For Egypt to move forward, it must reform its judiciary

Egypt is at the centre of the much-heralded Arab Spring which overthrew a motley collection of pro-Western dictators.

Like all countries in the region, stability seems to elude Egypt. The election to power of Mohamed Morsy and the Muslim Brotherhood has not delivered to the country the stability it so badly needs.

Considering what is at stake for both Egypt and the entire Arab world, it will take considerable time, political skill and bold actions before the country stabilises.

A number of forces are at play to ensure that they influence the unfolding course of history in their favour.

Further, considering the powerful message a stable Egypt can have in the region, the country must be prepared for a long period of reforms, revolts, demonstrations and general instability.

On the surface, things seem to boil further with the latest constitutional promulgation by Morsy in which, among other things, he bestowed upon himself powers that are outside the preview of judicial review.

This has led to demonstrations by some members of the public. It has also led to a sit-in and vocal opposition by members of the judiciary.

There is a general but false propaganda being spread that Morsy and his Muslim Brotherhood will impose Islamic sharia.

As a matter of fact, the draft constitution uses the same words and phraseology as the Mubarak constitution in defining the place of religion in the Egyptian society.

It is the reaction by members of the judiciary, their loud protestation and their pontification on judicial independence, the rule of law and an accountable executive that catches one’s eye. How can the Mubarak judiciary be so bold, ingenious and hypocritical?

How can a judiciary that was so timid, too loyal, in bed with Mubarak for decades and was an appendage of the Mubarak apparatus be so loud during revolutionary moments like now? That is the conundrum that faces agents of change and reform at periods when the old order throws the last kicks of a dying a horse.

In dictatorships, the judiciary is always a strong ally. The rulers use it as a legitimate tool to preserve their power and oppress the masses.

It is a powerful bulwark against the overthrow of the political order. We are all too familiar with how Kanu judges heroically defended Daniel arap Moi and the state during the agitation for change. We all know that Kanu judges used to interpret the constitution in line with the official Kanu policies.

The Egyptian judiciary is no different from our Kanu judges. Isn’t it the Egyptian Supreme Court that dissolved parliament a few months ago on the orders of General Tantawi? Wasn’t it Egyptian judges who disqualified so many presidential candidates on the orders of the Army?

Egyptian judges have also not convicted a single member of the Mubarak regime out of loyalty and respect for the old order.

They acquitted all simply because of the symbiotic relationship between the old regime and the judiciary.

For Egypt to move forward, it must deal with the Mubarak judges in the manner Kenya dealt with Kanu judges. Morsy must undertake a radical surgery of the judiciary.

Whether they have security of tenure or not, a change in the constitution must be introduced so that those too tainted by their loyalty and association with the Mubarak regime are summarily fired.

Second, the country must then undertake a vetting process that audits the suitability of all its judicial officers. Vetting and radical surgery, when combined in reasonable doses, will restore public confidence in the Egyptian judiciary.

Judges are generally conservative and pro-government.

Unless such root and branch changes are introduced in the country, the judiciary will continue to undermine and derail reforms.

A decisive defeat of the Mubarak judges and their replacement by independent and competent changes is indispensable for the Egyptian revolution to move to the next level.

Mr Abdullahi is the publisher, Nairobi Law Monthly [email protected]