Egypt: Political environment of 2012 presidential elections

Updated January 2012

The political environment of the 2012 presidential election was characterised by political polarisation and constitutional uncertainty created by the timing of the presidential election, the configuration of the new parliament, the debate on the Constituent Assembly, the end of the state of emergency, rulings of the Supreme Constitutional Court (SCC) and the Supplementary Constitutional Declaration issued by the SCAF on the last voting day.

The 2012 presidential election took place three months after the parliamentary elections. Holding the presidential elections before the constitutional referendum raised concerns among stakeholders because the referendum was supposed to set out the powers of president to be elected. In the absence of a constitutional amendment to set out the powers of the new president and the powers of the parliament, the elections took place in an atmosphere of constitutional uncertainty. The ruling by the SCC dissolving the parliament on the basis of the unconstitutionality of the legal framework for its election further aggravated the constitutional uncertainty. The absence of a parliament and the lack of a constitution left the country with a dangerous constitutional vacuum which could lead to a political crisis.

Political and religious polarisation

The Muslim Brotherhood's Freedom and Justice Party (FJP) emerged as the dominant party in both houses of parliament, with 218 of the 498 contested seats in the 2011-2012 parliamentary elections. The FJP was followed by the Salafist Al Nour party, which won 108 seats, while other secularist/liberal parties won very few seats. The parliament was therefore divided between the Islamists and the liberals. The political divisions in the parliament also impacted on the Constituent Assembly debates. At the end of March 2012, the People's Assembly named the members of the 100-person Constituent Assembly that would be responsible for drafting the post-revolution constitution. Following the election of 50 members, with most of them coming from the FJP, Al Nour party and other affiliated parties, most non-Islamist members of the Constituent Assembly resigned in protest against the Islamist domination of the Assembly. On 10 April 2012, liberal and secular-minded groups filed a lawsuit challenging the constitutionality of the composition of the Constituent Assembly, which resulted in its suspension. The court ruling on the suspension of the Assembly further contributed to the tense atmosphere that preceded the elections. The absence of a constitution left a gap in the political architecture, as the powers of the president to be elected were yet to be defined, thus leaving questions about the balance of powers and the timing of the presidential elections.

These political divisions were further complicated by the passage of the Corruption of Political Life Law, commonly known as the 'Disenfranchisement Law' by the People's Assembly and its ratification by the SCAF on 23 April 2012. This law barred individuals who served in top government positions in the last 10 years of the Mubarak regime and/or individuals who served as top officials of the NDP in the last 10 years from contesting in the presidential election. This law highlighted another side of the political divide. The political context prior to the election was therefore polarised between the Islamists, the liberals and the remnants of the Mubarak regime called 'felloul'.

Protests ahead of the elections

The period ahead of the election was also characterised by demonstrations in renowned places like Tahrir Square and Abbaseya in reaction to the ratification of the Corruption of Political Life Law and its application in the candidate registration process. Specifically, protesters returned to Tahrir Square and Abbaseya calling for an application of the 'Disenfranchisement Law' to disqualify candidate Ahmed Shafiq, who was the last prime minister of the Mubarak regime, from contesting in the election. Protesters also gathered at the headquarters of the Higher Presidential Election Commission (HPEC) with demands for the revision of Article 28 of the Constitutional Declaration, which makes the HPEC's decisions final. These protests were organised in reaction to the decision of the HPEC to uphold the candidature of Ahmed Shafiq. Protesters also called for a review of the criteria set for choosing the members of the Constituent Assembly and the disqualification of actors from the former regime from the presidential election.

The end of the state of emergency

On Thursday, 31 May 2012, the SCAF issued a statement declaring the end of the state of emergency. The state of emergency was imposed in 1981, following the assassination of President Anwar El Sadat by Islamists. Under former President Hosni Mubarak, it was re-imposed on several occasions, despite protests from civil rights movements and regime opponents. The end of the state of emergency was viewed as an indication of the commitment of the SACF to restore civil rule in Egypt. Among the citizens, the end of the state of emergency was viewed as an opening of the political space for freedom of expression.

Former President Mubarak's trial verdict

Following the resignation of former president Hosni Mubarak, he and his interior minister, Habib El-Adly, were charged for conspiring to kill more than 800 protesters during the 2011 revolution protests. Corruption charges were also brought against the former president, his two sons - Alaa and Gamal - and an Egyptian business tycoon, Hussein Salem. The trial of the former president and Habiab El-Adly started in August 2011 amidst concerns for the deteriorating health of the former president. The trial continued for six months and was concluded in February 2012 and judgement was scheduled to be delivered in June. The first round of the presidential elections was held during the period when judgment was awaited. On Saturday, 2 June 2012, the court sentenced the former president and his interior minister to life in prison for complicity in the killing of protesters during the 2011 revolution. Six police chiefs were acquitted of charges of carrying out orders to kill the protesters. In another ruling, Mubarak's two sons, and the Egyptian business tycoon, Hussein Salem, were all found not guilty of corruption charges. This verdict came against the backdrop of an already volatile political environment linked to the results of the first round of the presidential elections. The court verdict was also greeted with protests, thus contributing to the tensions ahead of the run-off election.

Rulings of the Supreme Constitutional Court and the Supplementary Constitutional Declaration

The political environment ahead of the run-off election was also impacted upon by other constitutional and political events - specifically, the issuance of the Decree No. 4991/2012 by the SCAF, which granted the military police and the military intelligence officers powers to arrest civilians in cases of crime, just a day before the announcement by the Supreme Constitutional Court's (SCC) decision on the constitutionality of the 'Disenfranchisement Law' and parliamentary elections laws. The issuance of the decree was interpreted as a message to create an atmosphere of fear ahead of the court judgments and the elections. The decision of the First Circuit Administrative Court, on Tuesday, 26 June 2012, to revoke Decree No. 4991/2012 issued by the Minister of Justice that granted military intelligence and military police the power to arrest civilians. The decision came about following an appeal submitted by a group of human rights NGOs.

Following the conducting of the parliamentary elections, an independent candidate in Qaliubiya District had filed a legal action before the Supreme Administrative Court (SAC) to challenge the constitutionality of the Parliamentary Elections Law in February. The law was challenged on the basis that it was discriminatory against independent candidates. In the 2011-2012 parliamentary elections, party candidates were allowed to contest for seats reserved for independents; it was argued that this was a violation of the principle of equality which is guaranteed in article 7 of the Constitution. On 22 February, the SAC ruled that the law was unconstitutional and also referred some of its provisions to the SCC for a final verdict on the constitutionality of the law. On 6 May 2012, the SCC announced that its judgment on the case would be suspended. After the passage of the 'Disenfranchisement Law' and the protests that followed the acceptance of Ahmed Shafiq's candidature, the Supreme Presidential Election Commission referred the law to the SCC for a verdict on its constitutionality and application.

On 14 June 2012, just 48 hours before the presidential run-off election, the SCC ruled that these laws were unconstitutional. The SCC ruled that the Parliamentary Elections Law, having allowed party members to compete on the individual list, violated the principle of equality enshrined in article 7 of the Constitution, because party members were afforded an opportunity to contest on the party and the individual candidate list, thus giving an undue advantage to party candidates over independent candidates. Furthermore, in its verdict on the 'Disenfranchisement Law', the SCC ruled that the law violated the candidates' right of equality before the law and excluded people on the basis of their profession rather than on the basis of any crime. These rulings led to the dissolution of parliament by the SCAF in compliance with the decision of the SCC, and left Ahmed Shafiq in the race for the run-off presidential elections. The dissolution of the parliament just 48 hours before the run-off elections further contributed to the uncertain context of the presidential elections.

As the polls closed and the vote count started in the evening of 17 June 2012, a supplementary Constitutional Declaration was issued by the SCAF. This declaration curbed the powers of the President of the Republic to be elected and transferred legislative powers to the SCAF pending the election of a new Parliament. This further complicated the already existing legal uncertainties that left questions about the essence of the presidential elections and the value of the people's mandate.