Two noteworthy processes appear to be underway in Egypt, both of which have so far eluded the focus of most analyses and commentary on the country.  On the one hand, there has been discussion lately in the Shura Council (currently the country’s legislative body) of passing a “transitional justice law” that would supposedly result in the formation of a truth commission and “special courts,” to investigate government agencies, such as the Ministry of the Interior and the Central Bank. On the other hand, the government of Mohamed Morsi has been taking steps to “reconcile” with members of the Mubarak regime and businessmen associated with it—some of whom have fled the country or are serving sentences in prison. These two processes could potentially have a significant impact on the nature of Egypt’s political structure for some time to come.

The language used by the Shura Council on the “transitional justice law” has been one of necessity: to help Egypt “avoid many catastrophes and political instability”ⁱ. But it seems that lawmakers are repeating the chronic problem with transitional justice; the rush to pass such legislature based on the assumption that a transition has, already occurred. Since February 11, 2011 (the day Mubarak stepped down), this temptation has been there on the part of those interested in transitional justice, both internationally and domestically, to advocate for its application. As Egypt was now “in transition,” it followed that transitional justice was needed to safely guide the country to the stable, prosperous shores of democracy. Ezz el-din El-Koumi, one of the Shura Council members working on the law, stated in an interview that transitional justice would bring to an end the “reasons people have to protest.” This is an invariably short sighted way of approaching the issue. 

A major problem with transitional justice lies in the way it condenses long, complex histories of repression into a single moment of rupture, the transition. Thus, any violence or discontent that continues after the delineated time can be portrayed as disruptive to the democratization process. The recent and ongoing events in Egypt—particularly in the cities along the Suez Canal—and the continuing abuses committed by the security forces suggest that  “transition” (so neatly defined) is not a reality. It is erroneous to assume that mass political upheavals have fixed points in time; going from the large social movement of an “uprising” to the moment of political change of the  “revolution” to a period of “democratic transition”—which,  finally ends, in a democratic future.

Where then, would this leave the proposed “transitional justice law”? It is not far-fetched to argue that it will largely be irrelevant. Last month, Minister of Justice Ahmed Mekki denied that police torture was systematic and that any outside attempts to reform the Ministry of the Interior were meant to destabilize the country. The unwillingness of the current government to engage seriously with security sector reform or vetting—key aspects of transitional justice—,would leave any such legislature meaningless. The government clearly lacks control over the police, and appears apathetic to fully push for such control, content instead to allow for a kind of “zone of impunity”ⁱⁱ  when it comes to the security sector. Furthermore, the protests in Port Said, Suez, Mansoura, and elsewhere—as well as the declining electoral turnouts—point to the fact that there is a large segment of the population that has still not agreed to be governed by the same modes of authority as under Mubarak. A 'top-down' transitional justice process is unlikely to have much effect given the near-complete breakdown of trust at the state-society level.

Concurrently, the government is also going ahead with its policy of reconciling with a number of figures of the Mubarak era (known locally as filul, or “remnants”). The policy would grant immunity from imprisonment and for many high-profile businessmen associated with the former regime—including prominent Mubarak ally Hussein Salem and ex-Minister for Trade and Industry Rachid Mohamed Rachid. The discourse surrounding this reconciliation has been particularly interesting. The current Minister of Trade Hatem Saleh stated on January 31 during an official visit to Germany that  “It is not true that the former regime was toppled with the departure of Mubarak [...] We are all Mubarak, over 30 years a piece of his regime became embedded in all of us.” Justice Minister Mekki was also quoted as saying “There is no such thing as figures of the former regime; they are called investors and businessmen.”

Two points can be ascertained here. First, there is an apparent attempt to shift attention away from the economic policies of Mubarak and towards the population as a whole; since Mubarak was corrupt and was in power for so long, it is implied that the whole of society must be corrupt in some way. The policies, individuals, and networks that created, reinforced, and benefited from corruption are therefore not at fault, and so reconciling with them is, in the words of the minister of trade, “the right thing to do.” Second, the policy links to the government’s resistance to reforming the security sector. There is perhaps a real belief from within the current government that the regime did not completely collapse, but instead of attempting to take full control over it, it appears to be using the “market-friendly reconciliation” (that is, prioritizing reconciliation with those who control the business sector) in order to appropriateparts of it—the economic element of it, while ignoring the security element. This is unsustainable, and allowing the same structures to operate unexamined sends a clear message that justice can be forgone for the right price—which risks fuelling more violence in the future.

There have also been many references to the South African experience—apparently inspiredby the country's process of offering amnesty in exchange for full disclosures. A prominent member of the Muslim Brotherhood, Khairat El-Shater, directly cited South African-style amnesty as a potential government policy in a December press conference. South Africa does indeed dominate discussions on transitional justice and reconciliation, but Egyptian officials should be wary of adopting the South African model. There is a high possibility that, like South Africaⁱⁱⁱ , discontinuities will arise between a population's conception of justice and a state attempting to consolidate itself by achieving reconciliation. Howard Varney, who worked with South Africa's Truth and Reconciliation Commission (TRC), recently noted that the truth-for-amnesty policy inevitably failed to provide justice to the victims of Apartheid.

This is what the current government in Egypt needs to understand. Before attempting any process of reconciliation or transitional justice, there must be first be a basic understanding of how Egyptians conceive of some very fundamental issues; justice and equality, for example—how the population experienced corruption and perceived their own lack of dignity. Enforcing amnesty on the basis of the need for money would leave many of the structural reasons behind the January Revolution unaddressed. Furthermore, any such process must beparticipatory and inclusive of victims, their families and support groups, civil society organizations, and various marginalized communities in order to realize a fairer system of power and governance. 

i) Attributed to Ehab El-Kharrat, President of the Human Rights Panel in the Shura Council. Television interview ONTV, http://www.el-balad.com/407328 <Last Accessed 12 March 2013> 

ii) Sriram, Chandra and Ross, Amy. 'Geographies of Crime and Justice: Contemporary Transitional Justice and the Creation of 'Zones of Impunity''. International Journal of Transitional Justice, (2007) 1 (1): 45-65   

iii) See Wilson, Richard. The Politics of Truth and Reconciliation in South Africa: Legitimizing the Post-Apartheid State. Cambridge: Cambridge University Press, 2001

First published here on 19 March 2013.