When the retrial of Hosni Mubarak began in April the defendant appeared in court smiling and waving to supporters from inside his cage. It was a marked change from the ousted president's appearance at earlier hearings when he looked sullen and depressed. Why the change? Many expected that after Mohamed Morsi, who hails from Mubarak's arch rival the Muslim Brotherhood, was elected and a new constitution endorsed, every effort would be made to tighten the screws on Mubarak and the diehards of his regime. They were wrong. Mubarak's appeal against the 25-year sentence delivered after his first trial on charges of graft and ordering the police to kill peaceful protesters during the 18-day 25 January Revolution was accepted and a re-trial ordered. The court now responsible for hearing the case against Mubarak even ordered that he and his two sons be released from prison “because the maximum period of their preventive detention has expired”. Other courts trying Mubarak and his two sons on charges of illicit gains also ordered last week that they be released from prison. On 22 November 2012, five months after he was elected, Morsi formed a fact-finding committee chaired by judge Omar Marwan which prepared an 800-page report which Muslim Brotherhood officials claim includes much evidence against Mubarak. Mohamed Touson, chairman of the Shura Council's Legislative and Constitutional Affairs Committee and a leading official of the Muslim Brotherhood's Freedom and Justice Party (FJP), told parliamentary reporters two weeks ago that “the new evidence is shocking and will surely shake the foundations of Mubarak's trial”. The fact-finding committee's report remains secret. The presidency has made no details public, though parts of it were leaked to the British newspaper The Guardian. Rather than confirm new evidence against Mubarak the leaks detailed the army's involvement in human rights abuses, including the torture, forced disappearance and murder of protesters. It also said “security forces had official approval to fire live rounds at protesters in Suez”. After the fact-finding report was delivered by prosecutors to the judge presiding over the retrial of Mubarak he adjourned hearings until 6 July “because lawyers of Mubarak and other defendants said they needed time to review the new documents”. Gamal Zahran, a professor of political science and former independent MP, does not expect the 800-page report to change the course of the trial. “Do not forget that Marwan prepared an earlier report about the bloody events of 25 January which the courts decided failed to incriminate Mubarak or other leading figures in his regime.” In addition to the fact finding committee Morsi also mooted the possibility of “revolutionary courts” to try figures from the Mubarak-era. His government, led by Hisham Kandil, preferred to broker “reconciliation” deals with Mubarak-era officials, especially the super-rich business tycoons. Businessmen like Rachid Mohamed Rachid, a former minister of trade, and Ahmed Al-Maghrabi, a former minister of housing should, argue Muslim Brotherhood officials, have all charges dropped “as long as they are found not guilty of killing protesters” and agree to repay any illicit gains. The courts have already ordered the release of several leading officials of the Mubarak regime. They include Safwat Al-Sherif, secretary-general of Mubarak's defunct ruling National Democratic Party; Fathi Sorour, Mubarak's longest-serving speaker of parliament; Zakaria Azmi, chief of Mubarak's presidential staff; and Ahmed Nazif, a former prime minister under Mubarak's rule. Leniency towards the old regime in the courts is counterbalanced by a stronger spotlight on some members of the new regime. On 23 June Ismailia's Appeals Court accused Hamas and the Lebanese Shia party of Hizbullah of infiltrating Egyptian borders during the early days of the January Revolution to spread chaos, storm prisons and release Muslim Brotherhood figures, including Mohamed Morsi. Presiding Judge Khaled Mahgoub accused the Brotherhood of collaborating with Hamas to spread havoc in Egypt and named Mohamed Morsi as one of 34 Brotherhood officials who were detained by the former state security apparatus on charges of spying. Mahgoub asked prosecutors to question Morsi and other leading Brotherhood officials including Saad Al-Husseini; governor of Kafr Al-Sheikh; Essam Al-Erian, parliamentary spokesman of the FJP; and Saad Al-Katatni, former speaker of the People's Assembly. Mahgoub said intelligence officials had given evidence that all the above had collaborated with Hamas to exploit the protests against Mubarak in the Brotherhood's interests. “These accusations,” says Zahran, “will be used by Mubarak's lawyers to claim Mubarak and former Interior Ministry officials were not involved in killing protesters but that foreign elements, including Hamas and Hizbullah, masterminded the killing of protesters in Tahrir Square, the release of prisoners and the torching of police stations during the early days of the revolution.” Al-Mahgoub's accusations could also be used to strip Morsi of legitimacy, says Shawki Al-Sayed, lawyer of former presidential candidate Ahmed Shafik. “If Morsi was detained on spying charges it means that he lied when he submitted his candidacy to the Presidential Election Commission. He never mentioned anything about his detention before the revolution or his escape from prison.” Zahran believes that Al-Mahgoub's accusations have had a negative impact on the image of both Morsi and the Muslim Brotherhood. “Most ordinary citizens now believe that it was a mistake to elect Morsi as president. They feel they are the victims of a conspiracy between the Muslim Brotherhood and Hamas,” he says. In response to Mahgoub's accusations Morsi issued a brief statement in which he emphasised that “the constitution does not allow that the president be interrogated by prosecutors”. Brotherhood officials, meanwhile, insist Al-Mahgoub's accusations are politicised, and stress many judges remain loyal to the former regime.
