Hosni Mubarak’s defence lawyers say former president never tried to crush Egyptian protesters, but instead supported their demands
Jack Shenker in Cairo
guardian.co.uk, Tuesday 17 January 2012 18.17 GMT
For the past five months, the elderly man behind bars at New Cairo’s police academy has had to sit – or lie horizontal – as prosecutors steadily built their case against him, culminating in a dramatic demand that he be put to death by the state.
“Integrity and transparency went down the drain [because] the defendant preferred his personal interests to those of the public,” concluded lead counsel Mostafa Suleiman earlier this month, speaking with his back to the despot who held Egypt in an iron grip for 30 years.
“He deserves to end up with humiliation and indignity, from the presidential palace to the defendant’s cage, and then get the harshest penalty.”
On Tuesday, Hosni Mubarak’s fightback began. To cheers from his team of volunteer lawyers, the 83-year-old’s attorney said the image of a corrupt, bloodthirsty tyrant painted by the prosecution bore no relation to the honest, noble and above all patriotic president stretched out before them, now clad in prison overalls and following proceedings wordlessly from within a secure metal cage.
Instead, Farid el-Deeb painted an astonishing portrait of a leader who was “clean and could say no wrong”, and lambasted his courtroom adversaries for besmirching Mubarak’s family with “libel and slander”.
The prosecution’s arguments were speculation, and appealed more to public sentiment than the rule of law, insisted El-Deeb, as he laid out a seven-point defence of his client and declared the toppled dictator to be a closet revolutionary.
“When Mubarak learned about the protesters, he wanted to respond to their demands immediately, all within the law,” said El-Deeb.
“But he never attempted to crush the protests. On the contrary, he supported the protesters’ demands … There is no case against Mubarak.”
Few observers will give any credence to the idea that Mubarak – who used his vast security apparatus to brutally repress political dissent for a generation – was secretly aligned with those who sought to overthrow him.
But questions over the prosecution case are mounting, and they strike at the heart of what the “trial of the century” means to Egypt and the wider Arab world.
Mubarak, his two sons Gamal and Alaa, his former interior minister, Habib al-Adly, and six senior police officers are all in the dock, facing a range of charges. Mubarak’s one-time business associate, Hussein Salem, is being tried in absentia.
The ex-president stands accused of economic fraud and exploiting his position for personal enrichment, but the most serious charge against him is that of conspiring in the killing of protesters who were shot by police as the anti-regime uprising gathered pace in late January 2011.
Legal experts say there are three levels at which Mubarak could be found guilty. If the prosecution can prove that security forces were firing live ammunition at demonstrators then the former leader, who as president had a constitutional duty to protect the Egyptian people, could potentially receive a sentence of up to 10 years’ jail even if he was unaware of the situation.
If prosecutors can go further and establish that Mubarak did know about the killings and yet did nothing to stop them, he would be guilty of conspiracy in the murders and consequently face up to 25 years.
Finally, if that conspiracy to murder can be shown to be premeditated – in other words, if Mubarak himself gave the order – then under Egyptian law his crime may warrant the death penalty.
Through the use of autopsy reports, video evidence and witness testimony, prosecution lawyers are confident they have proved live rounds were deployed by police against protesters.
The second stage – establishing Mubarak’s knowledge of these killings – has been trickier, though statements from officials declaring that they heard Adly authorising the use of “all means necessary” to stamp out the uprising, plus testimony from post-Mubarak interior ministers that such an order could only come from the head of state, and Adly’s own insistence that he briefed the president on the unfolding security crisis, have all been used to substantiate the prosecution case. Evidence that Mubarak himself ordered the killings remains largely circumstantial though, leaving some to conclude that the death penalty is unlikely to be applied.
Both lawyers and human rights monitors say they are happy with the procedural fairness of the trial, with few complaints made against Judge Ahmed Refaat, who has promised to deliver a verdict soon after the defence rests in mid-February.
“This trial has been conducted in a normal and professional way in accordance with Egyptian law,” Khaled Abu Bakr, a legal representative for some of the victim’s families, told the Guardian. “We now have to wait for the decision of the court and when it comes we must respect it.”
But although the conduct of the case is not being called into question, its wider context certainly is. From the beginning prosecutors have struggled with the absence of key evidence, including CCTV footage from cameras stationed around Tahrir Square and crucial video and audio recordings from the central security operations room. And in his closing statement Mostafa Suleiman bemoaned the lack of co-operation from Egypt’s interior ministry and the intelligence services. Government agencies have refused to hand over critical material that could help to convict Mubarak; a demonstration, according to Abu Bakr, of just how far the former dictator’s regime remains entrenched in the corridors of power.
“What this case is exposing is the culture of official impunity and the fragility of accountability in Egypt,” said Heba Morayef, a Cairo-based researcher for Human Rights Watch. “The prosecutor has the right to order other government agencies to deliver information, and to summon officials from those agencies if they fail to co-operate. And if the prosecutor was strong and had been empowered by the revolution then he would have gone after this evidence and got it, but that hasn’t happened.
“So although the trial has been conducted with procedural fairness, and although it has the symbolic value of destroying the notion that a head of state enjoys legal immunity, the substance of the court case has been weak,” she added. “The abuses of Mubarak’s security apparatus have not been exposed by the prosecutor; it’s partly about lack of capacity but it’s also about lack of political will and, if we’re frank, lack of political power.”
Abu Bakr called this a “mentality” problem, one that wouldn’t be solved until the body of the old regime was severed, as well as the head.
The upshot has been an over-reliance by the prosecution on emotive appeals regarding Mubarak’s poisonous legacy to the country he ruled, instead of the careful presentation of concrete legal evidence to prove his guilt. Human rights figureheads, such as Gamal Eid, have accused the prosecution of placing political sentiment above the rule of law; ironically, the trial’s most salient feature could be that it ends up exemplifying the judicial system that was built up under three decades of Mubarak’s tyranny, where sensitive criminal cases were often decided according to political expediency, rather than on legal evidence.
But if Mubarak is convicted next month then, for the relatives of those who lost their lives at the hands of this elderly man’s footsoldiers, such nuances will feel largely irrelevant. “Every day they are left swinging wildly between optimism and pessimism, as the testimony lurches one way and then another,” said Hoda Nasrallah, another prosecution lawyer. “They desperately want justice – and there will be outrage not just from them but from the whole of Egyptian society if that justice isn’t delivered.”