a whole. It is within this context that I analyze the “Law on Associations,” which was passed on December 4, 1990, as well as its predecessor dating from July 21, 1987. The Law on Associations was passed one year after the adoption of a new constitution for Algeria, which allowed for the first time in modern Algerian history parties other than the ruling FLN. But it was also just one year before the fateful national elections of December 1991, whose aftermath would later result in the long and bloody civil war.
In order to understand the meaning of the Law on Associations, it is crucial to understand the very complex time period in Algeria’s history between 1962 and the present. I therefore begin with a description of the relevant historical facts, especially those related to the civil war of 1992-2000, a war of almost endless suffering for all who resided in the country. Any discussion about the past or future of Algerian society and its laws must include that tragic chapter.
I hope that my essay will give the reader not only an understanding of the Law on Associations but also a better comprehension of the history of my home country and of the conditions under which we have had to live in all those years.
The Formative Years of the Republic
Algeria, like much of the Arab world, has a long history of being occupied by foreign forces. The first was the Roman Empire, which annexed the fertile lands of the region to their empire. After the Romans disappeared, the Ottomans came and annexed the region into their empire. In 1830, French troops landed on the coastal area of Algiers and Algeria became a French colony. The French would stay for 130 years, until the war for independence began in 1954.
The war lasted eight long years, from 1954 until March 18, 1962, when France under the leadership of Charles de Gaulle and representatives of the Algerian FLN signed the “Evian Agreements.” The Agreements proclaimed a cease-fire between the French troops and FLN forces and guaranteed the Algerian people the right to choose their national destiny.
On July 1, 1962, Algerians and French residing in Algeria were called to vote on the future of Algeria. On July 3 the results were published. The voters were overwhelmingly in favor of a new independent state: six million voters said yes, and only 16,500 wanted to preserve the status quo of Algeria as a French colony. After 130 years as a French colony and a war that caused approximately 500,000 casualties, Algeria was finally reborn as a new and independent country.
In August 1962, one month after independence was declared, the provisional government of Algeria transferred its powers to the FLN. Another month later, the National Assembly was elected, consisting solely of candidates from the FLN. The Algerian Republic was proclaimed and a new government was formed with Ahmed ben Bella as its first leader. He became the President of Algeria on September 15, 1963.
The new government moved quickly to nationalize Algeria’s agriculture and industry. The objective behind the nationalization and collectivization effort was to “catch up with the backwardness caused by 130 years of colonialism” 2 and to align the country and its population with the socialist course of Gamal Abdel Nasser, the then-president of Egypt and one of the foreign mentors of the Algerian revolution.
Drafting of the Algerian Constitution began on August 28, 1963. The following month, the first constitution was passed by referendum.
Although the war for independence was fought by many different parties, groups, and individuals, at the end there had to be only one declared winner: the National Liberation Front. And so there was not much room for other parties or organizations to form in the social and political landscape of the young republic.
The new republic’s leaders refused to accept and allow political diversity, a decision that would have long-term negative effects on the country. It would later lead to the ultimate catastrophe, when once more Algerians would fight Algerians, as occurred during the war for independence. Article 19 of the Constitution “guarantees freedom of the press and of other means of information, freedom of association, freedom of speech and public intervention, and freedom of assembly,” but Article 22 makes it clear that freedom ends where the interests and powers of the FLN are concerned:
No one may make use of the rights and liberties enumerated above in order to threaten the independence of the nation, the integrity of its territory, national unity, the institutions of the Republic, the socialist aspirations of the people, or the principle of the unity of the National Liberation Front. In due time, all autonomous political parties, organizations, associations and unions either came under the control of the state (i.e., the FLN) or were forbidden and dissolved. The only exceptions to this rule were sports clubs and some religious organizations, but even the Algerian Boy Scouts were placed under the control of the FLN.
During the following year, internal crises arose within the FLN over the correct “socialist” course for the country. These were followed by the first serious economic crisis, as thousands of Algerians left the rural areas, causing severe housing problems in the metropolitan areas. A staggering unemployment rate forced thousands to leave the country in search of work. By 1965, 450,000 Algerian immigrants were living in France.
Ben Bella did not survive the crisis as President. On June 19, 1965, he was arrested at the initiative of Defense Minister Houari Boumédienne, who implied that Ben Bella had, among other things, promoted a “personality cult,” “liquidat[ed]… revolutionaries,” and suffered from a “confusion [of] ideologies.” 3 Ben Bella was imprisoned without trial and remained under detention until 1980, when he was set free by Boumédienne’s successor, Chadli Bendjedid.
The Boumédienne Era
Boumédienne swiftly turned the state into a one-man dictatorship, which he would manage through a so-called “council of the revolution” and the only party that was left, the FLN. He defended these changes officially by telling the Algerian people:
We have to protect the socialist system; to do that, we cannot rely solely upon the enthusiasm of the people and their noble feelings. We have to provide for our people a tool, which serves them to triumph over their internal enemies, to defend the integrity of the territory and the current socialist development…. Socialism means nothing other than a radical transformation of the Algerian society, which implies the elimination of opposing interests that are in conflict with the higher interests of the Algerian people. 4
To be sure that the FLN executed his wishes, Boumédienne controlled all matters of state through the Algerian army, which he trusted over the FLN.
Boumédienne continued the nationalization process which Ben Bella had initiated by “de-colonizing” the oil and gas industry. At that time, the sector was still dominated by French companies. Boumédienne hoped to increase state revenue by seizing the oil and gas industries, but that objective was not finally achieved until 1973, when that year’s oil crisis tripled income stemming from hydrocarbons.
Boumédienne primarily concentrated his efforts on Algeria’s oil and heavy industries, but a simultaneous “agricultural revolution” and nationalization ended in a long series of administrative failures and catastrophic results. While the agricultural sector produced 31% of the gross domestic product in 1963, its output fell to 18% of GDP in 1965 and to 13% in 1970. At the same time the agricultural sector only received 12% of the state’s investments from 1970 until 1973, and a mere 7.4% from 1974 until 1977.
It was therefore no wonder that the stream of Algerian emigrants continued to flow toward France and the rest of Europe. By 1975, 710,000 Algerians had settled in France. The inability to develop a healthy economic infrastructure that would actually serve the needs of the population was one of the major causes of the disastrous social conditions that would cause the later turmoil of the 1980s.
Despite these setbacks, at least some progress was made in the field of education. In 1978, four million first-graders were enrolled in school – four times the number of pupils in 1963. During those years, Boumédienne also launched a campaign to promote the thorough integration of Islam and the Arabic language within the system of the state and the social infrastructure. As an example, the Sunday bank holiday was moved to Friday. Islam was also proposed for recognition as the official religion of the state.
These proposals were set in stone through a new National Charter and a Constitution. The National Charter was approved in June 1976 by 98.5% of the votes cast, and on November 19 the new Constitution, which integrated the principles of the charter, was adopted as well. In December of the same year Boumédienne was confirmed as President of the Algeria with 99.38% of the votes.
The new Constitution in its first article defined Algeria as a socialist state, which had been left ambiguous in the first Constitution. It also pronounced Islam the state’s official religion without according respect to the beliefs of others, as the 1963 constitution had done.
The FLN’s unique position in the constitution was unchanged and consequently the FLN remained the only party allowed to govern, though in reality Algeria was effectively ruled by one man. Not surprisingly, the theoretically guaranteed right for Algerian citizens to associate and form organizations remained only vague and consisted of two short, ambiguous sentences in Article 56: “The freedom of association is recognized. It is exercised within the framework of the law.”
Boumédienne died on December 27, 1978, and was succeeded by Colonel Chadli Bendjedid, an FLN veteran and Defense Minister at the time of Boumédienne’s death. Bendjedid obtained his position upon the army’s recommendation. He took office on February 7, 1979, but was soon confronted with serious economic and social problems that shattered the country.
The Blockade of the System
The years between 1980 and 1988 were later called the era of the “blockade of the system.” 5 A number of reform processes were initiated to solve the country’s immense economic problems and to restructure the enormous party apparatus of the FLN. But in the end only slight improvements were attained and the inflexible state system remained impervious to change.
Public displays of any form of cultural diversity were efficiently suppressed during the era of Boumédienne. This was especially true for the Berber or Tamazight culture and language, which had not been included and acknowledged as part of the Algerian culture in the Charter of 1976, despite the fact that large portions of the northeastern part of Algeria were dominated by Berber communities. The suppression of the Berber culture continued under Bendjedid.
On March 19, 1980, the government prohibited a conference on the use of the Berber or Tamazight language in literature, which was organized by the writer Mouloud Mammeri at the University of Tizi-Ouzou. Students quickly occupied the university in protest, and a regional strike was announced in Berber-dominated areas in Algeria. The government crushed the protests with military force.
Meanwhile, as a first step of his internal reform efforts, Bendjedid tried to gain more control over the party apparatus. Since the independence, the FLN’s unique position had led to widespread corruption, bureaucracy, and nepotism at all levels of the government. On May 3, 1980, at the Third Session of the Central Committee of the FLN, Bendjedid was given a free hand and the powers necessary to restructure the party. His reform and anti-corruption efforts had few effective results, though individual FLN officials and ex-ministers were found guilty of fraud and sentenced to prison during the 1980s.
In 1980 it was clear that economic catastrophe loomed, due to earlier ill-founded industrialization programs. The neglected agriculture sector lay in shambles, and by 1984 the country was forced to import 40% of its cereal, 50% of dairy products, 70% of animal or vegetable-based fat, and a staggering 90% of sugar. As a consequence, the government undertook first steps to allow privatization to a limited degree and to stop the industrialization process. 6
As a result of a meeting of the FLN’s Central Committee, a “Charter on Habitat” was published, which guaranteed the right of families to private property. Other steps followed, including allowing private entrepreneurs and farmers to access state credits and restoring state-owned farmland to private owners. Through these measures, 700,000 hectares of land passed from public to private hands. Unfortunately, the effects were limited, in part due to the continued growth of the Algerian population. During the first years of the land and industry reform, only 280,000 new jobs were created, yet millions remained without work and 200,000 young Algerians entered the job market each year. The younger generation was hit hardest by the crisis: 72% of all unemployed persons were under 25, and this group represented 65% of the whole population.
The government’s reform efforts were further stymied by the oil crises of 1983 and 1986. Oil and gas had been Algeria’s major exports and therefore the country’s major source of income. Between 1975 and 1982, the sale of hydrocarbons to other countries represented 92% of total export income and more than a third of the gross domestic product (37.5% in 1980). The drop of oil prices therefore had dire consequences for Algeria’s economy, and by 1981 external debt represented 35.5% of the gross domestic product. In 1992, shortly before the outbreak of the civil war, Algeria’s debt reached an astonishing 68% of GDP.
Meanwhile the state continued with its campaign of Islamization. Religious Affairs Ministry Decree No. 80-17 (February 9, 1980) stated that “Islam represents the Algerian identity and blossoms within the socialist system.” Islamic activists saw the chance to propagate their ideas, and trouble soon arose.
On May 19, 1981, secular and Islamic student groups began fighting at the campus of the Ben Aknoun University in Algiers. Shortly afterward, violent confrontations began between the Algerian police and Islamic groups at other universities. Incidents continued until 1988; hundreds of Islamic activists were arrested and several people were killed.
The government tried simultaneously to control the upheaval and to appease the Islamic activists. The Ministry of Religious Affairs on August 6, 1983, decreed the nominations of individual imams, hoping to centralize the religious education of mosque leaders. A University of Islamic Science was built and opened in September 1984 in Constantine. The construction of mosques was also expanded, so that by 1986 Algeria had 6,000 mosques.
To respond to the calls by conservative Islamic activists for stricter adherence to the teachings of the Koran, the National Assembly adopted on May 29, 1984, the so-called “Code of the Family,” which led to Law No. 84-11 on June 9. The Code integrated large parts of Islamic jurisprudence, or sharia, into the legal system, with severe consequences for the legal and economic situation of Algerian women. The new law effectively classified women as minors, taking away rights and liberties and reducing them to submissive housewives who stay at home and are at the mercy of their husbands.
Despite reform efforts, the situation for the average Algerian citizen remained grim. The government largely ignored the actual needs of the population, and it reacted to problems only when they grew big enough to threaten the power of FLN officials and the top brass of the Algerian army (ALN). It was just a matter of time before the powder keg would explode.
The 1987 Law of Associations
A little-known reform effort of the Bendjedid era was the promulgation of the first law on associations on July 21, 1987. At that time, associations other than sport clubs practically did not exist and had no legal standing within Algerian society. But the law had little effect. Although it cited article 56 of the 1976 Constitution, it proved to be nothing but an instrument to protect the government’s power, providing only the illusion that the country and society had become more open.
The 1987 Law of Associations consisted mostly of restrictions and penalties for violating them, rather than a guarantee of the people’s freedom of association. The law gave the administrative authority strict control over the associations’ activities. Any slight deviation from the regulated objectives was punished by dissolving the association, closing its offices, and seizing its assets. In addition to having their associations dissolved, the heads of associations were threatened with jail and stiff fines.
No legal recourse was provided for an association in the case of dissolution. The association was completely at the mercy of the administrative authorities, and it had no legal tools at its disposal to respond to arbitrariness or despotism by the authorities.
The October Events and Their Aftermath
On October 5, 1988, several areas in downtown Algiers were ransacked and pillaged by hundreds of young adults, adolescents, and even children, protesting the living conditions in the poorer neighborhoods of the capital. During the following day, more demonstrations erupted all over the capital. Demonstrators set fire to government buildings. The government responded by declaring a state of emergency and imposing a curfew, but the demonstrations continued and spread all over the country. Protesters demanded individual freedoms and meaningful reforms to reverse the country’s economic downfall. Bloodshed soon followed. On October 8, the army fired on demonstrators in the city of Kouba. This was only the beginning. Ultimately, 600 civilians were killed, and the government crushed the uprising.
The government’s brutality left the population stunned and devastated. President Bendjedid quickly proposed amendments to the existing constitution, and his proposals were approved by referendum in November 1988. On February 23, 1989, the third constitution of Algeria was passed. Unlike its forbear, this constitution represented a dramatic departure from the first constitution. For the first time in Algeria’s history, the constitution allowed citizens to elect their representatives and to form parties.
The one-party rule of the FLN was abolished and all references to it were erased from the constitution, except for a mention of its importance during the war of independence and the formative years of the republic. The new constitution in fact legitimized political opposition parties that already existed but had been forced to operate clandestinely. The constitution’s provision for the rights of free association and free expression remained as slim as in the previous two versions: “The liberty of [free] expression, association and assembly are guaranteed to the citizen[s]” (Art. 39).
Following the adoption of the constitution, new political parties such as the Islamic-based “Islamic Salvation Front” (FIS) were created, while others, such as the “Socialist Forces Front” (FFS), reentered public life after having operated secretly under the one-party rule of the FLN. It was the FIS that would be the major force during the campaign for local elections that were set for June 12, 1990.
The Second Law of Associations
On December 4, 1990, a new “Law of Associations” was passed, overriding the previous Law 87-15. What was said above about Law 87-15 can be repeated for the 1990 law, with certain reservations.
Despite the freedom and liberties guaranteed by the constitution, the fundamental rights of free association and expression remained largely empty and hollow. This of course was the intention of the law’s drafters: ambiguous phrasing left room for interpretation by the authorities, who then could control and stifle the activities of associations. This was true even though the law allowed judicial review in case of the involuntary dissolution of a domestic association, though not for a foreign one.
So how was the law actually applied by the Algerian authorities? Consider a hypothetical foreign association with a branch in Algeria. It applies for registration to the appropriate agencies, sending minutes, letters, and other documents to various ministries (Ministry of Justice, Ministry of Interior, Ministry of Foreign Affairs) and even to the President of the Republic. The application is then transferred to the Office of Associations at the Ministry of Interior. The organization’s representative makes appointments with the pertinent official to discuss the registration process. Repeatedly the official demands additional documentation. Finally, the official directs the organization representative to await the final decision – which never comes. The organization now must decide whether to operate without authorization or to wait forever for approval. If it operates without approval, the authorities can shut it down without the possibility of legal recourse, as the association was never properly registered.
The law’s provisions for establishing foreign associations prove to be, in practice, a meaningless façade. This remains as true now as it did when the second Law of Associations was written.
The First Free Elections and the Coup d’État
The FIS was founded and headed by two men: Abbasi Madani, a veteran from the war for independence with a doctorate from the University of London, and Ali Belhadj, a young and charismatic speaker who would attract the masses with his radical views and strong rhetoric against the government. Soon the FIS could count on a massive following. Many FIS supporters were poor and young; at the time 75% of the population was under 30 years old.7 Both the young and the poor had long been disillusioned with the government and were all too open to radical ideas.
It was therefore no surprise that the FIS prevailed in the local elections of May 1991, drawing 54% of the vote. Severely alarmed, the government tried to manipulate the election results by redrawing the electoral districts. The FIS countered with mass demonstrations and calls for a general strike.
Soon after, Madani, Belhadj, and other FIS party officials were arrested for conspiring against the state, on the grounds that after an FIS gathering, Belhadj had instructed party followers to arm themselves. The FIS continued to exist under the new leadership of Abdelkader Hachani, and the arrests of its leaders did not diminish its popularity, but rather increased it.
When the first round of the national elections arrived, the FIS won 48% of the votes and a government under the leadership of the FIS seemed inevitable. But on January 11, 1992, five days before the second round of elections, the military called a halt and declared the results of the earlier elections null and void. Pressured by the army, President Bendjedid resigned; as was the case during the 1965 putsch, military tanks rolled into the capital of Algiers and surrounded several government buildings. During the following days, the military sought to consolidate its power by eliminating opponents and creating a scrim of legitimacy for its actions. As hundreds if not thousands of FIS members and officials were arrested, a so-called “High Committee of the State” (HCE) was created.
The HCE in turn created the so-called “National Council” (CCN) to replace the National Assembly. The CCN’s members, who were handpicked by the military leaders, were mostly candidates who had lost in the December elections to candidates from the FIS. On January 16, the president of the HCE, and therefore the highest civil authority in the country, was presented to the public: Mohamed Boudiaf.
Boudiaf was one of the original co-founders of the FLN. He had been imprisoned during the early years of the republic due to the FLN’s internal struggles, and in 1964 had been sentenced to death while in exile. Although he was politically active during the 1960s and 1970s, heretired from politics and became a businessman in Morocco until 1992 – when he was offered and accepted the post of president. But Boudiaf would not enjoy his presidency for very long.
After the coup d’état, all the political parties in Algeria, including the FFS, the FIS, and even the FLN reacted with storms of protests and called for an immediate return to the constitutional process. Abdelkader Hachani, the leader of the FIS, was arrested after he published a communiqué demanding that the military rulers accept the results of the national elections. The military did not blink – instead, it arrested even more members of the FIS, the party it feared the most.
In the following days, the net of arrests widened and included for the first time journalists who had covered the events. Numerous demonstrations were organized all over the country, and the first bloody clashes between protesters and security forces occurred. Hundreds of civilians were killed when the security forces opened fire on demonstrators in Algiers, Batna, Oran, and other cities.
On February 7, the government announced the creation of seven concentration camps, euphemistically called “security centers,” in the south of Algeria. By the end of the month, 15,000 people had been detained in the camps, many of whom would be tortured and killed.
On February 9, Presidential Decree No. 92-44 was issued by the HCE and signed by Boudiaf. The Decree “pronounced” a nationwide “State of Emergency” (Art. 1), belatedly legitimizing the random arrests, the concentration camps, and the suppression of civil rights that had been guaranteed by the constitution of 1989.
The Republic of Algeria had finally come to an end. The response to the abolition of the constitution would not be long in coming.
The Civil War
While the violent attacks against government and police multiplied, the provisional government set forth on its course to dismantle any remaining political opposition, legislative structures, and institutions.
On March 4, 1992, the Administrative Court of Algiers ordered the dissolution of the FIS. There was little doubt that the decision reflected the wishes of the military government, and not a reasoned judgment by the court. Three weeks later, on March 29, the HCE issued a decree ordering the dissolution of the communal and regional assemblies, most of which had been largely dominated by the FIS.
April and May saw more violence and counter-violence. More concentration camps opened, and the military launched its first major operations to destroy militant and armed opposition groups that had sought refuge in the hinterlands. On May 6, a bomb exploded at the University of Constantine, killing three people. It would be the first of a series of bomb attacks, mostly targeting civilians.
On June 29, the violence finally hit the provisional government and its leader. As President Boudiaf delivered a televised speech, one of his bodyguards threw a grenade and shot Boudiaf in the head with a Barretta 9mm handgun, killing the president. Although the bodyguard, Lembarek Boumaarafi, was later sentenced to death (and currently remains incarcerated at the prison in Blida), it is widely believed that the assassination was an inside job, orchestrated by state security officials.
Three days later Defense Minister General Khaled Nezzar convened the HCE. Ali Kafi replaced Boudiaf as HCE chairman and became the new civilian head of state. The political leaders of the FIS, Abbasi Madani and Ali Belhadj, were charged with threatening state security and tried by a military court in Blida. On July 12, 1992, they were found guilty and sentenced to twelve years in prison.
This introductory phase of the civil war destroyed the structural basis of the Algerian state. The first attempt to install a fully democratic government – which would have given the Algerian people the unprecedented capability of directing the political course of the country – was defeated. It was defeated by national power players, who mercilessly defended their turf and their interests against real and imagined opponents. Violence would continue to grip the country as long-suppressed frustrations and aggressions burst free.
During the rest of 1992, members of the now-illegal FIS began to consolidate their positions after being effectively banned from public and political life. While the FIS still tried to establish a dialogue with the HCE and the government through both official and non-official channels, radical and competing cells splintered off, including the “Armed Islamic Movement” (MIA), the “Movement for an Islamic State” (MEI), and the “Armed Islamic Group” (GIA). These groups largely abandoned the FIS and pledged to wage war on the government and the military.
|
Scenes from the War 1992 February 10: Six policemen are shot and killed in the rue Bouzrina in Algiers. 1993 March 12: During a military raid on the An Nasr mosque in Bachdjarah, near Algiers, soldiers kill the muezzin of the mosque in cold blood before members of the community. Source: Algeria-Watch |
The list of targets soon was enlarged to include any individuals perceived as “anti-Islamic.” Among the new targets were journalists, writers, high school professors, feminists, musicians, and foreigners. Although the splinter groups committed many of the murders, some may have been committed by forces of the security and military apparatus, exploiting the disorder of civil war to eliminate critics and opponents. An analysis of the role of the military during the civil war, including detailed descriptions of individual cases in which government troops killed civilians or “suspected terrorists,” was later provided by the former Algerian officer Habib Souaïdia in his book The Dirty War and in several public accounts of his experiences.
The civil war reached new levels of brutality in 1993, with more sectors of the society exposed to violence. The melee went on through 1994, even though the military and its puppet civilian head, Liamine Zéroual, had cautiously sought dialogue with the militants in an effort to achieve “national reconciliation.” In October the government declared the negotiations a failure and announced elections for 1995.
At the same time, the armed groups and the FIS published their alternative plans for Algeria. The GIA, the biggest militant group at the time, with an estimated 27,000 men under arms, proposed a strict Islamic state – a caliphate. But several other groups publicly embraced the goals of the FIS, not the GIA. Opposition groups and political parties, including the FLN and the FFS, met in Rome. On January 13, 1995, they pledged to respect the principles of nonviolence, human rights, democracy, and a multiparty system.
The attempts of the FIS to regain its legal status and to reintroduce the party into the political process created a further split between, on one side, the GIA, and, on the other side, the FIS and the other armed groups, which had now combined under the name “Islamic Salvation Army” (AIS). The tensions would later lead to still more bloodshed.
On November 16, 1995, elections took place despite the GIA’s numerous threats against candidates and voters, and despite calls from all the major political parties, including the FLN, FIS, and FFS, to abstain from voting. In the end, 75% of those entitled to vote participated, according to the government, and returned Zéroual to the presidency. This result was contested by all opposition parties and groups. As the violence continued in 1996, Zéroual initiated a new series of discussions about national reconciliation, culminating in an attempt to redraft the constitution. On November 28, 79.8% of those entitled to vote participated in a referendum, in which 84.6% voted in favor of adopting a new constitution.
The new constitution introduced three unprecedented changes into Algerian culture and politics: it recognized the Tamazight or Berber culture as an integral part of Algerian society (Preamble), provided for free trade within the country as a pillar of the economy (Art. 37), and guaranteed the right to form associations (Art. 43).
Unfortunately, the new constitution had little impact on the daily lives of Algerians. Violence reached new heights in 1997. Massacres of civilians, peasants, women, children, and the elderly were now common. Especially in the countryside, many villagers were at risk of being targeted by either armed groups or the security forces. Often it was not clear who was responsible for attacks. GIA militants would occasionally wear ALN or police uniforms during their operations; and it was rumored that security forces would stage attacks disguised as Islamic radicals. By this point, shock and fear dominated much of the society. For a large part of the population, Algeria had become a living hell.
Legislative elections took place on June 5, 1997. They were dominated by the newly created pro-government party “National Democratic Assembly” (RND), which obtained 156 seats out of a total of 380. The RND then formed a coalition with the FLN and the new “Movement for the Society of Peace” (HMS/MSP). Ahmed Ouyahia of the RND became the prime minister. As was the case after the presidential elections, opposition groups protested the results because of apparent massive manipulations in the election process. After the elections, FIS founders Abdelkader Hachani and Abbassi Madani were freed from prison and placed under house arrest instead. While the elections might have seemed to confer legitimacy on the newly formed government, the killings kept going.
|
Scenes from the War January 19, 1998, a typical day in Algeria…. • A bus in the region of Bouira is attacked by machine gun fire, and thirteen civilians are killed. Source: Algeria-Watch |
The continuing massacres of civilians shocked the world. International human rights organizations and foreign governments continued to denounce the killings by the militant armed groups and the rampant violations of human rights by the government – but by this point, Algeria was at the brink of a total collapse because of its inability to deal with the violence.
The year 1998 saw the height of the violence, but luckily it was also the year in which the violence finally destroyed the structure of the organization which had propagated it the most, the GIA. After internal disputes prompted by the massacres of civilians, a splinter group formed on September 14, 1998, called the “Salafist Group for Preaching and Combat” (GSPC), which concentrated its actions against police and military institutions and representatives. Due to its policy of killing civilians, the GIA slowly lost support among the militants and was decimated in the years to come by more effective government military operations. Today it is still disputed to what degree the GIA was manipulated and infiltrated by state security forces – which raises the question of the government’s involvement in the massacres that terrorized the country.
On September 11, 1998, Zéroual resigned from the presidency of the HCE, which opened the way for new presidential elections. The only candidate to emerge was chosen by the military: Abdelaziz Bouteflika, a veteran from the war of independence. He received 74% of the vote. Opposition groups, declaring that they suspected fraud in the election process, did not field a candidate.
Shortly after his election, Bouteflika initiated negotiations with the AIS and introduced amnesty for Islamic militants who had committed minor crimes. The amnesty was adopted as law by a referendum on September 16. The AIS finally moved to dissolve itself, an act that was officially proclaimed on January 1, 2000. With the AIS dissolved, the GIA severely weakened, and the GSPC isolated, the level of violence dropped continuously. After the killings of at least 200,000 civilians, and the incarceration and torture of thousands of individuals in the state’s concentration camps, the country finally calmed down. But this, too, would not last.
The “Black Spring” and Algeria Today
New trouble arose on March 18, 2001, when the young Berber Massinissa Guermah from the city of Beni Douala was gunned down by local police. This was the final assault in a series of attacks by the police against the younger generation of the local Berber community in Kabylia. Four days after the shooting, the Ministry of Interior declared that Guermah had been a 26-year-old delinquent, when he had actually been sixteen. That declaration was the beginning of the “Black Spring.”
The killing led to demonstrations and marches, mostly by young adults and adolescents in the Kabylia region. The government reacted with repression and violence. Police shot at demonstrators, killing dozens of civilians. More protests ensued, including a mass peace march to Algiers, where a letter of demand was presented to President Bouteflika. The government responded with even more suppression. Villages in Kabylia were raided, and businesses and houses were destroyed. Berber officials and spokespersons were arrested, tortured, and killed.
The government-sanctioned violence continued until 2003. Then, after more than 5,000 people had been wounded and at least 132 civilians killed, the new Prime Minister Ahmed Ouyahia reopened a dialogue with Berber associations and notables. Thereafter, the Berber language was officially adopted as a second Algerian language, next to Arabic.
Aftereffects of the “Black Spring” remained visible during the 2004 presidential elections, in which 90% of the Berber population refused to vote. Bouteflika was reelected as president with 85% of the votes cast. Turnout was significantly lower than during the 1999 elections, with only 58.1% of the population voting.
One thing was clear after the presidential election of 2004 and the legislative elections of 2002: the old political and military power players had successfully consolidated their positions after the violent upheaval of the civil war. Today their power remains uncontested.
The civil war and subsequent revolts left their marks on the Algerian society and economy. At the end of 1996, the unemployment rate was 28.3%. Of those, 80% were under 30 years old. Today, ten years later, the economic situation has significantly improved – for the state, but not necessarily for the population. The unemployment rate is down to about 15%, but 23% of the population still lives under the poverty level. External debt stands at 4% of GDP.
In a move to end the civil war, the Algerian cabinet under President Bouteflika adopted on February 27, 2006, the “Decree Implementing the Charter for Peace and National Reconciliation,” which implemented Bouteflika’s “Charter for Peace and National Reconciliation,” a document adopted by referendum on September 29, 2005. The decree was immediately criticized, as it bypassed the parliament and was not discussed in open session. The government publicly praised the decree, which offered a general amnesty to the armed groups still operating in exchange for a surrender of their weapons.
Human rights organizations and surviving victims of the civil war were shocked by the decree, which extinguished the right to pursue legal remedies for crimes committed by the government and military forces. The government under Bouteflika effectively gave the military and the security forces an after-the-fact carte blanche for the numerous murders, detentions, and tortures committed between 1992 and 2005.
As if this was not enough, article 45 of the decree prohibited public debate about the government’s role in the civil war. Having corrupted the state and committed horrible crimes, Algerian leaders finally did what they knew best: forced their critics into silence.
Part II: The Algerian Law on Associations
A Legal Analysis
Algeria was long ostracized in the international community for its terrorism and civil war, but as early as the mid-1980s, major development programs were instituted. Local and national associations multiplied. In addition, international organizations grew increasingly interested in the country, despite adverse legislation and politics, not to mention the risk of violence.
For all categories and groups, including those seeking political and judicial reform, a genuine growth spurt occurred, and the government initiated reforms due to the outside pressure. But the modest reforms represented no threat to the country’s powerbrokers.
The results of such half-hearted attempts to “open up the society” are well known, and they have imposed a high price on the country in general and its people in particular. But the government and the military still have not effectively abandoned their policy of “blocking the system.” The Law on Associations is a good example of the government’s attempts to placate the masses without implementing major changes.
Law 90-31, the Law on Associations, is largely empty. Some parts are vague and leave room for speculation, while other parts demonstrate a fondness for penalties and restrictions. All this suggests that the law was drawn up by people who had no intent of providing a safe and useful legal platform upon which associations could prosper and contribute to the general cultural progress of society.
What follows is my analysis of chapters of the law.
Title 1: It is unusual and very revealing for the introduction to a national law on associations to lack any mention of the importance of associations to the society. Furthermore, the introduction does not even specify what the law provides for associations; instead, it says merely that that law “determines the modalities.”
Article 5 describes what an association is not, rather than providing a thorough definition of what an association is.
Article 6 concerning registration sets the minimum number of founding members at fifteen, a restriction clearly designed to discourage people from setting up associations.
Further, the law gives administrative agencies substantial discretion to deny any organization’s application. Agencies can deny a license to any association whose founders have “demonstrated conduct contrary to the interests of the fight for national liberation,” a phrase that is not further defined. If the organization is deemed to have been “founded for a purpose contrary to the established institutional system … public order… or public decency,” registration can also be denied. All of these terms are so vague as to give government officials the power to prevent any organization whatsoever from operating legally in Algeria.
Articles 7 through 10 describe registration procedures for an association. These procedures effectively put the organization and its legal status at the mercy of the Ministry of Interior, which is responsible for deciding whether the organization’s statutes conform to the constitution from the Algerian Constitutional Council. The Constitutional Council, a special administrative court, delivers the final refusal of legal recognition, though the Council seems to be nothing more than a bearer of decisions made by the almighty Ministry.
At first glance, the registration process does not seem much different from those in other countries. Associations must file a “Declaration of Incorporation” that includes the name, profession, and address of each founding member, along with two certified copies of the statutes and the minutes from the association’s founding meeting. These documents must be filed with the governor of the province in which the association is headquartered (the “wali” of the “wilaya”), and, if the association operates in more than one wilaya, with the Ministry of the Interior as well. The local agency, and, if applicable, the Interior Ministry, has sixty days to rule on the application. If no answer is received within that time period, the application is considered approved, at least theoretically.
Chapter 2 and in particular Article 8 bars associations from participating in the political process – clearly an attempt to block any extra-parliamentary opposition to the ruling class, for fear of exerting influence in a direction other than that desired by the government. Associations thus cannot voice their opinions on political or state matters, or else they face the possibility of dissolution for having “interfered” in the political process.
If the relationship between the association and the Ministry of Interior is not clear up to this point, then Articles 17 and 18 establish the hierarchy: the association must submit all relevant information about its activities, personnel, membership, and finances to the government, opening the way for abuse and intimidation based on the information.
More restrictions appear in Articles 19 and 21: the association cannot publish its major newsletter in a language other than Arabic, despite the facts, first, that French is still used in government, schools, universities, and enterprises, and, second, that Tamazigh is recognized as an official Algerian language by the constitution.
Given the attitude of the government, it is not surprising that it seeks to stifle contact and cooperation between domestic associations and foreign ones. Article 21 strictly limits local associations’ cooperation with both national and international ones. Any proposed activity requires the approval of the Ministry of Interior himself.
While the law is somewhat specific about the prohibitions on associations, it is very vague and noncommittal with regard to the responsibilities of the government. Article 30 states that associations regarded as “beneficial to the public interest” can receive financial aid from the government. But the law never refers to rules or procedures that gauge the “public benefit” of an association. In other words, the association again finds itself at the mercy of the government. Indeed, the law seems to suggest that only associations whose activities conform to the administration’s agenda are eligible for state subsidies in one form or another. The weekly national publication Le Jeune Indépendant reported on October 23, 2001, a clear message from government officials the night before an important election: “There will be no governmental financial aid to associations who do not support the government.”
More detailed than the section on government financing is the section on dissolution of associations. Again, it is up to the “public authority” to close down an association. In reality, the courts merely follow the wishes of the administration.
Title IV of the law deals with foreign associations. Needless to say, they operate in a hostile climate. Registration of a foreign association must be approved by the Minister of Interior himself, and any modification of the organization or its activities “must be agreed upon beforehand by the concerned public authorities under the penalty of suspension or the withdrawal of the registration.”
Finally, the law ends with penalties. Articles 45 to 47 again raise the stakes for founding or joining an association. In the event that an association is dissolved or even suspended, the founding members, directors, and even simple members face fines and prison sentences of up to three years. There is no mention of any criminal law that provides a legal foundation for the penal provisions.
What is left to say? The law on associations is a perfect example of an ill-founded, ill-intentioned, and sloppy legal attempt by an administration to quash the popular demands for more democracy without actually surrendering any power.
How the Law is Applied
For a government like Algeria’s, enacting a law that grants rights and freedoms is one thing; enforcing it is another thing completely. The few but essential rights and privileges that the Law on Associations grants are not respected by the administration or other parts of the government.
Unfortunately, it is not possible to conduct a representative field study on this subject among the directors of associations operating in Northern Algeria, because most of them will not discuss their experiences for fear of reprisals by the government. For this reason, I cannot be very specific in describing the five associations whose directors were willing to discuss this issue.
None of the five associations ever received a written confirmation of its registration, from either the local province or the Ministry of Interior. None of the associations was given any reason for the refusal to confirm registration. One director of a national association made more than ten visits to the Ministry of Interior to obtain the confirmation. She never received an explanation for the delay, but was continually promised that an official answer from the Ministry would arrive the following week. She is still waiting today – seven years after she filed the application.
The refusal to provide written confirmation naturally puts the concerned associations and their directors and members at a serious legal risk, as they effectively operate outside the law and can be shut down by the government at any minute. This is especially true for two associations that operate in the human rights area. Not only were they refused confirmation of registration by the provincial government; they also experienced government interference when they tried to organize demonstrations and reunions. One association was continuously threatened with dissolution, but fought back somewhat successfully by threatening a press campaign in the event of a government-ordered shutdown. This organization has been waiting for more than three years for its official recognition as an association.
Foreign associations often bring substantial funds into Algeria without any guarantee that they will be able to work on issues of their choice. To this day not a single foreign association working in Algeria has been able to register under Algerian law, despite having sent all required documents to the Ministry of the Interior. The interminable procedures and outright lies hamper associations fighting to implement major projects or even trying to conduct minor business, such as organizing a seminar or conference. In order to organize and function, consequently, a foreign association must call on another association or a local partner to speak on its behalf, because the foreign organization cannot produce any official papers that would prove its legal status.
Associations dealing with the government confront enormous delays, without any explanation or any reliable information: life is an uncertain silence instead of a direct “no.” The government makes decisions without justification, and it can suddenly ban associations operating in the country for years because they lack documentation of their registration. Indeed, many associations have been forced to cancel important events at the last minute on totally unreasonable grounds.
As if that was not enough, the outdated pretext of security is again and again invoked as an excuse. The current Minister of the Interior told the Associated Press in March 2006 that “as long as there are a few acting terrorists, we have to maintain” the state of emergency, because it “allows us to coordinate the action of security services.” He went on to say that “the state of emergency has had until today no effect on public freedom and on individual and collective freedom and will not in the future,” and added that political parties “function normally and it is even allowed for them to organize meetings in gathering rooms.” In reality, no assembly is allowed without prior approval from the relevant authority: the governor (wali) for local and regional assemblies, the wali of Algiers, or the Minister himself for assemblies in the capital. This of course makes spontaneous activity almost impossible.
Petitions for assembly are often rejected through silence. “Temporize” seems to be the Algerian administration’s motto; stalling is a crucial procedure for keeping associations in their place. Of course, the ultimate weapon is the dissolution of an association – which can be ordered without any explanation.
A New Law on Associations for Algeria
According to official statements, Algeria is experiencing major growth thanks to a policy that promotes openness. Unfortunately, the institutions and texts of government do not reflect the openness of free speech or assembly. The government’s claims that Algeria has a true place in the family of free nations, unfortunately, have no basis in reality.
How can a society evolve without a real social contract – especially in a state dominated by the government and the military, with the same inadequate systems and procedures in place since independence, with a president who lacks any meaningful vision for the society? Most important, how can a society evolve in a state that closes its ears to criticism, whether it comes from inside or outside the country?
In December 2006, I organized a seminar with several human and civil rights activists to discuss and to draft a new law on associations for Algeria. The final product reflects the basic principals that guide the laws of a true democracy: legal security, regulations that are based on the constitution and commonsense, and rules and procedures designed to give law-abiding associations the chance to flourish and prosper.
Naturally the proposed law differs greatly from the present law:
- The proposal emphasizes the value of associations and their functions for the progress of Algerian society.
- The proposal effectively removes the government’s power to control the activities of associations and to harass them.
- The registration procedure is transferred to the administrative courts, and to guard against arbitrary judicial rulings, the courts can only judge the legality of the bylaws and the operations from a formal viewpoint.
- While the draft law safeguards associations from government abuse by placing them under the supervision of the courts, including the criminal and finance courts in the case of claims of improper or illegal conduct, it also provides the government with the opportunity to defend society against abuse by seeking relief from the judicial system, the final arbiter.
- The proposed law integrates associations and their legal status as vital and particular elements of the Algerian constitution, the civil code, and the administrative, finance, and criminal laws.
- Foreign associations are treated just like their domestic counterparts, letting them operate freely under the protection of the law for the first time in Algerian history.
The proposed law on associations would greatly benefit Algerian society. We sincerely hope that we will see it adopted and implemented, and working hard to bring it to the attention of the appropriate government officials.
Conclusion
This may seem difficult to understand, but being Algerian makes it hard to discuss an individual law such as the Law on Associations. One can easily get lost in chronicling the abyss of human nature that was on public display during the 1990s. There is so much to say, and so little time to put everything into the context it deserves.
Nevertheless, it is necessary to comprehend the legal history, the atrocities, and the suppression that we Algerians had to endure in order to survive. It is necessary to know about the actions of those who wrote and passed the laws, not only the laws on associations but also the decree for a state of emergency. I hope the reader will understand.
What is left to say? I have cited many demands voiced by groups and individuals over the past 40 years. Here are my own demands:
The government can no longer pursue goals that profit only a select few, far up the hierarchy of the civil administration or the military.
Algeria must absolutely adapt its policies, domestic as well foreign, to international standards. These policies include civil and penal laws.
The laws in general can no longer be used as a façade. It must be enforced by the administration and the courts.
Laws that protect those who committed crimes in the name of patriotism and state security must be abolished – namely, the decree for the state of emergency and the general amnesty from 2006, which effectively bar the victims of the civil war from obtaining legal recourse.
In short, law exists to protect the people, not the state’s administration. If this point is understood and accepted by those in power, Algeria may finally develop a true civil society.
Notes
1 Chafika Kahina Bouagache is an Algerian citizen and Staff Attorney and Program Chief of the American Bar Association, Rabat, Morocco. Ms. Bouagache was a Middle East Senior Research Fellow during summer 2006 at the International Center for Not-for-Profit Law (ICNL). This article was edited by ICNL staff.
I dedicate this essay to the memory of my dear brother, without whom my life would have turned out differently. You have died for your principles; rest in peace, my dear Said.
I also dedicate it to my dear parents, who always supported me, regardless of the difficulties that stood in my way.
2 Benjamin Stora, Histoire de l’Algérie depuis l’independence, Paris 2004, 19.
3 Algérie – La transition de l’après-indépendance (1962-1965), Encyclopaedia Universalis, 2000.
4 Houari Boumédienne, 1st meeting of the presidents of the People’s community assemblies, February 27, 1967.
5 Benjamin Stora, Histoire de l’Algérie depuis l’independence, Paris 2004, p. 77
6 Benjamin Stora, Histoire de l’Algérie depuis l’independence, Paris 2004, 84-87.
7 Habib Souaïdia, La sale guerre, Paris 2001, 41.