Mohamed Morsi’s trial, now adjourned to 2014, may be a case of “judge and rule”. Most definitely, it is a case of “trial and error”. Neither the trial, nor the errors of judgment to shadow it, can be expected to bode well for democratic reconstruction. Moreover, like all measures taken to dismiss the fledgling democratisation under the behest of the ousted, and now imprisoned president, the trial will widen the rift in an Egypt already deeply divided in the middle, for and against Morsi, and for and against his military captors.
Now that the Muslim Brotherhood’s (MB) top leadership is behind bars, the army, the media and the Tamarod movement that endorse the Supreme Council of the Armed Forces (SCAF), have ceded to the judiciary the authority to tighten the noose on the forces, voices and discourses, whose re-imagining of community blurs the boundaries between the religious and the political. The judiciary, at least elements within it who are antipathetic towards Morsi, is now called upon to make the case for downsizing the MB – by de-legalising the army’s and its political allies’ nemesis.
In part, this may be a case of sweet revenge. The very judiciary that Morsi sought to purge from former President Hosni Mubarak’s appointees, will relish every minute of having Morsi appear before it to defend himself against serious accusations that can carry heavy penalties, including a death sentence. Similar to the 14 MB co-defendants and one Salafi leader, Morsi faces charges of incitement to murder protesters outside Cairo’s presidential palace when he was in office.
Morsi will have to answer to additional charges as part of an inquiry into his escape from prison during the 2011 uprising against his predecessor, Mubarak (who is now more or less free). The critical point in these charges is in regards to the alleged conspiracy with Hamas, during the prison break.
Morsi’s defiance during his brief and chaotic court appearance, and his refusal to enter a plea, sum up the multi-layered nature of the haze gripping Egypt since the July 3 coup. This episode in the fluid and divisive state of political play shows that the judiciary and the MB are pitted against one another.
Morsi and some judges showed demonstrable contempt for each other’s powers. As president, Morsi went for the judiciary’s jugular veins. His attempt to dismiss Abdel Maguid Mahmoud, the attorney general, won him no friends among the judiciary and set up a challenge to his own authority. His own attorney general, Talaat Ibrahim, had difficulty in his brief time in office.
The problem is that under the current conditions of heightened polarisation, the judicial system is drawn into a duel between the army and the MB, and their supportive public.
It is no secret that Egypt’s Supreme Constitutional Court (SCC) opposed many of Morsi’s reforms and laws, and the court at some point in 2012, talked of the possibility of impeaching him for alleged violation of his oath by undermining the country’s constitution. This was in response to Morsi’s decrees, which he defended in the name of safeguarding Egypt’s “revolutionary future”.
The judiciary opposed Morsi’s decree that no laws passed by him, from the time of his inauguration until a new parliament is elected, can be rescinded by any authority. The SCC worked hard to undermine the new establishment presided over by Morsi and the MB. This included its judgement, based on technicalities, that the country’s first freely elected parliament was unconstitutional. It did not spare the Shura Council from a similar fate. And it overturned convictions against former regime stalwarts.
Grim picture for MB
Now the MB is in the docks, and its affiliated president faces an uncertain future. The picture right now for the MB is grim: it is the one disestablished. By contrast, courtesy of SCAF, the judges have the SCC’s leader, Adly Mansour, serving as the country’s interim president.
This legal milieu helps neither the MB nor Morsi. The forces arrayed against them, including a significant segment of Egypt’s divided and politicised public, do not bode well for fairness in the trial, which will not be concluded swiftly or agreeably. Already this week, the MB’s appeal to overturn a September ruling banning its activities and organisations was rejected by a judge from the urgent cases court.
Morsi’s trial will not be a case of black-and white legalism. The laws, their interpreters and executors, in this highly-charged and contested polity, in which the army calls the shots, do not favour Morsi. Nor do the charges themselves qualify as impartial. Moreover, there is no legal logic in the charges of incitement to kill protesters, which if applied equally, might point the finger to the ousted president’s accusers.
The irony of the Morsi trial is that the accusers might draw as much attention to their motivations, accusations, and misuse of the law, not only in Egypt, but also in a global civil society that has grown addicted to Egyptian politics and the dialectics of revolution and counter-revolution. For now, the prospect of democracy is pushed back, while two reductive projects – secular-military vs religious – seem to clash as they project politics through inflexible sets of nominations of power to be mediated, either by Godly or military guardianship.
A better way forward
The trial could go on for a long time. A team of defence lawyers, which might be headed by former presidential candidate and leading attorney, Mohamed Salim al-Awwa., is being put together for the next round of court appearances by Morsi. Having a top defence team is one thing; having the judicial competence to try Morsi or any other defendant of any political colour in Egypt, is a totally different matter.
Egypt is not short of brilliant legal experts, lawyers and judges. The problem is that under the current conditions of heightened polarisation, the judicial system is drawn into a duel between the army and the MB, and their supportive public. Morsi’s trial is not a simple case devoid of political indictment – proving unlawful activity and punishing it, may not be a simple matter of legal judgement.
Morsi’s case is not a case against a George Rafael Videla, William Ruto or Charles Taylor. Even so, Egypt should have either opted for a special tribunal – administered by competent international and Egyptian observers in a neutral country – or a truth and reconciliation commission that does not spare people from Mubarak’s period, and after his ouster, if there are crimes to be proved or disproved, against the Egyptian people.
Thus Egyptians can heal collectively and surge ahead with national reconciliation and democratic reconstruction. For now, one party is lionised against, or at the expense of another, and this does not help democratisation. Even if parliamentary elections are held, they will be undermined by voter fatigue, indifference, mistrust and definitely a boycott. In all of these instances, boycott will be akin to voting no against the tenuous state of affairs.
Elections should not be a priority right now. A fully inclusive truth and reconciliation process may offer one way out of the current miasma.
Dr Larbi Sadiki is a specialist in Arab democratisation, revolution and transitions, and has been an academic at Australian National University, Exeter University, Westminster University and Qatar University.