After six years of procedural and legal maneuvers, former Egyptian president Hosni Mubarak is free. The top Egyptian appeals court acquitted him of involvement in the killing of protesters during the 2011 popular revolt. Mubarak’s expected freedom comes as many leaders of that revolt languish in Egyptian prisons. The other members of Mubarak’s regime put on trial in 2011 have also been set free. How did we get to this place?
In the weeks and months following the toppling of the former Egyptian strongman in 2011, calls for justice on Cairo’s Tahrir Square turned into unified demands for prosecutions of Mubarak and other officials responsible for human rights abuses and economic crimes. By August 2011, Mubarak, his sons and a number of his top officials were on trial, accused of corruption and ordering security forces to use lethal force against protesters during the revolution. The sight of Mubarak in the defendant’s cage became a defining image of the Arab Spring. The trial stunned Egyptians, many of whom doubted until the last minute that their autocratic leader would be brought to justice.
Egypt is not unique. Oppositions throughout the world have to balance the desire for justice with the political constraints inherent in the absence of an all-out revolution, coup or military victory. Retributive measures are frequently replaced with more lenient policies. The possibilities for accountability are determined by the distribution of power among key actors prevailing at the moment of transition. The greater the strength of old elites vis-à-vis the new ones, the less likely are criminal trials and other forms of retributive justice.
The Mubarak trial began primarily in the context of a revolutionary moment in which the power of the “street” was at its peak and the then-ruling military council faced intense popular pressure to prosecute Mubarak and his top officials. Yet, even when the revolutionary logic was at its height, protesters had to contend with the Supreme Council of Armed Forces’s (SCAF) determination to use its powers to protect its privileges and to move the country toward elections on its own terms.
The Mubarak trial was one of concessions made by the SCAF in a bid for legitimacy. After the parliamentary elections of December-January 2011-2012 conferred electoral legitimacy upon the Muslim Brotherhood-affiliated Freedom and Justice Party (FJP), the party sought to negotiate the terms of the forthcoming handover of power with the SCAF in anticipation of the central role it hoped to play in governing the country. Yet, the military allowed the trial to go forward, and even after 2013, President Abdel Fatah al-Sissi appeared in no hurry to free Mubarak. Why?
Interest in ensuring stability, building its legitimacy and protecting its extensive economic and political privileges drove the military’s approach. Key military figures, al-Sissi included, have also attempted to co-opt the “spirit” of the revolution, which was broadly popular, for their own purposes. For example, the military has simultaneously detained and repressed young revolutionary protesters while at the same time going to great lengths to attempt to co-opt the revolutionaries and the revolution, even giving special medals to the martyrs who died during the uprising. The military’s decision to allow the trial to move forward was part of broader goals than just stability and momentarily pacifying protesters. Indeed, the military sought longer-term legitimacy from the “street” by co-opting the revolution and buying support for an early transition plan. As such, the military largely conceded to demands for justice in an ad hoc, reactive way, such as allowing for Mubarak’s prosecution after days of large demonstrations.
The decision to place Mubarak and his associates on trial was a clear response to rising public pressure — and it also created a lasting perception of the trial as political spectacle. That political perception underscored how hastily prepared the trial was. It was not clear until the last moment that the trial would actually go forward. Public pressure was central to Mubarak’s trial in the first place — and it raised questions as to whether any judge would be able to render a verdict without regard to public opinion. Judges were fully aware that anything less than a guilty verdict would lead to massive street demonstrations. Despite this public pressure for a conviction, state officials effectively blocked the prosecutor from gathering sufficient evidence to establish Mubarak’s alleged role in ordering the killings.
As the initial symbolic force of the trial started to wane, its shallow nature did not escape the notice of those who paid the highest price for it. As a mother of one of the victims said, “We didn’t ask them for financial compensation or pensions. They are doing that only to pacify people’s anger. All we want is fair trials.” Beyond popular anger at the shortcomings of the Mubarak trial remained broader concerns about more far-reaching reforms.
The shortcomings of the Mubarak trial, and his ultimate acquittal, may lead one to argue that the prospects for transitional justice were inherently limited in the aftermath of a popular, but still incomplete, political revolution. The truth is that the Mubarak trial was possible precisely because its genesis was associated with a time when the revolutionary logic of the Egyptian transition ruled. Under its subsequent, negotiated, logic (and then its rollback after 2013), the possibilities for transitional justice greatly diminished. The sight of Mubarak being rolled into the defendant’s cage to be tried for his crimes was a powerful symbol of what 2011 represented for Egyptians and other Arabs.
Never before had an Arab leader been held accountable in such a visible way. Yet, the fact that the trial was ultimately shallow, and that the conviction was ultimately overturned, is an equally potent indicator of just how short the revolution fell of accomplishing its goals of justice.
Mieczysław P. Boduszyński is an assistant professor of politics and international relations at Pomona College in California.