Interesting post by EIPR's Mohamed El-Shewy: 

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.

 Read on for his suggestions.

I remember about 10 years ago, a journalist was interviewing my boss at the time, the publisher and activist Hisham Kassem, and I walked into the office. Spinning off what must have been his usual epic rants against the Mubarak regime, Hisham turned to me and said: what would you do if you were president of Egypt? I first answered that as I am not Egyptian I don't have an opinion, and when he persisted mumbled back something about addressing rural poverty and illiteracy or somesuch. To be honest I had no idea what to answer.

Ten years later and the task of addressing Egypt's problems is as daunting as ever, but I am better informed about it. Lately I have been moaning about how poorly thought out Egypt's post-Mubarak transition has been — not just because of human rights abuses and such, but conceptually. The recent news that the SCAF is pushing for a quick transition — a new constitution by April, presidential elections in June — is more evidence of this, whether it's on purpose and simply because of the lack of leadership the political class and SCAF have shown. And I have been asking myself, how would I go about it different, from right now (no need to cry over the milk spilt since 11 February 2011).

As much as I hate giving this kind of advice, still feel very poorly equipped to do so, and don't like, as a foreigner, giving Egyptians suggestions about what to do with their country, here's a rough outline how I'd proceed. Needness to say, I don't think things will develop this way.

• First, because the transition has gone so badly thus far, there is still a need for a real, thought-out, deep transition period. It is a terrible idea to just rush into a new constitution in just a month (which is what the next parliament will have, more or less, although proposals for various constitutions are already underway). This is the central idea of my proposal.
• Nonetheless, the SCAF is pushing ahead for a new constitution by April, as a prelude for the election of a new president. This new constitution should be an interim document, setting the basic balance of power between institutions.
• This interim constitution will set the rules for the coming, real, transition period of two years. During this two years, parliament, the president, and the judiciary will work together on a number major dossiers.
• The first major dossier is the elaboration, over a two-year period, of a permanent constitution. The constituent assembly could continue that task, or another appointed committee could do it. The new constitution will not simply be an adaptation of the previous constitution of 1971, or a return to the "lost" constitution of 1954 or the historically important constitution of 1923. A public debate will be encouraged, using broadcast media and a public awareness campaign (call it "dostorna" — our constitution) to encourage participation, over the content of the next constitution. It will be a basic document that contains fundamental principles of citizenship. Issues such as the role of Sharia, whether family law should be according to one religion as it has been thus far, the role of the military, the nature of the political system (parliamentary or presidential) and other matters will be open to debate. Importantly, the new constitution will not repeat among the worst mistakes of previous texts: a reference to external laws that flesh out its rules. It will address fundamental rights only, which cannot be modulated or changed by external laws.
• In parallel, parliament and a body from the judiciary such as the Supreme Council of the Judiciary will undertake a thoroug review of Egypt's legislation. It will seek out liberticide laws and either abrogate them or amend them. Where there is legal confusion among multiple laws, it will definitely resolve the matters. Old laws that are no longer relevant will be purged.
• The cabinet and all ministries will carry out a full review of executive regulations and other rules under which they operate, submitting them to a parliamentary committee for approval. The aim will be to clarify and simplify the accumulation of regulations, increasingly transparency in the public bureaucracy, and making that bureaucracy's interaction with citizens smoother.
• Parliament will work to draft a new civil service law that will supersede all previous regulations governing Egypt's seven million civil servants, incorporating recently endorsed ideas such as minimum and maximum wages, but also simplifying salary scales across the civil service and outlining a strategy for the upgrade of facilities, training of personnel, and a longer-term plan to reduce the number of state employees through early retirement schemes and other means.
• Relevant ministries and the presidency will draft an emergency economic plan for the two-year transition period, setting out a fiscal policy based on a combination higher foreign borrowing, collaboration with international financial institutions and partner countries. The plan will focus on beginning to address structural problems in the Egyptian economy by investing in public works projects to generate unemployment in the short term in areas that can deliver long-term economic and social benefits: transport, irrigation, health services, etc. It will include a plan to boost tourism, address the imbalances created by fuel subsidies and implement (or adapt) plans for a subsidy card that had begun under the Nazif government.
• A new electoral law will be drafted that will scrap the current system and replace it by a simpler one, with elections held on a single day. Direct judicial supervision will be phased out and replaced by an independent electoral commission (partially drawn from retired judges, civil society and political appointees) with a budget to oversee the entire electoral process. Its members will be full-time, supplemented by a permanent secretariat. This commission, rather than the Ministry of Interior, will be in charge of drawing electoral boundaries.
• A transitional justice commission will be created to account for major crimes carried out by the Mubarak regime. Its primary task will be to draw up a reform plan for the interior ministry, compensate its past victims, and promote a culture of human rights and accountability.
• CAPMAS and the General Accountability Office will be reformed to publish timely and public reports on government spending for all government departments, both in print and in an easily accessible website.
• Parliament will work to overhaul its own working, with the creation of internal research organs (modeled, for instance, on the Congressional Research Service) capable of addressing transitional and other issues, adequate salaries for parliamentarians and staff, and an ethics committee. The upper house of parliament would be abolished or reformed to both have more power and a different purpose than the lower house.
• Municipal councils would be reformed to have more direct power in the areas they oversee, with the power of governors (who should eventually be elected or drawn from a meritocratic senior civil service in the French model) comparatively weakened. The devolution project started under the Nazif government would be seriously contemplated.
• After the two year transition period, the new constitution will be approved by popular referendum, triggering new general elections — at all levels.

I could provide more details, but the point is that I have, generally speaking, seen little that goes in this direction. It's not just policies that need to change, it is the structure of the state itself. I see few people addressing that today.

From an interview with Tunisian President Moncef Marzouki (how many times I will I write these words with wonder before the effect wears off?) in Mediapart:

N'oubliez pas que je suis l'élève de Mandela: j'ai rencontré le leader sud-africain dans les années 1990 à Oslo, lors d'une réunion du comité Nobel; je suis allé deux fois en Afrique du Sud dans les années 1990. L'expérience sud-africaine avec les comités de réconciliation nous servira dans la mise en place de cette justice transitionnelle. D'ailleurs nous avons organisé ici, il y a à peine un mois, une réunion sur le thème de la justice transitionnelle; aujourd'hui des associations travaillent sur cette idée, le gouvernement a sa propre mission, et on va organiser cette justice transitionnelle, ouvrir les archives, former les juges, repérer ceux qui ont été coupables de très grands crimes et qui devront passer devant les tribunaux normaux, et faire passer les autres devant des tribunaux particuliers où ils devront demander pardon, ce qui leur sera accordé. Nous ne sommes pas du tout dans l'esprit d'une justice de vengeance, parce que cette révolution a été pacifique, démocratique et elle doit avoir une justice à son image.

My quick translation:

Don't forget I'm a student of Nelson Mandela: I met the South African leader in the 1990s in Oslo, during a meeting of the Nobel Committee; and went twice to South Africa in the 1990s. The South African experience of reconciliation committees will be useful to implement transitional justice. In fact we organized, just a month ago, a meeting on the theme of transitional justice. Today associations are working on this dea, the government has its own mission, and we will organize this transitional justice, open the archives, train judges, identify those who are guilty of great crimes and who will have to appear in front of normal tribunals, a right they will have. We are not at all in the logic of revenge, because this revolution was peaceful, democratic, and it must have a similar type of justice.

This idea has been around for a while, but finally some influential people are proposing something concrete:

A number of political forces and intellectuals have prepared a lengthy memorandum that includes a drastically reformed plan for the remainder of Egypt's transitional period.

Al-Masry Al-Youm has obtained a copy of the document, which the drafters said they will submit to the ruling Supreme Council of the Armed Forces (SCAF) within days.

The memorandum suggests postponing parliamentary elections, and in their place forming a "national rescue cabinet," having Egyptians elect a constituent assembly to draft the new constitution, holding presidential elections and fully transferring power to a civilian government. After all this, the memorandum reads, parliamentary elections should be held in accordance with the laws set out in the new constitution.

Among those involved in drafting the memorandum were former President of the Democratic Front Party Osama al-Ghazaly Harb, presidential hopeful Mohamed ElBaradei, Coordinator of the National Association for Change Abdel Galil Mostafa, writer Alaa al-Aswany and journalist Sakina Fouad.

The planning of the current elections are an embarassment to Egypt, and they should be postponed to allow for better preparation (think that by some calculations if the participation is the same as the referendum voters will only get 1 minute each to cast their ballot). The only reason to hold parliamentary elections now is to cut short the part of the transition period that is directed by SCAF. This plan presents a reasonable compromise.

Such an initiative should have been put on the table a long time ago, and it will now be difficult to stop the campaigning that has started. I don't think it has much chance of succeeding, but the basic recipe — civilian control now, SCAF restricted to national security, and a constitution first so you can set up a proper system (and for instance get rid of the pointless Shura Council). The key will be convincing political forces, notably Islamist, that have banked on elections now to move the transition process as fast as possible.

Update on 2011-11-19 19:39 by Issandr El Amrani

Of course, the other thing is that there is now an alternative plan for the transition that can be borrowed from even if the elections go ahead. Coem January, in any case, there will be new political reality, with the newly elected People's Assembly having a countering legitimacy to SCAF.

Michael Hanna has penned a great piece on the need for serious transitional justice in post-uprising Egypt, striking the right balance in doing so, and what might learned from experiences in other countries:

The Egyptian military would likely be much more comfortable with a discrete focus on the excesses of Egypt’s crony-capitalist economy and the violence associated with the repression of the January 25 uprising. The military has played a less pronounced political role in recent years, but a more probing initiative that sought to speak to the systematic crimes of the former regime and its predecessors would more directly implicate the military in light of its central role within Egypt’s authoritarian superstructure. This is particularly the case for earlier periods when Egypt could be described as a military state and society, and the military and its officer corps were implicated directly in day-to-day repression. As such, the military would be averse to broader efforts seeking to document state repression during the time of Gamal Abdel Nasser and Anwar Sadat, in addition to the years of Mubarak’s rule. Demonstrating credibly the repression that has characterized the Egyptian state since the Free Officers’ Movement and the toppling of King Farouk in 1952, however, would have the benefits of reinforcing the imperative to break with the past and lending legitimacy to civilian efforts to limit military interference in governance.

Conversely, an aborted or truncated transitional justice process would likely have deleterious effects on Egyptian society and would divert the search for truth to unfortunate ends. Association with the former regime would provide fodder for the politics of demagoguery and character assassination, with no recourse to institutional checks or burden of proof. The questions that animate transitional justice efforts will not be resolved in the short term. Decisions in the coming months will perhaps complicate future options but will not necessarily foreclose all of them completely. The complex process that undergirds the push for truth and accountability will undoubtedly evolve over time. The struggle to define earlier eras will play a key part in the country’s political discourse, and it is likely that transitional justice efforts will mirror Egypt’s future political, social, and cultural evolution.

Read the whole thing at the Cairo Review of Global Affairs.