As Egypt’s post-revolutionary politics oscillate between protest and politics, the uneven progress of change has led to widespread frustration and suspicion that the remnants of the old regime are sabotaging efforts at fundamental change. While key individuals from the former regime have been removed from their positions of authority with some facing the prospect of prosecution, the Supreme Council of the Armed Forces (SCAF), the country’s ultimate ruling authority until elections are held, has adopted a haphazard and opaque stance toward transition, including its approach to dealing with the former regime.
The so-called felool al-nizam (remnants of the regime) have at times served as a convenient scapegoat for the chaos, uncertainty and friction that has accompanied the transition following the ouster of former President Hosni Mubarak. But the repressive character of the regime and its responsibility for systematic crimes is not in doubt. Efforts to begin accounting for the past and the legacy of repression, particularly the prospect of prosecution for the former president, have spurred outrage among former regime partisans and their international defenders. It has also prompted warnings from others who claim sympathy for regime change in Egypt but fear such backward-looking efforts will become a distraction from the more immediate imperative of facing Egypt’s myriad political, social, and economic challenges, and will devolve to the politics of revenge.
The efforts of other societies which have sought to deal with their repressive pasts have been contested processes, reflecting the broad complicity that characterizes the legacy of repressive societies and the power of vested interests. As such, Egypt’s efforts will certainly provoke a defensive reaction from former regime figures and their supporters.
However, many of the current critiques of Egypt’s preliminary efforts to cope with its past fail to understand how critical these efforts will be to the country’s future. With Egypt’s politics and fate in flux, the specter of retrenchment and a return to authoritarianism are among the possibilities for Egypt. Grappling with the past is as much, in this sense, about preventing the relapse of dictatorship as it is about ending impunity. While an excessive preoccupation with justice and accountability could distort the focus of transition, without a proper and unimpeachable accounting of the modalities of repression and authoritarian rule, the process of constructing a democratic ethos and respect for the rule of law will be compromised from its inception.
Alternatively, some have argued that the ignominious downfall and subsequent prosecution of Mubarak will set a damaging precedent for other authoritarian rulers, who will now have no choice but to fight for their survival until the end. However, this narrative mischaracterizes the manner by which Mubarak has reached this juncture, overlooking his unmitigated intransigence. Mubarak did not negotiate his exit form power and was forced out by the military in response to unrelenting popular pressure. Not prosecuting Mubarak will, in fact, establish a perverse precedent for other similarly-situated leaders to seek clemency despite refusing a peaceful transition. Prosecution in this scenario should be a deterrent to such behavior and an incentive to negotiate a transition from power.
Eschewing a credible and transparent accounting will also open the door to opportunists and demagogues who will fill the void and continue wielding the cudgel of guilt and association with the former regime as a political weapon, albeit with no regard to proof or context. It will also raise the possibility of coercion and blackmail of sitting officials by those with knowledge of past crimes and complicity.
While a democratically-elected government will have much greater legitimacy and credibility in confronting the country’s dark past, the present impatience of frustrated Egyptians demands transparency as to the intentions of the transitional authorities.
The immediate focus in this regard should be two-fold: allowing the criminal justice system to undertake its investigatory and prosecutorial duties against the worst offenders of the former regime without interference; and instituting vetting procedures to disallow the participation of those involved in past electoral fraud from the country’s upcoming elections, whether as candidates or funders.
Of course, the Mubarak regime was a continuation of the authoritarian state ushered in by the Free Officers movement that toppled King Farouk in 1952. The authoritarianism of the state has corrupted many and complicity is diffuse and relative. This massive grey area of culpability implicates many and, yet, the impulse to systematically confront each and every such individual would inevitably lead to a witch hunt. This means that for Egyptians the slow progression of democratic politics and the rebuilding of state institutions should, in the end, be the primary means for confronting the legacies of the Mubarak regime and the individuals who aided the regime’s internal repression. While this gradualist posture would disappoint the most zealous, it reflects a proper balancing between moral demands and the practical limitations governing Egypt’s transition.
This process of accounting will take years. This runs counter to the impatience for justice that characterizes the impulses of many of those who participated in the mass movement that brought down the regime. Speed alone, however, is a poor metric by which to judge the sincerity of efforts to confront past violations, and will inevitably lead to the truncation of the rights of the accused. Transitional justice will be among the first tests of Egypt’s commitment to due process and the rule of law.
The Former Regime
In many ways Egypt’s task is less daunting due to the peculiarities of the Mubarak regime and its ruling party, the National Democratic Party (NDP). The experience of transition in other states has been complicated by their encompassing totalitarian pasts and hydra-like party structures that dominated all aspects of political and social life. The legacy of communism in Eastern Europe and the repressive rule of Saddam Hussein’s Ba’ath party represent more extreme examples of repression that engendered overbroad and problematic responses by successor governments. As a general matter, these regimes were characterized by greater repression and more intrusive party structures that dominated state bureaucracy and served as vehicles for career advancement.
In Egypt by contrast, Mubarak’s rule is more appropriately characterized as authoritarian in nature. The state tolerated a limited zone of controlled dissent, which it treated as a safety valve. Repression was also more targeted, although torture was a systematic tool for interrogations of all sorts, regardless of political import.
Additionally, the recently-dissolved NDP cannot be characterized as a political party in any traditional sense, and its primary functions were not ideological. While in recent years the NDP had sought to organize the party around political platforms, this transformation was never successful and membership in the party was extremely limited. Instead, the NDP served as a vehicle for elite patronage networks and machine-style politics almost exclusively focused on the continuation of the regime. Furthermore, since the party’s mission did not include ideological indoctrination, it did not penetrate the state bureaucracy and did not include members from among the security sector.
Since the initial arrest and detention of the notorious former Minister of Interior, Habib Al-Adly, much of the Egyptian public’s focus on former regime figures has centered on demands for justice through prosecution. The call for these prosecutions gathered force during Egypt’s 18-day uprising and became a fundamental demand of protesters, focused particularly on the former president. While a number of high-profile officials have been arrested, investigatory processes have lacked transparency and, as a result, have generated considerable suspicion about their sincerity. This has been compounded by the bizarre behavior surrounding the ill former president, and the refusal to detain Mubarak formally. Recent releases on bail of police officers accused of murdering peaceful protesters have further fuelled tension, as has the promiscuous use of military courts for civilians caught up in the intermittent crackdowns on post-February 11 protest. The summary and swift fashion of these military court decisions has stood in stark contrast to the haphazard course of accountability efforts for the former regime.
The investigations now underway are, in fact, serious and credible. However, final decisions on these matters are dependent on the prosecutor general, Abdul Megid Mahmoud, a Mubarak appointee with close ties to senior figures in the former regime. The situation illustrates the complexities attendant to the present transition, where regime-affiliated figures are entrusted with fulfilling the demands for revolutionary change and must now sit in judgment of their former colleagues.
There is also still considerable hesitation among the SCAF that the former president, a military man, will be humiliated if the prosecutions and trials proceed. This is further compounded by the stance of the wealthy Gulf countries, particularly Saudi Arabia, which has been unnerved by the trajectory of regional unrest and has reportedly expressed its displeasure to the Egyptian authorities at the prospect of Mubarak’s prosecution.
This situation requires much greater transparency, and during this interim period the SCAF should make clear that it will not stand in the way of independent judicial functions. Similarly, the prosecutor general will have to communicate with the public as to where the investigations stand and assure that the process unfolding is being conducted in conscientious fashion. As a member of the judicial branch, the prosecutor general is not subject to removable as a political matter. However, if he is shown to be incapable of discharging his duties impartially, it is likely that there will be significant public pressure for his resignation.
Additionally, the initiation of high-level prosecutions should be an important moment for public outreach. In this light, Egypt’s Supreme Judicial Council, which oversees the function and independence of the judicial branch, should overturn its previous administrative decision in 2010 to ban the broadcast of court proceedings. A motion was initiated by the Lawyers’ Syndicate to open the proceedings of such trials to the media. In response, the Council authorized broadcast of trials via closed-circuit television within court premises. This decision, which should be revisited, reflects a narrow understanding of the prosecutions and ignores the broader societal implications of these trials.
Much popular frustration has focused on perceived delays in prosecution. Partly this is a function of a lack of clarity that has accompanied investigations and trials. However, even full transparency is not likely to satisfy the impulses of the most zealous protestors. But thorough investigations and proper judicial function are not amenable to popular whims and temporal demands, and judicial authorities should be shielded from unreasonable pressures.
This is especially true since the prosecutions that have already been undertaken have raised questions of fundamental fairness, especially those cases focused on corruption. It is absolutely critical that any former regime officials accused of crimes be afforded due process. The alternative course will represent a flawed beginning to transition and will also undermine the confidence of the international community in Egypt’s respect for the rule of law, with attendant effects on foreign direct investment and international cooperation.
To date, investigations have centered primarily on the violence associated with the repression of the January 25 uprising, which resulted in over 840 deaths, and the massive corruption that characterized the former regime. Both lines of investigation are logical considering the tenor of the popular uprising, but they should not conscribe the possibilities for broader inquiry.
Prosecutions as a tool for accountability must necessarily be selective as a result of limitations of capacity and the serious burdens presented by thorough and fair investigations and trials. Bearing these limitations in mind, prosecutions should prioritize high-level actors in positions of responsibility and authority. Prosecutors should also look to the systematic abuses that characterized the repression of the former regime. In this regard, prosecutions could be a vehicle for elucidating the regime’s mechanisms of repression, including systematic use of torture and the corruption of the criminal justice system.
Perhaps no aspect of transitional justice mechanisms has proven more controversial in practice than vetting, which bars individuals from participation in government or holding official positions. The negative examples of recent history offer a cautionary tale of how well meaning efforts to dismantle the repressive apparatuses of the state have in turn resulted in wholesale purges. These flawed efforts, such as lustrace, or lustration, in Czechoslovakia (meaning purification) and de-Ba’athification in Iraq, overlooked concerns about due process and fostered inquisitorial behavior that damaged the legitimacy of successor governments.
Vetting does serve a critical function in distinguishing a successor government from its predecessor and limiting possibilities for future abuses by excluding the participation of perpetrators. Such bars on participation can be temporary.
In Egypt there is less opportunity for serial abuse in terms of vetting in light of the limited membership in the NDP and the less pervasive use of informants.
Nonetheless, the opportunity for abuse exists, and vetting policies must maintain respect for due process and presumptions of innocence. Appropriate judicial or administrative mechanisms would be required to carry out vetting policies.
With upcoming parliamentary elections, Egypt should focus its immediate attention on eligibility for electoral participation. Outright bans on all former members of the NDP are a blunt and undemocratic tool that would encompass individuals not guilty of criminal behavior or abuses. Clearly, former regime figures convicted of the most serious crimes should have no role in Egypt’s future political life. Others, guilty of lesser crimes, might be dealt with through temporary bans. However, the compressed schedule for transition renders many of these points academic, as very few individuals will be excluded in this fashion due to the length and rarity of criminal prosecutions.
As such, eligibility for participation in the upcoming elections, whether as a candidate or in a support capacity, including in terms of financial support, should be made contingent on vetting focused on past instances of electoral fraud. The NDP’s grip on parliamentary power was predicated on massive vote rigging, and it would be reasonable to bar those responsible for such activities from participating in Egypt’s current transition. Furthermore, it would also be a measure to protect the integrity of the upcoming electoral process from possible manipulation.
Post-elections, vetting policies should be established to ensure that the worst offenders are excluded from service in positions of governmental authority throughout the state bureaucracy, with special emphasis on the security sector and judiciary. The reorganization of the Ministry of Interior represents one of the most pressing and critical tasks for the transitional authorities and their successors.
The fate of former regime figures will be an important test of the supremacy of civilian authority and Egypt’s commitment to the social movement that toppled the Mubarak regime. Prosecutions and vetting of the guilty among the felool will be essential steps in the elucidation of past repression and the construction of a new and open politics. However, the process of accounting for the past will require systematic and creative commitment that goes beyond individual culpability of former regime figures. In this regard, truth commissions, historical archives, victim compensation, and other steps could be important complementary measures in the near future.
There is no acknowledged or universal formula for transitional settings and Egypt will need to tailor its own course in line with its history, culture, and society. The creativity and resilience of Egypt’s protest movement offer grounds for cautious optimism in this regard. However, the sense of moral authority among the most committed protest leaders should also be a warning sign as to the potential for excesses and truncation of due process in the pursuit of revolutionary justice.
Michael Wahid Hanna is a fellow and program officer at The Century Foundation. He focuses on issues of international security, human rights, post-conflict justice and U.S. foreign policy in the broader Middle East.
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