Mubarak's great escape

After publishing my previous article on January's miscarriage of justice, in which I addressed political trials as a necessary path the revolution did not pursue against Hosni Mubarak and the leading figures of his regime, I noticed in the reactions a widespread confusion. Many conflated accountability for political crimes—foremost among them violations of the Constitution—with rushed or vengeful trials designed to dismantle a former regime and inaugurate a new one by force of fait accompli.

This confusion may stem from how political trials are etched into Egypt’s collective memory. They are often associated with exceptional regimes cloaked in the name of “revolution,” as in the prosecution of figures from the “defunct royal era” after the July 1952 Revolution under the Treason Law. Later, in 1980, came legislation reflecting a singular vision of Anwar Sadat, the head of the “state of science and faith” The Law for the Protection of Values from Defect was marred from its inception by grave constitutional distortions until it was finally repealed in 2008.

After the state, following the January Revolution, limited itself to the path of ordinary criminal trials, the true meaning of political trials remained absent. Many are unaware that they are regulated under Article 159 of the current Constitution in cases where the president is accused of violating the Constitution, committing high treason, or any other felony. In 2011, this was possible through activating Law No. 247 of 1956 on the trial of the president of the republic and the old Political Rights Law No. 73 of 1956.

The legitimacy of the trials: revolutionary or constitutional?

A collective confusion—tinged, at times, with ill intent from multiple sides—produced a narrow view that settled for conventional criminal trials for Mubarak and the pillars of his regime. Only after the election of a bicameral parliament, the election of Mohamed Morsi as president, and the formation of a constituent assembly to draft a new constitution did we realize that the window of revolutionary legitimacy had closed.

Belated attempts to reclaim it failed. The country descended into a bleak oscillation between constitutional and revolutionary legitimacy, and into political gambles that took the form of “constitutional declarations.” The result was a clash pitting the presidency, government, parliament, and constitution-drafting assembly against the judiciary, Al-Azhar, the Church, and opposition political forces.

The failure of “January justice” cannot be separated from the climate that dominated the political scene in the second half of 2012. It was an inevitable outcome of the violent swings between the two forms of legitimacy, in a bid to appease the street and the revolutionaries, and to compensate for more than a year and a half of hesitation and complacency—time spent in the embrace of bureaucracy and political accommodations.

During that period, the seeds of undermining the desired accountability process were sown. At best, the results amounted to material or symbolic punishments that neither matched the magnitude of the crimes committed nor contributed to dismantling networks of corruption. They certainly did not achieve deterrence capable of preventing renewed violations of the Constitution, attempts at dynastic succession, or assaults on rights and freedoms.

The deposit of the court’s reasoning in the life sentence handed down to Mubarak and his interior minister Habib El-Adly in the so-called “trial of the century,” convicting them of complicity in killing protesters, felt like a rude awakening.

Upon reviewing the reasoning, many sensed that the verdict’s annulment on appeal was likely. That is precisely what happened later. Among the key reasons were the court’s failure to conduct sufficient investigations to clarify elements of criminal responsibility and to substantiate the intent to commit premeditated murder—especially as it had acquitted El-Adly’s aides and dismissed bribery and influence-peddling charges against Mubarak, his two sons, and businessman Hussein Salem.

Trials of the eleventh hour 

On the morning of Thursday, Oct. 4, 2012, I received a call from a senior official asking me to head immediately to the Ministry of Justice headquarters “for an important matter.” I went.

There, I took part in brief but spirited meetings, filled with optimism, with then-Justice Minister Ahmed Mekki, his aides and several members of the second fact-finding committee formed by Morsi and headed by Judge Mohamed Ezzat Sherbashi.

As we sat together, news broke that Ahmed Ezz, the organizational secretary of the dissolved National Democratic Party, had been sentenced to seven years in prison and fined a record 19 billion Egyptian pounds (about $3.2 billion, by 2012 rates) after being convicted of money laundering.

That day, officials from the committee handed me a 10-page memorandum they had submitted to the Public Prosecution. Al-Shorouk newspaper published it the following day. The memorandum asserted that Mubarak’s first-instance trial had been marred by a “grave legal error,” namely the court’s failure to consider the prosecution’s core request to try the defendants for the crimes of killing and attempted killing of peaceful protesters in 12 governorates. It limited its ruling instead to incidents within the jurisdiction of Qasr al-Nil police station.

The memo stated that the court had failed to address a large number of incidents presented to it, in violation of Article 311 of the Criminal Procedure Code, without explaining its reasons. It called for the case to be referred to a different criminal circuit at the Cairo Criminal Court to complete—not retry—proceedings related to the killings and attempted killings. This is regardless of the date set by the Court of Cassation to review the appeals.

At the time, it seemed we were witnessing a serious effort, at least, to correct the criminal justice path. Needless to say, that step failed to alter the course of Mubarak’s trial. He and his interior minister ultimately evaded full accountability for those crimes, severed entirely from the direct perpetrators of the killings.

Shots in the air

The oscillation between constitutional and revolutionary legitimacy reached its peak when Morsi issued his now-infamous constitutional declaration on Nov. 21, 2012. It was accompanied by the Law for the Protection of the Revolution, which mandated reopening investigations into the killings, attempted killings, and injuries of protesters, and retrials if new evidence emerged related to incidents already referred to the courts.

The law also provided for the establishment of a specialized prosecution office, whose members would hold the powers of investigating judges and advisory chambers as stipulated in the Criminal Procedure Code.

But the law remained ink on paper.

Morsi received from the second fact-finding committee a comprehensive report containing what could only be described as mountains of sensitive information—evidence that could be classified as new, warranting renewed investigations or trials under the Law for the Protection of the Revolution. This was the committee’s legal assessment when it attempted to reopen proceedings against Mubarak and El-Adly.

Nothing happened.

Instead, new arenas of political conflict opened. The full report was never made public.

In May 2013, the initiative “Waraakum bel-Taqreer” (The Record Will Hold), launched by committee member and lawyer Ahmed Ragheb, documented what it described as the “corruption of justice.” It cited the submission of portions of the committee’s report to courts without conducting supplementary investigations, sluggishness in probing new incidents and evidence despite the full report having been delivered to then-Public Prosecutor Talaat Abdullah. Also, delays in forming the prosecution office for the protection of the revolution in accordance with the law.

Details published by my colleague Ahmed Hosni in Al-Shorouk in mid-March 2013 revealed that the second committee had obtained precise information about the direct perpetrators of the killings and attempted killings, and that some officials had evaded giving testimony.

In the months that followed, I received additional information from judicial members of the committee regarding the use of government buildings and diplomatic vehicles for various purposes during the early days of the revolution, including targeting protesters. I also learned about specific incidents around Tahrir Square that were never presented to the judiciary.

The trial of the century: a model of failure

It stands as a near-perfect embodiment of all the flaws of “January justice,” at its core the complete incapacity for accountability.

No shortage of laws and decrees. No shortage of tens of thousands of pages in official reports. No shortage of thousands of hours of recorded videos and testimonies from all sides.

Yet there was no reckoning. No comprehensive documentation. No coherent narrative to tell future generations what truly happened.

The origin of the failure lay in confronting a revolutionary moment with the tools of normal times. Then, the period of revolutionary legitimacy—the highest degree of exception—was squandered without establishing the appropriate framework to achieve political and criminal justice.

What followed was an attempt to “revert” from constitutional legitimacy back to revolutionary legitimacy, in the words of constitutional scholar Fathi Fekry in his study published in the journal Al-Dostouria, issued by the Supreme Constitutional Court, No. 22. Or, as the late jurist Tarek Al-Bishri described Morsi’s constitutional declarations, an “overturning of authority from within.”

The trials were certainly not the only victims of this hesitation and turmoil, unfolding amid a fierce political struggle between the Muslim Brotherhood and the leadership of the military establishment.

A memory check

So that memory, or suspicion, does not betray you regarding Ahmed Ezz’s money laundering case, which I mentioned earlier: In August 2018, a different circuit ruled to dismiss the criminal case against him and lifted the travel ban and asset freeze imposed on him. He benefited from Law No. 28 of 2015, which allowed reconciliation with defendants at any stage of criminal proceedings.

The committee formed under that law also approved reconciliation with him in the steel license case in exchange for 1.7 billion Egyptian pounds (about $40.5 million in 2018), leading to the dismissal of that charge as well in March of that year.

During the first-instance conviction session, according to Al-Shorouk on Oct. 5, 2012, presiding Judge Makram Awad addressed Ezz directly, saying, “Indulging your vile desires led you into a dark tunnel filled with shame and disgrace, where you live in humiliation and receive your punishment.”

Yet he rose, phoenix-like, from the ashes of a revolution he had helped ignite.