Can Egypt's death penalty be taken seriously?

Egypt’s former president Mohamed Morsi faces being sentenced to death on Tuesday on charges of inciting the killing of protesters. If a verdict is announced, it will be the first since he was ousted from power in July 2013 with Morsi also standing trial in two other cases.

While it is difficult to anticipate what will happen at the court hearing, some experts say that the death sentence cannot be ruled out.

“Although the trials we have seen so far are devoid any proper standards and the [President Abdel Fattah al-] Sisi rhetoric of fighting a war on terror [against Morsi’s Muslim Brotherhood] is running thin on facts, I believe that there is a real risk that the court could impose such a sentence,” international law specialist Toby Cadman told Middle East Eye.

Morsi also faces the death penalty in two other trials, including one in which he is accused of spying for foreign powers, and escaping from prison during the 2011 anti-Mubarak revolt.

Separate verdicts in those two cases are due on 16 May.

“There is grave concern that the carrying out of such executions is part of a state policy. It may be that Sisi is looking to gain politically by symbolically sentencing his opponents to death without carrying out the executions,” Cadman said.

While there is a concern that a death sentence may be handed down to the former president, observers believe that the death penalty in Egypt cannot be taken seriously.

“Even if there is a death sentence, we don’t know how seriously we should take it. It is likely that some of these death sentences won’t actually be implemented at the end of the day since they are more political than anything else,” Brookings Institution scholar Shadi Hamid said.

Hamid, an expert on Islamic movements and author of Temptations of Power, does admit that “with the Sisi regime anything is possible”, but he also finds that based on current trends, “It is pretty much unprecedented in the Middle East to have a recent president executed.”

Furthermore even if he is sentenced to death, Morsi’s lawyers should be able to appeal the verdict.

First execution

Egypt’s most recent execution happened in early March 2015, when Mahmoud Ramadan, who was seen in amateur footage carrying a black flag and pushing two teenagers from a ledge on to a terrace below – a video which caused shockwaves among Morsi’s opponents at the time - was hanged in spite of his lawyers demanding more witnesses to prove his involvement in the murder.

The execution was the first time that Egypt enacted any of the death sentences given to hundreds of people taking part in the unrest that followed the removal of Morsi in July 2013.

Yet, thousands of Morsi supporters have been sentenced to death for their alleged roles in violence in 2013, including Muslim Brotherhood chief Mohamed Badie. The sentences, often handed down in mass trials, were widely criticised by the West as well as the African Union.

While some have been commuted to life, human rights organisations continue to campaign on their behalf.

Badie, who was sentenced to death earlier this month, appeared in a Cairo court on Sunday in red-coloured garb - usually worn by inmates on death row - which was seen by some as signalling a move towards an imminent enactment of the death sentence.

Despite heightened fears, however, Hamid said that if a sentence is given out during Morsi’s Tuesday court hearing, international pressure will likely push to commute these sentences.

“In the lead up to any planned execution, there would be an effort on the part of the US and other allies of Egypt to encourage Sisi to commute the sentence.”

“I can even imagine the Saudis not being as supportive of Sisi; they would not be particularly comfortable with executing a Muslim Brotherhood Murshid [Badie] for the sake of their own domestic reasons,” he told MEE.

Furthermore, enacting a death sentence for Egypt’s former president could lead to further unrest, despite Sisi’s efforts to create stability in the country, analysts explained.

“To sentence the first democratically elected leader of Egypt to death would in my opinion lead to widespread unrest across Egypt and elsewhere,” said Cadman.

With increasing instability and unrest across Egypt, specifically in Sinai, this is something Sisi would like to avoid, analysts say.

However, even if Morsi escapes the death penalty, he could still face life in prison.

"Justice is highly politicised and verdicts are rarely based on objective elements," Karim Bitar from the Paris-based Institute of International and Strategic Relations told AFP.

Morsi's supporters were the target of a government "witch-hunt", he added.

The expected court ruling comes after an Egyptian court sentenced 22 members of the Muslim Brotherhood - accused of carrying out an attack on a police station in the Kerdasa district near Cairo in 2013 - to death on Monday.

That same day, another court sentenced 11 football fans to death. Originally, 70 defendants were sentenced for setting off violent protests during a 2012 football match in which 74 people were killed.

While lawyers of the defendants can appeal the sentences, the Egyptian judicial system has come under deep criticism for not providing due process for the repeal of the verdicts, such as in yet another case of six Egyptians who were sentenced to death, including one in absentia, on 21 October, 2014.

In a statement released on 9 April by Alkarama, a human rights organisation based in Geneva, the judges deliberately ignored the fact that the men were accused of crimes they could not have committed since they were secretly detained in the Azouli military prison during the time which the crimes took place.

In what has been dubbed the "Arab Sharkas cell case", the judgement was solely based on confessions extracted under severe torture, after which the Grand Mufti of Egypt approved their respective sentences, said the statement.

Religious approval of death sentence

The Grand Mufti’s approval is non-binding, yet the approval of Egypt’s highest religious authority of a death sentence has significant implications for the judicial system as it seemingly gives a religious justification to the verdict.

Although the death sentence has not been carried out yet, it is plausible that the court will indeed enact the sentences as legal observers say that the six men have exhausted all legal avenues - within the Egyptian judicial system - to repeal the sentences, according to Alkarama.

The total of Egyptians sentenced to death regardless of the Grand Mufti's review is unclear but the death sentence was handed down to at least 1,000 people in 2014, according to Thomas-John Guinard, legal officer at Alkarama. Not all were Muslim Brotherhood supporters or political prisoners.

“At least 456 of the cases handed a death sentence have been reviewed and approved by the Grand Mufti. Most of them, their appeals are ongoing,” said Guinard.

According to several international lawyers, the mass sentencing exercised in Egypt over recent months cannot be justified.

On the other hand, they act to underline an argument that the judicial process is being used as an extension of executive authority and a political tool aimed to silence dissent.

“The past few months have seen thousands of death sentences handed down in Egypt in mass trials that are a mockery of justice,” said Maya Foa, head of the death penalty team at Reprieve.

Juveniles on death row

“We’ve also seen unprecedented numbers of juveniles wrongfully arrested and tried as adults – young people like Ibrahim Halawa, who is facing a potential death sentence alongside nearly 500 other people for the 'crime' of attending a protest,” added Foa.

Despite the grave concerns over Egypt’s human rights records, global powers have maintained their support for Sisi’s government. Just days before the Morsi verdict was due, US Central Intelligence Agency Director, John Brennan held talks with Sisi during an unannounced visit to Cairo.  

A quickening rapprochement between the long-time allies has been taking place after Washington in March lifted a partial freeze on its $1.5bn annual aid to Egypt that it imposed when then-army chief Sisi ousted Morsi.

“This wave of repression hasn’t stopped global leaders from lining up to reaffirm ties with the Sisi government - and sending a worrying message at a time when hundreds of lives hang in the balance,” Foa said.