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Freedom of Association in MOROCCO |
Summary Report
| Civil society landscape |
| Legislation |
Civil society landscape
In the Constitution of 1962, Morocco is defined as a “constitutional, democratic and social monarchy”. King Mohammed VI, on the throne since 1999, is “the supreme representative of the Nation and Commander of the faithful”. The King chairs the council of ministers, promulgates the laws, signs and ratifies international treaties. He is the supreme commander of the armed forces and chairs the Superior Council of the judiciary. Even if the Constitution provides for the separation of powers, the Sovereign retains a number of major executive prerogatives and exercises a certain degree of legislative power.1
The dahir of May 21, 1914, inspired by the French legislation of 1901, established the legal framework for contemporary associations in Morocco.
The push for democracy, particularly strong in the aftermath of Independence, soon brought about the adoption of the Code of Public Liberties (Code des libertés publiques). With the encouragement of early governments, the associative movement spread quickly.
The Constitution of 1962 (amended several times since its adoption) enshrines the freedom of association as a constitutional right.
With the outset of political unrest in the late 1960s – the so-called années de plombs – the three dahirs on which rested the Code of public liberties were amended. It became no longer possible to form an association without prior authorization as it had been the case previously. Non-observance of the new legislative restrictions was punishable by law and the government was given the authority to suspend or dissolve existing associations. During that period, the associative movement suffered a setback and the activities of associations were seriously hindered by government action.
Between 1973 and 2002, the government was vested with the authority to unilaterally suspend or dissolve an association by decree on the same grounds that a suspension or dissolution could be effected through the judicial process, namely: the objectives of the association (Article 3); in case the founding members or the corporate bodies of the association did not follow the required procedures when setting up the association; “generally, if it appears that the activities of the association may threaten public order”, a provision prone to the exercise of arbitrary power in practice.
The attitude of the authorities changed during the 1990s, although changes in the legislation only came in 2002. Now, an association may be dissolved by a tribunal if its objectives are deemed illegal, contrary to public morality, discriminatory or risk undermining the Muslim religion, territorial integrity or the monarchy.
Associations may take many forms:
- Associations of the types provided for in the dahir of 1958 on the freedom of association2
- Association unions and federations, associations recognized as being in the public interest (ARUP), foreign-based organizations, political parties and organizations of a political nature, combat groups and militias governed by dispensatory or complementary regulations;
- urban landowners’ unions, education and sports associations, irrigation network users’ associations, professional associations of banking and credit institutions and micro-credit associations governed by the dispensatory regime provided for in the dahir of 1958, in particular pertaining to membership, withdrawal, operations and patrimony;
- So-called “Gongo” NGOs relied upon by the authorities to carry out a number of activities in the field of social work, protection of children against violence, etc.
Morocco has ratified, without reservations, the International Covenant on Civil and Political Rights and Convention No 98 of the ILO on labour unions and collective agreements (1949). While the national legislation has been modified a number of times since then, it still does not fully meet international standards.
At the national level, freedom of association is enshrined by Article 9 of the Constitution.
Associations are governed by Dahir No 1-58-376 (November 15, 1958), amended twice since then. The first amendment, in 1973, authorized the administrative suspension or dissolution of an association and increased the penalties for violations of the rules on association. The amendment of 2002 mitigates those restrictions and brings some changes pertaining to, in particular, the declaration procedure, the legal capacity of declared associations and the procedure for the official recognition of an association as being in the public interest.
A consultation process began during the second half of 2006 between the associative movement and the Ministry of Social Development and Solidarity, as well as within the associative movement itself. This two-tiered consultation process aims at improving the “qualification” of associations in order to improve their capacity to better contribute to the development of society, and at putting in place an impartial procedure for creating partnerships with associations, at the level of government policies and territorial and local communities. It should be pointed out that it is in the framework of the inter-association consultation process that the project to draft an ethical charter of the associative movement has been developed.
The Observatoire marocain des libertés publiques (OMLB) was created at the end of 2006. This non-governmental initiative is the outcome of an advocacy and dialogue process, initiated in 2004, which focus on the implementation of freedom of association.
1 – Does the system allow for non-declared or unincorporated associations?
Article 5 of the Dahir of April 10, 1973, states that associations are subject to a system of prior declaration. However, the law of 2002 imposes sanctions on anyone who, following the incorporation of an association, undertakes any of the activities provided for in Article 6 (declaration procedure). One may conclude from the wording of that provision that non-declared association are authorized, provided they do not undertake activities such the day-to-day activities. However, since Article 5 of the Dahir of April 1973 has not been modified and is still in force, this interpretation is subject to caution.
2 – Is the registration system based on licensing or simple information/notification?
According to Article 2 of the Dahir of 1958, associations of persons may be freely created without prior authorization, provided they conform to the provisions of Article 5 (association are subject to a prior declaration).
3 – What are the bases upon which registration can be rejected (e.g. race, security, religion, politics)?
Since the reform of 2002 provides for the automatic issuance of a provisional receipt once the association has been declared, it appears that it would be difficult not to allow the declaration process go through. However, the authorities will occasionally block the declaration by invoking public security, the fight against terrorism or protection of territorial of integrity.
4 – How easy or difficult is the registration (e.g. time, cost, number of incorporators)?
The involvement of two individuals is sufficient to create an association. The declaration must be made with the local administrative authorities of the jurisdiction where the headquarters of the association is located. Article 5 of the Dahir specifies what information should be provided: corporate name and object of the association, names of the members of the corporate bodies, etc. The only expenses are the fiscal stamps.
The reform of 2002 provides for the obligatory issuance of a provisional receipt of declaration, and a permanent receipt within sixty days of the declaration “otherwise the association may begin its activities in conformity with its statutes”. Modifications of the statutes are subject to the same procedure. However, this change in the law has not brought the expected results since the authorities, invoking the need to protect public security, the fight against terrorism or protection of territorial integrity, occasionally refuse to issue the receipt. For instance, the Réseau Amazigh pour la citoyenneté, created in July 2002, only obtained its receipt on June 16, 2006.
5 – Are there effective remedies in the cases where registration is denied, delayed (e.g. judicial, administrative)?
In the event that the authorities have taken no action within 60 days of the declaration, the association may begin its operations. The authorities must justify their refusal whenever they refuse to issue a receipt when they consider that the association does not satisfy the requirements of the law. In such cases, the association may lodge an appeal for abuse of power before an administrative tribunal and, as the case may be, before an administrative appeal court.
6 – Does registration automatically entail obtaining separate legal entity?
Article 6 states that any declared association may, through its president, file a lawsuit or appear in court, acquire and administer public funds, membership fees, donations from the private sector, etc. There is therefore no doubt that the association may initiate a civil action for any material damages it has suffered. The same applies in case of moral prejudice. The new code of penal procedure states that only associations recognized as being in the public interest may associate with a court action, provided the association has existed for at least five years at the time of the events, and that the public lawsuit has been initiated by the public prosecutor, or in case the victim has associated himself/herself with a court action.
7 – Are there other viable alternatives if the right to freely form and incorporate an association is denied (e.g. incorporation as a company, a trust, a Wakf)?
There are no legal alternatives to the association.
Following the reform of 2002, the dissolution of an association by administrative decision, allowed in 1973, is no longer permitted. Since then, a dissolution may only occur by judicial decision, and in cases for nullification provided for in Article 3: when the goals of the association are illegal or undermine the law, public morality, territorial integrity or the monarchy; when its action is discriminatory, undermines the Muslim faith, when it is in breach of the law, or when it engages into activities that are not provided for by its statutes (Article 36).
In its decision, the court set forth the manner in which the dissolution is implemented. The assets of an association that has obtained public funds are awarded to the State, to be used for charitable or other public assistance projects.
An association may appeal a judicial decision of dissolution.
Once an association has been dissolved, any person who illegally re-forms the association or facilitates the reunion of members of such an association is liable to a jail term of one to six months and a fine of between 10,000 to 20,000 dirhams.
1 – What is the extent of the freedom of members to draft and amend their own statutes and by-laws and to determine their own object? (Are such documents imposed? to what extent?)
2 – How strict is the freedom of members to adhere to or leave associations?
Any individual who possesses legal capacity is free to join or leave an association (Article 4). While the law is not explicit on that point, members of the military and judges may not join an association. However, the law does specifically prohibit those categories from belonging to a labour union.
3 – Is there any interference in the corporate bodies: e.g. attendance of meetings (Board, General assemblies) by “supervisors”, elections?
No interference in the corporate bodies of associations has been reported. However, the statutes must provide for the potential presence of government representatives in those bodies.
4 – Are there any restrictions (legal or de-facto) promoting, limiting or banning participation of women in associational offices (e.g. the Board)?
There a no legal restriction on the participation of women in the activities of associations. However, the weight of traditions still limits the participation by women.
5 – Are there any interference in the freedom of associations to decide on projects and activities? If yes, how and why?
Associations may freely decide on projects and activities.
6 – Is the association’s right to freely assemble or organize private and public meetings, to move freely (including international travel) restricted in any way?
Associations are subjected to the same rules as individuals regarding freedom of assembly. The local authorities must be notified prior to the holding of a public meeting.
7 – Are associations subject to specific limitation on their right to freely communicate (e.g. access to media, publish and develop internet sites)?
The law is silent regarding the right of association to communicate, to publish and to develop internet sites. As the issuance of passports has recently been made easier, the free movement of members of associations should not be hindered. That said, the situation may change, depending on the political climate.
8 – Is the freedom of associations to cooperate and network with others limited (both domestic and international)?
Associations are free to affiliate with a national network and set up unions or federations. Such structures are subjected to the same rules as associations. Likewise, there are no barriers impeding affiliation with regional or international networks. Foreign associations (associations whose headquarters are outside Morocco; whose officials are foreigners; or who have half of their membership outside the country but have their headquarters in Morocco) are subjected to the same rules as Moroccan associations. However, the government reserves the right to supervise their operations.
9 – Is the participation of associations sought for opinion or participation in deciding on public interest issues? What is the nature and level of such consultations?
Associations have been consulted by the authorities during the decision-making process. For instance, studies undertaken by the Association démocratique des femmes du Maroc on discrimination against women in penal laws and the criminalization of sexual harassment, have been taken into account when important changes to the Penal Code were considered by the Ministry of Justice in 2003. Likewise, associations were actively implicated in the reform of the law on associations in 2002. The associative movement has been calling for such a reform since the late 1990s. A public debate in several regions of the country, as well as the undertaking of a comparative study on association law had been instrumental in the development of a legal framework in line with international standards.
1 – Are there any limitation on the rights of associations to receive and own property and funds? How?
Since 2002, associations that are merely declared may receive donations from private individuals, foreign associations and international organizations (Article 6). In order to finance their activities, associations may call for public donations, within the limits set by law. Thus, associations that are merely declared must obtain an authorization from the secretary-general of the government, while associations recognized as being in the public interest must present a declaration to the secretary-general of the government within 15 days preceding the event. Associations recognized as being in the public interest may own moveable or immoveable assets needed to carry out their mission within the limits set by the recognition decree (Article 10). If the end use of a moveable or immoveable asset is not determined, the association must obtain prior authorization before acquiring it. The authorization takes the form of a ministerial order issued by the Prime Minister.
2 – Are there any limitations on the rights of associations to use the funds, other than by the conditions of their granting?
Associations that periodically receive funds from government entities must submit a budget and a financial statement to the entity that has granted the monies. In case of dissolution, the assets are transferred to the State, to be used for charitable or other public assistance projects. The Cour des comptes oversees the accounts of associations that receive funds from entities that fall under its supervisory power. Financial controls are tighter in the case of associations recognized as being in the public interest, and are set by regulation. Those associations must submit to the secretary-general of the government an annual report certified by a chartered accountant (Article 9, par. 5 and 6)
3 – Are there specific limitations on receiving foreign funds?
Associations that receive foreign funds must, within 30 days of the reception of such funds, declare them to the secretary general of the government, and specify the amount as well as information on the donor. Any breach of this regulation may result in the judicial dissolution of the association (Article 32a).
4 – How effectively are these limitations on funding enforced?
The law is improperly applied or not applied at all in a number of areas. This situation may represent a risk, in particular for associations that benefit from the non-application of the law. It constitutes a permanent form of pressure on them by the authorities.
Associations are exempted from paying the VAT as well as the income tax on corporation for all activities undertaken in pursuance of the objectives set forth in their statutes. Associations recognized as being in the public interest benefit from additional exemptions (donations in cash or in kind are tax deductible and buildings housing charitable organizations are exempted from municipal taxes).
6 – Are public funds made available to associations? How? Are those processes prone to discrimination?
Associations may receive public funding. Control over the use of such monies is insured by the government department that granted the funds, and by the Cour des comptes.
It is to be noted that, as regard the financing of associations, many Moroccan associations call for a true partnership between associations and the government. One NGO, Espace Associatif, has launched an initiative in order to identify the financial needs of associations, to better understand the mechanisms put in place by government agencies and to determine what could be done to remedy the unsatisfactory relationship between the associations and the government as regard funding3.
1 – What are the supervisory authorities that oversee associations (e.g. courts, ministries, independent bodies and security apparatus)? How consistent are the activities of these authorities with the principle of freedom (check principle 16 of the Declaration)?
There are three types of control:
- administrative control: at the time the association is declared (control on formal conditions);
- judicial control: the court of first instance may render a decision on a requests for dissolution and may order such a dissolution;
- accounting controls.
2 – Are accounts and other information transparently available to the public?
During general assemblies, members are presented with a financial statement of the association, in accordance with the provisions of its statutes.
3 – What penalties (e.g. criminal, fines, etc) and harassment measures are applied in case of violations?
Officials of associations that do not follow accounting rules may be fined from 200 to 1,000 dirhams. An association may be dissolved if any foreign funds it has received are not declared within 30 days. Associations are held legally responsible (Article 32).
[1] Working documents of the Commission, COM(2004)373 final. Back to text
[2] Some of the major human rights NGOs of Morocco are: l’Association marocaine des droits Humains (AMDH), l’Espace Associatif and l’Organisation marocaine des droits Humains (OMDH).Back to text
[3] For full details of the various measures put forward by Espace Associatif for a fair and effective partnership, see Mémorandum « Pour un financement durable des associations par les pouvoirs publics et les collectivités locales », October 31, 2003. Available on request from the secretariat of the Euro-Mediterranean Human Rights Network.Back to text
