On Sunday the appeals court
overturned that decision and ordered a retrial in the case. A small
crowd of Mubarak loyalists reportedly celebrated the decision, but this
time there were no major opposition protests. Mubarak, now 84 and being
held in a military hospital, remains under investigation in a separate
case and will not go free.
A retrial in the case opens the
possibility of staging a more credible trial and bringing in new
evidence, including information found in a recently completed report by a
high-level fact-finding commission tasked with investigating
protesters’ deaths. Human Rights Watch’s Egypt director Heba Morayef
says the initial trial of Mubarak and his aides had been both
politicized and procedurally flawed. “There were clear procedural
violations and so that, in and of itself, for me, from a fair-trial
perspective, means that that original sentence needed to be overturned,
on purely technical grounds,” she says.
Judge Rifaat’s June decision did not
establish Mubarak’s personal involvement in the deaths of protesters,
and went further to say that there was no evidence that the police were
involved, a statement many Egyptians find hard to believe after
witnessing the street fighting between police and protesters during the
uprising.
Most shocking for rights activists,
though, was the acquittal of the four Interior Ministry officials,
including Ahmed Ramzy, the former commander of the riot police
and Ismail al-Shaer, the former head of Cairo security. According to
Morayef, Ramzy would have been “operationally in charge” of the central
security forces during the deadly police crackdown on Jan. 28, 2011. On
that day, throngs of demonstrators battled police across Egypt,
ultimately pushing their way into Tahrir Square and setting police
stations on fire. At least 841 people were killed during the 18-day
revolution against Mubarak’s regime, and the 28th was its deadliest day.
Tareq El Khatib, a lawyer whose
brother was killed during the street battles near Tahrir Square on the
28th, welcomed the call for a retrial, saying he hoped that a trial with
fresh evidence would shed light on the chaotic events of the
revolution. “This was the best thing that happened in the whole recent
period,” he says of Sunday’s decision.
ElKhatib was among a group of
victims’ relatives who submitted evidence to the committee appointed
last year by President Mohamed Morsi
to investigate the events of the uprising and subsequent unrest during
the year and a half when Egypt was governed by the Supreme Council of
the Armed Forces. After months of work, that committee recently sent a
700-page report to the President for referral to prosecutors. The report
has not yet been made public, but some of its alleged contents have
been leaked, including the finding that Mubarak personally watched the
crackdown unfold on a live television feed in his palace.
Such evidence would be a crucial
element of any new trial, as prosecutors, activists and judges say the
Interior Ministry and the general intelligence agency failed to
cooperate with investigators in the original investigation and trial of
Mubarak. For example, documents from the trial showed that
crucial surveillance-camera footage from the Tahrir-adjacent Egyptian
Museum from the opening days of the revolt had been taped over by the
time intelligence officials handed it over to the prosecutors.
But given the complex balance of
power within the Egyptian state among the Muslim Brotherhood–affiliated
President, the military and the Interior Ministry, it remains to be seen
how aggressive Morsi will be in confronting the other branches of
government. “The overall political will to have a real investigation, to
have real accountability, would involve strict orders from the
presidency to the Ministry of the Interior to back off and cooperate,”
says Morayef.
Morsi’s administration, facing a
growing economic debacle and reeling from a massive protest wave
triggered by an attempted power grab in November, is unlikely to pick a
fight by launching tough investigations into abuses by the military and
may also tread lightly with the Interior Ministry. On the other hand,
prosecuting police and regime officials is popular with the public, and
could help shore up support among Egyptians still wary of him following
November’s centralization of power and the unrest it provoked. Such
support will be critical particularly following the passage in December
of a controversial new constitution drafted by the President’s allies,
and with a new parliamentary election slated for April.
The fate of the Mubarak case will
also hinge on other factors, including which judge from Egypt’s vast and
politically diverse judiciary is chosen to preside over the trial. The
case against Mubarak would presumably be overseen by top prosecutor
Talaat Abdullah, installed by Morsi in November after a standoff with a
previous Mubarak appointee, but Abdullah is facing protests from his own
department. Prosecutors went on strike in late December over Abdullah’s
appointment, calling it an infringement on their independence.
Ultimately, the task of
investigating, trying and convicting regime officials, then, is bound up
with the long, unfinished process of reforming institutions, like the
Interior Ministry and police, which were shaped over three decades by
Mubarak, and became the central pillars of the authoritarian state he
oversaw. “Overall, the problem is a lot of it depends on your reading of
the political situation at the moment and the extent to which the Morsi
government will want to see serious accountability or will want to pick
and choose,” Morayef says. “I can tell you that related to the
fact-finding committee that we’re definitely not going to see
accountability for military abuses, which was part of that fact-finding
committee report. It’s just not going to happen.”
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