Category: Atlantic Council

A Ruling to Deport Gay Foreigners: The View from Egypt

The Egyptian Ministry of Interior now has the right to deport homosexual foreigners and ban them from entering Egypt according to a ruling issued by the Administrative Court in April. This is the final ending to a story that began in 2008 when a Libyan graduate student was deported from Egypt and banned from re-entering the country. According to news reports, the student was deported from Egypt after his arrest on charges of “homosexual practices.” He filed a lawsuit against the ministry for its decision, stating that it was preventing him from completing Master’s Degree at the Arab Academy for Science, Technology, and Maritime Transport. After seven years, the court upheld the decision to deport him, arguing in its ruling that the Ministry of Interior has the “authority of evaluation” that allows it to determine what is in the country’s best interest. “The Ministry of Interior is entitled to preserve social and religious values, and prevent the spreading of vice in society,” said the ruling.

In an interview with VetoGate, activist and member of the National Human Rights Council Manal al-Tibi condemned the verdict as “contrary to all logic” since it is not clear how homosexual foreigners pose any form of danger to Egypt. “This kind of action is only justified when taken against people who are proven to target Egypt’s national security,” she said. “This is also against the constitution because it discriminates against a specific group.” Tibi questioned how the verdict is going to impact Egyptian homosexuals. “Are Egyptian homosexuals going to be stripped of their rights as citizens in this case?” She also questioned the applicability of such verdict on foreign officials. “What will happen with foreign officials who are homosexuals? Will they be banned from attending conferences and meetings in Egypt?”

Dalia Abdel Hamid, Gender and Women’s Rights Officer at the Egyptian Initiative for Personal Freedoms, argued that the verdict sets a very dangerous precedent. “The verdict places the Interior Ministry above the law,” she wrote, questioning a blanket right given to police to deport people without a fair trial. Abdel Hamid underlined several loopholes in the ministry’s decision and the subsequent verdict. While homosexuality is not prohibited by Egyptian law, defendants are often tried on charges of ‘debauchery.’ As Abdel Hamid explains, charges of debauchery have to “involve the presence of several sexual partners as well as a proof of engaging in the sexual act for money. Neither applies to this case.”

The verdict, Abdel Hamid adds, also overlooked recommendations made by the Supreme Constitutional Court’s advisory board, the Board of State Commissioners, which is responsible for giving the court legal advice. “The board recommended accepting the student’s complaint and revoking the ministry’s decision and warned of expanding the ministry’s authority in a way that oversteps the judiciary,” she explained. “The judge totally ignored this report.” According to Abdel Hamid, this ruling will allow the Ministry of Interior to deport foreigners on false pretexts. “The ministry will use this to deport foreigners that are unwelcome for their activism or political views. Previous cases on homosexuality have already demonstrated how the ministry can level unfounded accusations and act upon them.”

Tarek Zaghloul, executive director of the Egyptian Organization for Human Rights, however, argued that the verdict is logical, since it conforms to Egyptian traditions, but underlined the difficulties facing its actual implementation. “There are many foreigners in Egypt, so how can we know who is homosexual?” Zaghloul was not the only ‘rights activist’ who supported the verdict. Naguib Gobrial, head of the Egyptian Union for Human Rights, denied that the verdict violates human rights. “Preserving the values of a given society is among the most vital of human rights,” he said. Similarly, rights activist Mamdouh Ramzi did not perceive the verdict as an infringement upon personal freedoms. “You cannot spread vice and claim this is freedom,” he said. “What applies in the West cannot apply in the East. Offending other people and disrespecting other cultures is not freedom.”

Security experts, especially those formerly affiliated to the Ministry of Interior,welcomed the verdict. “I totally support this decision,” said former deputy interior minister General Gamal Abu Zikri. “I suggest that the state prepares a list of figures known for being homosexual and prevent them from entering Egypt.” Former deputy interior minister General Abdel Latif al-Badini saw the verdict as a positive step, but warned of its negative repercussions. “Fighting homosexuality is one thing and banning homosexuals from entering Egypt is another,” he said. “We will be severely criticized by the international community if we do this.” He argued, instead, for “clamping down on homosexuals and curbing their freedom.”

This ruling is, in fact, the latest in a long line of attempts to clamp down on Egypt’s LGBT community. In the past year, there have been at least three high profile cases presented before the courts, with almost forty men standing trial on charges of “debauchery.” Three men were sentenced to eight years in prison last April, while another eight were sentenced to three years in prison last November. The sentences of the latter eight were reduced to a year each. Twenty-six men were granted a surprise acquittal in another high profile case in January, after they were arrested in a public bathhouse, as a journalist for a private satellite channel filmed the incident. As Scott Long points out on his blog, Paper Bird, the ruling comes after several key stories in Egypt’s LGBT community went largely ignored, including an attempt by one of the twenty-six men acquitted trying to burn himself to death.

According to Sociology professor Saeid al-Saleh, homosexuality, however, was never the main issue in this controversy at all. He argues that the verdict and the case are purely political. “The state made a fuss out of nothing and fabricated a case to make a statement about its adherence to religious values in response to accusations of Westernization and secularism leveled at the current regime by the Muslim Brotherhood and the Salafis,” he said.

Can Egyptian-American Mohamed Soltan be Deported?

With Mohamed Soltan’s hunger strike exceeding 450 days, speculation is rife as to how long he can survive in an Egyptian prison. In early April, Soltan, who is an American-Egyptian dual citizen, was sentenced to life in prison—technically a twenty-five year sentence in Egypt. A new law introduced last November by Egypt’s President Abdel Fattah al-Sisi allowing for the deportation of foreign citizens, whether convicts or suspects, raised hopes that it would also apply to Soltan. It was under this law that Australian journalist Peter Greste was deported after being sentenced to seven years in a Cairo prison. A lack of any substantial visible steps in that direction, however, suggests that Soltan’s fate likely won’t differ from that of other activists who have received similarly harsh sentences.

Soltan was sentenced on charges of spreading false news and supporting the now-banned Muslim Brotherhood. He was arrested at the pro-Mohamed Morsi sit-in at Raba’a al-Adaweya following its violent dispersal in August 2013, where he had been helping foreign journalists cover the sit-in

According to Mokhtar Mounir, a lawyer at the Association for Freedom of Thought and Expression, the law that allowed for Greste’s deportation can technically be applied to Soltan. “Law number 140 for the year 2014 allows the repatriation of foreign prisoners to their home countries so they can serve their time or be retried there,” he said. While the law does not explicitly refer to dual citizenship, according to Mounir, “In the case of dual nationality, the other country of which this foreigner is a citizen also has the right to call for his repatriation, provided that he gives up his Egyptian citizenship.” Mounir noted that Soltan will not be forced to give up his Egyptian citizenship if the Egyptian state decides of its own accord to send him to the United States.

Soltan had told the court in March that he would never give up his Egyptian citizenship. “If I am given the choice between the Egyptian nationality and my freedom, I will choose the former,” he told the presiding judge. Maha Youssef, a member of Soltan’s defense team, said in early March that several officials asked him to give up his Egyptian citizenship if he wants the law to apply to him. “He totally rejects the idea and this is totally up to him,” she said.

Judge Refaat al-Sayed, the former head of the Cairo Court of Appeals, arguedthat the law does not apply to Soltan. “The law applies to foreigners who do not hold Egyptian citizenship,” he said. “Soltan’s renunciation of his Egyptian citizenship does not exempt him from facing trial in Egypt since he committed his crimes in Egypt while holding the Egyptian citizenship.” Sayed supported his argument with articles from the Egyptian Penal Code, which state that the law applies to every Egyptian who commits a crime inside Egypt. “The Penal Code does not make exceptions for dual nationals,” he added.

Last October, US State Department Spokesperson Jen Psaki said that Washington “raised the case with Egyptian officials at the highest level.” A few weeks later, the Cairo Criminal Court, which sentenced Soltan, also reportedly refused a request submitted by the American Consulate in Cairo, asking for his release on medical grounds. Following his conviction, both theWhite House and State Department expressed their disappointment at the sentence he received. Soltan’s family, however, believes US authorities have not exhausted all efforts to secure his release. Soltan’s relative, Sara said on the day of the verdict, “They did not do what they are expected to do for an American citizen, possibly because of the complex relations between the US administration and the current Egyptian regime.”

Abed Ayoub, the legal director of the Arab American Anti-Discrimination Committee, argued that Washington is paying close attention to Soltan’s case and cited the statements issued by the White House and the State Department. “Those statements contain important political messages. True, they are not enough as long as no steps are taken, but something seems to be happening behind the scenes,” he said, not elaborating on what that might be, or the possible outcomes. Ayoub noted that Soltan is not the only American facing legal problems outside the United States. “There are dozens of similar cases in different countries.”

In Egypt, Soltan’s case is either met with apathy or contempt. Freedom for the Brave, a grassroots initiative campaigning for the release of political prisoners, declared solidarity with Soltan soon after his arrest. They called upon Egyptians to send letters to the Prosecutor General demanding his release for humanitarian reasons, while Twitter campaigns in English and in Arabic were launched. Several rights organizations also issued statements expressing their concerns over Soltan’s deteriorating health and demanded his transfer to a hospital, without calling for his release. Signatories included the Egyptian Initiative for Personal Rights, the Nadim Center for the Rehabilitation of Victims of Violence, and the Association for Freedom of Thought and Expression. None of these campaigns have had any impact. Many Egyptians, however, have either never heard of Soltan, have lost interest in following the news of political prisoners, or worse yet have lauded the sentence. Support for the current regime has shifted the balance against revolutionary youths, who are now seen by many as detrimental to Egypt’s national security. Like Alaa Abdel Fattah and Ahmed Douma, Soltan is just another troublemaker. Securing support for Soltan’s case is made all the more challenging given his connection to the Muslim Brotherhood. While Soltan is not a member himself, his father—Salah Soltan—is a leading Brotherhood figure and was sentenced to death in the same case.

The final call for Soltan’s deportation lies not with a judge but rather is a decision made by presidential decree. Greste’s deportation served Egypt-Australia relations, and came after much pressure from the Australian government. In the case of Egyptian-Canadian Mohamed Fahmy, who was tried alongside Greste, renouncing his Egyptian citizenship appears to have had no effect on bringing about his deportation, as he faces retrial. Soltan’s family ties to the Brotherhood make a presidential decree highly unlikely.

Egypt’s New Capital: The Promise and the Illusion

The highlight of Egypt’s three-day investment conference held in mid-March was the announcement of a new capital city. The news also proved to be the most controversial of the international gathering, where Egypt concluded dealssurpassing all previously announced expectations. The 700-square kilometer new capital, the first phase of which it is estimated will cost $45 billion, will be home to administrative facilities currently located in the heart of Cairo, including the parliament, ministries, embassies, and consulates, as well as the presidential palace, and residential areas expected to accommodate more than 7 million people. The government is anticipating the completion of the new capital in a short five to seven years. While the scale model displayed at the conference venue in the Red Sea resort of Sharm al-Sheikh and the documentary played for conference attendees unveiled an impressive megaproject that seems capable of solving Cairo’s chronic problems, skepticism over its success, let alone the feasibility of such an over-ambitious plan has given rise to a heated debate.

Economic expert and former International Monetary Fund official Fakhri al-Fekkisupports the establishment of a new administrative capital to reduce pressure on the densely populated Cairo. “Transferring government buildings to a new city is now a necessity,” he said, adding that Cairo will remain the official capital. Fekki, however, objects to the choice of location. “National security was not put into consideration when choosing a place that is close to the Suez Canal and the Sinai Peninsula.” Fekki is also opposed to the timeframe for completing the project. “The current economic situation in Egypt would not allow the immediate implementation of a project of such magnitude,” he explained. “True, it is important to lay the foundations for a new administrative capital, but not start working on it right away. This could be done gradually as the Egyptian economy picks up and as Egypt’s ability to attract investment increases.”

Professor of International Economics and former Dean at the National Planning Institute Mahmoud Abdel Hayy also supports the idea of an administrative capital, but argued that it is not a priority at the present time. “Investing in water, electricity, oil, and land reclamation should be the topmost priority because this is what offers real security for citizens,” he said, adding that the new city will be another replica of upscale suburban areas built outside Cairo during the Mubarak era. “Those cities only widen the gap between the rich and the poor because only the rich can afford to live there and the poor won’t be able to work there because of the cost of commuting.”

Associate Professor of Economics Ehab al-Dessouki, however, says the advantages of the new capital cannot be overlooked. “Establishing the new city will lead to developing a large part of the desert and will expand Cairo all the way to the coastal city of al-Ain al-Sokhna,” he said. “It will also reduce the pressure on Cairo’s infrastructure and will eventually result in less pollution and congestion.” The project, Dessouki added, will introduce Egyptians to the possibility of going out of the old capital and seeking opportunities in a new city that is expected to offer a large number of jobs. Dessouki, however, noted that there is no guarantee that Egyptians who will work or live in the new capital will not remain attached in one way or another to the old one, which will therefore continue to suffer from the same kinds of pressure it faces today.

Adham Selim, architect and researcher at the Frankfurt-based Städelschule,disagrees with the theory that a new city will reduce pressure on Cairo at all. “If you build a new capital that close to the old one, it is impossible for the problems of the latter not to affect the former,” he said. “In fact, the services and utilities that need to be provided for the new city are bound to constitute a burden on the networks already suffering in the old capital, so the more the new capital demands, the worse the services in the old one will become.” Selim added that even if the new capital offers job opportunities, workers will most likely commute from the old capital. “This will lead to tremendous pressure on public transportation between the two cities especially during rush hour.” According to Professor of Urban Planning Ashraf Fahim, this problem will not be solved unless the government starts new bus lines that connect the old and new capitals and extends the subway to cover the new areas. “Yet, even after doing so, traffic between the two capitals will remain a problem especially since people currently working in ministries and main government facilities live in Cairo,” he said. “Only building housing complexes at the new capital for those employees and making them available for rent at cheaper prices than Cairo would eliminate this obstacle.” Fahim, however, does see a new capital as a step forward for Egypt, provided that it is implemented in the right way. “All government bodies should coordinate to make this project work in a way that really allows Egyptians to get out of the 6 percent [of land] to which they have been confined for hundreds of years,” he said, adding that the government cannot cancel the project after it was officially announced to the world at the conference.

Urban policies researcher Yehia Shawkat argues the policy of constructing new cities to alleviate pressure on Cairo has so far proven a failure because the percentage of the population that actually moves there is meager. “Around twenty new cities have been built throughout the past decades. The total number of housing units in those cities amounts to one million, only a quarter of which are inhabited,” he said. “It is clear that the policy of redistributing the population is not working, yet the government keeps building more cities.” Shawkat added the majority of Cairo’s inhabitants are workers who are tied to the places where they run their small businesses. “They are not going to move to a new city that mainly offers administrative services and they are the biggest population block,” he said. “A study about who is to live in the new city has to be conducted.” In addition to agreeing with many experts as far as increasing the burden on Cairo’s resources is concerned, Shawkat noted that the construction sector will focus on the new city and neglect the old one, which is in dire need of maintenance and development. “This will make the new capital an enterprise which creates an economic bubble, meaning that it will lead to temporary and unreal economic prosperity.”

The initial euphoria over the construction of the new capital is gradually fading with a sizable number of experts underlining the negative impact of the project, and downplaying the economic and demographic benefits it is expected to bring. Some have also questioned the completion of the megaproject, pointing to Egypt’s recent history of similar plans that have failed to materialize. Linking this project to other equally ambitious ones, like the new Suez Canal, might play a role in increasing concerns as many wonder if the state’s image as the initiator of major development projects takes precedence over what it can actually achieve on the ground.

The Debate over Gamal Mubarak

The release of Alaa and Gamal Mubarak was seen as a staggering blow to the January 25 Revolution by its supporters. While the Mubarak brothers were released on bail in accordance with article 143 of the Criminal Procedures Law, which states that preventive detention should not exceed 18 months, the uneasiness with which the ruling was greeted was not surprising. Between the symbolic failure of the revolution and the actual repercussions of their possible return to the public scene lie numerous concerns, speculations, and apprehensions.

Legal experts argue that it was impossible to keep Alaa and Gamal Mubarak detained any longer. “Only in cases where capital punishment is applicable can defendants be detained pending trial for two years instead of a year and a half,”says Judge Ahmed Haroun, head of the Cairo Criminal Court. The Mubarak sons are not facing charges in which the death penalty can be applied, but upon their re-trial in the pending corruption cases, it will be up to the court to return them to jail as the trial proceeds. According to law professor and former dean of the Law School at Cairo University Mahmoud Kobeish, if they do not show up at the trial, arrest warrants will be issued for both of them. A retrial date has yet to be set.

Apart from the technicalities of the verdict, the bigger question is how it will play out now that Gamal and Alaa have been released. Much of this has focused on Gamal, since among the driving forces behind the 2011 uprising was the belief that he was being groomed as heir-apparent to the Egyptian presidency.

Speculations are rife in the Egyptian media about whether Gamal intends to keep a low profile or plans to restore his past influence. Former Member of Parliament Abdullah al-Mughazi, and a supporter of President Abdel Fattah al-Sisi, linkedGamal’s release to the August 2014 release of business tycoon and secretary general of the now defunct National Democratic Party (NDP) Ahmed Ezz, who was also one of Gamal’s closest aides. “They are likely to attempt to reunite NDP members, especially since Ezz has already announced his intention to run in parliamentary elections and is reported to have met with several leaders in the disbanded party,” he said. According to Judge Refaat al-Sayed, Alaa and Gamal can both vote and run in national elections since neither has been convicted. Nothing has been said, however, about Gamal exercising this political right, while Ezz has already submitted the papers for his candidacy, as has his wife.

Parliamentary elections are not seen as the only channel through which Gamal might try to regain his influence.  According to political analyst Ammar Ali Hassan, money could be a main factor in the equation. “The Mubarak sons, together with members of the former regime, are expected to curry favor with the current regime by offering it financial support,” he writes. “But if President Sisi gives in, his popularity will be deeply affected and the relationship between the people and the state is bound to sour.” Hassan also notes that the Mubarak regime was never truly uprooted, it could easily make a return. “All the ruling regimes since the revolution have not really taken enough measures to eliminate the influence of Mubarak’s men.”

The return of Gamal Mubarak to the political scene is seen by many as next to impossible. Sameh Ashour, the head of the Lawyer’s Syndicate believes the Mubaraks have lost any support they may have had. “Their influence came to an end once people rose against them,” he says. “Those who supported Gamal did so to serve their interests at the time when he was influential. Now, nothing is to be gained from any alliance with him.” Ashour admits that some members of the former regime might take part in the elections, but he believes their only asset is money, and that they do not enjoy popular support.

Journalist Abdullah al-Sinnawi argues that no faction or party would agree to form an alliance with Gamal. “The last thing political figures need now is to associate their names with the Mubarak regime, especially since Gamal and Alaa might go back to prison.” Sinnawi also notes that Gamal’s failure in the political domain is expected to discourage people from supporting him if he decides to return. “Gamal Mubarak failed in running the country when he was head of the NDP’s Policies Committee and his role in the political scene was a major reason for the January 25 Revolution.”

Those who find it unlikely for Gamal Mubarak to find a place in the Egyptian political scene are probably right. After all, Gamal’s possible inheritance of power made him just as hated as his father. In fact, while some Egyptians may have sympathy for Hosni Mubarak, citing his age, or the necessary respect a former leader should be afforded, Gamal has not earned a similar respect within these circles. While news has already circulated that Gamal may run in the 2018 presidential elections, this seems to be the product of nothing more than an overactive rumor mill, especially in light of the popularity the current president enjoys. If any member of the Mubarak family is to have any influence, be it economic or political, this will likely not happen without a green light from the current regime. However, even if they remain ostracized from Egypt’s political life, the release of the Mubaraks is a major defeat to a revolution in which no one has been held accountable for thirty years of corruption, abuse of power, and tyranny.

Abu Hasira: Between Religious Intolerance and Political Squabbles

The Abu Hasira Festival, an annual celebration in Egypt commemorating the birth of a Moroccan Rabbi, was canceled permanently by court order in December 2014. The Alexandria Administrative Court, which issued the verdict, cited “moral offenses” as the main reason for cancelling the festival. It also ordered the removal of the shrine from Egypt’s list of historic monuments, and refused Israel’s request for the transfer the rabbi’s remains to Jerusalem. The ban can only be reversed if a higher court overturns it on appeal. While the verdict was generally welcomed by Egyptians who oppose normalization with Israel, and by residents of the village in particular, apprehensions about its implications for religious freedom and cultural diversity have surfaced. Reactions to the verdict have also been highly politicized, revealing the widespread overlap in Egyptian perceptions of Jews and Zionists.

Abu Hasira, or Yakouv bin Massoud, a nineteenth century Moroccan rabbi died in 1880 in the Beheira village of Damitu, where he was buried. His tomb has since become a pilgrimage destination for Jews from all over the world, with annual official trips from Israel starting after the 1979 peace treaty.

Controversy surrounding the Abu Hasira Festival is certainly nothing new in Egypt. Egyptian courts issued similar verdicts in 2001 and again in 2004 calling for the festival to be canceled, but authorities never implemented the orders. In fact, the Minister of Culture Farouk Hosni listed the tomb as recognized monument that same year. In 2009, Israeli pilgrims were denied entry to Egypt for the festival as Israel was in the midst of Operation Cast Lead, a three week offensive against Gaza. Celebrations were also canceled in 2012, under the then-ruling Supreme Council of the Armed Forces. At the time, the Muslim Brotherhood channel, Misr 25, reported on “human chains” preventing “the nightmare of Zionist crowds” from reaching the shrine. At least thirty-one parties announced their support for the campaign.

Much of the controversy links back to security measures put in place each year during the festival. Alaa al-Khayam, a member of the Bloggers against Abu Hasira, launched in 2007, declared his support for the verdict, adding that he, and his group, are not opposed to the right of religious groups to practice their rituals. “We oppose the Jewish festival because it turns the area into military barracks to protect the Jews and halts all aspects of life,” he explained. Residents of the village told local reporters in 2013 that they were subjected to house arrest during the festival.

Journalist Mahmoud Doweir, however, linked the cancellation to the Egyptian revolution. “No Zionists visited the shrine since the revolution took place,” he said. “Israel claimed that the security situation was the reason, but the truth is that the revolution uprooted the Zionist presence in Egypt.” Multiple campaigns against the festival organized protests, in what Doweir described as “efforts to reject cultural normalization with Israel.” The verdict, he said, was a reward for those efforts.

General Farouk al-Maqrahy, a security expert and former Member of Parliament for the Beheira governorate, saw the verdict as a victory which honored the demands of most Egyptians. “Political factions and residents of the village have long called for the festival to be canceled since the pilgrims are usually involved in activities that violate our values and traditions,” he said, in reference to reports that Jewish devotees visiting the shrine allegedly drank alcohol during the celebration. Maqrahy also refused to acknowledge the site as Jewish. “This is neither a shrine nor a monument. It is just an excuse to desecrate Egypt. There is even a possibility that Abu Hasira was not Jewish at all,” he alleged.

Madga Haroun, head of the Jewish community in Egypt, condemned the verdictas unconstitutional. “The Egyptian constitution gives every religious group the right to practice its rituals,” she said. “Abu Hasira has a special place in the heart of Jews and they have the right to visit his grave.” Haroun voiced her concern that crossing the shrine of the monuments’ list might eventually lead to its demolition. She also explained that heightened security during the festival was mainly the result of cultural and intellectual problems. “This happens because people do not know the difference between Judaism and Zionism. Abu Hasira lived and died in the nineteenth century, a long time before the creation of the state of Israel.” Haroun, however, supported the court decision not to hand Abu Hasira’s remains to Israel. “Abu Hasira had nothing to do with Israel or the Zionist project, so Israel does not have the right to claim his remains.”

Said Okasha, an Israeli studies expert at al-Ahram Center for Strategic Studies, argued that the verdict will tarnish Egypt’s image abroad, particularly since it is political in essence. “The issue of the festival has always been tackled politically,” he said. “Now after the verdict, it will be much easier to accuse Egypt of anti-Semitism.” Okasha added that the shrine and the festival belong neither to Jews nor to Israelis, but to Egyptian heritage. “Jews, like Muslims, Christians, and Pharaohs are part of Egyptian history. There was too much fuss around the festival and the issue has grown out of proportion.”

Mina Thabet sees the verdict as the further deterioration of Jewish heritage in Egypt. “We are on the verge of losing an important component of the cultural diversity we have always been proud of,” he wrote in his article “An apology to Jews.” Thabet argued that unless Egypt takes immediate steps towards redressing this mistake, it can no longer claim to be a civilized nation.

Even though this controversy, no stranger to Egypt’s courts, has existed for years, the finality implicated in the verdict makes current concerns more real than before. Egyptian people’s tendency to equate between Judaism as a faith and Zionism as a political project is not likely to change any time soon. Abu Hasira is another casualty.

So Who Killed the Protesters?

Who killed the protesters? This question was the headline of almost every major Egyptian newspaper, after charges against former president Hosni Mubarak were dropped, and his interior minister Habib al-Adly, and six ministry aides were cleared of charges in what was known as “the trial of the century.” In addition to corruption charges, Mubarak was on trial for his role in the death of hundreds of civilians during the January 2011 uprising. The question is asked at times seriously, and at others mockingly. It’s asked by those who believe the verdict is fair and those who question the judiciary’s independence.

Blaming the Brotherhood
Blaming the Muslim Brotherhood appeared to be the easiest way to pacify public opinion, while not holding the former regime accountable. In his article ‘Who killed the protesters?’ journalist Abdel Rahim Ali cites the testimony of late state security officer Mohamed Mabrouk, given during the trial of ousted president Mohamed Morsi. According to Mabrouk, who was assassinated on November 17, 2013 reportedly by Islamist jihadists, a meeting was held in Damascus in November 2010 under the auspices of the Muslim Brotherhood. This meeting included chairman of the Center for Strategic Research at Iran’s Expediency Discernment Council Ali Akbar Velayati, senior commander at the Iranian Revolutionary Guard Ali Fadavi, and head of the Hamas’ politburo Khaled Maashal. “It was in this meeting that the deal was struck,” Ali said, quoting Mabrouk.

“The Iranian Revolutionary Guard was to train militants that would be later taken to Egypt through Gaza.” The plan, according to Mabrouk’s investigations, was to attack detention facilities and police stations in order to deal a fatal blow to the Egyptian police, as well as to shoot at civilian protesters to implicate Mubarak’s regime. “Colonel Mabrouk detailed in the testimony for which he paid with his life how this plan was carried out on January 28, 2011,” added Ali, one of the bloodiest of the eighteen days before Mubarak stepped down. For Ali, Mabrouk’s findings offer definitive proof that the police was not the real culprit. Ali also cited the testimonies of former Mubarak-era officials, Intelligence Chief General Murad Mowafi and former Defense Minister Field Marshal Mohamed Hussein Tantawi, both denying the police’s responsibility for the death of protesters.

A Transparent Argument

While they are among the staunchest critics of Brotherhood rule, secular activists and movements refused the offering of scapegoats to absolve Mubarak’s security forces. The April 6 Youth Movement, also opponents of the current regime, objected to pressing criminal charges against Mubarak and his interior minister from the outset. They argued that all the defendants should have been tried for their political responsibility. “In the absence of clear penalties for such crimes in the Egyptian penal code, a criminal trial was of course expected to yield such results,” said Mohamed Salah, member of the movement’s politburo. Salah added that evidence that criminally implicated the police had been destroyed.

Activist and filmmaker Khaled Youssef, who campaigned for President Abdel Fattah al-Sisi, wrote an open letter to the prosecutor general in which he, as an eyewitness to the violations of the police on January 28, vehemently objected to the verdict. Youssef refuted allegations that Brotherhood snipers were responsible for all the killings. “Although I admit that, given Muslim Brotherhood’s history of violence, this scenario is not unlikely, there has been no proof so far,” he wrote. “Even if the Brotherhood had snipers, what about other protesters who died under the wheels of armored vehicles in front of us, or were shot by police officers also in front of us? Those are incidents that were recorded and shown on TV.” The interior minister and his aides, Youssef added, should also be tried for more general crimes like the abuses citizens were exposed to at police stations.

The Court’s Culpability 

Journalist Sahar Talaat argues in her article ’Who Killed the protesters?’ that the judiciary only focused on the acquittal of the former interior minister and his aides, while totally ignoring the necessity of revealing who is responsible. For Talaat, accusations leveled against the Muslim Brotherhood, Hamas, or any other external parties are not confirmed, thus leaving the question unanswered. “The court only focused on acquitting the defendants while the families of dead protesters are still suffering as they wonder, ‘Who killed our children?’ Is it the Muslim Brotherhood or Hamas or foreign powers that wanted to undermine the Egyptian state,” she wrote. “The end result is that those martyrs are not avenged.”

Legal expert Tarek Negeda explained a point that appears to have been lost in translation in the local media circus: that the verdict does not mean the protesters were killed by another party. “The verdict is not proof that Mubarak and his aides did not kill the protesters,” he said in a press statement. “It only proves that there was a legal mistake on the part of the prosecution.” Negeda explained that the defendants were not acquitted, but the charges against them were dropped owing to the absence of criminal evidence and the court ruled accordingly. Negeda refused to question the independence of the Egyptian judiciary and advised families of dead protesters to focus on reopening the case inside Egypt rather than through international courts. Families of the victims announced their intention to submit an official request to the Egyptian president to facilitate the release of videos that show the shootings whether taken by state institutions like State Security, intelligence agencies, and state TV or by foreign satellites belonging to the US, Russia, and the European Union.

In the midst of this heated debate and the different versions of the story that accompany it, one group seems to be certain of what really happened. Protesters who were there on January 28, 2011 say, without a doubt that, after failing to disperse the growing crowds with tear gas, they started using rubber bullets followed by live ammunition. Those who witnessed the day first-hand are not willing to accept the verdict, whether it is the result of intentional destruction of evidence or a coincidental procedural error. It is hard for many not to perceive how flawed the course of the trial has been from the beginning with senior officials being held accountable criminally rather than politically. The January 28 protesters who survived, stand by their narrative: in a regime as centralized as Mubarak’s, it is extremely unlikely for security forces to embark on a violent clampdown without being instructed, if not by the president then at least by the minister of interior.

The verdict leaves Egypt in a state of intense polarization once more, and introduces another wave of division. On the one hand, there is the camp that has, for a while, been willing to trust state institutions and accept regime policies in return for a much awaited return to normalcy. On the other, are those who prioritize the goals of the revolution and see a grassroots restructuring of executive and judiciary authorities as inevitable.  It is worth noting, however, that members of the second camp, though indignant, made it clear that the verdict came as no surprise and was, in fact, quite expected. The earlier acquittal of all police officers tried for killing protesters already casted doubts on the entire process. Nevertheless, the shock prevails maybe not because of the outcome of the trial, but rather for what is seen by many as the final nail in the revolution’s coffin.

Militarizing Egypt’s Trials

While the military trials of civilians are nothing new in Egypt, the circumstances in which Egyptians can be brought before these courts have seen a worrying expansion. From January to September 2011 alone, estimates place the number of Egyptians who faced military trials under the Supreme Council of Armed Forces (SCAF) at 12,000. A new law issued by President Abdel Fattah al-Sisi in October could likely lead to a significant rise in this figure, and raises more concerns about a further clampdown on freedoms.

According to Law number 163/2014 for the Protection of Public and Vital Facilities, issued on October 27, following the death of more than thirty Egyptian soldiers in a militant attack in the Sinai Peninsula, the Egyptian army will now aid the police in guarding “public” and “vital” facilities. For the next two years, these facilities are to be placed under military supervision and treated as military establishments. They include, but are not restricted to, power stations, oil and gas fields, railways, roads, bridges, and “public establishments of a similar nature.” Universities, seen as the last bastion of freedom of expression, were also later declared to be subject to the law. “Of course universities are included. Aren’t they public establishments?” said Minister of Justice Mahfouz Saber one day after the law was issued. Perpetrators of violent activities targeting any establishments seen to fall under the law will be referred to the military judiciary.

Less than a month after the law’s enactment, five Al-Azhar students have been referred to a military court on charges of torching a room on the university campus. Another eleven members of the Muslim Brotherhood were referred to military prosecutors on charges relating to planting a bomb in a local court, and blocking railway tracks in Kafr al-Sheikh.

While official statements insist the law aims only to counter terrorism and restore security, and also stress its constitutionality, activists and rights organizations have a different point of view. Fifteen local rights organizations including the Egyptian Imitative for Personal Rights (EIPR) and the Cairo Institute for Human Rights Studies, issued a joint statement calling on the government to repeal the law, describing it as a “masked state of emergency.” A Human Rights Watch (HRW) statement argues that even “the shaky due process guarantees” offered by regular courts in Egypt and which render a fair trial quite unlikely anyway are totally absent in their military counterparts.

The phrasing of the law is also regarded as a major drawback. HRW Middle East and Africa director Sarah Leah Whitson says, “Its absurdly broad provisions mean that many more civilians who engage in protests can now expect to face trial before uniformed judges subject to the orders of their military superiors.”

Diana al-Tahawy, head of the Transitional Justice Department at the Egyptian Initiative for Personal Rights, describes the law as “catastrophic.” Tahawy agrees that a lack of a proper definition “public and vital facilities” is problematic. She also argues that the law violates article 204 of the Egyptian constitution. “The constitution specifies that military courts are only authorized to deal with offenses directly targeting military establishments and personnel,” she said, noting a lack of objectivity on the part of judges and prosecutors in military courts since they are appointed by the minister of defense. This was precisely the concern of Amnesty International’s deputy director for the Middle East and North Africa Hassiba Hadj Sahraoui. “The disturbing truth is the government passed this law to remove any chance of an independent and impartial judge ever delivering a not-guilty verdict,”she said.

Mahmoud Salmani, a member of the No to Military Trials for Civilians movementsays protestors, not terrorists as claimed by the state, are the main target of the new law. “People take to the streets and sometimes block roads or railways to protest. All those will face military trials for demanding the rights granted by the constitution and denied them by the state. The same will apply to students who protest on campus,” he said, adding that the stability this law claims to establish will never materialize as long as injustice persists.

For all the local and international criticism the law has faced, it certainly has its support in Egypt. Editors-in-chief of seventeen state and independent newspapers issued a joint statement supporting the new law and pledging “to take part in fighting terrorism” and “countering unpatriotic rhetoric” in their coverage. While the signatories stressed their respect for freedom of expression, they rejected attempts at “questioning the intentions of state institutions and undermining the army, the police, or the judiciary.”

When asked to contribute to resolving the debate over the specifications that make an establishment vital or public, the head of Military Judiciary Authority, General Medhat Ghozy only added to the mystery, saying the law applies to “Any building that is state owned or offers public services… be it a university, a factory, or a power station,” adding, “The law is broad.”

It is, in fact, the law’s ambiguity that refutes the argument that only Islamist extremists and the Muslim Brotherhood–designated a terrorist organization by the Egyptian government and whose members and sympathizers have been subject to a fierce clampdown following the ouster of Mohamed Morsi– who are the target of the law. Given the number of secular activists currently serving jail sentences for breaching the controversial protest law, it is likely that military trials will become a new frontier they must now face in Egypt.