Countries at the Crossroads 2011 - Egypt
|Publication Date||10 November 2011|
|Cite as||Freedom House, Countries at the Crossroads 2011 - Egypt, 10 November 2011, available at: http://www.refworld.org/docid/4ecba64fc.html [accessed 11 December 2016]|
Joshua Stacher is an assistant professor of political science at Kent State University. His book, Adaptable Autocrats: Regime Power in Egypt and Syria, is forthcoming from Stanford University Press in March 2012.
The sudden collapse of Hosni Mubarak's nearly 30-year presidency and the implosion of his ruling National Democratic Party (NDP) in early 2011 came as a shock to Egyptians and international observers alike. Before the uprising occurred, few would have predicted that protesters could overwhelm and defeat Mubarak's extensive security apparatus, or that the military would turn on the president in an attempt to salvage parts of the old regime. However, there were many signs of an impending political impasse in the months and years leading up to the crisis, as the mounting grievances of the Egyptian people were consistently neglected by the government.
The most visible strains on the system included unprecedented waves of collective industrial action – partly in response to aggressive economic reforms that almost exclusively benefited Mubarak and NDP insiders – as well as increasing political activism in the streets and online to voice the public's objections to blatantly rigged elections, the possibility of a hereditary presidential succession, and egregious cases of police brutality. The deterioration of the regime was particularly evident in the contraction of political freedoms and economic opportunities for those outside the political and economic elite.
The Egyptian government frequently violated the civil and political rights of its citizens in the final years of Mubarak's presidency. Torture and arbitrary detentions became commonplace. The freedoms of assembly and association, which had always been subject to surveillance by the security services, were hampered by additional restrictions. The constitutional right to participate in elections as a voter or candidate became devoid of substance as the authorities imposed an array of legal and extralegal obstacles.
The Supreme Council of the Armed Forces (SCAF), which assumed power after Mubarak's ouster, is set to remain in place until a presidential election can be held in 2012 or 2013. Egypt was not a military dictatorship during Mubarak's presidency, however. The military was instead a key constituent member of the country's ruling coalition. While generals were regularly appointed as provincial governors,1 they were infrequently named as cabinet ministers. According to a 2001 study, only 8 percent of Mubarak's ministerial appointees emerged from the military.2 This percentage was reduced further after a technocratic cabinet took over in July 2004. Compared with the tenures of former Egyptian leaders Gamal Abdel Nasser (1954-70) and Anwar al-Sadat (1970-81), appointments under Mubarak demonstrated the military's declining role in ordinary governance. The percentages of military officers in Nasser's and Sadat's cabinets were 33 and 20, respectively.3 Some have argued on this basis that Egypt's military was ruling but not governing in recent years.4
Also included in Mubarak's coalition were the security services and a new class of businessmen with close ties to the president's son and rumored heir, Gamal Mubarak. The remaining component of the regime was the NDP hierarchy, which managed an important patronage network. When challenged by labor strikes, political activists, independent judges, leading journalists, or groups like the banned but partially tolerated Muslim Brotherhood, the regime's constituents united to safeguard the power of the president. Mubarak, a former air force general and Sadat's vice president, wielded centralized authority over the political arena, and regime elites worked in various ways to enable the president's office to encroach on other potential sites of contestation.
The security services grew in importance during Mubarak's final years in power. Charged with disrupting expressions of dissent, the General Intelligence Service (GIS) and the Interior Ministry's State Security Investigative Service (SSIS) suppressed public anger and maintained a façade of political stability. The GIS, led by Omar Suleiman, was the more powerful of the two, though it was principally concerned with external threats. The SSIS and the 300,000-strong Central Security Forces were the agencies used most frequently to quash domestic unrest or criticism. The Egyptian government spent more on internal security than on housing or health,5 with the security apparatus employing approximately 1.5 million people by 2010.6 As the coercive arms of the regime penetrated society and worked ever harder to prevent the spread of dissent, police brutality expanded in scope. Cases such as that of Khalid Said, a young man who was beaten to death by police in 2010, became matters of national public outrage.
Even as the use of force increased, the legal manipulation that characterized Mubarak's presidency grew more sophisticated. New laws restricted the space in which opposition elements could organize and enabled state officials to silence dissenting voices in a variety of ways. Key opposition demands such as the cancelation of emergency rule, in place since 1981, remained unfulfilled. Popular objections to domestic and foreign policies were disregarded. Redundant courts and the restriction of judicial autonomy also became more pronounced in the late Mubarak period. The judiciary, which had once been a meaningful arbiter of political disputes, was emasculated after a surge of judicial activism in 2006 (see Rule of Law).7 Physical and legal attacks on journalists also became a fact of life in Egypt.
The regime's initial response to the popular uprising in early 2011 consisted of extreme coercion. However, when this failed, a change in the ruling coalition became the most preferable option for the regime's surviving elites. The military returned to the apex of power, while the privileged business class and the NDP were sacrificed as the security forces were at least superficially dismantled. Leading figures – with the notable exception of Omar Suleiman – were charged or fled into exile, but the security apparatus is being reconstituted. Despite a name change from State Security to National Security, there is little evidence of meaningful structural reforms in the country's most reviled security agency.8 While the future course of the ongoing transition remains uncertain, it is now possible to illuminate the breakdown in governance that occurred during Mubarak's last years in power.
ACCOUNTABILITY AND PUBLIC VOICE
National and local elections were held regularly during Mubarak's 30-year rule, but the state orchestrated the results, leaving the NDP with little electoral legitimacy. As in many authoritarian regimes, the leadership was generally hostile to the notion of election monitoring by independent organizations,9 and the electoral framework was so decidedly skewed toward the ruling party that vote rigging on election day itself was often superfluous. Law No. 173 of 2005 stipulates that there is universal suffrage, but voter lists and balloting procedures were so deeply flawed that most Egyptians declined to participate. This low turnout served the interests of the NDP by increasing the influence of fraudulent ballots and loyalist voters who could be mobilized through the misuse of administrative resources.
Opposition-oriented voters were frequently exposed to violence. It was not unusual, particularly in hotly contested areas, for gangs of hired thugs (baltagiya) to prevent voting for an opposition candidate.10 Similarly, the state often deployed truncheon-wielding riot police to physically bar would-be voters from the polls.11 Nine people were killed in such confrontations during the 2010 parliamentary elections. Given the risk of violence, the citizenry overwhelmingly stayed home during elections, and official turnout figures were routinely dismissed as inflated. In 2010, the state claimed that 27.5 percent of the 41 million registered voters participated in the parliamentary elections,12 but this figure, even if accurate, would be one of the lowest in the world for national legislative balloting.13 The Egyptian Association for Community Participation Enhancement claimed that the actual turnout was around 10 percent, citing research by 1,000 monitors covering 40 of the 222 electoral districts across Egypt.14 The Egyptian Organization for Human Rights reported figures as low as 5 percent.15 Previous parliamentary elections in 2005, 2000, 1995, and 1990 all had similarly low rates of voter participation.
Those who did vote were often enticed or compelled to do so by the state. In addition to the small number of people who directly benefited from the status quo, rank-and-file state employees were bused to polling stations and instructed to vote for their director's chosen candidate, inevitably an NDP member. The poor were also drawn to the polls by direct payments or threats that their limited public services and state assistance would be cut off if they failed to turn out for the ruling party.16
A major exception to the trend of low participation pertained to supporters of the banned Muslim Brotherhood, whose candidates ran as independents. Critics accused the Islamist group of exploiting religion to win electoral support, but the 83-year-old organization was the only true grassroots entity in Mubarak's Egypt. It has offices and members spread across much of the country, particularly in the Nile Delta, and most of its candidates actually lived in their constituencies.17 When the state chose to ease its repression of the group, it fared well at the polls. In 2005, the Muslim Brotherhood won 88 of the 150 legislative seats it contested in the parliament's 444-seat lower house, the People's Assembly. With this 20 percent bloc, the group was able to influence the behavior of NDP lawmakers, though not how they voted.18
The People's Assembly grew in 2010 under a new law that set aside 64 new seats for women. At the same time, the Brotherhood reduced its electoral participation, contesting only 130 constituencies. Unlike in 2005, however, it failed to win a single seat. As one outgoing Brotherhood lawmaker said of the elections, "The process was fraudulent from start to finish."19
Indeed, while 22 parties were operating legally in 2010, only the NDP increased its parliamentary bloc. Counting both official NDP candidates and allies running as independents, the ruling party won 478 of 508 elected seats, or 94 percent, in 2010, up from 330 of 444 seats, or 74 percent, in 2005. Among the smaller opposition parties, the New Wafd Party took six seats; Tagammu (National Progressive Unionist Party) won five; and Al-Ghad (Tomorrow), the Social Justice Party, the Democratic Generation Party, and the Democratic Peace Party each captured one seat.
NDP secretary general Safwat el-Sherif argued that "the results of the elections reflect the real strength of political forces in Egypt with the NDP the most dominant."20
Opposition leaders rejected such assessments and publicly called the newly elected chamber "Ezz's Assembly" in reference to steel tycoon Ahmad Ezz, a close Gamal Mubarak associate who was believed to be responsible for the ruling party's push to dominate the parliament. Former opposition lawmakers who had lost their seats protested the election results by forming a shadow assembly,21 which reportedly drew derision from the president.22
The presidential and parliamentary elections of 2005, while seriously flawed, had given the appearance of a slight political opening. The presidential contest was the first to feature multiple candidates, and the Muslim Brotherhood greatly increased its parliamentary representation. Even if the specter of hereditary succession loomed on the horizon, political reform seemed inevitable. As Mohamed Kamal of the NDP explained on the eve of the 2005 parliamentary elections, "A lot of things have already changed in the past year: economic policies, the presidential election, political reform issues. So we have proven already that we have changed. We have new faces, we have evidence already that things are changing.... Once the genie of democracy is out of the bottle, you can't bring it back in."23
However, by the end of 2010 it was beyond doubt that Egypt's authoritarian leadership had placed the electoral arena on lockdown. The 2010 parliamentary elections proved to be the most fraudulent in the country's history. As political scientist Mona el-Ghobashy argued, "The Egyptian parliamentary elections ... defied expectations, not because the ruling National Democratic Party again dominates the Parliament but because of the lengths to which it proved willing to go to engineer its monopoly."24 Most Egyptians had long understood that their country's elections were a farce. Nevertheless, given the advancing age of their then 82-year-old president and rampant speculation that he would seek to pass the office to his son,25 the blatant fraud and manipulation of the 2010 elections exacerbated the citizenry's frustration.26 While there is not a direct causal link between the elections and the uprising of early 2011, the rigged balloting certainly gave Egyptians an additional reason to mobilize against the regime when the opportunity presented itself.
If the 2010 parliamentary elections definitively slammed the door on political liberalization, earlier, subnational elections between 2005 and 2010 provided strong hints as to what was in store. The municipal elections originally scheduled for 2006 took on new importance in light of recent reforms to the constitution's Article 76, which required future independent presidential candidates to receive the nominations of a certain number of local officeholders. The Muslim Brotherhood vowed to participate in the voting, in which 52,000 local council seats were at stake.
In early 2006, however, Mubarak asked the parliament to delay the local elections for two years, ostensibly to help ensure cleaner balloting. By 2008 it appeared that the state had used the time to reinforce the NDP's electoral dominance as popular concerns about hereditary succession grew louder. For example, the Muslim Brotherhood claimed that it wished to field 10,000 candidates.27 Over 6,000 Brotherhood members filed the requisite paperwork, and 2,664 of those obtained court orders affirming their right to compete after being excluded by security agencies and the bureaucracy. The authorities ignored the judicial decisions, and only 20 Brotherhood candidates made it onto the ballot.28 None of them won seats, and hundreds of the Brotherhood's candidates and campaign workers were imprisoned. The government claimed that the NDP won 92 percent of the seats, but so many opposition contenders had been prevented from running that the result was essentially predetermined.
Given the constraints on elections and the overwhelming power of the executive, the parliament became a hollow institution. In a symbolic blow, the building housing the Shoura Council, the largely advisory upper chamber, caught fire in August 2008. People gathered on the streets of downtown Cairo to watch the authorities try to put out the conflagration. One man, who refused to give his identity for fear of government retribution, told a journalist, "I'm just sorry parliament wasn't in session."29 In the days that followed, many editorialists and commentators argued that the destruction was yet another sign of the government's incompetence. But it was this unidentified citizen who expressed Egyptians' feelings about the degraded state of their representative institutions under Mubarak.
The leadership's determination to maintain control of the political system led to the unjustified imprisonment of thousands of people, including for the expression of political ideas in the media. According to some estimates, the number of prisons increased more than fourfold during Mubarak's tenure, and the number of detainees held for over a year without charge grew to more than 20,000.30 Journalists were not exempt from the government's repressive efforts. For example, Abd al-Nasser al-Zuhairi and two of his colleagues were jailed and forced to pay damages to a cabinet minister for libeling him in Al-Masry al-Youm in 2006.31 Ibrahim Eissa, the editor in chief of the independent newspaper Al-Destour, was sentenced in March 2008 to six months in prison for "publishing false information and rumors" about Mubarak's health. An appeals court upheld the decision that September. Eissa remarked that his conviction "opens the gates of hell for the Egyptian press."32 Although Mubarak intervened with a pardon before he began his sentence, the case sent a message to all journalists that they would be targeted for addressing politically sensitive topics.33 More recently, prior to the 2010 election, Eissa was targeted again when he was fired as editor of al-Dustour after writing a column critical of Mubarak.34 In light of these and many other examples, international press freedom organizations agreed that Mubarak's Egypt was an inhospitable place for independent journalism.35
While torture in the general sense was largely reserved for men, women held by the authorities reported that they were raped in detention.36 Assumptions about the security services' sexual abuse of women were pervasive. For example, when Esraa Abd al-Fattah, a founder of the activist April 6th Youth Movement, was released after being held for over two weeks in 2008, she immediately reassured her family that her virginity was not compromised, declaring to her mother, "They treated me well! They let me remain a girl."37
Abuse by police and other security personnel was sometimes fatal. The June 2010 death of Khalid Said, a 28-year-old Alexandrian, came to symbolize the authorities' unchecked aggression and lack of legal accountability in the late Mubarak period. Said was shaken down by two plainclothes police officers at an internet café, and when he failed to produce money for them, the officers started to beat him. His head bounced off a marble table, and he started to bleed.38 He was then dragged out of the café and taken next door, where the beating continued. He ultimately died on the scene. In addition to other visible signs of trauma, his face was fractured in several places, his jaw was dislocated, and his nose was broken.39 Images of his mutilated face circulated on the internet and galvanized ordinary Egyptians against police brutality and impunity.40 The regime, however, moved to protect its officers from the law. The police report on the incident indicated that Said had choked to death on illegal drugs. The officers also claimed that he had been wanted for theft, had a weapon, and resisted arrest, despite eyewitness testimony to the contrary. The two officers were jailed for four days pending an investigation, then released. Their trial was repeatedly postponed, and the case likely would have been dismissed or resolved with a lenient sentence behind closed doors had Mubarak not be forced to resign in early 2011.
The injustice surrounding the case led to the creation of a "We are all Khalid Said" page on the popular social-networking website Facebook. The online group was one of the major organizers behind the January 25, 2011, uprising that drove Mubarak from power; the initial day of protests was timed to coincide with the country's National Police Day. The trial of the two officers has resumed since Mubarak's resignation in February 2011.
By the time of the uprising, the Mubarak presidency and the security services had become thoroughly intertwined. While there is little evidence that the security forces operated on their own initiative or amounted to an autonomous "state within a state," years of impunity and close association with the ruling party and president had conditioned them to behave as if they were above the law. Because the regime relied on violence to maintain power, the actions of security personnel took place in a legal free zone where brutality against the citizenry was routine and often calculated.
With respect to political cohesion, Egypt is fortunate in its relative ethnic homogeneity. The population is 99.6 percent Egyptian, with Bedouins, Nubians, and others (mainly Europeans) making up the tiny remainder. Despite this advantage, legal discrimination based on religion and a worrying increase in violence between religious communities did occur in the late Mubarak period.
Roughly 90 percent of Egypt's population is Sunni Muslim, and the non-Muslim minority is predominately Coptic Christian.41 Other minorities, such as Baha'is, are not recognized by the state.42 Sunni Islam has come to dominate popular culture and political expression, as demonstrated in part by significant public support for the Muslim Brotherhood.
Islam is Egypt's official religion. Article 2 of the constitution states that Islamic law (Shari'a) is the principal source of legislation. The constitution also respects freedom of religion (Article 46). Though these two articles could complement one another, the actions of the Egyptian government have undermined that possibility. This is particularly evident in the increasingly tense relations between religious communities in recent years, which has disproportionately affected the Coptic Christian minority.
The problem largely stems from the Mubarak government's failure to allow diversity among the faiths. The state bred discrimination in its attempts to control different religious sects in a centralized fashion while relying on the security apparatus, rather than the courts, to mediate conflicts. When communal clashes occurred, the state-controlled media consistently blamed instigation by outsiders.43 The government went to great lengths to convince Egyptians and the world that its Muslim and Christians citizens were unshakably united, but it failed to lead a dialogue or set an agenda aimed at truly integrating the two communities.44 This gulf between rhetoric and action caused the concepts of national community and citizenship to lose credibility.45
Discrimination against the Copts was common under Mubarak, but it was not systematic. Instead, it tended to occur haphazardly and was particularly noticeable surrounding issues that should have been universally Egyptian. For example, when young Egyptians protested unemployment or political repression, the country's intelligentsia praised their patriotism. But if Coptic youth in particular complained of similar problems and attributed their marginalization to religious bias, they were denounced for threatening national cohesion. As Mariz Tadros has argued, "This double standard shows the pervasiveness of a normative framework that denies the legitimacy of religious discrimination as a grievance in Egypt."46
The condemnation of activism as religiously divisive, particularly in the context of society's increasing Islamism, caused many Coptic Christians to withdraw from politics during the late Mubarak period.
However, there was ample precedent for this trend. Since the fall of the monarchy, all of Egypt's presidents had sought to keep the Coptic Church under executive control. The effort was so successful that many of the authoritarian structures that stifled politics on a national level were are at work within the church.47 The resulting dearth of independent activism, engagement, and true political representation on behalf of ordinary Coptic citizens left them largely unprotected and at risk of violence. Moreover, the government failed to act in a predictable or responsible way when violence occurred. Not only did this mean that perpetrators escaped justice, but it also reinforced a culture of discrimination.
Violence against Coptic Christians increased dramatically in the final years of Mubarak's rule. According to the Egyptian Initiative for Personal Rights, 53 incidents of communal conflict occurred between January 2008 and January 2010.48 Among others since then, the Nag Hammadi massacre in January 2010, clashes in Marsa Matruh in March 2010, and an Alexandria church bombing in January 2011 have been the most prominent.49
The Nag Hammadi case serves as an illustrative example. On January 6, 2010, as the Coptic Christmas Eve mass let out, a drive-by shooting left eight Copts and one Muslim guard dead in the Qina Governorate village of Nag Hammadi. Many others were wounded. Riots broke out after the shooting, resulting in additional deaths and the destruction of property. At the time, it was Egypt's most lethal episode of communal violence since 2000. The state reacted with force to contain the strife. It dispatched riot police to keep the Coptic and Muslim populations separate, and blocked access to the village. Security officials claimed that the initial shooting was intended to avenge the rape of a 12-year-old Muslim girl by a Christian the previous November,50 but no evidence on that alleged incident was provided. Although three people were arrested for the shooting, the trial was delayed 12 times in 2010. Other suspects who were allegedly involved in the killing of Copts or the destruction of property in the unrest that followed the gunfire were not prosecuted.
Many Copts maintained that the security forces had ignored their pleas to intervene when they received threats before the shooting incident. But lax preemptive security was only a part of the problem. The lack of justice after the event left the Coptic community with the impression that they were being subjected to collective punishment. The government heightened a sense of alienation among Copts by refusing to address communal strife through the legal system.
Rather than turning to courts, the security apparatus often created "reconciliation committees" to bring both parties together and ultimately force one side to compensate the other. When reconciliation had supposedly been reached, the cases were closed to further legal deliberation. This extrajudicial model encouraged vigilantism and violence, because perpetrators were not sent to prison when they destroyed property or committed murder in the course of interreligious clashes. And given the sizes of the populations involved, more Muslim perpetrators went unpunished than Christians. The incidents that followed the Nag Hammadi case can therefore be attributed in part to the climate of impunity it helped foster.
Mubarak personally had nothing to do with the violence some Muslims directed at the Coptic minority. Nevertheless, it was his state and security apparatus that failed to create space for minority integration. By not enforcing a basic framework of citizenship, circumventing the competent judicial system, and treating interreligious relations only as a security issue, Mubarak's government contributed to the rise in communal strife until he was forcibly removed from office in February 2011.
The regime also viewed civil society activism as a threat to its security. The restrictive Law No. 84 of 2002, which regulates nongovernmental organizations (NGOs),51 endowed the authorities with wide discretion to interfere in the activities and operations of the country's NGOs. Security services were allowed to vet the personnel and activities of over 16,000 civil society organizations that operated in the late Mubarak period. The law was often interpreted in ways that contradicted the constitution's guarantees on freedom of association (Article 55),52 and effectively put Egypt's growing and fearless civil society sector at the mercy of a state that could act arbitrarily. During the last decade of Mubarak's rule, NGOs defending human rights, land rights, women's rights, property rights, and labor rights sprung up around the country. In many respects, because the Mubarak regime intentionally atrophied the formal political opposition, civil society became the main battleground where political and policy issues were contested.
In 2009, the government unexpectedly announced that it was considering amending Law No. 84.53 After a draft bill was circulated in early 2010, a group of 41 NGOs issued a statement condemning the "militarization" of civil society.54 The bill would have more tightly regulated foreign funding of NGOs, forced them to participate – like trade unions – in state-run federations, barred NGOs from working in more than two fields, prevented NGO participation in independent domestic and international coalitions, and forbidden NGOs registered as civil companies. The last restriction was especially aggressive because many of the most political NGOs used that tactic to avoid registering as an association with the Ministry of Social Affairs. Eliminating the loophole would have imposed new constraints on some of Egypt's most vibrant civic groups. The proposed legislation was not sent to the parliament during 2010, but Law No. 84 itself had been passed some three years after discussion on its provisions began. Had the regime retained power through 2011, it seems likely that the government would have completed its revision of the law on associations.
RULE OF LAW
Egyptian jurists have traditionally had the strongest legal training in the Arab world. Because of their institutionalized education and merit-based hierarchy, the country's judges have been models for the rest of the region. Indeed, many of the court systems in the Persian Gulf monarchies to the east are predominately staffed with Egyptian judges.55
At the same time, Egypt's relatively vibrant and independent judiciary is something of an anomaly among its counterparts in other Arab countries, such as Syria, where authoritarian elites have exercised tight political control over the courts.
The role of the judiciary in Egypt is a product of the nationalist struggle against colonialism in the late 19th and early 20th centuries.56 Nasser tried to raze the judiciary following the 1967 military defeat, but Sadat resuscitated it as a pillar of legitimacy while seeking to be a "rule of law" (siyadat al-qanun) president.57 This was particularly evident in his move to empower a Supreme Constitutional Court (SCC) in 1979. Mubarak largely left the judiciary independent, with some exceptions, including attempts to expand the executive's power over judicial appointments, new legal initiatives aimed at circumventing the courts, and moves to revive defunct courts that were willing to issue verdicts in conformity with the government's wishes.58 The near-ritualistic renewal of emergency rule every three years allowed state security courts to try civilians with few procedural protections. The Mubarak regime also frequently engaged in ostensibly legal practices that effectively trampled on the rights of citizens, such as recurrent detention.59
NDP lawmakers declined to pass a proposal by the country's Judges' Clubs that would have safeguarded judicial independence following the so-called Judges' Uprising in 2006.60 Instead, the government passed its own judicial law (Law No. 142 of 2006). While it included elements suggesting that the judges' demands had been met, it arguably curtailed judges' ability to resist executive influence. For example, the new law released the judiciary's budget from the control of the justice minister, but made it subject to parliamentary approval. The effect of the change was negligible given the executive branch's tight grip on the legislature. The law ignored other key demands, such as restrictions on the executive's extensive power of appointment. It reaffirmed Mubarak's ability to name the prosecutor general, the heads of the SCC and the Court of Cassation (the highest appellate court), as well as the head of the Supreme Judicial Council. The British Broadcasting Corporation (BBC) correspondent in Cairo described the law as a "setback," while reformist judge Assem Abdel Gabbar said, "We called for dialogue but unfortunately the government ignored us."61
The decline in judicial independence during Mubarak's final years in office was not as sharp as the deterioration in other areas, such as civil liberties, government accountability, and corruption. This is a testament to the strength of the Egyptian judiciary prior to the executive's encroachment. Indeed, many Egyptians continue to view their judges as leading figures in the push for democracy.62 However, a hallmark of the Mubarak presidency was the use of parallel courts, which left the main court structure relatively independent but powerless in the face of abuses by the state. Bodies such as the state security courts had constitutional mandates that loosely defined their purview while tying them to the executive. There was also a growing trend of amendments to the constitution that conflicted with principles of judicial independence (enshrined in Articles 65, 165, and 166). For example, Article 76 gave the Presidential Elections Commission final legal competency over presidential election results and procedures, sidelining the courts. And in accordance with a host of constitutional amendments introduced in 2007, Article 88 was revised to remove the provision requiring direct judicial supervision of elections. While judges would remain involved in the process, their presence was not required at polling stations.
Civil society groups also frequently cited Article 179 as problematic, because under the 2007 amendments it facilitated the trial of civilians in special courts for alleged terrorist activity.63 The regular renewal of Egypt's emergency law also provided the executive with extraordinary legal powers, and the practice of trying civilians in military courts was revived in 2008. All of these measures heavily tilted the power relationship between the judiciary and the executive toward Mubarak.64 Observers often raised suspicions that the aggressive moves to subjugate the court system were connected to the president's alleged plans to orchestrate a hereditary succession.65
The Mubarak regime's attempted emasculation of the judiciary produced numerous abuses. The most direct violations were often those that took place in plain view. The ordeal of Khairat al-Shatir, a leading businessman and member of the Muslim Brotherhood, is a case in point. Al-Shatir and 33 of his Brotherhood colleagues were held without charges in late 2006 before the state prosecutor filed allegations of money laundering, financing banned political activity, and reviving the Brotherhood's paramilitary wing. On January 29, 2007, al-Shatir and others appeared in a Cairo criminal court, where the judge dismissed the case due to a lack of evidence and ordered the defendants' immediate release. But as they left the courthouse, the police rearrested them. A week later, Mubarak sent the group to a military tribunal, marking the first use of a military court against Egyptian civilians since 2001, when the tactic was also aimed at the Muslim Brotherhood. In April 2008, the tribunal sentenced the defendants to between three and eight years in prison, and no appeal was permitted. Human Rights Watch remarked that the military convictions "demonstrated the Egyptian government's continued determination to crush any organized political opposition."66
The use of military tribunals returned the country to a darker period, but the abuses that were increasingly taking place outside any courtroom were even more troubling. These ranged from unlawful detentions, ubiquitous torture, and disappearances to the public beating of citizens by police. Indeed, as protests engulfed Egypt in January 2011, Human Rights Watch issued a 95-page report detailing torture by the security services and the state's failure to prosecute the perpetrators.67
ANTICORRUPTION AND TRANSPARENCY
Despite being a party to the UN Convention against Corruption, Egypt suffers from high levels of graft, which continues to pervade most aspects of daily life. Corruption often takes the form of bribery and the exploitation of personal connections (wasta) to obtain government assistance or facilitate basic bureaucratic transactions, such as the processing of applications for birth documents, passports, and driver's licenses.
Surveys conducted in 2009 by a government-sponsored think tank, the Ahram Center for Political and Strategic Studies, revealed that nearly 30 percent of Egyptians interpreted even an increase in commodity prices as a consequence of systematic corruption.68 The study also showed that 88 percent viewed low wages as a side effect of corruption, while 42 percent of small and medium-sized enterprises made illegal payments to operate.69
Members of the parliament also pointed to rising levels of corruption in the late Mubarak period. In December 2009, lawmaker Ahmad Abu Baraka, a member of the Muslim Brotherhood, lodged a formal interpellation on the issue with Prime Minister Ahmad Nazif. He cited a Cairo University research center's finding that corruption cost the country 63 billion Egyptian pounds ($11 billion) annually.70 Abu Baraka emphasized extensive graft in the educational system, tax collection, and the steel and cement monopolies. After pointing to "73,000 corruption cases before the courts," he called for a vote of no confidence in the government. However, the NDP majority decisively defeated the motion.
Much of the outrage expressed by the parliamentary opposition, which reflected popular sentiment, stemmed from the disturbing number of corruption cases that surfaced between 2008 and 2010.71 For example, in late 2008 the newspaper Al-Masry al-Youm published documents showing that Housing Minister Ibrahim Suleiman had illegally sold public land to his family and political clients. The allegations were supported by a citizen group that filed a complaint against Suleiman with the prosecutor general. The petition stated that he had acquired 50 apartments meant for low-income families. Suleiman was charged with profiteering and wasting public funds, but despite being stripped of his cabinet position, he was not jailed until after Mubarak was deposed. As with brutality cases involving security officials, his trial was repeatedly postponed. Since the 2011 revolt, the case against Suleiman has grown to include allegations that the corruption surrounding his office extended to close relatives of Hosni Mubarak.72
The domestic survey research, parliamentary activity, and high-profile corruption cases matched the findings of international NGOs. Transparency International ranked Egypt 98 out of 178 countries in its 2010 Corruption Perceptions Index. Egypt scored a mere 3.1 on the index's 10-point scale. While it fared better than Arab countries such as Syria, Yemen, and Iraq, it trailed Jordan, Tunisia, and most of the Gulf monarchies.73
Even the Egyptian officials seemed to recognize the problem. A joint project was set up by the government and the UN Development Programme to help Egyptian companies combat corruption related to "an overall culture of informality and nepotism" that prevailed in the civil service.74
As the Nazif government deepened its market-oriented economic reforms, it expressed its commitment to fight corruption through words and deeds. It assembled teams of experts to produce reports, pushed new laws through the parliament, and created new agencies to prevent graft. For example, laws amending the penal code were enacted in 2006 (Law No. 146), 2008 (Law No. 126), and 2009 (Law No. 71). The government also amended legislation on money laundering (Law No. 181) and auditing standards (Law No. 166) in 2008. The following year, a presidential decree (No. 192 of 2009) organized nonbanking instruments and markets.
However, many of the same problems that plagued the Mubarak regime in the fields of political rights and civil liberties extended to the areas of corruption and transparency. Corruption thrived because of the weakness of legal accountability. The new laws and the creation of watchdog agencies were not followed up with proper implementation and enforcement, in large part because they collided with the economic and political interests of the ruling elite. Moreover, the regime was ultimately unwilling to permit the investigative journalism and civil society activity that are essential to any successful anticorruption campaign.
Corruption prosecutions increased exponentially after Mubarak's fall.75 In addition to serving as an important source of legitimacy that the transitional authorities can use to counter or assuage the demands of prodemocracy protesters, the prosecutions are a means of eliminating potential rivals. The series of cases against former ministers as well as the former president and his family have come to dominate Egypt's contemporary political discourse.76 However, the current anticorruption drive remains selective and lacks the legal and institutional framework needed to ensure impartial justice in ongoing and future cases. As one researcher argued, "Having ousted the president and sacked or imprisoned the worst offenders, the country is now poised to turn a new leaf. But corruption will keep coming back unless we have strong watchdogs in place."77
Meaningful improvements on corruption and transparency, as with other aspects of democratic governance, will require a decisive break from the model of an all-powerful, unaccountable executive.
In advance of the 2011 parliamentary elections, the Supreme Council of the Armed Forces (SCAF) should allow meaningful supervision of the electoral process by the judiciary and election monitoring nongovernmental organizations.
An equitable electoral system must be implemented to ensure fair access for all political factions and minority communities.
Several unjust laws such as Law No. 84 of 2002, which governs associations, and the new protest law enacted by the SCAF in March 2011, which threatens protesters with possible jail time and fines of 500,000 Egyptian pounds ($90,000), should be abolished.
The government should fully decriminalize libel and slander to help ensure freedom of the press.
The state must hold those who engage in violence against religious minorities accountable through the formal legal system. It must stop the use of informal "reconciliation committees." The Egyptian state must move to a more robust concept of citizenship for all religions.
The security services must be made accountable to independent courts, and those who commit torture must be prosecuted to the full extent of the law.
Military tribunals/courts should never under any circumstances be used to try civilians.
The Egyptian government should fully implement and improve upon its recent transparency-related legal reforms and empower the regulatory agencies that it has set up to combat corruption. This process must include allowing an independent judiciary to serve as the final arbiter in cases of corruption. The authorities should also continue streamlining the registration process for businesses to reduce opportunities for civil servants to extract bribes.
In the post-Mubarak Egypt, state officials and civil society groups must resist the urge to use corruption allegations merely to settle political or personal scores.
The government must accept the proper role of civil society organizations and journalists in exposing corruption. The authorities should view the cases that are brought to light as opportunities to improve governance and safeguard public wealth.
1 International Crisis Group (ICG), Popular Protest in North Africa and the Middle East: Egypt Victorious? (Brussels: ICG, February 24, 2011), 16, http://www.crisisgroup.org/media/Files/Middle%20East%20North%20Africa/North%20Africa/Egypt/101%20Popular%20Protest%20in%20North%20Africa%20and%20the%20Middle%20East%20I%20--%20Egypt%20Victorious.ashx.
2 Jihad Ouda, Negad al-Borai, and Hafiz Abu Saada, A Door onto the Desert: Egyptian Legislative Elections of 2000 (Cairo: United Group and Friedrich Naumann Foundation, 2001), 24.
3 Raymond Baker, Egypt's Uncertain Revolution (Cambridge: Harvard University Press, 1978), 55-56.
4 Steven A. Cook, Ruling But Not Governing: The Military and Political Development in Egypt, Algeria, and Turkey (Baltimore: Johns Hopkins University Press, 2007).
5 Hossam al-Hamalawy, "The General's Budget," 3Arabawy.org, November 29, 2006, http://www.arabawy.org/2006/11/29/adlys-budget/.
6 Jason Brownlee, "Egypt's Incomplete Revolution: The Challenge of Post-Mubarak Authoritarianism," Jadaliyya, July 5, 2011, http://www.jadaliyya.com/pages/index/2059/egypts-incomplete-revolution_the-challenge-of-post.
7 Gamal Essam el-Din, "A Judicial Intifada," Al-Ahram Weekly no. 792 (April 27-May 3, 2006), http://weekly.ahram.org.eg/2006/792/eg4.htm.
8 Omar Hasanen Farouk el-Desouki, "First Director of New National Security Department Appointed," Al-Masry al-Youm, March 20, 2011, http://www.almasryalyoum.com/en/node/366858; "Former Minister Designate: Wiretapping Not Over in Egypt," Al-Masry al-Youm, July 22, 2011, http://www.almasryalyoum.com/en/node/479518.
9 Ahmad Raheem and Ahmad Mostafa, "Egypt: NDP Confirms Its Representatives' Unity and Refuses International Election Monitors" [in Arabic], Al-Hayat, November 3, 2009, http://international.daralhayat.com/internationalarticle/72415.
10 "Thuggery Familiar Blot on Egyptian Elections," Al-Masry al-Youm, November 26, 2010, http://www.almasryalyoum.com/en/node/257985.
11 "People Parliament Elections" [in Arabic], Egyptian Association for Supporting Democratic Development, http://www.egyelections.com/DefaultPepole_AR_R.aspx, accessed August 23, 2011.
12 Reuters, "Rights Groups Contest Egypt Official Vote Turnout," Khaleej Times, November 29, 2010, http://www.khaleejtimes.com/DisplayArticleNew.asp?xfile=/data/middleeast/2010/November/middleeast_November524.xml§ion=middleeast.
13 "Custom Data Set," International Institute for Democracy and Electoral Assistance, http://www.idea.int/vt/, accessed August 23, 2011.
14 "Report on the 2010 Parliamentary Elections in Egypt" [in Arabic], Egyptian Association for Community Participation Enhancement, December 8, 2010, http://www.mosharka.org/index.php?newsid=336.
15 "The 2nd Report: The Results of the Monitoring Efforts Conducted by the Egyptian Coalition for Monitoring Elections," Egyptian Organization for Human Rights, December 8, 2010, http://en.eohr.org/2010/12/08/the-2nd-report-the-results-of-the-monitoring-efforts-conducted-by-the-egyptian-coalition-for-monitoring-elections/.
16 Michele Dunne, "Opaque and Messy Elections," Carnegie Endowment for International Peace, November 29, 2010, http://egyptelections.carnegieendowment.org/2010/11/29/opaque-and-messy-elections.
17 Samer Shehata and Joshua Stacher, "The Brotherhood Goes to Parliament," Middle East Report no. 240 (Fall 2006): 2-9, http://www.merip.org/mer/mer240/brotherhood-goes-parliament.
19 Heba Saleh, "Egypt Poll Defeat for Muslim Brotherhood," Financial Times, November 29, 2010, http://www.ft.com/cms/s/0/974b09b0-fbd1-11df-b79a-00144feab49a.html#axzz1Vrqwos4u.
20 Gamal Essam el-Din, "Landslide," Al-Ahram Weekly no. 1026 (December 9-15, 2010), http://weekly.ahram.org.eg/2010/1026/eg1.htm.
21 "Former MPs to Establish Shadow Parliament," Al-Masry al-Youm, December 12, 2010, http://www.almasryalyoum.com/en/node/269551.
22 "Mubarak Mocks Opposition Proposed Shadow Parliament," Al-Masry al-Youm, December 19, 2010, http://www.almasryalyoum.com/en/node/275490.
23 Sharon Otterman, "Egypt's Mohamed Kamal: Islamists Should Be Integrated into Egyptian Political Debate," Council on Foreign Relations, November 8, 2005, http://www.cfr.org/egypt/egypts-mohamed-kamal-islamists-should-integrated-into-egyptian-political-debate/p9321.
24 Mona el-Ghobashy, "The Liquidation of Egypt's Illiberal Experiment," Middle East Report Online, December 29, 2010, http://www.merip.org/mero/mero122910.
25 Nathan J. Brown, "An Observer's Guide to Egyptian Succession," Carnegie Endowment for International Peace, December 17, 2010, http://egyptelections.carnegieendowment.org/2010/12/17/an-observer's-guide-to-egyptian-succession.
26 Jon Leyne, "Could Egypt's Election Lead to a Dynastic Succession?" British Broadcasting Corporation (BBC), September 18, 2010, http://news.bbc.co.uk/2/hi/programmes/from_our_own_correspondent/9008859.stm.
27 Interview, Mohamad Habib, former deputy guide of the Muslim Brotherhood, Cairo, January 8, 2009.
28 Joshua Stacher, "The Brothers and the War," Middle East Report no. 250 (Spring 2009), http://www.merip.org/mer/mer250/brothers-war.
29 Maggie Michael, "Egypt Parliament Fire Fuels Scorn of Government," Associated Press, August 22, 2008, available at http://www.usatoday.com/news/world/2008-08-22-3399657964_x.htm.
30 Saad Eddin Ibrahim, "Egypt's Unchecked Repression," Washington Post, August 21, 2008, http://www.washingtonpost.com/wp-dyn/content/article/2008/08/20/AR2008082002948.html.
31 "Egypt Journalist Jailed for Libel," BBC, February 23, 2006, http://news.bbc.co.uk/2/hi/middle_east/4745038.stm.
32 Sarah El Deeb, "Ibrahim Eissa, Egyptian Journalist, Gets Jail Time For Reports on Mubarak," Associated Press, September 28, 2008, available at http://www.huffingtonpost.com/2008/09/28/ibrahim-eissa-egyptian-jo_n_130042.html.
33 "Egypt President Pardons News Editor Sentenced to Jail," Agence France-Presse, October 6, 2008, http://afp.google.com/article/ALeqM5jAWKPSIIBnyUd4ziV8Sl7jaqbedw.
34 "Dissident al-Dustour editor sacked ahead of Egypt poll" BBC, October 5, 2010 http://www.bbc.co.uk/news/world-middle-east-11478791.
35 "Backsliders: The 10 Countries Where Press Freedom Has Most Deteriorated," Committee to Protect Journalists, May 2, 2007, http://cpj.org/reports/2007/05/backsliders.php.
36 "Egyptian Woman Alleges Rape by Police on TV," BBC, August 5, 2010, http://www.bbc.co.uk/news/world-middle-east-10882670.
37 Samatha Shapiro, "Revolution, Facebook Style," New York Times Magazine, January 22, 2009, http://www.nytimes.com/2009/01/25/magazine/25bloggers-t.html?pagewanted=all.
38 "The Murder of Khalid Said," Arabist.net, June 14, 2010, http://www.arabist.net/blog/2010/6/14/the-murder-of-khaled-said.html.
39 "Egypt: Prosecute Police in Beating Death," Human Rights Watch (HRW), June 24, 2010, http://www.hrw.org/news/2010/06/24/egypt-prosecute-police-beating-death.
40 "Egyptian Man's Death Became Symbol of Callous State," Washington Post, February 9, 2011, http://www.washingtonpost.com/wp-dyn/content/article/2011/02/08/AR2011020806360.html.
41 U.S. Central Intelligence Agency (CIA), World Factbook 2011 (Washington, DC: CIA, 2011), https://www.cia.gov/library/publications/the-world-factbook/geos/eg.html.
42 Samuel Tadros, "Religious Freedom in Egypt," Heritage Foundation, November 9, 2010, http://www.heritage.org/research/reports/2010/11/religious-freedom-in-egypt.
43 Issandr El Amrani, "The Emergence of a 'Coptic Question' in Egypt," Middle East Report Online, April 28, 2006, http://www.adelinotorres.com/africa/Middle%20East%20Report%20Online%20The%20Emergence%20of%20a%20"Coptic%20Question"%20in%20Egypt,%20by%20Issandr%20El%20Amrani.htm.
44 Rachel Scott, The Challenge of Political Islam: Non-Muslims and the Egyptian State (Palo Alto: Stanford University Press, 2010).
45 Samir Morqos, "The Coptic Question," Al-Ahram Weekly no. 979 (December 31, 2009-January 6, 2010), http://weekly.ahram.org.eg/2010/979/sc101.htm.
46 Mariz Tadros, "A State of Sectarian Denial," Middle East Report Online, January 11, 2011, http://www.merip.org/mero/mero011111.
47 Paul Sedra, "Salafis, Sabotage, and Sectarianism: Thoughts on Coptic Protest in Revolutionary Egypt" (presentation at the "After Tahrir" workshop at Northwestern University, April 22, 2011).
48 "Two Years of Sectarian Violence: What Happened? Where Do We Begin?" Egyptian Initiative for Personal Rights, April 2010, http://eipr.org/sites/default/files/reports/pdf/Sectarian_Violence_inTwoYears_EN.pdf.
49 "Egypt Bomb Kills 21 at Alexandria Coptic Church," BBC, January 1, 2011, http://www.bbc.co.uk/news/world-middle-east-12101748.
50 "Egypt Copts Killed in Christmas Church Attack," BBC, January 7, 2010, http://news.bbc.co.uk/2/hi/middle_east/8444851.stm.
51 Law No. 84 of 2002 updated Nasser's association law, Law No. 32 of 1964.
52 HRW, Egypt: Margins of Repression (New York: HRW, July 3, 2005), http://www.hrw.org/en/reports/2005/07/03/egypt-margins-repression-0.
53 Dina Guirguis, "Egypt's NGO Bill Imperils Civil Society Funding," Arab Reform Bulletin, February 3, 2009, http://www.carnegieendowment.org/2009/02/03/egypt%2Ds%2Dngo%2Dbill%2Dimperils%2Dcivil%2Ds ociety%2Dfunding/2hm.
54 Egyptian NGO Campaign for the Freedom to Associate, "Towards the 'Militarization' of NGOs: A 'Fascist' Law to Strangle Civil Society," news release, March 22, 2010, http://www.cihrs.org/English/NewsSystem/Articles/2584.aspx.
55 Interview, Nasr Amin, head of the Arab Center for the Independence of the Judiciary and Legal Profession, Cairo, April 2006.
56 Nathan Brown, The Rule of Law in the Arab World: Courts in Egypt and the Gulf (Cambridge: Cambridge University Press, 1997).
57 Tamir Moustafa, The Struggle for Constitutional Power: Law, Politics, and Economic Development in Egypt (New York: Cambridge University Press, 2007).
58 The experience of the SSC illustrates the gradual encroachment of executive appointments. After it was established in 1979, the SCC had a unique appointment process whereby sitting members of the court recruited new members. This continued until the 2001 appointment of Fathi Naguib, who was imposed on the court. In the years that followed, the regime packed the court with forced appointments, undermining its earlier procedure of internal recruitment.
59 Tamir Moustafa, The Struggle for Constitutional Power, 176-177.
60 The Judges' Clubs in Alexandria and Cairo became more politicized after the 2005 presidential and parliamentary elections, when electoral manipulation by the authorities threatened to tarnish judges' reputations given their role as poll monitors. See the blog Baheyya for explanations of the motives and goals of reformist judges from this time: http://baheyya.blogspot.com/, accessed September 13, 2011.
61 "Egypt's Justice Law 'Disappointing,'" BBC, June 27, 2006, http://news.bbc.co.uk/2/hi/middle_east/5121832.stm.
62 "Judges Renew Push for Independent Judiciary," Al-Masry al-Youm, June 16, 2011, http://www.almasryalyoum.com/en/node/468617.
63 Gihan Shahine, "Protests at Amendment 179," Al-Ahram Weekly no. 837 (March 22-28, 2007), http://weekly.ahram.org.eg/2007/837/eg3.htm.
64 Nathalie Bernard-Maugiron, "The 2007 Constitutional Amendments in Egypt and Their Implications on the Balance of Power," Arab Law Quarterly 22, no. 4 (2008): 397-417.
65 Pakinam Amer, "Wafd Party Announces Election Demands, But Makes No Decision," Al-Masry al-Youm, August 9, 2010, http://www.almasryalyoum.com/en/node/62806.
66 "Egypt: Military Court Convicts Opposition Leaders," HRW, April 15, 2008, http://www.hrw.org/news/2008/04/15/egypt-military-court-convicts-opposition-leaders.
67 HRW, Work on Him Until He Confesses: Impunity for Torture in Egypt (New York: HRW, January 30, 2011), http://www.hrw.org/en/reports/2011/01/30/work-him-until-he-confesses-0.
68 "Al-Ahram Releases Study on Corruption in Egypt," Bikyamasr.com, January 7, 2010, http://bikyamasr.com/7359/al-ahram-releases-study-on-corruption-in-egypt/.
69 Ahram Center for Political and Strategic Studies with Center for International Private Enterprise (CIPE), Business Environment for Small and Medium-Sized Enterprises (SME) in Egypt and SME's Interaction with Government Agencies: 2009 Survey on Corruption (Washington, DC: CIPE and U.S. Agency for International Development, 2009), 6, http://www.cipe.org/regional/mena/pdf/2009%20Egypt%20SME%20Survey%20Report%20EN.pdf.
70 "MP: Corruption Costs LE63 Billion a Year," Al-Masry al-Youm, December 13, 2009, http://www.almasryalyoum.com/en/node/5960.
71 "Bad Blood: Is Government Corruption Beyond Cure?" Al-Masry al-Youm, February 25, 2010, http://www.almasryalyoum.com/en/node/18242.
72 Heba Fahmy, "Ex-Housing Minister's Trial Adjourned to September 24," Daily News Egypt, August 28, 2011, http://www.thedailynewsegypt.com/crime-a-accidents/ex-housing-ministers-trial-adjourned-to-sept-24.html.
73 "Egypt Comes in 98th on 2010 Corruption Perceptions Index," Al-Masry al-Youm, October 26, 2010, http://www.almasryalyoum.com/en/node/217647.
74 "Supporting the Ministry of Investment in Enhancing Transparency and Fighting Corruption," Government of Egypt and UN Development Programme, 2006, 5, http://www.undp.org.eg/Portals/0/Project%20Docs/Gov_Pro%20Doc_MOI.pdf.
75 Marwa Hussein, "Egypt's Fight against Corruption Has Just Started," Ahram Online, April 19, 2011, http://english.ahram.org.eg/News/10383.aspx.
76 Gamal Essam El-Din, "Networks of Corruption," Al-Ahram Weekly no. 1038 (March 10-16, 2011), http://weekly.ahram.org.eg/2011/1038/eg21.htm.
77 Mohamed Hafez, "Clamping Down on Corruption," Al-Ahram Weekly no. 1039 (March 17-23, 2001), http://weekly.ahram.org.eg/2011/1039/eg60.htm.