Summary: Arab Digest continues our interrogation of the 3 July 2013 coup with an analysis of Sisi’s ‘legal’ justifications for his rule by dictatorship.
We thank Atef Said for today’s newsletter. He is Assistant Professor of Sociology, University of Illinois Chicago. Before transitioning to academia Atef was a human rights attorney and researcher in Egypt from 1995 to 2004. He is currently putting the final touches to his latest book, Revolution Squared: The Egyptian Uprising of 2011 Between Historical Possibilities and Counter-Revolutionary Containments (Duke University Press).
“We can put a shelter anywhere within two days, even at the path to the military unit, not at the [exact] place… and a separate door with ‘Ministry of Interior’ written on it or something like that.” A voice interrupts saying: “Guys – we just have to build a building!”
The voices are attributed to military generals, leaked conversations that seemed to take place in the months after the military coup of July 3 2013. The recordings surfaced and aired on 4 December 2014. The voices were authenticated by JP French Associates, a speech and acoustics laboratory.
In early 2014, Mohamed Morsi, Egypt’s ousted president was transferred to Tora Prison where his family and lawyers were denied access to him. The leaked recording revealed that Morsi had previously been detained in a military naval base for a few months with no public knowledge of his location. Before his appearance in Tora, Morsi was supposed to be in a prison run by the Ministry of Interior, under the supervision of the Egyptian prosecution and Egyptian judiciary. But he wasn’t and only some generals knew his whereabouts. When he turned up in Tora, Morsi’s lawyers not only demanded visitation rights but also argued that his previous detention was illegal thus jeopardising the legality of his arrest and the trial he was facing. In response the generals in the recordings seemed to be discussing some solutions to these legal challenges, such as instructing the minister of interior to issue a document to justify Morsi’s detention retrospectively or even knocking up a building at the naval base and calling it a jail managed by the ministry of interior.
The story sums up how the military leaders in Egypt were thinking about law and legality in the aftermath of the coup. In the years that have followed, the generals’ contempt for anything related to accountability and the rule of law has been much on display: a new constitution was written and enacted in 2014, presidential election held in the same year, in 2018 the orchestrator of the coup, Abdel Fattah El-Sisi, was re-elected and the following year a constitutional amendment took place to allow him to stay in power beyond two terms and perhaps until 2034. Ten years on the only rule in Egypt in relation to the law since 2013 is the absence of the rule of law.
The goal of this article is to make sense of this lawlessness. But what is lawlessness? Merriam-Webster dictionary defines lawlessness as a state in which there is widespread wrongdoing and disregard for rules and authority. By using the word lawlessness I do not suggest that Egypt under the generals’ rule has no laws rather what it has is the presence of widespread and systemic contempt for the rule of law. The de facto law of the land is counterrevolutionary logic driven by the wishes of the “divine leader.”
Before providing some explanations for this state of lawlessness, allow me a brief summary of some examples of the transformations that took place to the legal and judicial system in Egypt in the aftermath of the coup. Not only did the president amend the constitution to expand executive power in 2019 but his counterrevolutionary regime invested in expanding its grip over the judiciary and extending a despotic legal apparatus. As Amr Hamzawy observed Sisi has been using “the law as a tool to restore tyranny.” In April 2017 his regime enacted a new law of Judicial Bodies in Egypt (Law No 13 of 2017.) The law enables the executive branch – represented by the president – to encircle the judiciary and grants the presidency the power to appoint key judges. It also allows Sisi to appoint top judges, ignoring historical and legal tradition according to which judges were nominated by their courts’ assemblies with the president only then selecting their top choices. But even before these legal changes the regime had dismissed judges who condemned the coup in public. Sisi also expanded the security screening before hiring prosecutors; during interviews candidates are asked directly about their view of the president, the Muslim Brotherhood and the coup regime. The prosecutors are Egypt’s future judges. These new steps ensure the hiring of regime loyalists to Egypt’s judiciary. A significant part of restricting the judicial system is expanding the jurisdiction of military courts and granting senior military officers immunity from any crimes committed during the events of the coup and the transitional period in its aftermath. Sisi also dared to appoint a military general and former military judge to the Egyptian Supreme Court. In addition to these changes, the coup regime dramatically enacted an arsenal of despotic laws to criminalise dissent in the street and in virtual spaces, such as the protest law (Law No. 107/2013 enacted under the interim president then approved by the Sisi regime), amending the penal code, enacting a new anti-terror law and amending the criminal procedural law. These changes used broad definition of terrorism to limit freedom of speech and to expand pre-trial detention to almost two years, among other things.
The counterrevolution’s goals
What are the counter-revolution’s goals with respect to these changes? Legal scholars often distinguish between rule of law compared to rule by law. The latter is the case when authorities act above the law which is only meant to be applied to citizens and not to those who rule them. As mentioned earlier, lawlessness does not mean the complete absence of laws but refers to widespread disregard of laws. Rule by law and lawlessness are not opposed to each other in the case of Egypt’s military regime. A brief examination of the multiple and contradictory goals of the counterrevolution in relation to laws explain how this rule by law and lawlessness work. I propose that counter-revolution has four goals in expanding its grip of legal and judicial apparatuses. These are: 1) curtailing dissent, through expanding criminalisation of protest and of cybercrimes with some activists detained in the last several years charged with spreading false news in social media posts; 2) revenge for the January revolution with tens of thousands of Egyptian youth arbitrarily detained and held without trial. According to estimates of human rights groups, the number of political prisoners in Egypt has reached to no less than 60,000; 3) protecting police and military officers from charges for crimes committed during the events of the revolution and the coup. In more than one incident, Sisi explicitly told security officers that the regime would protect them against any allegations of crime they committed, especially in the crushing of dissent; and 4) prolonging the state of exception. Under the pretext of saving the state and combating terrorism, the Sisi regime has expanded the definition of terrorism to include nearly all forms of dissent. Indeed, terrorism has been a serious challenge for the state and many innocent victims were lost in terrorist attacks. However, because the state has accused tens of thousands of politicians and young activists of terrorism, the charge has lost its credibility while state-endorsed extrajudicial killings have expanded dramatically. As one observer suggests, the regime is benefiting from using terrorism as an excuse to expand its grip and help Sisi stay in power as the saviour of Egypt and defender of its security.
Three foundational moments
The current Egyptian Constitution was passed in a referendum in January 2014. In more than one instance, President Sisi expressed his frustration with the constitution. For example on September 14 2014, he stated that the constitution gave the parliament wider powers than the president out of what he called “good will” but that countries cannot be built with good intentions. Regardless of the question of intention, if the constitution is not the higher law of the land in Egypt, what are the real foundational moments, upon which the coup regime is based? There are three moments that reflect the real logic of governance in Egypt in the aftermath of the coup. These are: 1) the military coup itself; 2) the “public” mandate that was given to Sisi and the military to combat terrorism on July 26 2013, and 3) the Rabaa Massacre on 14 August 2013.
On the day of the coup, on the surface, Sisi acted as a leader of a coalition to remove then President Morsi. Sisi’s de facto power that day was based on his control of the military and of the coercive apparatus. While the so-called June 30th coalition gave Sisi the cover for his coup, the key prerequisite was Sisi’s control of the military. In a short span of time he isolated and betrayed the so-called June 30th coalition that had supported him in the overthrow of a democratically elected president while he retained his grip on the repressive apparatus. Below the surface, a coup is an illegal and overt attempt by the military or other government elites to unseat an incumbent leader. A coup is a coup.
As for the “public” mandate on July 23, 2013, Sisi asked the people to rally to his side and the military to combat violence and terrorism, implying that the supporters of the ousted president would carry out terrorist acts in Egypt. In response to Sisi’s request, on July 26 2013, tens of thousands rallied in Tahrir, once a revolutionary icon, carrying images of Sisi and expressing their trust of the military. This so-called popular mandate was used to justify acts of aggression against Muslim Brotherhood supporters and the mandate was considered the real basis of legitimacy of the coup regime. At the time, Egypt had an interim president. But it was Sisi, the military and the security leaders who were presented as the true rulers of Egypt and the guardians of the state. One possible way to look at this mandate is that it was an extralegal authorisation, where the public simply gave up their sovereignty to Sisi and the military to confront an elusive enemy called terrorism which only Sisi and the military could identify.
Thirdly, on August 14 2013, the Egyptian police and armed forces under Abdel Fattah el-Sisi raided two camps of protesters in Cairo, mostly supporters of the ousted president. One camp was located near Cairo University in Giza, at al-Nahda Square, and the second is in Rabaa Square, in front of Rabaa Al-Adawiya Mosque, located on the northern edge of Nasr City in eastern Cairo. The police and soldiers removed the encampments by force using live ammunition. Human Rights Watch documented 817 people killed in the Rabaa dispersal, and 87 in al-Nahda Square. Human Rights Watch also described it as a probable crime against humanity. The Rabaa Massacre is a case of a mass extrajudicial killing par excellence. The common thread in these foundational moments of the Sisi regime in Egypt is the lack of adherence to any form of legality. They also entail providing Sisi and the military with a carte blanche to use force without accountability.
No republic without rule of law!
The bottom line is that in Egypt’s military rule, ideas of legality and legitimacy are really meaningless with the military leaders always understanding that since the 1952 overthrow of King Farouk they are the anchor of the state, they own the state and the state cannot rule them since the state is their property.
In the context of the ongoing efforts by the counterrevolutionary regime of Sisi to build a new republic in Egypt, embodied by his project of a new administrative capital, it is worth emphasising here that true republics are not build on coercion or based on the vaunting ambition of a single person. The adherence to the rule of law and a constitutional form of governance are minimal requirements for the formation of true republics. Ten years after the military coup of July 3 2013 Egypt is ruled by the logics of the coup, the mandate and the massacre, none of which embrace any sense of accountability and legality. Someday in the near future, Egyptians will establish their own true new republic based on ideas of bread, freedom, human dignity and social justice.
We conclude our Egypt week analysing the 3 July 2013 coup tomorrow with Maged Mandour’s assessment of how Sisi’s rule has damaged the Egyptian economy and a powerful photo essay by Hossam Hamalawy.