The International Herald Tribune Daily News
May 5 2011
By Philip Whitfield
Egypt’s justice minister, Mohamed El-Guindi, says President Hosni Mubarak faces the death penalty if convicted of ordering shooting the protesters, according to Al Ahram. Will he go to the gallows before or after the former Minister of Interior Habib El-Adly who’s caught between a rock and a hard place. The predicaments expose legal traps.
Let’s get acquainted with the law as it might suck anyone in. I might tell my daughter to pick up a goose for Holiday lunch at the grocery store. I tell her they know me. Tell them who it’s for, I say. Emma goes down to the store in Gameat el–Dowal el-Arabiya, gets the bird and shoves it in Olivia’s stroller before waltzing out of the door.
Stop thief, cries the manager. A policeman weighs in. Emma can’t speak Arabic. Olivia just giggles as they’re both hauled off in a Paddy wagon.
Summoned, I explain the situation: Emma thought by telling the checkout girl she was Mr. Phil’s daughter she was OK because she assumed I ran a tab at Metro. I said Emma was acting under orders. So if anyone is arrested it should be me. That’s right, says Emma, I tried to tell you Dad was the culprit. I was just doing what he told me to do. If I hadn’t, we would have been punished with no lunch.
The judge, however, takes a different view. He says the burden fell on Emma. She should have known the order she interpreted to mean don’t pay for goods was illicit and therefore she bore subordinate responsibility.
On the other hand, if she believed the order to be licit, she bore absolute responsibility for the theft, and furthermore three-year-old Olivia’s giggling expressed complicity and should have her pocket money rescinded. The judge orders we all get bird.
Back to the Habib El-Adly/ Hosni Mubarak case. Unfortunately for them Justice Minister El-Guindi has already recited the penalty (death) and it seems clear both accused get lynched either way they plead. If El-Adly claims he was only acting on Mubarak’s orders he’s double dead: the first time for acceptingon the order to shoot and kill; the second hanging because, like Emma, admitting the commission of an illicit act is tantamount to a guilty plea.
We hear from the same source that though they attempted to destroy the evidence – a CD recording of Ahmed Ramzy, the former head of central security, giving orders to his colleagues on January 28th to use live ammunition to kill protesters – a transcript of a garbled copy of the tape is in the bundle of evidence.
Ramzy says he’s exonerated from the crime of murder because he was ordered to enact the lethal command by El-Adly. But Ramzy is in the same sinking ship as Mubarak and El-Adly, drowning fast. So are his compadres on the rooftops who engaged their safety locks, loaded the ammunition and fired the fatal bullets.
Going up the chain of command, we turn to Mubarak. In his defense he calls allies (Gamal Mubarak and then vice President Omar Suleiman) who are on record saying they didn’t hear him give the shoot-to-kill order. It might be hard to establish who heard what and when. If Mubarak calls his witnesses, his cold case becomes red hot. The world and their mothers will be at the courthouse to hear every word Mubarak uttered in the hours leading up to his downfall.
Let’s see what the prosecution says.
Could both witnesses have been with Mubarak for every second of every hour from the start of the revolt on January 25 until February 11 – the date when Mubarak was taken into protective custody?
Witness: Certainly not.
Prosecutor: You heard Mubarak say nothing about killing people?
Prosecutor: You heard nothing?
Prosecutor: What does nothing sound like?
Prosecutor: Describe noise then.
Witness: People talking.
Prosecutor: What were they saying?
Judge and jury: Gotcha.
If the defense witnesses do spill the beans, spy central at The Mugamma with its 1,200 rooms on 14 floors will hardly be space enough to take depositions. If the snitches stick to their story guffaws will echo across Tahrir Square. The Mubarak gang is as tainted as Al Capone’s. Gyp the Blood, Bugsy Moran, Johnny Torrio and Lefty Louie could have claimed Al Capone was reverently studying scripture during the St. Valentine’s Day massacre. Even if the incredible were true, no one would have believed them.
Even if prosecution/defense tapes recorded every word inside Abdeen Palace, or wherever Mubarak was, we’re looking at a replay of the President Nixon drama: 2,371 hours of tapes that damned him into oblivion. What else might be discovered if Mubarak’s fateful last few hours of power are replayed? Mubarak’s defense falls 1) His hirelings were under his command. The commander-in-chief bears responsibility for his minions’ licit or illicit actions. 2) No one disputes that gunmen acting under orders that killed 800 people were sent down the chain of command presided over by Mubarak.
The issue is one that haunts every country after a revolution. After the turmoil the leaders of the new regime that want or are forced to restore democracy in their country are confronted with litigation regarding counterinsurgency actions taken by those trying to save their necks. To overcome the hazard of facing prosecution, many countries have tried to absolve those involved of their alleged crimes.
That doesn’t wash. International law decrees impunity from prosecution is against the statutes of the International Covenant on Civil and Political Rights ratified in 1982, which Egypt signed without reservation.
Amnesty laws are often problematic on a cost-benefit basis: Is avoiding bringing the old leadership to justice worth extending the predictable ire and increased casualties among those who want the tyrants brought to book and those that want to close the chapter? In Egypt’s the Mubarak’s would do well to wave their rights to legal aid and pay for their own arraignment and sentencing.
Ominously for Mubarak justice minister El-Guindi says the only one capable of pardoning Mubarak would be the new president, injudiciously addling: If I were the president, I will not pardon him for killing 800 martyrs.
Ergo, ipso facto (QED), case closed.
Or as we say the goose is cooked.
Philip Whitfield is a Cairo-based writer. He can be reached at email@example.com or twittered @mohendessin.