In an attempt to analyse how people regard the decision to release Hosni Mubarak, one shall find that those who supported the previous regime, and the oligarchs who benefited from it, see it as a triumph and a sign of judicial independence.
But revolutionaries who dreamt of seeing Mubarak jailed for life or facing the death penalty for his involvement in the killing of protesters during the January 25 revolt and other crimes committed during his three decades in power, including the increase of poverty, lack of social justice, good healthcare, education and other socio-economic problems, regard his release as a sign of the old regime's return, and the politicisation and corruption of the judiciary.
Regardless of which camp one belongs to, it is important to reflect on the trial, the procedures followed, the crimes he was indicted for and other matters to find out what went wrong and what can be done.
The indictments Mubarak faced constituted either minor financial offences or leadership crimes in the killing of demonstrators during the January 25 revolt. It was extremely difficult for the court to find, through the regular procedures, enough evidence to prove that he ordered the killing of the protesters. This is due to the lack of evidence provided by state institutions. The latter's cooperation was slight, either under the excuse of confidentiality, or the non-existence of information. This also goes for a lack of evidence from the security institutions to prove the involvement of top police officials in the killings, or the existence of snipers.
The case proving the real involvement of Mubarak in ordering state institutions to use brutal power to crush the uprising was weak, except on the basis of leadership. Leadership crimes are based on knowledge of events. As a result, Mubarak knew or should have known that brutality was being used against demonstrators, and he failed to stop it. Therefore, he was found guilty not for his action but rather his lack of action. This case was subject to review by the cassation court and then sent for a new trial by a different court. Yet, his release indicates he might be freed on all charges soon.
The real problem the revolution has encountered since the beginning is the lack of political will to prosecute officials of the old regime, either before revolutionary courts or through following procedures of transitional justice by promulgating special temporary laws to fill gaps in the regular criminal code. This would provide judges with a sufficient legal basis to prosecute the old guard of the previous regime for political, financial and other crimes.
At this juncture, it is crucial to review the laws or apply the 1971 constitutional provision with regard to the prosecution of the president. However, it might be pertinent to explore different avenues of transitional justice applied in countries that have gone through democratisation processes and extract relevant lessons. Mubarak and his entourage have to be prosecuted for corruption that left the country deprived of the basics for a progressive state.
It might also be pertinent to request the assistance of army chief Abdel-Fattah El-Sisi in the matter. He promised to support the revolution by cracking down on terrorism and fighting corruption in order for Egypt to become a state based on the rule of law and social justice. The political will he has shown is promising for the future and for choosing the right path for transitional justice. This is not a vendetta against the old regime but a step towards issuing judgements against them which will enable the return of stolen funds, bring back trust in the judicial system and serve as a deterrent to future rulers of the country. It is never too late to start building a new state but it is important to begin.
The writer is a Visiting Assistant Professor of International Law and International Relations at the American University in Cairo