Egypt: three constitutions in four years
Crackdown on dissent makes a mockery of Egypt’s progressive constitution
For nearly two years, Egyptian photojournalist Mahmoud Abou Zeid (pictured)—known professionally as Shawkan—has been stuck in a dark, three-metre by four-metre cell with 12 other men in Cairo’s Tora prison, according to his older brother Mohammed. Security forces arrested the 27-year-old Shawkan—a contributor to publications such as Time magazine and Germany’s Die Zeit newspaper— while he was photographing the bloody dispersal of a protest camp in Cairo’s Rabaa al-Adawiya Square on August 14th 2013. He has never been formally charged with any crime. As the weeks and months have dragged on and Shawkan’s pre-trial detention has repeatedly been renewed, Mr Abou Zeid says he has watched his brother’s physical and mental health deteriorate. His family, he says, is overwhelmed by feelings of helplessness.
When asked about provisions in Egypt’s new constitution guaranteeing the right to a speedy trial and calling for detainees to be treated with dignity, Mr Abou Zeid responds with apathy: “It doesn’t matter. Why is [Shawkan] still there? There is no reason. My family doesn’t understand and the authorities can’t give us an answer.” Egyptians voted in a referendum in January 2014 to approve the country’s third constitution since its 2011 revolution. The document’s progressive wording, however, clashes with the reality of a harsh crackdown on dissent, activists say. “Do you think we’ve never had a constitution before that said good things, that talked about freedoms or human rights?” asked Tamer Fouad, a 28-year-old owner of a uniform manufacturing company in Cairo. “All the constitutions we’ve had talked about rights and freedoms, but they’ve never [been applied].”
Following the July 2013 military ouster of former Islamist president Muhammad Morsi, the revision of the country’s 2012 constitution marked the first step of a transitional roadmap laid out by then army commander— now president—Abdel Fattah al-Sisi. A government-appointed committee that excluded Islamist opposition drafted the 2014 constitution in just two months. A sweeping 98.1% of voters elected to adopt the charter, according to Egypt’s High Elections Commission. Longer than any other constitution in Egypt’s history, the charter’s 247 articles explicitly ban torture and recognise the rights of women, children and minorities, including the Nubian people of southern Egypt, who were never mentioned in previous documents. “If you look at the constitution superficially, and you do a keyword search, you will find all the good words you’d want to find,” said Mai El- Sadany, a fellow at the Tahrir Institute for Middle East Policy in Washington, DC.
“But there are really a lot of loopholes [and] vague language when talking about civil and human rights, and it’s really left up to the legislation to determine…how these rights are implemented. ” While the text is imprecise on civil and human rights, language concerning institutions such as the military, judiciary and police clearly entrenches state powers. The absence of an elected parliament to check executive authority leaves the president with the power to issue laws by decree. Historically, Egypt’s judiciary has been the source of reform and was one of the only bodies that challenged longtime autocrat Hosni Mubarak. But now, amid unceasing complaints of the violation of rights by the courts, many see the judiciary as increasingly politicised. Egypt’s judicial branch has handed down death penalties to hundreds of Muslim Brotherhood supporters in trials that last just minutes, and sentenced Mr Morsi to 20 years in prison, while dropping murder charges against former president, Hosni Mubarak.
“Most of the members of the judiciary are very much likely to interpret the constitution in a way that upholds the state, because it’s a carrot-and-stick system,” Ms El-Sadany said. “If they continue to interpret legal language that continues to entrench the power of the state, those verdicts will not be forgotten and those judges will likely stay in power and will enjoy the authority that they continue to have.” The leader of the April 6th movement, a revolutionary youth group that helped spearhead the country’s 2011 revolution, has been serving a three year prison sentence since December 2013 for organising a protest without official permission. “If we followed the constitution, Ahmed Maher would be free,” Mr Fouad said. But not all are pessimistic. “Egyptians definitely know these are their rights. That’s why 20m Egyptians went out [to vote on the constitution],” said Sherif Adeeb, a Cairo lawyer.
Mr Adeeb represents Fatima Naoot, a prominent female poet currently on trial, charged with contempt of religion after she criticised the slaughter of animals at a Muslim festival in a Facebook post. The constitution states “freedom of belief is absolute,” he said. This bolsters his conviction that the case against his client will be ruled in her favour. Yet despite Mr Adeeb’s confidence, the Egyptian media rarely discusses the constitution. Only activists and human rights advocates debate its contents. “A lot of people wanted to vote because they were told they will have a vote on the constitution, then presidential elections, then parliamentary elections, and then…things would get better,” Ms El-Sadany said. “They voted for the constitution to move the process along. I don’t think many people read it and I don’t think people look back and say, ‘This is my constitutional right you are violating.’” Despite the constitution’s flaws, others lay the blame elsewhere for the absence of freedoms.
“The problem is…with the entire legal order,” said Nathan Brown, a scholar of Middle Eastern law and politics at George Washington University in Washington, DC. “Most Egyptian laws were written by authoritarian regimes,” he said. “That shows in their text and in the way they have been implemented over the years, with so many things that Egyptians normally do potentially deemed illegal.” To apply the constitution requires a “comprehensive review of Egyptian legislation to offer firmer definitions, official accountability and reap protections”, Mr Brown said. Such a review does not seem likely, he added. Despite the crackdown on dissent and the failure of constitutional rights to materialise, others say it may be too early to judge the 2014 constitution. “We will see when the parliament is finally elected if the opposition uses articles in the constitution to question the state,” said Hussein Magdy, projects coordinator at the Cairo-based Egyptian Commission for Rights and Freedoms.
“That is when we will see if it is really a constitution or just a piece of paper.” In the meantime, photojournalist Shawkan will wait in a dark cell surrounded by Islamist supporters of a president he vehemently opposed. On February 26th, a judge renewed his pre-trial detention and refused to review evidence that he was a journalist.
