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 no evidence that the police were involved, a finding 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 ElKhatib, a lawyer whose brother was killed during the street battles near Tahrir Square on the 28th, welcomed 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 said 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 between 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 Human Rights Watch’s Heba Morayef.
Morsi’s administration, a 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 presidents’ 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 employees. 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.”