Mubarak's Trial and Errors

According to Egyptian news reports former president Hosni Mubarak will stand trial on August 3 for crimes he allegedly committed before and during the revolution that shook the country last January. Whatever the outcome, by authorizing these hearings, and hearings for his associates, the 20 senior officers of the Supreme Council of the Armed Forces (SCAF), which seized power in February, have tried to distance themselves from Mubarak's fallen regime and buy themselves much-needed legitimacy. Still, the SCAF might have promised more than it will deliver.

After Mubarak's February ouster, the country's state prosecutor, presumably operating under SCAF instructions, wasted no time in putting together a raft of cases against the president, his sons, his ministers, and their business associates. Mubarak, former Interior Minister Habib al-Adly, and six senior ministry officials are accused of having ordered police to shoot unarmed demonstrators in January. Mubarak, his sons Alaa and Gamal, and their alleged business partner, Hussein Salem, are all charged with illegally profiteering through a number of schemes, including selling natural gas to Israel at below-market prices. Meanwhile, several major figures in Mubarak's National Democratic Party, including Safwat al-Sherif, Egypt's former information minister, and Fathi Surour, the former speaker of parliament, face trial for having mustered a small army of petty criminals and other regime supporters to attack Tahrir protesters on February 2 and 3, what is now known as the "Battle of the Camel," since some were mounted on dromedaries.
The charges have impressed many Egyptians, even those who live far from Cairo or were initially hesitant to support the revolution since Mubarak had at least brought 30 years of relative stability. Before the January uprising, state media had acknowledged that the Egyptian government suffered from corruption but had presented Mubarak as a reformer trying to control dishonest ministers and elites. During the revolution, the media also present the protesters as naïve, or manipulated by foreign powers. By charging Mubarak and his family with defrauding the public, the prosecutors have reduced any lingering sympathy for them, and vindicated Mubarak's ouster.

On a hot July afternoon, a group of farmers from the village of Arab al-Tambakiya gathered to discuss Egypt's future. They told me that the prosecutions had convinced them that the old regime was rotten at the top. Further, they had already seen some improvements since the revolution. Economically, times were as tough as ever, they said, but the police no longer harassed them and public officials had become somewhat less aggressive in their demands for bribes. The farmers had no specific vision for the type of government that should replace the SCAF, but they seemed confident that it would at least be more honest than Mubarak's. "What's coming next will be better than what went before," said Saad Mohammed, who had been a member of Mubarak's ruling National Democratic Party. "Any official [who steals] will be afraid to be put in prison."
Although the cases against the old regime's big names have drawn the most attention nationwide, many political activists pointed out the paucity of trails for low- and mid-level police officers. Police brutality, such as the infamous June 2010 beating death of 28 year-old Khaled Said, was one of the major grievances that ultimately brought millions of Egyptians onto the streets in January. And, during the revolution, police shot hundreds dead. Justice for these "martyrs" and their families is one of the few demands that unites the various branches of Egypt's opposition.
Mansour al-Essawy, the new interior minister appointed by the SCAF government, has promised justice, but squandered his credibility by acting as though he is trying to protect fellow officers: ignoring calls to surrender police snipers alleged to have fired on demonstrators, and retaining in the ministry senior officers whom activists say are abusive and corrupt.

So far, only a handful of officers have been prosecuted, and just one convicted, in absentia. On July 4, when a Cairo court released on bail seven police officers accused of shooting protesters during the January riots in Suez, residents again took to the streets. They reoccupied Tahrir Square, flying banners calling for "serious purging and serious judging."
Cases against the old regime's big names have drawn the most attention nationwide, but many political activists pointed out the paucity of trails for low- and mid-level police officers.
The SCAF may be easy to blame, but part of the reason for the lack of prosecutions might lie elsewhere. Egypt's judges are a famously independent lot, and have signaled their willingness to acquit defendants if the cases against them are sloppily built. Egypt's investigating magistrates are dependent on police officers cooperation to compile evidence and, in the chaos that followed the revolution, many police were afraid for their lives and in no position to gather evidence even if they had wanted to. The cases against Mubarak and senior officials, for their part, rest on documenting where and when shoot-to-kill orders were issued -- a difficult task at any time.
The public does not seem to take seriously the courts' warnings that it will throw out cases. Some judges have gone to the media to try to squelch expectations that they can deliver the verdicts the public wants. "The investigation files in the cases of killing demonstrators are devoid of hard evidence," Ashraf Zahran, a senior appellate judge, was quoted as saying in al-Dostor on July 9. "Do you ask judges to issue convictions on this flimsy evidence?"

Of course, during the Mubarak era, the regime was never overly troubled by a lack of evidence. It was frequently able to manage the rotation of cases so that compliant judges sat on the bench during sensitive trials. Even if the SCAF wants successful convictions, it has found that even the appearance of tinkering with the justice system causes a backlash. For example, Egyptian activists were outraged when the judge presiding over Adly's trial turned out to be Adel Abd al-Salaam Gomaa, who had been known for issuing jail sentences against regime critics during the Mubarak era. It is unclear whether the SCAF actually interfered to get him appointed to the case, but any further such controversies will likely be seen as attempts by the SCAF to protect the defendants.

For low-profile cases, the SCAF has fallen back on military courts, which critics say have little respect for due process and frequently convict on very scant evidence. In the last 20 years of his rule, Mubarak used such tribunals to try about 5000 Islamist militants, drawing widespread condemnation. In less than six months, the SCAF has already court-martialed over 12000 people. Human rights groups say that most of those tried have been poor, with no leadership roles in the protest movement or connection to anyone else who might publicize their plight. Their convictions sometimes come after five-minute trials, for which they are given few opportunities to prepare a defense, and whose verdicts they have no right to appeal.

The SCAF's reliance on tribunals could at first be blamed on post-revolutionary chaos -- it needed to restore order, prevent looting, and return escaped criminals to jail, all with no police force to speak of. But the tribunals soon began to target SCAF critics, including a blogger, Maikel Nabil, who received three years in jail for "insulting the military," and former officials who may have defrauded the military, such as former Prime Minister Ahmed Nazif, who the military recently interrogated for charges of facilitating the sale of army-owned land near Luxor to an investor at below-market prices. Beyond Nazif, SCAF seems to prefer that civilian courts handle all the Mubarak-era offenses that do not directly involve the military or touch on everyday security concerns. This balancing act -- presiding over a purge of Mubarak's associates without getting too directly involved -- seems to fit SCAF's declared plans to get Egypt through its post-revolution transition as quickly as possible. The SCAF presumably wants to keep the military both feared and respected, to deter criticism while remaining as much as possible above the political fray.
All this places Egypt's human rights and pro-democracy groups -- which campaigned against Mubarak's violations of judicial independence for decades -- in a tricky situation. Since the legitimacy of the revolution hangs on delivering speedy convictions, they might be tempted to overlook a few unfair trials. So far, however, most have not been. To reduce the SCAF's influence on judicial processes, some groups have advocated creating a South African-style truth and reconciliation commission, an exceptional investigative body tailored specifically toward justice during the revolutionary transition.

But between the military's apparent lack of appreciation for the finer points of due process, the street's demands for swift justice, and the judiciary's probable unwillingness to let any other body take over its prerogative, this option has not gained much traction. At this point, human rights attorney Negad al-Boraie told me, defendants accused of killing demonstrators are unlikely to receive a fair trial anyway, so they might as well be tried by military courts: "This will help [the public] to forget." Newspaper publisher Hisham Kassem however took the opposite stance, saying that he would rather see defendants acquitted by a civilian court than convicted by a military one: "I fought [the Mubarak regime] for the rule of law, and I don't intend to abandon it now just to get revenge."
In the end, SCAF might simply be able pass the problem on to someone else. Even as Mubarak and other major defendants are acquitted on some charges, prosecutors can continue to bring new cases against them. They are unlikely to permanently walk free. The aggrieved families who lost sons and daughters to police gunfire might never receive closure, but their numbers are limited. Egyptians mostly seem satisfied by the humiliation of formerly mighty officials who are now treated like ordinary criminals, even if they are not given actual prison sentences.

If the SCAF sticks to its commitments, it will hand over power to an elected government by the end of the year. This new regime, less tainted by its ties to Mubarak and hopefully more politically adept than the SCAF, might be better placed to preside over a systematic program of transitional justice, during which Mubarak-era legal tactics would not be used to create a post-Mubarak state.
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