Moving Toward a Civilian-led Egyptian Government

Many Egyptians, despite having great pride in the armed forces, dream of the day when the military no longer rules society.  To do so, they must build the power of civilian authorities to exercise control over the military. To begin this process, they must put in place a constitution that institutionalizes democracy, assures the rights of minorities and guarantees civilian control of the military.

The revolution, which was sparked by Egyptian youth, led the military to play a more overt role in governing Egypt.  In fact, the military had been in control of the country since it took power from the monarchy in 1952. Nasser, Sadat and Mubarak all came from the military, and many Government leaders either had military backgrounds or were selected by the military.

Most Egyptians have faith that the Supreme Council of the Armed Forces (SCAF) will facilitate the election of a new parliament and president.  Such faith is not based on modern Egyptian history, however. Egyptians believed that the military would cede power to a civilian government in 1952, but Nasser took power instead.  This time, the military is more likely to step aside, for two important reasons:

1. It has built its power through control of major parts of the economy, including industry and land, so it has little need to control government directly as well.

2. Through its massive military assistance program, the US Government has trained many leaders to understand the role of the military in a democratic society. Some Egyptians believe that the US pressured the Egyptian military into removing Mubarak and pledging to transfer power to a civilian government.

The underpinning of any modern state is its constitution or set of basic laws.  Egypt has had many constitutions over the last 150 years. The importance of constitutions has been diminished in the last 60 years due to extensive periods of time under emergency law, when many constitutional rights were set aside. Nevertheless, Egypt can only begin the transition to a civilian-led state by putting into place a new or significantly amended constitution.  Moreover, Egyptians must make sustained efforts to enforce and defend their constitution.

Constitutions represent the vision of a people for their society, state and government.  So far, Egyptians have been unable to begin the debate that leads to a common vision. Instead, they have paid more attention to casting off the baggage from the past.  After the departure of Mubarak, the Coalition of Revolutionary Youth negotiated, both around the table and at Tahrir Square, a set of demands. These demands included cancellation of the state of emergency; release of political prisoners; cancellation of the constitution; dissolution of the parliament and local popular councils; dissolution of the ruling National Democratic Party and State Security; and enforcement of judicial decisions. The Youth demanded a transitional presidential council with civil and military representatives and a credible transitional government prior to parliamentary and presidential elections. During the transition period, they expected greater freedom for political parties, stronger political rights and increased freedom of association. These rights would be enshrined in a new constitution that reduces the powers of the President, strengthens separation of power and increases the fairness of elections.
 
The SCAF, demonstrating its interest in expediting the transfer of power to an elected government, appointed a commission to propose constitutional amendments that would allow an early election of a parliament and president.  In a major break from the past, it included a Muslim Brotherhood leader in the committee. The committee proposed eight amendments, and the SCAF gave the population only three weeks to review them before voting them up or down in a referendum. 
 
The amendments made it more difficult to proclaim and maintain a state of emergency, limited the presidency to at most two four-year terms, required that "he" not be married to a non-Egyptian, strengthened judicial supervision of elections, required the president to appoint a deputy, provided easier access to presidential elections by candidates and established a commission to draft a new constitution following the parliamentary election.

Egyptians did not take advantage of the review period to analyze and debate the implications of each of the amendments.  Instead, they divided into pro- and anti-camps, based on whether they saw the referendum as increasing or hurting their chances of winning the parliamentary and presidential elections.  The revolutionary youth, the Coptic Church and many civil society groups led a campaign to vote no, based on the weakness of checks on executive authority and the fear that the Muslim Brotherhood or remnants of the National Democratic Party would win early elections. The MB and the NDP were successful in gaining the support of the population for early elections, as the referendum was approved by 77% of the 18.3 million valid votes. 

The SCAF has set parliamentary elections for September 2011 and presidential elections for November 2011, although these dates are not fixed. According to one of the approved constitutional amendments, the president and parliament will appoint a 100-member constituent assembly within six months of elections to rewrite the constitution over the course of a subsequent six-month period, which would be approved or disapproved through a referendum.

It is essential now for Egyptians to begin the profound public debate about the type of post-revolutionary society, state and government they envision and how a new constitution would enable them to achieve these goals.  Such a task is difficult, given the need to also deal with the past, develop political parties and put in place the rules and safeguards for free and fair elections.  However, delaying such a discussion will empower those forces already dominating society, such as the military, the remnants of state security, the Muslim Brotherhood, elite businesspeople and remnants of the National Democratic Party.  The solidarity among groups that participated in the Tahrir Square uprising must be maintained for Egyptians to see their common interest in putting in place a constitution that establishes a civilian led-government, provides civilian oversight of the military and other components of the security sector, provides checks and balances among democratic institutions and safeguards the interests of minorities. The constitutional debate must start now and must empower Egyptians to put in place the systems that enable groups, ideas and values to compete fairly for power. 

Rick Gold

Cross-posted in Secular Perspectives

Moving toward free and fair elections in Egypt

In an environment where elections are valued and voters have confidence in election authorities, it still is a challenge for governments to carry out free and fair elections. In Egypt, since Gamal Abdul Nasser took power in 1954 and abolished political parties, elections have never been a fair competition for power. Until 2005, the Constitution required the President to be approved in a single candidate referendum.  The first multi-party presidential elections took place that year. In presidential, parliamentary and local elections, Mubarak's National Democratic Party (NDP) prevented viable candidates from registering, restricted their financing, controlled media coverage, restricted campaigning, and used state resources to influence voting. NDP candidates at risk of losing employed thugs to attack supporters of their opponents. In voting stations, NDP officials stuffed ballot boxes, manipulated vote counts and "lost" ballot boxes transported to central facilities.

In 2005 and 2006, the Elections Commission opposed international monitoring and severely limited monitoring of polling stations by Egyptian civil society. Nevertheless, donors, including USAID, funded thousands of civil society monitors. USAID even funded unofficial international monitoring missions organized by the National Democratic Institute and the International Republican Institute. While some of the monitors were prevented from entering polling stations, the combined monitoring operation provided a clear picture of widespread fraud and election abuses.  I experienced vote selling first-hand. As a USAID employee, I joined a group of Embassy employees monitoring the parliamentary elections.  At one station, a woman leaving the polls came up to me and asked for the money she was promised in return for voting NDP.

In efforts to address severe criticism of the electoral process, the Constitution was amended in 2007 to establish the High Elections Commission as an independent and judge-led election management body (Article 88). It has independent legal status and an independent budget. In the 2010 parliamentary elections, it recognized that abuses took place in many electoral districts, but declared the elections were run properly and reflected the will of the people. It condemned those monitoring groups and media who gave the impression that abuses were widespread and systemic. Many Egyptians believe the Commission cannot avoid bias. Four of the Commission's eleven positions are public figures selected by the Parliament, both houses of which have been controlled by the NDP.

Cynicism about the election process led Egyptians to insist that judges monitor the polling stations and receive complaints. A Supreme Constitutional Court ruling in 2000 required judges to monitor all polling stations in three rounds of voting. In most cases, judges have carried out their responsibilities seriously. However, a 2007 constitutional amendment (Article 88) prevented judges from covering all polling stations by requiring that elections take place in one day. Egypt has only enough judges to oversee a third of the polls in one day, and the remainder must be overseen by Ministry of Interior employees, in whom citizens have little confidence. Removal of Article 88 was one of the major objectives of the pro-democracy movement.

Even when judges are monitoring polling stations, their authority is restricted to the inside of the stations. They have no jurisdiction over abuses by security personnel and party officials outside of the stations, including vote-buying, establishing barriers to entrance and improper campaigning.

Citizens who wish to vote must present their voter card or present some form of photo identification and verify that they are registered at the polling station. One obstacle to voting is gaining an identification card.  Millions of citizens, particularly women and the poor, have either not attempted to get IDs or have faced obstacles in doing so.  They also are unable to register to vote for most of the year. Voter registration is only possible during a few months of the year. Consequently, many citizens are disenfranchised.

The seriousness of the Military Commission's commitment to democratic reform will be demonstrated by its support for revising Article 88 and other Constitutional provisions that prevent free and fair elections.  The Commission intends to submit the changes proposed by the Constitutional Review Committee for public debate and then for approval in a referendum.  I am confident that citizens will be much more engaged in this process than they were for the Constitutional referendums organized under President Mubarak, which were met by voter apathy.

I am less confident, however that Egypt will be ready to hold free and fair elections within the six month time limit set by the Military Commission. The challenges are enormous, requiring reform of the Ministry of Interior, attacks on systemic corruption and a change in the mentality of thousands of government officials.  Civil society must be vigilant in holding election administrators accountable.  It is certain, however, that the courage and commitment of those who overthrew Mubarak will serve them well in moving towards free and fair elections over the next few years.

Rick Gold

Cross-posted in Secular Perspectives

The Battle over Egypt's Secular and Muslim Character

One of the major objectives of the Egyptian revolution is to create a system that allows Egyptians to influence decision-making by democratic institutions. Since the 1920's, secular parties and the Muslim Brotherhood have fought over the degree to which the country's Constitution, laws, regulations, and programs reflect a separation or integration of religion and state. From 1923-1980, secularism was the dominant feature of Egyptian Constitutions. However, in 1980, to reduce pressure on the regime from the Muslim Brotherhood and other Islamic political groups, President Sadat initiated an amendment to Article 2 of the Constitution, which now states, "Principles of Islamic Law (Sharia) are the principal source of legislation."  Egypt, which has a civil law system inspired by France, was subsequently required to verify that laws or draft laws are consistent with Islamic law. In practice, this requirement applied only to personal status laws, dealing with such issues as marriage, divorce, child support and inheritance. Criminal laws, as contained in the Penal Code, have not been reviewed from a perspective of Sharia.

The Constitution contains other references to the Muslim character of the state. Article 2 contains, "Islam is the religion of the state..." Article 19 reads, "Religious education shall be a principal subject in the courses of general education."

These provisions are balanced by statements promoting freedom of religion and opposing discrimination. Article 46 affirms, "The state shall guarantee the freedom of belief and the freedom of practice of religious rites." Article 40 declares, "All citizens are equal before the law. They have equal public rights and duties without discrimination between them due to race, ethnic origin, language, religion or creed."

After the Muslim Brotherhood (MB), fielding candidates running as independents in 2005, won 20% of the seats of the the People's Assembly, President Mubarak in 2007 pushed through an Amendment of Article 5, which forbids using religion in political campaigns. It reads, "Citizens have the right to organize political parties according to the law, and no political activity shall be exercised nor political parties established on the basis of religion or discrimination due to gender or race."  This amendment, reflecting a secular outlook, effectively prohibits the Muslim Brotherhood and other Islamist groups from competing in elections.

One of the novelties of the mass movement that unseated Mubarak was that it brought together secularists with Muslim Brotherhood members and supporters.  The unstated implication was that everyone supported removal of the religious restrictions of Article 5, so that the Muslim Brotherhood could participate in elections. Whether the Constitution is amended or replaced, the new language will establish no restrictions on electoral participation by the MB.

The Constitution is the basic law of Egypt, but many of its provisions were inapplicable during the full thirty years of the Mubarak regime, since the country was under a state of emergency. Throughout this time, Mubarak manipulated laws, government, justice institutions and the media to divide Christians and Muslims, discriminate against minorities such as Baha'is, Shias, atheists and homosexuals, and persecute leaders and members of the Muslim Brotherhood. Coptic Christians, who constitute about 10% of the population, were prevented from building and repairing churches, restricted from certain professions and inadequately protected from occasional attacks by thugs. Many Egyptians accuse State Security of organizing attacks on churches and stores owned by Copts.

One set of issues targeted by Egyptian human rights advocates, including the anti-Mubarak group Kifaya, are the obstacles faced by Baha'is, atheists and members of other unofficially recognized religions in gaining identification papers.  ID cards, whether in paper or electronic version, are required for employment, education, banking, owning property, health care, traveling, birth, death, marriage, divorce, and vaccination of children.  The Ministry of Interior required citizens to indicate their religion on the cards, but they were given only three choices: Islam; Christianity; and Judaism.  Unless the 2,000 Baha'is were prepared to lie about their religion, they had difficulty gaining access to these cards. In 2006, the Ministry of Interior asked USAID for assistance in completing distribution of ID cards to several million citizens.  It refused USAID's offer to provide assistance from the US organization IFES to insure that all citizens, including Baha'is, could receive their cards.  Several court cases tested the Government's position on this issue, and Cairo's Court of Administrative Justice ruled in favor of the Baha'is in January 2008. The Ministry of Interior changed its policy to issue the first ID cards, without any religion noted, to two Baha'i teenagers in August 2009.

In February 2011, a constitutional review committee was mandated by the military to draft revisions to several articles. Its mandate does not include articles that define the secular or Muslim character of the state or the participation of the Muslim Brotherhood in elections. In defining the tasks of the committee, the military assumed that an elected government would be in a better position to deal with these issues, either through constitutional amendments or by putting in place a new constitution.

Both secular groups and the Muslim Brotherhood are preparing for the inevitable battle over the secular or religious character of the Egyptian state. Secular groups are focusing on these general principles:
1. All Egyptians are born free and equal in dignity and rights
2. All Egyptians have the right of free thought and religion.
3. All Egyptians are equal before the law.
4. Any Egyptian is entitled to all rights and freedoms without distinction such as race, gender, religion or origin.
5. An Egyptian secular (civil) state is the only way to achieve these objectives.

The Muslim Brotherhood released a draft platform in 2007 that attempted to lay out its approach to governance. It included the formation of a council of religious scholars, elected by religious leaders. This council would advise the legislative and executive branches on religious law. Parliamentarians would determine which Islamic teachings are authoritative. The Supreme Constitutional Court would be the final arbiter. Women and non-Muslims would be excluded from holding senior governmental positions. The platform is unclear on several issues, including equality of political rights, legal areas that are improperly aligned with Islamic law and the necessity of maintaining a democratic system. Several MB leaders publicly questioned the need for a council of religious scholars and restrictions on women and non-Muslims, indicating that these issues are under debate. The MB apparently has not finalized the platform. In the post-revolutionary period, the MB has played a constructive role, focusing on putting in place the basic requirements for a competitive electoral system. Its leaders have indicated that it will neither field candidates for the presidential election nor seek a majority of parliamentary seats.

Egypt is enjoying a rare period of consensus between secular and Islamist groups. Egyptian military leaders, political actors, civil society groups and religious leaders should use this time to assure that the future debate on the secular or religious nature of the state takes place with maximum citizen participation and with accepted, legitimate rules on decision-making.  The international donor community may be useful in sharing lessons learned from other countries that have gone through similar transitions.

Rick Gold

Cross-posted in Secular Perspectives

The Quality of Egypt's Democratic Institutions

Much of the efforts by Egyptian civil society, human rights and political reform organizations were directed toward asserting rights in an oppressive political system. Activities, such as civic education, voter registration, increasing the participation of women in political campaigns, building political parties and strengthening civil society's oversight of the government and security sector, were in many ways premature.  They assumed that Egypt's democratic institutions were transparent, responsive and accountable.  This assumption was invalid.

The current Egyptian Constitution, put in place in 1971 by President Sadat, facilitated the rise of a regime that used Egyptian institutions and government resources to assure its survival. Under the 1980 amendment, Islamic law (Sharia) became the principal source of legislative rules. After the assassination of President Sadat in 1981, President Mubarak used the control of the Parliament by his political party, the National Democratic Party (NDP) to repeatedly declare a state of emergency, which continues until this day. The state of emergency removes citizens' protections and provides the military and state security with the legitimate authority to abuse rights and freedoms.  Consequently, these entities, along with the national police, view their mandate as protecting the Mubarak regime, rather than the citizens or the state.

Constitutional amendments in 2005 and 2007 provided a veneer of political reform, including allowing elections of the President for the first time.  However, the restrictions on eligibility for presidential candidates were so tight that only President Mubarak's party will be eligible to nominate a candidate for the planned September 2011 elections. The Constitution does not contain term limits for the presidency, which has allowed President Mubarak to stay in office for thirty years.

Many Egyptian bureaucrats were given large discretion over government resources, but received low salaries. The result was extensive and systemic corruption, which allowed abuses by the elite, harassment of women and the poor and enrichment of senior government officials. Citizens receive inadequate or poor quality social services, such as education and health.  Few mechanisms existed for citizens to provide feedback to government officials. The Muslim Brotherhood filled this vacuum by providing citizens with the social services they needed.

Despite regular elections, the NDP, has been able to gain control of the Parliament either by itself or in coalition with other parties.  The NDP has been given the authority to approve or disapprove new parties.  By using governmental resources to reward its supporters and punish its opponents, the NDP has prevented its opponents from gaining power.  Strong partisan political leaders, such as Ayman Nour, have been imprisoned on trumped-up charges.  Consequently, no true political parties exist today.

The Parliament is under the complete control of the NDP.  It operates as a rubber stamp for the legislation and budget bills submitted by the Government. In the 2005 Parliamentary elections, the Muslim Brotherhood won 20% of the seats of the lower house. While its members were able to raise issues, they were not in a position to influence the legislative agenda. Parliament rarely exercises its authority to provide oversight of government operations.

The justice system is the least discredited Egyptian institution. Judges are well trained and more conscientious than bureaucrats about pursuing the public interest. Through the Council of State, the judiciary can condemn and penalize the government for its actions. During elections, citizens trust them to resolve problems at voting stations. Yet corruption tempts judges and court administrators. In some cases, government officials can influence the outcome of cases.

As Egypt enters a post-revolutionary period, the Egyptian people will  need to take on a role not only of holding government accountable, but also of overseeing the complete restructuring of Egypt's Constitution, legal framework and democratic institutions. They will require strong support by the international community as they attempt to accomplish this decades-long set of tasks.