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Q&A: Egypt uncontested

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Q&A: Egypt uncontested

Nadeen Shaker

15 May 2019

6min min read

There is a growing curtailment of democratic processes in Egypt. What are the legal and political repercussion of the latest amendments? 

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ith every electoral run in Egypt, the scale tips more on the side of controlled, authoritarian politics rather than political contestation and pluralism. In the latest referendum held on April 19–21, Egyptians voted to give President Abdel Fattah al-Sisi more executive and unprecedented judicial control as well as a longer ruling period — until 2030. 

The most transgressive amendments enshrined military dominance not only over politics, but over safeguarding civilian life, democracy, and the tenets of the constitution, to name a few, and gave the president new authority to appoint a number of judges to Egypt’s high courts. Fears abound about the erosion of judicial independence and separation of powers, the weakening of state institutions, and instituting a “president-for-life” system

Nadeen Shaker spoke with Mai El-Sadany, legal and judicial director at The Tahrir Institute For Middle East Policy, to learn about the legal and political repercussions of the latest amendments. 

How do the amendments affect or inform the electoral and political trajectory over the next few years and decades? What can we expect?

MES: They threaten to eat away at the separation of powers and deteriorate the foundations of the state. More specifically, the amendments do this by empowering the executive and the military at the expense of a weakened judiciary and legislature. 

And on the larger scale?

MES: On the macro level, the amendments will further write into the nation's foundational document many of the trends that we have begun to see across Egypt, from a deterioration in the rule of law to a conscription of the public space.

What were the political and legal contexts in which the referendum was conducted?

MES: Egypt's parliament approved the final text of the amendments on April 16, giving citizens abroad less than 72 hours and Egyptians inside the country less than 96 hours to read, understand, and make a decision on the amendments before the first day of voting. Egyptians abroad were only allowed to vote in person at one of the 140 polling centers nationwide; by depriving expats of the ability to vote by mail or have sufficient time to plan travel to the polling centers, authorities denied numerous voters the ability to participate in the process.

As the vote took place, reports of irregularities surfaced. Illegal vote buying occurred, with some citizens promised money, food supplies, or both. Though journalists were allowed access to polling centers, some reported misdirection and intimidation by authorities to discourage citizens from speaking to them. Other journalists reported being prohibited from attending the vote-tallying process. There was little to no independent monitoring of the election, as only 11 domestic NGOs and two international NGOs were reportedly authorized to oversee the process.

From a legal standpoint, how do the amendments overall affect Egypt’s constitutional and legal obligations, if at all?

MES: The amendments raise a number of constitutional concerns, particularly in light of Article 226--which states that provisions governing the reelection of the president may not be amended unless the amendment brings more guarantees.

But there were no guarantees…

MES: Yes. It is unclear how amendments that extend the lifeline of a president whose government has furthered a declining rule of law and a severe rights deterioration would meet this requirement; in fact, the amendments would call into question the country's obligations to protect the rights of its citizens. Additionally, because of the impact of the amendments on the separation of powers, constitutional articles on the independence of the judiciary, on the mandate of the House of Representatives, and on the Supreme Constitutional Court are all called into question.

What are the implications of the specific amendment regarding the Egyptian Armed Forces “safeguarding the constitution and democracy, maintaining the foundations of the state and its civilian nature, the gains of the people, and the rights and freedoms of the individual”? What specific policies, security or other, can arise as a result?

MES: The amendment that expands the authority of the Armed Forces as the "protector of the constitution," empowers the military with legal and judicial authority pertaining to the constitution that would normally be afforded to either the country's legislature or judicial bodies. This, in turn, expands the authority of the military, raises questions on whether this power is supreme to other government branches' authorities, and creates situations in which the Armed Forces could potentially determine that the constitution is not being sufficiently protected and take any measures necessary to replace entities it deems are not adhering to the constitution.

What about the involvement of military courts in civilian trials?

MES: Additionally, the amendments expand the mandate of military courts to try civilians. Initially, the constitution allowed for military trials of civilians who committed "direct attacks" against the military; however, the amendments now allow for military trials of civilians who commit any "attacks" against the military, thus expanding these courts' jurisdiction.

And in what crimes can this manifest itself?

MES: You could foresee, for example, a situation in which a citizen who criticizes the performance of the military on social media being potentially brought to trial under this vaguely-worded provision. With military courts furthering a number of due process violations, from inadequate access to counsel to allowing the admission of evidence brought about as a result of torture, this creates a severe rights crisis and eats away at the ability of citizens to access justice. 

With the president now controlling top judges' appointments, how can we expect our courtrooms or judicial system to change in the future?

MES: The amendments also empower the president to appoint the heads of numerous judicial bodies, as well as sit at the head of a “supreme council for judicial bodies and entities.” By empowering the president to select judges, the amendments create a system in which there is an incentive for judges to find in favor of the state and to become less likely to challenge state-initiated legislation or state actions in order to curry favor with authorities. While this trend already began to be entrenched as a result of the country's 2017 Judicial Authorities Law, these amendments write the concept of executive interference in judicial affairs into the country's foundational document and make it a part of the Egyptian political culture, raising serious concerns on judicial independence.

A lower key amendment was allowing women a one-fourth parliamentary quota. What larger purpose is this amendment meant to serve and what kind of reception did it get especially among women and feminists?

MES: While the amendments establish a one-fourth quota for women in [the parliament or] House of Representatives, as well as include vague provisions that obligate the government to better represent certain minorities like Christians and disabled individuals, it is unclear whether these amendments will have any impact in bringing about equality for marginalized communities. While a quota could potentially be helpful in bringing about greater representation, in the past, quotas have tended to be superficial and have not necessarily brought about better, more equitable policies for minorities like women. Time will tell.

There are different stories on the extent of dissent displayed during these elections? Was there a fair and open display of dissent? 

MES: Amid a media environment that is heavily-controlled by the state and its allies, there had been largely no space for challenges to the constitutional amendments to be discussed on air. PSAs and pro-amendment songs ran all over television channels. Banners in support of the amendments were allowed to be put up across the country, while those urging a no vote were not afforded the same space. When the Civil Democratic Movement submitted a request to protest outside of the House of Representatives to challenge the amendments, authorities cancelled the demonstration for "national security purposes." During the drafting process, tens of citizens were also arrested for expressing dissatisfaction with the performance of the government or challenging the amendments; during the vote, one individual was arrested for holding up a "No to the constitutional amendments" sign while standing outside. 

How would you explain this period that Egypt is going through since 2014?

MES: Egypt has witnessed a severe rights deterioration since 2013, including punitive use of pretrial detention and probation, increased reliance on forced disappearances and extrajudicial killings, the use of legislation to consolidate authoritarianism, and a closure of the civic space. Additionally, authorities have been unable to demonstrate the long-term, strategic vision necessary to tackle some of Egypt's more intricate economic challenges from food and water security to the population boom. The use of slash-and-burn tactics and collective punishment have been insufficient, improper in combating terrorism, while also furthering significant violations. 

What is the Washington “human rights” view of Egypt, especially as the US posture toward the region and regime violations is changing?

MES: The United States has unfortunately taken human rights out of the US-Egyptian relationship despite the fact that the ability of a country to respect its citizens' rights and to meet citizen needs, as well as to act within its own constitutional and international legal obligations, has significant implications for that country's long-term stability. Despite enjoying significant sources of leverage, the United States has failed to ask that its Egyptian ally bring to a halt its human rights abuses. This, in turn, has empowered Egyptian authorities to continue consolidating authoritarianism, all the while violating the rights of its citizens and hurting its own chances at long-term stability.

(Main image: Egypt's President and current Chairperson of the African Union, Abdel Fattah al-Sisi, takes part in a joint press conference with Senegalese President at the Presidential Palace in Dakar for an official visit, on April 12, 2019. – Seyllou/AFP/Getty Images)

The opinions expressed in this article are those of the author(s) and do not necessarily reflect the views of SAIIA or CIGI.