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Mubarak looks guilty but conviction is far from guaranteed

Ahram Online explores the case against Mubarak with Egypt's legal experts

Sherif Tarek , Saturday 16 Jul 2011
Mubarak
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Deposed president Hosni Mubarak is facing charges that could lead to consecutive, decades-long prison sentences or even the death penalty. His conviction, however, has so far seemed to be anything but certain.

The 83-year-old is accused of abusing his unfettered powers as a tyrannical sovereign, persistently accumulating huge, illegal profits throughout his 30-year tenure, and more significantly, instigating the murder of hundreds of peaceful demonstrators during the January 25 Revolution.

On 10 April, nearly two months after his ouster, Mubarak assured the public that he, his wife Suzanne Thabet and two sons Alaa and Gamal, are clean-handed and wrongly accused of illicit profiteering. He even vowed to take legal action against those who tried to bring down his career and reputation, as well as that of his ‎family.

Many people and forces from across the political spectrum regarded his confident tone in the controversial speech – given on Al Arabiya TV while under house arrest, days before being detained – as an indication that the former commander-in-chief had already “covered up all traces of public funds misappropriation.” Many believe he is likely to be cleared of this charge.

On the other hand, evidence against Mubarak in the second accusation – giving orders to police forces to kill protesting citizens by using live ammunition – is indisputable, according to legal experts who, in the same breath still assert that his chances of dodging this charge are not to be ruled out.

Mubarak’s legal situation

On Mubarak’s situation, Hossam Eissa, a law professor at Ain Shams University, told Ahram Online, “The killing of people lasted for days, why didn’t he interfere to stop it?” Eissa continued, “The fact-finding committee proved that he did give the order to exterminate the protesters, but even if he didn’t, watching his people getting killed and doing nothing makes him guilty.

“The punishment for premeditated murder could be a life sentence with labour or death. Since Mubarak was the president of this country and the supreme commander of the army and police, his penalty must be greater than usual. But, like every defendant, he has an opportunity to be found not guilty.”

Ex-judge Mohamed Hamed El-Gamal echoed the same sentiments, saying, “He was a tyrant who dominated everything in the country. He told the police and the army to gun down the protesters, but the military leaders, unlike the police, admittedly refused to comply. This should be enough evidence to convict him; he issued the killing order and followed it up.”

Field Marshal and de-facto president Hussein Tantawi confirmed shortly after the Supreme Council of the Armed Forces (SCAF) assumed power that the army had rejected “orders to fire on civilians,” a statement that was repeated later by other SCAF members on several occasions.

Former Spy Chief Omar Suleiman, who was appointed as vice president in the late days of Mubarak’s reign, reportedly said the toppled president “had complete knowledge of every bullet fired at protesters – and the number of those killed or wounded.” His words are further testimony to bolster the case against Mubarak, but only theoretically, as media statements are not recognised by the prosecution.

Special treatment

On paper Mubarak looks guilty as charged, but according to legal gurus, in the real world there are clear indications that strings are being pulled to achieve his exoneration, even without standing trial.

The former untouchable was put under house arrest along with his family right after his overthrow on 11 February. Weeks later, a clampdown by the prosecutor general on a myriad of former regime officials saw him apprehended.

Mubarak’s ex-oligarchs and both sons were incarcerated in Tora prison pending investigations and trials. The man himself did not follow them, but was instead transported to Sharm El-Sheikh International Hospital due to “severely deteriorating” health, having allegedly suffered from cancer and serious heart problems. His trial was later scheduled for 3 August.

Considering Mubarak’s charges, the Egyptian authorities have deliberately shown a great deal of leniency and tolerance in dealing with him, said El-Gamal.

“Mubarak should be in preventive detention like the rest of the defendants accused of mass murder and stealing similar sums of money. His current status is so unfamiliar,” he said, and added, “There is something of a plot designed by the ministry of interior and judicial system to give him this kind of special treatment.

“The excuse to keep him out of [Tora] prison is that there is no suitable, medical intensive-care facility there, which is absurd because establishing one is not difficult at all.

“There are also doubts over the medical reports on his health condition; some of them contradict one another. These reports might well have been forged to keep him out of jail and even allow him to avoid trial. Let’s also not forget the delay of the legal procedures against him,” explained El-Gamal.

Shocking not-guilty verdict?

Convicting Mubarak has topped the revolutionaries’ list of demands, with many of the families of the uprising’s martyrs holding him responsible for the early loss of their sons, daughters and siblings. Several months after their murders, calls for retribution are as relentless as ever.

The image of the former ruler being hanged by a rope appeared on some protesters’ large posters in Tahrir Square during “Determination Friday” on 8 July, and was enthusiastically chanted for by many across the nation. Some few hundred demonstrators even went to the highly-secured Sharm El-Sheikh hospital, demanding his eviction from the coastal resort to see justice served.

It is widely believed that an absolution for Mubarak would trigger nationwide wrath and significantly escalate ongoing protests.

Lawyer Ahmed Fawzi said he is convinced that Mubarak’s conviction is improbable should he actually be tried, thanks to “deep-rooted corruption” in the ministry of interior and judicial system that will pave the way for “many culprits like him to go free”.

“The judiciary is not independent and neither is the prosecution. I don’t trust the prosecutor general either. I would say none of them will implicate Mubarak or many of the [former] ministers [for their respective crimes],” an edgy Fawzi told Ahram Online. “Mubarak’s arrest and indictment came too late, on purpose of course. There was enough time to contaminate a great deal of evidence.

“The prosecution also refuses to follow many leads and exhaust the numerous legal avenues that would prove Mubarak and others guilty. According to Egyptian law, he and the other defendants must be convicted, but since we don’t have an independent prosecution or judicial system to apply the law properly, they won’t be. Mubarak could be found not guilty for lack of evidence or a multitude of other reasons, as long as they are bending the law.

“For instance, Omar Suleiman’s testimony is enough to cause Mubarak and [former interior minister Habib] El-Adly to be sentenced to death. In such cases, the prosecution should recall the person who made the claim to officially hear his testimony, so why didn’t that happen with Suleiman or any of the SCAF members who said he had given the killing order? Well, because they don’t want Mubarak to stand trial,” said Fawzi.

“Another strange and inexplicable thing to me is that there are two trials for people accused of murdering the demonstrators: one for El-Adly, policemen and other defendants, and another only for Mubarak. It’s the same charge so all defendants should be on the same trial.

“The way I see it, a lot of defendants will be found not guilty. I’m afraid of such an unthinkable public shock, it would make people furious. The interior ministry and the judicial system are the real enemies of the revolution and they are immune. Neither [interim Prime Minister] Essam Sharaf nor the Supreme Council of the Armed Forces is capable of influencing them.”

For his part, El-Gamal says “No one can speculate what fate Mubarak will meet. The criminal law stipulates that the punishment of deliberate manslaughter is prison with labour, or death of course. But ultimately it’s up to the court to decide.”

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