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Egypt's Mubarak faces retrial amid difficult political circumstances
Over two years after his departure from politics, Egypt's Hosni Mubarak will be re-tried on charges of 'failing to stop the killing of protestors' who took part in the revolution that toppled him
Dina Ezzat , Friday 12 Apr 2013
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Mubarak
File photo: Egypt's ex-President Hosni Mubarak lays on a gurney inside a barred cage in the police academy courthouse in Cairo, Egypt, Saturday, June 2, 2012. (Photo: AP)

On Saturday, former president Hosni Mubarak will be retried before a criminal court for the killing of demonstrators during the 18 days of Egypt's 25 January 2011 revolution.

Mubarak was convicted in June 2012 for failing to protect peaceful protesters, and slapped with a life imprisonment sentence.

In January, 2013, an appeal court ordered a retrial for Mubarak and co-defendants due to procedural irregularities in the initial trial.

The litigation process, during which the public got to see their former president – who ruled the country for three decades – taken into court on a stretcher - was marked by endless speculation about the waning health of an old and frail cancer patient whose health condition was all but a military secret during his rule.

Mubarak was reported to have died several times. The former president is, however, still holding up.

"He had his ups and downs, but he has improved slightly recently as he feels that his legacy is being done justice to," said one lady close to the ousted head of state's family.

During the last few months, as outrage grows over the performance of Egypt's first-ever freely-elected president, some of Mubarak's biggest critics have suggested that a fair comparison between the rule of Morsi and that of Mubarak might well favour the latter.

"We are aware that the anti-Mubarak sentiment now is less than it used to be, but our assessment is that if Mubarak was to be freed on Saturday there would be considerable anger from the political forces who have the capacity to garner supporters and start wide demonstrations," said a government official who monitors public opinion.

There is a legal debate among lawyers on whether or not the judge who would start the Mubarak retrial on Saturday has the right to acquit him or not. Lawyers agree that, having been stripped of his liberty for two years, Mubarak is now eligible to be freed pending retrial.

"A two-year temporary imprisonment is the maximum for a citizen charged with a crime and sentenced to life imprisonment. By law, the judge should allow him to go home on Saturday if he is not being held on other charges," explained Hoda Nasrallah, a lawyer for the Egyptian Initiative for Personal Rights.

On Friday, Mubarak ended his two-year temporary custody and the case is to be litigated on 13 April.

As such, Nasrallah explained, Mubarak should be attending at the court of law, but not behind bars. This will not be the case, however, because he was already ordered into 15-day custody over new charges of embezzling state funds allocated for the restoration of presidential palaces. "Mubarak will still be there, behind bars," she said.

According to an official source who is following the prosecution's examination of the embezzlement charges, "it might well be the case that when the 15-day custody ends in nine days from the start of the retrial, Mubarak will be slapped with another 15-day custody. "Let's face it: there is a political concern here that cannot be overlooked. Such matters are obviously taken into consideration."

For Nasrallah, what counts most from the point of view of "rights" is for justice to be done. "The case file is full of evidence that deserves a closer and more careful look from the court of law that will start examining the case on Saturday. Most of this material was already there during the first trial, but was not considered by the court," she said.

According to Nasrallah, it is too optimistic to expect police to provide sufficient evidence in a case in which the minister of interior was first charged before Mubarak was later charged as well. However, she added, the file includes some solid evidence and testimonies, in addition to new evidence that has been provided, which deserves the thorough attention of the court.

Nasrallah says it is hard to predict the course of the retrial or the time it will take. It is indeed hard to decide whether or not Mubarak will be re-indicted, especially since the charges made before the court that had tried Mubarak the first time were amended from "implication in the killing of demonstrators" to "failing to take the necessary measures to prevent the killing of demonstrators."

One thing Nasralh is sure of: if Mubarak is re-indicted, he will appeal.

According to lawyer and activist Mahmoud Kandil, what is really at stake is the matter of transitional justice "for which one sees no political will."

Several attempts to introduce transitional justice schemes have failed since Mubarak was toppled over two years ago. Today, Kandil noted, it seems that what the regime is interested in is reaching separate deals with key businessmen and regime figures by which the latter would pay back some of the money they were accused of unfairly acquiring in return for their freedom.

"This is not transitional justice. Transitional justice requires a process that starts with admitting wrongdoing and ends with reconciliation," Kandil said.

Mubarak had already paid back a few million pounds that he was charged with having unlawfully taken. Today, lawyers familiar with his case say that the ex-president's family is still willing to pay back more money if he is freed, but they know that ultimately this is a political decision that the Muslim Brotherhood-led government may not yet be willing to take.

Along with charges of "failing to take measures to stop the killing of demonstrators," Mubarak was charged with ordering the illicit sale of natural gas to Israel at below-market prices and of unlawfully acquiring state funds. He was acquitted of the first charge and paid back money to make good on the second.

When Mubarak was first imprisoned, several Arab Gulf countries offered to pay a few billion dollars into Egypt's state coffers to help offset the economic slowdown that followed the revolution if the former dictator was released from jail.

Under public pressure, however, Egypt's then-ruling Supreme Military Council declined the offer.

The offer was made again to President Morsi during the first week of his presidency, but it was again turned down for the same reason: fears of widespread public anger.

There is no clear assessment of the otherwise visible declining dislike of Mubarak, two years after he was removed from office.





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