A death knell has likely sounded for Egypt's efforts to uncover and repatriate money misappropriated by former Mubarak regime officials with the recent release of deposed former president Hosni Mubarak, cleared of the remaining corruption charges levied against him following his 2011 ouster. Over recent weeks, the political will necessary for such recoveries has evaporated in Egypt, and without underlying findings of corruption made by the Egyptian judiciary, money suspected to have been accumulated at the Egyptian public's expense will likely never find its way back to the national treasury. To date, over $800 million have been frozen internationally in England and Switzerland, and key forensic information has been uncovered by numerous international organisations and governments that may potentially assist in uncovering further sums. However, unfortunately the post-2011 efforts to locate and repatriate stolen assets to Egypt now appear to have been a wasted exercise that will bear no real fruit for the Egyptian people. Given the frenetic pace of the recent political events in Egypt, it is important to reacquaint oneself with the nature of the state-wide corruption that existed under Mubarak. During Mubarak's 30-year rule, dozens of high-level officials and connected businessmen ascended the ranks of the Egyptian wealthy. This was especially true for former president Mubarak, who rose from modest beginnings to acquire a net worth commonly estimated to total several billion dollars. During Mubarak's rule, the oligarchy successfully managed to convert much of Egypt's public-sector economy into private-sector wealth, both by direct acquisition and by brokering the sale of government-owned industries and properties at derisively low prices. Mubarak and his crew also acquired, at practically no cost, substantial portions of prime Egyptian land in Sinai, as well as prime agricultural land elsewhere, which they then utilised for commercial and industrial projects. Thus, under Mubarak's rule, much of Egypt's national wealth was converted into private wealth, most of which is believed to have been transferred abroad. Neither the transitional post-revolution government, nor the Muslim Brotherhood government headed by deposed former president Mohamed Morsi, took the proper steps to repatriate these funds back to the Egyptian populace during their brief stints in power. In the period following Mubarak's removal from office in 2011, many legal observers observed that the public prosecution and judiciary appeared to be lethargic in their administration of Mubarak and his associates' corruption trials, failing to begin to take the necessary measures that would have allowed them to be successful in recovering assets from abroad. The interim government, rumoured to be staffed with Mubarak loyalists, appeared to be nervous about mounting an all-out assault on moneys bilked from the Egyptians under Mubarak's tenure for fear of casting too wide a net and implicating their own economic interests. The Brotherhood's failures, however, are more difficult to explain, given the group's apparent zeal to score political points against what was widely regarded as a corrupt ex-regime. Mounting a proper assault on the assets of members of this former regime would likely have been well received and would have been a clear path to some measure of political success. However, the opportunity never materialised and the process that the Brotherhood government oversaw completely stagnated. The asset-recovery failures of the Muslim Brotherhood exemplify what went wrong during Morsi's tenure on a broader scale, as they are illustrative of the high degree of dysfunction within the government. The problems were multiple. First, there were elements within the government that harboured a deep desire to see Morsi's government fail. The dysfunction was also apparent in numerous reports of Illicit Gains Authority and Central Bank officials refusing to cooperate with Morsi-appointed officials, some even going so far as to refuse multiple requests for information-sharing from ministers appointed to oversee the asset-recovery process. This was fatal to Egypt's efforts, as without this information, Egypt was unable to begin the laborious process of demonstrating that the moneys frozen abroad were the fruits of corruption. Next, there was a fundamental mistrust of international actors that permeated the highest levels of Morsi's cabinet. Rather than seriously engage the international processes necessary for asset-recovery, curiously the Morsi government chose to informally pursue back-room deals with some of Mubarak's circle, such as businessman Hussein Salem, without first conducting the necessary forensic investigations and properly considering the various international legal issues necessary to make such discussions worthwhile. Additionally, there was a basic inability to grasp the highly technical nuances of what needed to be done to recover these funds by Morsi's government. Routinely, Morsi-appointed officials would issue public denunciations of foreign officials for not simply turning the frozen funds back over to Egypt. This indicated a certain naiveté concerning the process, as the Egyptian officials conflated the process of locating and freezing potentially suspicious funds with that of ultimately proving that the funds were illicit. Most egregious of all, however, was the inappropriate decision to task the kasb gheir al-mashrou, the Illicit Gains Authority, with performing the underlying investigations into uncovering the corrupt funds. This decision baffled observers as any findings emanating from this agency would not have received recognition in the international legal community due to their lack of necessary procedural safeguards. Specifically, the Illicit Gains Authority operated by reversing the burden of proof for the person under investigation, making that person responsible for proving the legitimacy of his or her assets. Due to this reversal being a fundamental due process violation, in violation of the International Covenant on Civil and Political Rights and the European Convention on Human Rights, any findings of corruption based on these investigations would have been unenforceable internationally. That this agency was made to oversee the investigation process indicated a clear lack of understanding of the complexities of the international legal system on the part of the Morsi government. Today, the political will to recover the misappropriated assets has largely evaporated, as Mubarak and his circle's excesses appear to have been forgiven by those disaffected by recent Muslim Brotherhood rule. The subject of asset-recovery has also, quite understandably, been given minimal importance by the besieged Muslim Brotherhood, currently undergoing an existential struggle to survive the present impasse with the military. In all likelihood, the window for such recovery has now closed as asset-recovery is a highly technical process requiring substantial resources and a high degree of political will. Given the current state of affairs in Egypt, the issue of asset-recovery is not likely to be an issue anyone will find worth fighting for. The writer is a board member of the Egyptian American Rule of Law Association (www.earla.org) and an associate at Lewis Baach PLLC, specialising in international dispute resolution and international asset tracing and investigation.
