Has Egypt’s Judiciary Become the New Theatre of the Absurd?

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Young Egyptians protestig Morsi and the military. Image: Hamada Elrasam for VOA/Wikimedia

This article was originally published by the Institute for Security Studies (ISS) on 7 July 2015.

The recent death sentence passed down on former Egyptian president Mohamed Morsi, along with 106 others, is far from being the only politically motivated conviction made by the Egyptian courts. Mass trials have become common since the July 2013 coup, which ousted Morsi, Egypt’s first democratically elected president.

Collectively, these court decisions have raised serious questions about the independence of the judiciary, and suggest that the courts are merely an extension of the military regime, rather than an independent arm of the state.

Characteristic of these trials is the lack of due process throughout investigation and trial proceedings, the absence of objective evidence presented during trials and increasing numbers of defendants held incommunicado without access to legal representation. Lack of transparency is also evident, with courts refusing to make judgements public, proof that the judicial functions in the country are fast becoming politicised.

In 2014, a court in the district of Minya passed down death sentences to 529 and 682 people in two separate trials drawing international condemnation. Those sentenced were charged with killing a police officer and rioting. Similarly, in February 2015, a sentence was passed down on 183 individuals simultaneously on charges relating to an attack on a police station. The International Commission of Jurists (ICJ) pointed out flaws in the trial, most fundamentally the court’s failure to confirm evidence of the individual guilt of each of those convicted. Moreover, the court refused to allow defence witnesses to testify and barred the cross-examination of prosecution witnesses – a blatant disregard for due process.

Another common feature of these trials is conviction and sentencing in absentia, and more perplexing, the sentencing of deceased individuals. Of those sentenced alongside Morsi, two individuals were deceased at the time of the alleged crimes, while another has been in an Israeli prison since 1996. In May 2015, six men were convicted by a military court and subsequently executed. Three of the six had reportedly been in detention at the time of the crimes making their alleged involvement impossible.

The startling court verdicts suggest that they are being used to silence dissent or plurality and increase state repression. Soon after the 2013 coup, the Muslim Brotherhood – Egypt’s largest organised opposition movement – was banned with an estimated 40 000 ‘Islamists’ being detained since then. These measures have extended to secular journalists, activists and academics, with many being charged and held under the country’s questionable anti-protest laws. Around 60 judges who had condemned the 2013 coup were effectively purged from the judiciary. More disturbing were the deaths of lawyers in police custody, which the ICJ urged the government to investigate. The ICJ expressed concern that lawyers defending the regime’s political opponents have been systematically targeted by the state since 2013.

Many of the questionable court decisions have relied on information obtained from state security agencies. This raises the issue of whether it is acceptable for the judiciary to rely so heavily on evidence provided by the same bodies responsible for maintaining the regime’s tight control over the public, often through severe human rights violations. This is especially concerning given that leading up to the trials, arbitrary arrests have been increasing along with cases of torture of detainees, showing the extent of irregularities throughout the investigation and trial phases.

Conversely, there are issues that are completely ignored by investigative and prosecutorial authorities. The mass killing of protestors, which took place in August 2013 at Rabaa al-Adawiya and dubbed the ‘worst massacre in modern Egyptian history’, is one such incident.

As part of a premeditated effort, security forces opened fire on largely peaceful sit-ins and protests, killing approximately 1 000 people in 12 hours. As yet, there has been no inquiry into the matter and no charges have been brought against those responsible. Without repercussions, Interior Minister Mohamed Ibrahim actually praised security forces for their ‘restraint’ and went on to say that all had gone ‘according to plan’ at Rabaa.

Over the course of a year, Human Rights Watch compiled a 188-page report detailing the massacre and its aftermath. The organisation was subsequently prevented from entering Egypt to release its findings in 2014, a clear indication of the state’s lack of regard for the facts or any prospects for redress.

Another blow to the rule of law came from the ongoing cases against former president Hosni Mubarak and his inner circle, who were charged with conspiring in the murder of protestors during the uprisings, as well as corruption and embezzlement activities carried out during Mubarak’s 30-year term. The bulk of these charges were dropped in 2014. This has been especially distressing for those Egyptians who hoped that some sense of justice and accountability for his excesses would prevail.

After one failed revolution and several (legitimate and illegitimate) election processes, Egypt has regressed politically, economically and socially to the extent which some argue is worse than during the Mubarak regime. With no structures to oversee the police, the army or the judiciary, and with all these institutions now acting with complete impunity, Egyptians are left with few avenues to seek justice or political expression. Worryingly, violence may become the chosen outlet for their growing discontent. There are already signs of this becoming a reality with the situation in the Sinai having worsened exponentially over the last year.

The El-Sisi regime must recognise that real reform and reconciliation efforts may be the only way to ensure that the situation does not erupt again. Such efforts would have to include all groups across the political spectrum. The international community also has a role given Egypt’s continuing impunity. Though some in the international community have expressed concern over the situation, these sentiments have not been matched by adequate action. Several countries, including the USA, have proceeded with trade and arms deals with Egypt despite the precarious human rights situation. Saudi Arabia has resumed its generous funding of the regime, and together, this leaves the state without any real incentive or pressure to change.

Whether the death sentences passed down on Morsi, and others, will actually be carried out risking the prospect of civil war, remains to be seen. What is certain is that after threats against it during the 2013 revolution and during Morsi’s rule, the military government is aggressively trying to ensure its authority will not be challenged again.

The recent decisions of the judiciary ensure that a level of intimidation remains. Along with serious human rights implications, these decisions have overturned the gains made during the revolution, leaving little chance for transitional justice or true democratic reform if the regime continues on its current course.

Raeesah Cassim Cachalia is a Junior Researcher at the Transnational Threats and International Crime Division at ISS Pretoria.

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