With dozens of officials from former President Hosni Mubarak’s regime, including his sons, closest aides, and at least eight former ministers, scheduled to face trials on an array of corruption and murder charges, some experts and human rights advocates doubt that the ordinary judicial system can bring them to justice.
In recent weeks, a debate has intensified over alternative measures that would ensure the conviction ex-officials for a broad range of crimes perpetrated over three decades.
“The revolution is an exceptional act, thus, it allows for exceptional measures,” says Diaa Rashwan, an expert at Al-Ahram Center for Political and Strategic Studies.
Some suspects, including the Mubaraks, and former Interior Minister Habib al-Adly, are accused of making illicit gains and inciting the murder of at least 856 protesters during the 18-day revolution beginning in January. Most ministers are facing multiple trials on grounds of profiteering and squandering public funds.
Egyptians have paid particular attention to trials of alleged killers of protesters. On 8 July, hundreds of thousands took to the streets in several governorates to protest the slow pace of these trials and demand the immediate conviction of all police officers and high-ranking officials whose hands were tainted with martyrs’ blood.
At the protests, demonstrators accused the interim cabinet and the ruling Supreme Council of the Armed Forces (SCAF) of failing to enforce justice and siding with Mubarak’s police apparatus.
The spark for the massive protests was a court decision to release seven police officers who were implicated in the killing of demonstrators in Suez.
In response, Prime Minister Essam Sharaf announced that courts would be free to try defendants accused of killing protesters and that he had called upon the Supreme Judicial Council (SJC) to make all trials public. The SJC announced that it would broadcast the trial on large screens outside courtrooms. The former information minister's trial was aired Monday on state-owned television, however, therefore indicating that other trials may also be broadcast on state television.
“Justice will not be achieved by only freeing courts to look into these cases,” says Bahey al-Din Hassan, director of the Cairo Institute for Human Rights Studies.
Purging the judiciary and the police of the remnants of the Mubarak regime is the solution, Hassan says.
He argues that courts might find it hard to hand down verdicts against suspects because appropriate evidence has not been provided. He blames this lack of evidence on the fact that the police apparatus – which has a vested interest in protecting fellow officers – is the agency in charge of collecting the evidence.
This evidence is referred to the prosecution, which itself needs to be purged, he added.
“How, under these circumstances, can we expect the minimum requirements of justice to be established?” wonders Hassan.
Until the judicial system is fully purged, he suggests that Egypt should follow in the footsteps of some Latin American and Eastern European countries, who entrusted independent judicial bodies with the prosecution of former authoritarian officials. These commissions were in charge of collecting evidence, and questioning and trying suspects.
Many political leaders and experts argue that trying Mubarak and his men only for profiteering and inciting murders of protesters is not enough. They argue that they should be tried for sanctifying authoritarianism, impoverishing Egyptians and impeding development.
“They are not being tried for their detention of tens of thousands of prisoners and for torturing hundreds to death,” says Rashwan. “Who is to be held responsible for the deaths of tens of thousands of Egyptians at the hands of diseases and poverty? Who is to be held responsible for the existing social chasms?”
Rashwan believes that exceptional courts should be created to try leaders of the former regime for crimes that cannot be penalized by the normal penal code.
Besides political crimes, these courts should also try officials and police officers accused of killing protesters, says Rashwan, adding that the normal courts cannot ensure verdicts that will “satisfy” the angry masses.
“We will reach another point of explosion over [the trials] and will eventually realize that we were mistaken for resorting to ordinary courts in the first place,” he warns.
On several occasions, the military has refused the idea of holding exceptional trials, arguing that fair and free trials should be guaranteed. Military rulers expressed their vehement opposition to interfering with the course of trials for the sake of preserving the independence of the judiciary. Yet, these arguments fail to convince several revolutionaries who accuse the military of protecting the deposed Mubarak regime.
Khaled al-Sayyed, representative of the Coalition of Revolutionary Youth, agrees with Rashwan on the necessity of having exceptional courts for protesters’ murderers, but believes that the military would never endorse the idea.
“Torturers should stand political trials in squares. Yet, with the SCAF in charge, we can only reach the minimum requirements of justice,” says Sayyed.
However, Justice Tahani al-Gebali, vice president of Egypt’s Supreme Constitutional Court, expressed vehement opposition to calls to put alleged killers on exceptional trials.
“Felonies should be tried in criminal courts and by ordinary judges, with all guarantees [of a fair trial],” says Gebali.
“Otherwise, we may end up convicting innocent people and probably sentencing them to death,” she adds, contending that verdicts do not have to meet people’s expectations.
“Since when has justice been determined by public opinion? If we do that, we'll be paving the way for dangerous and unacceptable vengeance,” Gebali continues.
In the meantime, Gebali agrees that ex-officials should be tried for political corruption. She says the Treason Law, which was passed in the wake of the 1952 military coup to try ex-officials, could be activated to serve this purpose.
The law includes a list of vaguely-defined crimes, including political and financial corruption, jeopardizing national interests, and misusing political leverage. Convicts can be denied access to public offices, stripped of all their political rights, and even lose their Egyptian nationality.
“Such [political corruption] trials can serve as a lesson for future generations and ensure that such practices [of Mubarak’s regime] will not be repeated,” says Gebali.
The Treason Law is also expected to help prosecute Mubarak’s aides who were not implicated in felonies, but contributed to reinforcing his dictatorial rule. For example, Moufeed Shehab, Mubarak’s long serving minister known for designing several infamous constitutional and legal changes, and Ali al-Din Helal and Mohamed Kamal, who were considered proteges of Mubarak’s son Gamal, can stand trial in treason courts.
“The Treason Law can be applied to those who cannot be tried by normal laws,” says Mahmoud al-Khodeiry, former vice president of Egypt’s Court of Cassation.
Under the Treason Law, trials are held by special courts that consist of military officers and ordinary judges. During Nasr’s time, the law was often exploited to crush political opponents.
However, Khodeiry is aware of these drawbacks and believes they could be controlled. He insists that the Treason Law should only be applied for a maximum of two years and that only judges should preside over trials.
