December 19, 2013
Legal experts and casual observers in Egypt were
stunned on November 27 when a misdemeanor court in Alexandria found 21 young
Egyptian women guilty and sentenced fourteen of them to eleven years in jail.
The remaining seven girls (all minors) are to be held in a juvenile
correctional facility until further notice. The young women’s crime was
gathering in an early morning protest movement, called “7am,” against the overthrow
of former president Mohamed Morsi; they were arrested on October 31 on four
different charges, including illegal assembly, obstructing roads, and the
destruction of public property. The reaction to the ruling exposed Egyptians’
distrust of their judicial system—particularly in light of the judiciary’s
perceived political role after the removal of president Morsi. The trial and
ruling demonstrate the dire need for a viable transitional justice in
Egypt.
The trial triggered condemnations from many
prominent figures, such as the left-wing former presidential candidate Hamdeen
Sabahi, who called for a presidential pardon. The interim president’s aides
have responded with official statements saying that the president would
exercise his power to grant amnesty, but that he was legally unable to do so
until the judicial ruling becomes final.
Editor's Note: On December 7, following an international uproar, Alexandria's Court of Appeals overturned the Misdemeanors Court's ruling against the 21 demonstrators. Fourteen of the women were sentenced with one year of imprisonment; the seven other defendants, who were under the age of 18, were acquitted.
Much of the reason for the public outrage is the
harsh sentences for 21 young women on relatively inconsequential charges—which
particularly contrast with the light sentences and acquittals of former Mubarak
officials and police officers tried for killing demonstrators over the past two
and a half years. Those that were found guilty received very little jail
time—most infamously, the police officer known as the “eye sniper,” who
targeted protesters’ eyes with birdshot, will serve only three years in
prison.
The ruling provides an ideal opportunity to think
through the transitional justice system needed for Egypt. Since the overthrow
of former president Hosni Mubarak’s regime in February 2011, the popular demand
for a transitional justice system has been constant. However, the three
subsequent regimes (the Supreme Council of the Armed Forces led by General
Tantawi, then the Muslim Brotherhood’s Mohammed Morsi, and finally the regime
in power since July 3) have failed to respond. Virtually the only progress has
been the appointment of a minister of transitional justice under the current
government, but this new position so far has nothing but a title. Furthermore, Article 241 in the draft constitution, completed
on December 3, requires the next parliament to pass a transitional justice law. The very fact that the
constitution would only now necessitate a transitional justice law illustrates
how poorly the successive governments have performed in tackling the issue of
transitional justice—whether intentionally or not—because Egypt nearly three
years after the January 25 Revolution is still waiting for its grievances to be
resolved adequately.
The demands for transitional justice have
consistently been framed in very broad terms, without a clear detailed vision
of how they would be applied in Egypt’s specific situation. Transitional
justice, after all, is not a unified model, and any proposed vision of
transitional justice, especially as concerns the trials, needs to start with
the creation of a transitional justice supreme commission that has total
financial and administrative autonomy and has authority over all matters
related to transitional justice. The function of this commission would be to
work on the judicial and non-judicial procedures relating to revealing,
documenting, and prosecuting crimes and human rights violations committed in
Egypt from 1981 (when the Mubarak regime came to power) to the present, in
order to right the wrongs done to victims. It would also reform government
institutions, build up trust in them, and lay the groundwork for national
reconciliation.
There are several mechanisms through which the
aforementioned goals could be achieved, including for instance establishing
sub-committees with full authority to work on various aspects of the
commission's function—such committees could be formed to document violations,
discuss accountability and amnesty, etc. The most crucial component of a
Transitional Justice Commission, however, would be a court with sweeping powers
to ensure that the trials proceed quickly, efficiently, and with judicial
autonomy from both the executive branch and the normal judicial system, given
the latter’s serious shortcomings in effectiveness. The power to investigate
violations and crimes would be granted to judges who are answerable to the
Transitional Justice Courts, avoiding the public prosecutor as part of the
normal judiciary.
The hoped-for democratization and progress in
social and economic development in Egypt will not happen until the grievances
of the recent past and present are resolved for good. Only under a system of
accountability, efficiency, and equality will Egypt be able to move forward
with its transition.
This article is reprinted with permission from Sada. It can
be accessed online at:
http://carnegieendowment.org/sada/2013/12/06/transitional-justice-elusive-in-egypt/gvhy
Yussef Auf is an Egyptian judge and a
non-resident fellow at the Atlantic Council’s Rafik Hariri Middle East
Center. This article was translated from Arabic.