Forecasts of international political events
Will Morsi receive the death sentence for espionage?
The available information on Egyptian ex-president Morsi’s legal problems is a bit confusing, but as near as I can tell, he’s facing four trials and the trial relevant to this question involves espionage, a capital crime in Egypt. He’s also facing other trials involving capital crimes. Several news sources claim that the espionage trial also involves charges of terrorism, but it appears to me that he’s being charged under the espionage laws, not the terrorism laws.
An announcement titled “The Biggest Case of Espionage in the History of Egypt” from the office of Prosecutor General Hisham Barakat claimed that:
– Morsi opened “channels of communication with the West via Turkey and Qatar.”
– Morsi was involved in a plot with Hamas and Hezbollah.
– The Muslim Brotherhood was “the reason behind violence inside Egypt to create a state of ultimate chaos.”
– Members of the Muslim Brotherhood used secret tunnels to enter Gaza, where they received military and media training.
The regional director for Human Rights Watch has called the charges “pretty fantastical”. In a trial of Muslim Brotherhood leader Mohammed Badie and two aides involving related charges, three of the judges stepped down because “a feeling of embarrassment” over the case. Apparently, the prosecutors handling the Muslim Brotherhood trials are willing to push the law to the limits, even if it means losing the occasional judge.
In other trials, Morsi is facing charges of fraud, insulting the judiciary, the murder of anti-government protesters while he was president, and the murder of prison officers during a prison break in 2011.
The Muslim Brotherhood and the military each have strong support from different groups of Egyptians. Both inspire strong opposition. A poll taken in September indicated that Egypt was roughly evenly divided on whether Morsi’s overthrow was a good thing. Each group has a large, committed base, and is a threat to the other.
Sisi is obviously planning to run for president. The acting president has promoted him to Field Marshall, a title whose only significance seems to be that the holder is planning to retire soon. Shortly afterward, the supreme council of the armed forces gave their approval for Sisi’s candidacy. The media reports that people close to Sisi expect him to announce as soon as nominations officially open.
The charges appear to be designed to undercut the legitimacy of Morsi and Muslim Brotherhood. They conspired with non-Egyptians, they studied military and media tactics with non-Egyptions, they committed fraud, they insulted or murdered Egyptian officials, they murdered Egyptian protesters, and they created violence and chaos in Egypt. Sisi and the military are presenting themselves as the guardians of order and the protectors of Egypt.
It seems very unlikely that Morsi will be acquitted. There are three factors that I think will determine his sentence. The first is how much of a threat Morsi and the Muslim Brotherhood are to military-backed rule and Sisi’s candidacy. The greater the threat, the more likely a death sentence. Given the force with which the military has put down demonstrations and the number of protesters killed, it’s pretty clear that the military thinks the threat is serious. Both Sisi and the military are currently popular. While turnout for the constitutional referendum was only 39%, 98% of those that voted, voted for the military backed constitution. But Sisi is likely to loose that support if he can’t find rapid solutions to Egypt’s problems, and the military seems to be aware that he’s not likely to find rapid solutions. One senior officer called the presidency “a poisoned chalice.” A large part of the military’s support could swing back to the Muslim Brotherhood. At the moment Morsi is the Brotherhood’s most important public figure. The question is whether, once Sisi’s government gets into trouble, an imprisoned Morsi is a bigger rallying point for the opposition than a martyred Morsi.
The second factor is what happens after the verdict. I don’t know what the new constitution says about criminal law. The point of the new constitution wasn’t to rewrite the criminal laws, so I’m assuming that they haven’t changed much. In the past, someone convicted of a crime had two levels of appeal. For a death sentence, the Mufti (the government appointed head Muslim cleric) gave an opinion on whether the sentence was appropriate. The opinion is non-binding, but it would be politically difficult to carry out a death sentence after the Mufti declared it inappropriate. The president had the power to pardon a convict or to commute a death sentence to imprisonment for life. I have one source that says the president could commute a death sentence to a fixed term of imprisonment and one that says he could not. For simplicity, I’ll ignore that possibility. In practice, pardons have been very rare, and in a political case like this it’s hard to imagine the government going through the trouble of convicting Morsi and then pardoning him, so I’ll ignore that possibility also. Should Morsi receive a death sentence, that leaves Sisi with the options of carrying out the execution or commuting it to life imprisonment.
It’s not clear what the Mufti’s role in this would be. In an ordinary criminal trial, the possibility of the Mufti declaring a death sentence inappropriate probably acts as a constraint on judges’ tendency to give death sentences. But the Mufti is a government appointee and this is a political trial. That is likely to act as a constraint on the Mufti. The Mufti’s effect on the probability of a death sentence is determined by the judges’ expectations concerning the opinion issued by the Mufti, post sentencing. In this case, I don’t think the judges expect the Mufti to issue an opinion against a death sentence, due to the Mufti’s position as a government appointee and the importance of the trial to the government.
The third factor is the other trials Morsi is facing and the sentences he receives there. If the government intends to execute Morsi, the courts may give him multiple death sentences in order to make commutation seem less reasonable. If they don’t intend to kill him, then one death sentence would be easier to commute. It’s also possible that the government is keeping its options open, in which case a smaller number of death sentences leaves the government less committed to an execution.
Obviously, I’m assuming that the government has a way of signaling the judiciary what the desired sentence is. In cases where the government has the judiciary in its pocket, some system of signaling usually exists.
My guess is that Sisi is going to be cautious. Killing a thousand pro-Brotherhood demonstrators didn’t cost the military a lot of support as long as it happened during a time of disorder. But Sisi is presenting himself as the candidate of order and doesn’t want his government to be associated with disorder. Although the military seems to have majority support right now, that support includes swing voters who once voted for the Muslim Brotherhood and could become supporters in the future. Sisi doesn’t want to create sympathy for Morsi among them by killing him. Condemning Morsi to death and then commuting the sentence would give Sisi a chance to look firm but compassionate. So I’m predicting that Morsi will receive one death sentence, followed by commutation to life imprisonment, and the remaining sentences will be imprisonment, either life or term.
Based on what I know of his charges and looking over a list of Egyptian capital crimes, he appears to have three trials involving capital charges: one trial involving the deaths of protesters in 2012, another involving the deaths of prison guards during the prison breakout in 2011, and a third trial involving espionage. Since I don’t have the knowledge that an Egyptian lawyer would have, and I don’t know the specifics of the charges, I’m going to assign equal probability to each of the three trials producing a death sentence. Allowing myself 10% for an outcome I’m not expecting, that leaves 30% for each of the three trials. However, there also a possibility that the three trials will produce more than one death sentence. So for the espionage trial, I’ll raise the probability of a death sentence to 40% and forecast a 25% chance of a life sentence, a 25% chance of a term sentence, with a 10% chance of something I’m not expecting.
Of the things that could cause my forecast to be wrong, these are the ones that seem to me to be most obvious.
Since I’m not an Egyptian lawyer, not only are there things I’m aware of that I don’t know about Egyptian justice, there’s a boatload of things I’m completely unaware of. The news reports on Morsi’s trials are vague on the details, so there could be more or less trials and more or less capital charges than I’m aware of. I’m glossing over all of that by assigning equal probabilities of a capital outcome to each trial.
My guess about Sisi’s caution is just a guess. Cautious people usually don’t overthrow governments. Even if he is cautious, he may be reading the political situation differently than I am, and he may have different ideas about caution. The judiciary may be more independent than I believe it is. Assuming that the number of death sentences Morsi will receive correlates with the government’s desire to actually execute him is a big assumption.
9. International Federation for Human Rights, The Death Penalty in Egypt, April 2005, n 415/2, available at: http://www.refworld.org/docid/46f1464d0.html [accessed 7 February 2014]