The decision of a Cairo appeals court to order the retrial of ousted President Hosni Mubarak and his interior minister Habib Al Adly could lead to other retrials of Mubarak-era security men and businessmen acquitted on charges of human rights abuses and corruption.
This would, in the view of uprising activists, amount to a major victory and give impetus to the “revolution” they hoped to launch in 2011. This was stalled due to obstructionism from the military and opposition from remnants (feloul) of the fallen regime.
Mubarak and Adly were sentenced to 25 years in prison last June, not for ordering and directing the brutal 18-day crackdown on protesters but for failing to halt security force violence against them. At least 846 Egyptians were killed and 5,000 injured during the uprising.
No grounds have yet been given for the appeal court’s decision, but the panel of judges also ordered the retrial of six senior policemen, who had charges dismissed during their first trial. It is also reported that procedural problems had been found in the conduct of the original hearings on the case of Mubarak and Adly.
While it is illegal to order multiple trials for the same crimes, due to double jeopardy, faulty presentation of the case and irregularities can make retrials mandatory.
Lawyers for Mubarak and Adly argued that they did not know the scope of the anti-regime demonstrations or of the brutal attempt at suppression of these protests that ended only when Mubarak resigned on Feb. 11, 2011.
When defence lawyers lodged the appeal, they counted on the determination of state institutions still loyal to Mubarak to withhold evidence from and refuse to co-operate with the prosecution. The defence may have presumed too much.
If the court now considering the case insists, as Mubarak’s lawyers insist, that the retrial be conducted only on the basis of evidence and testimony presented during the original hearings, the same judgement could be delivered or the case against the defendants dismissed.
However, if the court sends the case back to the prosecutors, as legal experts argue should be done, new evidence could be introduced. In addition to evidence suppressed during the first trial, prosecutors could present evidence showing that Mubarak’s lawyers wrongly claimed that he did not know what was happening. This evidence, collected and collated by an investigatory committee commissioned by incumbent President Muhammad Morsi shows that Mubarak received live stream video coverage from Tahrir Square as well as intelligence from other protest venues. This evidence is included in a partially leaked report handed to Morsi earlier this month.
The report also presents proof that security agents shot and brutalised protesters — facts which had long been established by witnesses to the events — including journalists covering the events.
The most violent day was Jan. 28, when black clad, helmeted and armed riot police fired tear gas, streams of water, rubbet bullets, and live ammunition at ragged ranks of unarmed protesters marching toward Tahrir Square. The police also positioned their armoured water cannon at the Zamalek end of the Oct. 6 and Qasr Al Nil bridges across the Nile river from Tahrir and sprayed thousands of Egyptians — men, women and children —watching the proceedings with powerful jets of water. That afternoon I was tear gassed as I viewed the scene from the terrace of the Ramses Hilton hotel just behind the Egyptian Museum which is located on one side of Tahrir.
Following that spike in violence, uniformed policemen disappeared from the streets and plain clothes security agents were the main source of anti-protester violence, making it all the more difficult to identify perpetrators. The use of these elements culminated on the night of Feb.2 when businessmen loyal to Mubarak and figures in his National Democratic party were accused of sending thugs armed with shotguns, staves, chains and swords and riding camels and horses into Tahrir with the aim of driving out protesters camped there. The figures accused of funding the “Battle of the Camel” were acquitted by a Cairo court but could be retried once a precedent is established with the retrial of Mubarak and Adly.
While Mubarak and Adly are not expected to be given a heavier sentence — the death penalty — following a new trial, the six police generals could be condemned for the crackdown and draw stiff sentences. More than 100 policemen tried for killing and wounding protesters have been acquitted, the latest acquittals taking place at Beni Suef last Wednesday.
While Morsi must be pleased that the team of investigators upheld charges he personally levelled at Mubarak and his loyal lieutenants, the president faces a dilemma over retrials.
He has, so far, failed to tackle still powerful figures in the police and security apparatus or instigate reforms. These have been two major revolutionary demands since the uprising erupted on Jan.25, 2011.
However, by facing Mubarak and these figures, Morsi could regain the confidence of millions of Egyptians disillusioned by his recent power-grab and the unpopular actions of the Muslim Brotherhood, from which he hails. By ensuring that Mubarak and Adly are prosecuted to the full extent of the law, Morsi could boost the Brotherhood’s prospects in the upcoming parliamentary election.
A controversial aspect of the power grab was Morsi’s dismissal of the chief prosecutor, a Mubarak appointee, and his replacement with Talaat Ibrahim, a figure considered friendly to the Brotherhood.
While opposition activists and revolutionaries had long demanded the replacement of his predecessor, accused of being soft on Mubarak, Morsi handled this in the wrong way — in connection with his November decrees granting himself sweeping powers
and putting himself, the constitutional commission, and the upper house of parliament, the Shura Council, beyond judicial oversight.
While granting Mubarak and Adly a retrial, the appeal court also accepted the prosecution’s appeal against not-guilty verdicts on corruption charges of Mubarak and his sons, Alaa and Gamal, and businessman Hussein Salem who was given public land for development projects and sold Egyptian natural gas to Israel at a discount.
To make certain Mubarak would remain incarcerated, last Saturday a 15-day detention order was issued on the basis of allegations that he and family members had received improper gifts worth $1 million ( Dhs 3.67 million) from the state-owned daily, Al-Ahram.
By insisting that Egypt’s former ruler and his allies be held accountable for their actions, the country’s courts could set a standard Tunisia and Yemen could follow when dealing with their fallen leaders who have so far escaped legal accountability.
The author, a well-respected observer of Middle East
affairs, has three books on the Arab-Israeli conflict