Proven Guilty: Egypt’s Judiciary and the Undermining of Democracy

This post was written for  the Atlantic Council and can be found here.


Through the recent spate of death sentence rulings and an apparent unwillingness to challenge the interim government, Egypt’s judiciary has positioned itself as a close ally to the regime, undermining any illusion of impartiality. But how did Egypt’s judiciary get to such a perilous state, and what does this mean for Egypt’s prospects for democracy? 

Before January 2011, Egypt’s judiciary had long been a reasonably independent democratic institution with respect to the autocrat’s influence: actions of former President Hosni Mubarak have been openly opposed by Egypt’s judges. This was an example of the judiciary’s “very strong sense of loyalty to the Egyptian state,” rather than any particular political leader. Despite the judiciary having been shaped by regular appointments andpolitical court packing by Mubarak, the judiciary presented a possible hope toward creating real democratic institutions in Egypt. This was because the existence and relative importance of democratic institutions within an authoritarian regime would have bearing on how the transitional phase proceeded. 

However, after Mubarak was toppled and former President Mohamed Morsi elected, the judiciary became its own political actor in Egypt. In order to reverse Mubarak’s loyalist court-packing of the judiciary, the 2012 constitution allowed for Morsi to engage in forced retirements. This led to a rivalry of sorts between the judiciary and the Muslim Brotherhood’s Morsi, including the court-ordered dissolution of the Islamist-dominated People’s Assembly and culminating in Morsi’s November 22 decree holding presidential actions beyond judicial review. A few weeks later, Morsi supporters blocked access to the Supreme Constitutional Court, forcing the judges to postpone a ruling on the constituent assembly and Shura Council, both also stacked with Islamists members. This episode set the tone for the derision the judiciary holds with respect to the Muslim Brotherhood today. 

Earlier this year a new constitution gained affirmation through referendum in Egypt. The 2014 constitution contains a similar broad structure to every Egyptian constitution since 1971, including a judiciary which is an independent, unelected branch of government responsible for objectively ruling in legal disputes (See Egypt’s constitution, Article 184). Moreover, the branch is populated by appointments by either the president (Article 193) or the judiciary itself (Article 189), shielding the branch from legislative influence. The 2014 constitution gives the judiciary more independence than any other constitution in Egypt’s history. As such, while the Egyptian judiciary is constitutionally independent, it lacks relative judicial independence, which is a balance between structural independence and political accountability. Though this structure is not unique to Egypt, the judiciary’s structural hyper-independence and years of appointments by Mubarak has created a perfect storm to play out in the current political context. 

Since the interim government took control on July 3, 2013, the judiciary has struck down no governmental action where challenges could have, and should have, been made. No judicial organ has challenged either theprotest law or the terrorism law, the language and enforcement of which likely violate constitutional Articles 54 and 55 regarding due process guarantees, Article 65’s freedom of expression, and relevant articles of the International Covenant on Civil and Political Rights. The judiciary has actually aided the interim government’s persecution of its perceived enemies by convicting dissidents under the aforementioned laws, declaring the Muslim Brotherhood a terrorist organization, jailing journalists, and nowbanning the secular April 6 Movement.

The most dramatic episode of judicial bias has been the sentencing of over 1,000 Morsi supporters to death for the killing of several state security officers, other violence, and incitement to violence. Specifically, On March 24 a Minya judge convicted 529 people to death. 37 of those convictions were upheld on Monday, as the rest were lowered to a life sentence (25 years in prison in Egypt). These convictions will be appealed by the defense once more, while the prosecutor general has already filed an appeal today. On Saturday he handed down a sentence of 57 to 88 years to 11 defendants, on Sunday he sentenced 42 more for up to fifteen years in prison, and on Monday another 683 were sentenced to death. Among those sentenced on Monday is the Muslim Brotherhood’s Supreme Guide, Mohamed Badie. Egypt’s courts have also sentenced several secular activists, among them the founding member of April 6, Ahmed Maher, to three years in prison. These decisions have come without even the façade of due process, and Egypt has not seen complementary trials of security officials for the death of nearly 1,000 people during the clearing of theRaba’a sit-in. Almost all security officers charged with killing protesters in the lead up to Mubarak’s ouster have been found not guilty.

Perhaps more important than the jurisprudential precedents these actions set, is the extent to which they have undermined any confidence in the judiciary as an objective arbiter of the law. Because the branch is unelected, its legitimacy lies not with reflecting popular will, but maintaining popular faith that it operates without political bias and instead maintains a large degree of fidelity to the constitution and notions of justice. However, judges have frequently affirmed laws, either actively or complicity, which are overly vague, in violation of international law, and prima facie unconstitutional. Moreover, the judiciary has dutifully sentenced regime enemies to death or lengthy prison terms on spurious grounds. Going forward, the perception of the courts as another arm of either the military or the government will give opposition parties and dissenting organizations no incentive to take disagreements to the courtroom. 

Trust in democratic institutions must slowly be built in the political culture of transitioning societies if democracy is to consolidate. By politicizing their decisions, the judiciary has removed itself as a possible trusted conflict mediator for any group, especially the Muslim Brotherhood. Even if free and fair elections bring forth a popularly elected legislature, that branch is unable to sanction the rulings or members of the judiciary, insolating judges from any structural need to respect popular will. As such, the Egyptian people have little reason to believe that justice will be done when they go to the courtroom, thus incentivizing other avenues of conflict resolution, such as increased violence. The judiciary’s self de-legitimization has undermined the rule of law and will prevent Egypt from consolidating democracy until judges can be viewed by a vast majority of the citizenry as impartial.

Presidential Election Law Raises Serious Concerns

This post was written while at the Tahrir Institute for Middle East Policy and can be found here.

This weekend, the Egyptian government released a presidential election law to govern the upcoming elections for a new Egyptian head of state. Aside from having certain required provisions, the law may allow for the violation of civil and political rights in Egypt largely due to the finality of the decisions of the Presidential Election Committee and the various provisions enshrining the role of that body in the campaign media landscape of Egypt.

The law calls for a nationwide majoritarian election, which can take place over one or more days. In several areas, the law allows for a second round of elections, but it does not provide the criterion for when such a round would be appropriate or required until Article 39. Under this article, a candidate must win at least 50%-plus-one votes. If this number is not met, the top two vote-getters will run in a run-off election. Aside from the unusually late appearance of such a fundamental aspect of electoral design, many other concerns exist with the law. Below are more detailed notes and some concerns about specific provisions of the law.

Eligibility

The eligibility criteria for running for the presidency laid out in Article 1 of the presidential election law comports with the same requirements for presidential eligibility found in Article 141 of the current constitution. Similarly, the endorsement requirements found in Article 2 comport with those found in Article 142 of the constitution. However, because the interim government has ordered the presidential election first, the eligibility path involving the House of Representatives specified in Article 142 is not functional. As such, candidates cannot gain eligibility from the endorsement of members of the House of Representatives. In addition, write-in candidates are not eligible to be elected, as they would not have met the signature requirements specified in both the constitution and the electoral law. This eligibility system means that for this election, an individual who is unable to collect thousands of citizens’ signatures spread across the country (as specified in the alternative eligibility method) will be unable to run.

Under Article 36, a candidate running unopposed can be elected if at least 5% of the registered voters cast ballots for him. If this does not occur, the election is run again. It is unusual for an election law to prepare for the possibility of a presidential candidate to run unopposed, especially considering that two candidates have already declared intentions to run. While this could be simply a sign of the law accounting for all possible circumstances, this could also be interpreted as a signal that the government may disqualify all but one preferred candidate.

Lastly, Article 12(9) states that a candidate must affirm that he has not been convicted of any crime of untrustworthiness.

Administration

Article 3 of the law empanels a Presidential Elections Committee (PEC) comprising the head of the Constitutional Court, the President of the Cairo Court of Appeal, the Senior Vice-President of the Supreme Constitutional Court, the Senior Vice-President of the Court of Cassation, and the Senior Vice-President of the State Council. Under Article 6, this body has the sole jurisdiction over, inter alia, announcing the opening of presidential candidacy, devising and overseeing the implementation of the necessary procedures to establish candidacy for the presidency (according to the eligibility requirements elsewhere specified), verifying the application and enforcement of the rules governing the election campaign provided in the law, and taking proper actions against violations.

It is unclear, however, how this body interacts with the National Elections Commission (NEC) established by the constitution. Under Article 209 of Egypt’s new constitution, that body is “administered by a board made up of 10 members selected equally from among the vice-presidents of the Court of Cassation, the presidents of the Courts of Appeal, the vice-president of the State Council, the State Affairs and Administrative Prosecution.” Moreover, under Article 208, the NEC is “exclusively responsible for managing referenda and presidential, parliamentary and local elections.” The jurisdictions of both bodies are incredibly similar, though both are given exclusive authority over their competencies. There is no apparent benefit to having two separate committees, the memberships of which arise from similar judicial bodies, that both have exclusive jurisdiction over largely similar functions of electoral administration. Indeed, they are both structured as electoral management bodies (EMBs).

Regarding the setting of dates for the election, Article 16 states that the PEC must announce a final list of eligible candidates “at least 20 days before elections.” Article 18 sets the campaign period from the day the candidates are announced until two days before the election. Campaigning can only occur during this time. Generally, the PEC has a wide range of discretion with respect to setting timetables with respect to administering the presidential elections.

Media and Campaigning

The PEC has broad discretion over much of the administration of this election, and the area of media and campaigning is no exception. First, Article 19(2) prohibits the “threatening of national unity and using religious slogans to divide the public or to discriminate among citizens.” Similar language has been used to suppress individuals campaigning for a “no” vote during the recent constitutional referendum as well as to marginalize Islamist parties.

Article 20 requires state-owned media to be committed to give equal coverage of candidates, and Article 21 lists requirements for publishing polls. Although these requirements have the potential to translate into incursions on freedom of speech, they can be reasonable and legitimate limitations in the volatile setting of transitional elections if administered sparingly and in an unbiased manner. Similarly, Article 22 sets a maximum for campaign spending (EGP 20 million), and Article 23 limits campaign contributions to 2% of that maximum. Article 24 prohibits campaign contributions from non-natural (juridical) or foreign persons. Article 43 specifies a fine for those who are registered to vote but do not do so without an excuse. This clause, though not regularly enforced, is common in Egyptian election law. Throughout the document, the PEC is given the discretion to determine violations and appropriate remedies.

Under Article 6(11), the PEC notably has the competency to “[establish] guidelines for the participation of the media and Egyptian and foreign civil society organizations in following the election process.” This gives the PEC the authority to regulate election-observers and media coverage during the election and (presumably) during the campaign period as well. Article 6(10) allows for the PEC to “[invite] voters to participate in the election,” and Article 8 allows the body to “educate citizens about the importance of the presidential election.” In the context of previous elections and referenda in Egypt, this may allow for the PEC to continue the state-run propaganda similar to the government’s urging of Egyptians to vote for the current constitution which was experienced earlier this year.

Appeals

A previous version of Article 7 of this law allowed for the appeal of a decision of the PEC to the Supreme Administrative Court within one week after a decision is announced. This was similar to language found in Article 210 the constitution, which allows for the appeal of decisions of the NEC to the same body. However, the final version of Article 7 allows for no appeals of the decisions of the PEC to any higher authority, making the body the first and final word on electoral disputes within its listed competencies.  Later in the law, Articles 13-15 outline the procedures for appealing the original decisions of the PEC, but these appeals are reviewed by the PEC itself, not by any external actor. Lastly, Article 27 allows the PEC to set up regional subcommittees, and Article 28 both allows those subcommittees to count votes and allows approved media and observer groups to attend the vote-counting. Again, challenges to the decisions of the subcommittees of the PEC are only heard by the PEC, not by any other authority.

Largely because of the inability to appeal the decisions of the PEC described above, several individuals and groups have expressed concern with the law, such as the Nour Party, Tayar al-Sha’aby, the Egyptian Organization for Human Rights, Dostour Party, Mohamed Abdel Abdul Aziz (Tamrod), Mohamed Kamal (April 6th Movement), Mohamed Fasil (Kefaya Movement), Khalid Ali, and Nour Farahat. These detractors have generally argued that this law violates Article 97 of the constitution, which states, inter alia, “The State shall guarantee the accessibility of judicature for litigants and rapid adjudication on cases. It is prohibited to immunize any administrative act or decision from judicial review.” This point is debatable, however, as the PEC is composed entirely of members of the judiciary, and as such, it could structurally be considered a judicial body (not an administrative one). That interpretation would mean that the internal challenges of the PEC’s decisions do legally constitute judicial review within the meaning of Article 97. However, as the similarly structured (and similarly functioning) National Elections Commission created in the constitution allows for appeals to the Supreme Administrative Court, one could argue that the constitution would envision any Egyptian EMB to also issue decisions appealable to the Supreme Administrative Court.

Overall Impressions

This election law creates some of the necessary guidelines required for the administration of an election, including many provisions regarding out-of-country voting, equal-time media provisions, and electoral fraud protection. However, Article 47 prohibits insulting members of the PEC, Article 48 prohibits the use of intimidation or terror during the election, and Article 52(1) prohibits the threatening or use of force to prevent others from voting. These articles present a potentially dangerous mix of protecting the electorate and inhibiting the free political expression of Egyptians. Along with the points noted above, and considered in its entirety, this law may lead to violations of the political and free expression rights of Egyptian citizens.

Moreover, the PEC has broad discretion over the administration of the election, and its decisions are not appealable to an external body. The PEC is also composed entirely of presently-empaneled members of the judiciary. This creates a potential for discrimination against candidates who are out of favor with the judiciary by the possible use of the various not-externally-appealable powers of the PEC to disqualify potential candidates.

While laws themselves do not render an election free and fair or illegitimate, this law allows the government, and specifically the PEC, broad discretion to make policies and take actions that could call into question the legitimacy and reliability of the results of the election. Given the actions of the interim government so far, from passing an anti-protest law to the propaganda campaign and opposition crackdown leading up to the recent constitutional referendum, this law offers little in the way of signs that the interim government intends to change course during the upcoming presidential campaign and electoral periods.

Human Rights Treaties in Egypt: as Good as the Government that Upholds Them

This post was written while at the Tahrir Institute for Middle East Policy and can be found here.

Egypt’s constitution has recently garnered praise for its “commitment to abide by international human rights treaties signed by Egypt.” Yet a close analysis shows that such praise may yet be premature; the commitment can be easily circumvented by Egypt’s soon-to-be elected House of Representatives.

The relevant section of the new constitution, Article 93, states in full:

“The state is committed to the agreements, covenants, and international conventions of human rights that were ratified by Egypt. They have the force of law after publication in accordance with the specified circumstances.”

Plainly, ratified human rights treaties are now considered Egyptian domestic law. Nathan J. Brown and Michele Dunne call this article “a potentially major innovation,” but note that it is only as good as the courts which interpret it. Heba Morayef of Human Rights Watch noted that the article offers Egyptians stronger human rights protections than the 2012 constitution.

This constitutional article incorporates international treaties as part of Egyptian domestic law without the requirement of enabling legislation, exhibiting the characteristics of legal monism. In a monist legal system, the judiciary can generally interpret and apply international law as it would domestic law. Like other legal monist countries, Article 151 requires the legislature to approve treaties in order for them to be ratified.¹ This approval is taken as the requisite sovereign action of affirming the role of a treaty as law within the state.

The key issue here, then, is how a treaty functions as a statute within a domestic legal system. The Egyptian constitution is unusually lucid on this point: treaties have the force of law. (That is, international treaties are to be treated the same as legislation.) As such, these treaties enter Egyptian law as statutory law; they are subject to the legal concept of leges posteriores priores contrarias abrogant, which holds that if two laws are passed which are prima facie contradictory, the law passed most recently is enforced.

Of course, in most legal systems a more recent statute is often interpreted in an attempt to avoid the implicit repeal of a previous statute. Moreover, the rebuttable presumption of conformity² assumes that domestic legislation is intended to comport with the treaty obligations of the state. What is clear, however, is that the Egyptian legislature can nullify the force of previously ratified human rights treaties by passing legislation which explicitly contradicts them.

Brown and Dunne are certainly correct in pointing out the importance of the judiciary in enforcing the statutory role of international human rights treaties within Egyptian domestic law. However, perhaps just as important will be the role of the House of Representatives. While any political discussion must wait until the body is actually elected, the House has the effective ability to negate the legal effects of a ratified treaty by a simple majority vote.³

It is possible, however, that such a statute would be considered complementary legislation under Article 121, as it may be construed to “organize the rights stipulated in the constitution.” In this case, such a statute would require a two-thirds majority approval in the House. Nonetheless, this is still quite different from a formal amendment process to change the constitution, which is found in Article 226. That article states that a constitutional amendment must be approved by two-thirds of the House and pass a public referendum.⁴ While it is unclear how exactly legal challenges of this nature would play out, it is clear that Article 93 can be effectively appealed without consulting the Egyptian people, in contrast with any other constitutional article. As Article 93 has been widely considered a high point in the constitution, this subtle fact of the Egyptian constitution is important to note.

This analysis thus far has ignored the Article 2 requirement that legislation is to be crafted with sharia as a source of inspiration. While this language has evaded precise definition during its decades of presence in various Egyptian constitutional documents, its place in the constitution undoubtedly holds it superior to the statute-equivalent ratified human rights treaties. That is to say that international human rights conventions are held inferior to Egypt’s Supreme Constitutional Court’s interpretation of Article 2.⁵

While this is important to note when considering legal challenges in Egyptian courts, the Supreme Constitutional Court generally does not strike down legislation for violation of Article 2. Additionally, as the Article 93 text specifically mentions treaties, it is silent regarding customary international law. This means that enabling legislation in the House is possibly required to bring in customary international law in as part of Egyptian law. As such, international norms not codified in treaties ratified by Egypt have no domestic legal effect.

What does this all mean for the average Egyptian? Right now the International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Covenant on Civil and Political Rights (ICCPR), the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (with important reservations) are all a part of Egyptian law. But Egyptians will want to be careful about those for whom they vote over the next few months—they will be empowered with the ability to negate these documents.

Moral Relativism & US Public Diplomacy (revised)

This update of an older post was written for the Public Diplomat and can be found here.

As the science of morality progresses, US public diplomacy should educate others despite any cultural differences.

Since the Age of Exploration, the dominant views of Europeans toward people who populated the other continents were paternalistic and ethnocentric — to not be Europeans and Christian instantly diminished the worth of a person or a belief. Relatively recently, the prevailing view in Europe and the West has shifted to become more tolerant — perhaps in reaction to the brutality of past injustices. In the extreme this has led to moral relativism, a judgment-free approach toward the values of other cultures. At present this view is ubiquitous in anthropological and sociological literature. As a modern, accepting people, so the argument goes, we shall not narrow-mindedly impose our morals on others.

But this argument assumes that morality is a subjective notion, or that there is no objective measure by which one can judge others actions or values. The only reason these assumptions have not been effectively challenged, argues Sam Harris in his book The Moral Landscape, is because we have an underdeveloped science of morality. Harris makes a key point: unknown is not the same as unknowable. Just because we have yet to coalesce on a singular measure of objective moral judgment does not mean that we will not be able to do so in the future. In light of the history of scientific and rational progress, we cannot say that the fields of neuroscience, evolutionary biology, and anthropology will never advance and be able to determine that certain actions, beliefs and principles are objectively counter to human well-being.

Can one say that rights of self-governance are objectively morally good?  Can one say that deploring despotic rule is merely a subjective preference, based on little more than culturally arbitrary preferences? One’s answer to these questions is vital to one’s view of public diplomacy. If the answer is that there is no objective truth on such moral questions, then why should the American people try to influence other cultures with portraying our values of democracy and human rights? If it’s for mere economic gain, why not sell the beaches of Hawai’i instead of

democracy and human rights? Surely vacation destinations are far easier to sell in places like China. If public diplomacy only functions to serve our subjective national trade or diplomacy interests, should it be valued as a legitimate field, or simply method of propaganda?

I view public diplomacy more expansively. The message of public diplomacy, like any other communication, must come from our ‘mission statement’ — the Declaration of Independence. The Declaration tells a candid world with what rights all people[1] were born — not just Americans. It discusses why all governments are instituted—not just the U.S. government. These are statements claiming objective truth! As such, I argue that any U.S. public diplomacy which flows from our organizational mission statement cannot be morally relative. And while the science of morality is underdeveloped, that does not mean that nothing is known. Harris compares morality to health: just as we know that eating only marshmallows is less likely to lead to a healthy body than eating a diet which includes leafy green vegetables and protein, we also know that enslaving or subjugating women or whole ethnic groups are less likely to result in human flourishing than equal rights and opportunities for all. For these reasons, U.S. public diplomacy should not shy away from strongly holding any cultural or political practice as superior to those which we know are wrong — especially as science progresses to advance our knowledge and understanding on these points[2].

In a sense, U.S. public diplomacy should not narrowly seek to advance our economic interests, but instead promote values which are objectively aligned with the promotion of human well-being. And as our understanding of human happiness and well-being advances, the more we will know about the science of morality, and the better we can conduct our public diplomacy toward educating others. “What right does the West have to tell a conservative Islamic country that women should not wear the veil?” one might ask. Someday, perhaps as much right as one has to assert that the Earth is an oblate spheroid and revolves around the Sun, and anyone arguing the contrary is simply wrong.

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[1] I generally take “all men” to mean “all humans,” but even if Jefferson explicitly meant the male gender, the point still stands that it was meant universally to all men, not just American men.

[2] I don’t assume that the U.S. has any monopoly on objective morality. No study has shown that corporal punishment bestows any long-term benefit on any person, yet the U.S. stands as a country which frequently practices it. Science also requires flexibility and recalibration in the face of evidence.

Former President Morsi’s Legal Liability for Incitement to Violence

This post was written for the Tahrir Institute and appears here.


In early September, former Egyptian President Mohamed Morsi and others in the Muslim Brotherhood were charged under Egyptian domestic law withincitement to the murder of protesters in December 2012. Egyptian authorities have provided no details of the evidence against him. However, Morsi and the Brotherhood were responsible for several other instances of incitement during their year in power, and a legal case can be made specifically regarding the incitement of violence against Shiites. 

Morsi neglected to enforce domestic criminal law by failing to denounce inciting speech by Muslim Brotherhood members and those in his presence during the Egypt-Syria Solidarity Conference on June 15, 2013. In the process, he violated international law and international obligations to which Egypt is bound. The result of Morsi’s abdication of duty was the killing of four Shiites in Egypt. 

The most widely accepted international standards of free speech are found in the International Covenant on Civil and Political Rights (ICCPR). Egypt is one of 167 states parties to have signed and ratified the 1966 ICCPR. Article 20 in the ICCPR states, “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” Article 20 goes on to name group hatred as to be prohibited by law. The language here is strong: an international treaty is directing domestic legal prohibitions of expression. This is not suggestive or aspirational language most commonly found in international documents; this language is mandatory.

Next, the Convention on the Elimination of All Forms of Racial Discrimination (CERD), also a 1966 document, has 175 states parties, one of which is Egypt. The CERD says that all states parties shall declare punishable by law “all dissemination of ideas based on incitement to racial discrimination, acts of violence or incitement to violence against any group of persons of another color.” The document goes on to proscribe any organizations or governmental institutions themselves which may create such utterances. The CERD is applicable here because in 2008 the UN Human Rights Council (UNHRC) passed a resolution that reaffirmed that the CERD was equally applicable to incitement of religious hatred.

In 2011 the Organization of Islamic Cooperation (of which Egypt is a member) introduced a resolution, which was adopted by the UNHCR, on discrimination and free speech. Point 3 of the resolution condemns “any advocacy of religious hatred that constitutes incitement to discrimination, hostility or violence…” Point 5(g) of the resolution demonstrates “…the need to combat denigration and negative religious stereotyping of persons, as well as incitement to religious hatred…”

The preceding sources all point to an international legal consensus on the issue of incitement—they all condemn the advocacy of group hatred. It is important to note that an imminent physical manifestation of such hate is not required—the intent to cause hatred toward a group itself is proscribed. Hate speech can be restricted for reasons such as respect for the rights of others and public order. Incitement to discrimination, hostility or violence are also prohibited.

However, international standards are not the only relevant measures of incitement in Egypt. A part of Egypt’s complex legal system is the Penal Code, which dates from 1937. The Code is periodically updated andremains in force to this day. The Code criminalizes the use of religion in public incitement or the mocking or ridicule of religion in public. Specifically, article 98(f) proscribes the use of religion in propagating by speech extremist thoughts aimed at instigation division or disdain, and article 176 criminalizes the incitement to hate or deride a sect of people. 

The 2012 Annual Report of the United States Commission on International Religious Freedom pointed out several incidents in 2011, one of which Morsi was in the presence of incendiary speech, but failed to denounce it. The report notes an October 19 statement against Jews, and several statements against Copts, such as on November 4 and 22. The 2013 Report found no improvement, and wrote that in the early months of 2012, an increase in government-funded mosques contributed to sectarian tensions. 

Ikhwanonline reported that high-ranking Muslim Brotherhood members including Dr. Mohamed Wahdan stated at an event in April 2013 that, “that the Egyptian people and government would not allow the spread of Shiism in Egypt.” Similar comments were made at the Egypt-Syria Solidarity Conference on June 15, 2013. Morsi was in attendance, and the conference was initiated by prominent Egyptian Sunni clerics. Several clerics “labeled Shiites as ‘impure’ or ‘filthy’ and protesters as infidels.” Specifically, Ali Ahmed Salus referred to the Shia Assad regime in Syria as “atheists.” Mohammed Hasaan asked Morsi to not open the gates of Egypt to “deserters,” a derogatory term for Shiites. Hasaan further noted that jihad is the obligation of able Muslims. Mohammed Abdel Maqsud spoke of June 30 as a fight against infidels. Former President Morsi spoke last and did not denounce any such remarks. While Morsi avoided direct incitement, his Muslim Brotherhood encouraged listeners to engage in jihad against theShiite government in Syria.

The language used by Muslim Brotherhood-associated clerics and those who spoken in front of former President Morsi falls on the president’s responsibility to denounce such incitement. A head of state is expected to hold such speakers responsible under the domestic Penal Code, and such an omission subjects the Muslim Brotherhood and Morsi to international legal liability.

The language heard at the conference clearly constitutes the use of religion in speech for extremist thoughts aimed at instigation division or disdain, which is specifically proscribed by Egypt’s Penal Code Art. 98(f) and 176. As the CERD clearly proscribes groups (such as the Muslim Brotherhood) which may create utterances that disseminate ideas based on incitement to group-based violence, the Muslim Brotherhood is in violation of that document, and should be subject to legal punishment. It is important to repeat that Morsi is a member of the Muslim Brotherhood. Further, the language also violates Points 3 and 5(g) of the Resolution Combating intolerance, negative stereotyping and stigmatization of, and discrimination, incitement to violence and violence against, persons based on religion or belief. They proscribe advocacy of religious hatred that constitutes incitement to discrimination, hostility, or violence, and requires the government to combat religious denigration and incitement to religious hatred. Lastly, the ICCPR, a legal treaty signed and ratified by Egypt, requires that state parties prohibit advocacy of religious hatred that constitutes incitement to discrimination, hostility or violence. 

Morsi’s lack of enforcement of both domestic and international law was not harmless. Eight days after the speeches at the stadium four Shiites were lynched in a Giza village. Human Rights Watch (HRW) wrote that Morsi, “failed to make it a priority to create a strategy to protect religious minorities and has failed to speak out against months of hate speech against Shia.” A local village official told the Arab Network for Human Rights Information (ANHRI) the Shiites were targeted because, “The sheikhs from the mosques went out last Friday and said that Shiites are apostates and we have to kick them out of the village.” HRW noted the actions of the police to protect the Shiites in the wake of the incitement was insufficient, as were the responses from both the government and the Muslim Brotherhood. The Muslim Brotherhood has been responsible for religious-based incitement to violence in the past, as well as immediately before the bloody killings of June 2013. Former President Morsi knew, should have known, or had a substantial certainty that violent actions would follow from the words of his supporters spoken in his presence—yet he did nothing. 

As such, by not denouncing the inciting speech of those from his own party or those who spoke directly before him at a major conference, former President Morsi failed to enforce domestic law and failed to uphold his international legal obligation as a head of state under the ICCPR and other international obligations to which Egypt is a party.