By Moataz El Fegiery

The appearance of Hosni Mubarak in the opening of his trial last week reassured millions of Egyptians that their revolutionary struggle was not in vain. However, the truth about Mubarak’s ability to participate in his trial is still unclear. It is unusual for a defendant to appear in court on a stretcher. A defendant’s health is either good enough for him to stand trial or it is not. With the public doubting the court’s seriousness, Mubarak’s appearance could have been a political decision aimed at boosting confidence. If that is the case, the judiciary risks appearing politicized in the eyes of Egyptians.

Domestic trials to address crimes of past regimes in transitional societies almost always face major challenges. This is especially the case when political transformation is still under way and vetting of state institutions is not complete, as in Egypt. The desire to seek justice early is understandable given the gravity of alleged crimes, yet the rush to get trials under way can also bring undesired results.

Human rights organizations, lawyers, judges and families of victims have expressed doubts about investigations carried out by the general prosecutor since Mubarak’s downfall. This can be attributed to a number of factors, not least that Mubarak himself appointed the prosecutor before leaving office. Under Mubarak rule, the prosecutor’s office was regularly criticized for being used as a tool to silence the opposition. According to human rights activists, the office was complicit with the regime’s policy of impunity.

Investigations have also been affected by the continued abuse of power by the police. The institution has still has not undergone a serious vetting process, despite the interior minister’s measures aimed at changing its image. Human rights organizations have discovered numerous cases where witnesses and relatives of victims have been pressured by police officers accused of killing protesters to change their statements or to not file complaints.

Egyptian society suffers from a growing discourse of political vengeance and popular pressure on judges to expedite trials. The public demand to accelerate judicial procedures is understandable given the gravity of the violations, the lack of transparency in prosecution strategy, and the big hurdles to victim participation. But the demand to expedite trials does not take into consideration the guarantees granted to the defense or the complicated nature of investigating political and economic crimes of the nature that will be addressed in court. It is hard to imagine a thorough professional investigation into such grave abuses under current circumstances.

Nonetheless, the judiciary must be able to work calmly to ensure a sound process, and to accomplish justice that is not vengeful. Justice and the rule of law were at the heart of the Egyptian revolution. If Egyptians seek to break with the past they must encourage a fair judicial process. Moreover, trials will constitute a historical documentation of the transition period. Therefore, a fair and careful process is in the interest of present and future generations.
The Egyptian judiciary is not accustomed to communicating with the public and media. As a consequence, attempts at providing details and information on procedures tend to feed speculation and rumors about inquiries and trials. Despite the importance of some steps recently taken by the Supreme Judicial Council to make trials public and ensure victim participation, other outreach measures are still needed to mend the bridge of confidence with the public.

Mubarak’s trial is not part of a comprehensive framework to address violations of the past regime. Most reformative steps taken by the transitional government have been in response to public pressure, rather than based on a clear strategy attending to the challenges of the transition. Investigation of and charges against members of the former regime thus far have not gone beyond crimes that occurred during the 18 days of the revolution. There has been no effort to draw a picture of Egypt’s decades of repression and their victims.

Local and international human rights organizations and United Nations human rights bodies have long been documenting human rights violations in Egypt, including those conducted in the context of combating terrorism, such as torture, extrajudicial killing, long-term arbitrary detention and forced disappearance. So far there seems to be no political will to investigate these crimes and hold perpetrators accountable, despite calls from civil society to do so.
Justice and accountability have contributed to bringing together other societies torn by conflict and authoritarianism. Such achievements may not be panaceas for all of problems. However, they can help societies express past grievances and re-establish trust in state institutions – necessary steps in moving toward more open societies.

The political moment in Egypt can be built upon to strengthen the rule of law and human rights in the country. Trials of representatives of the former regime, with Mubarak at their head, might give impetus in this direction. Nevertheless, if the challenges threatening the integrity of those trials are not addressed, their outcome may seriously undermine the ongoing transition in Egypt, as well as the Egyptian people’s confidence in their judiciary.

Moataz El Fegiery is deputy director of the Middle East and North Africa program at the International Center for Transitional Justice. He wrote this commentary for THE DAILY STAR.