On December 3, a few days after Colonel Ahmed Konsowa announced in a YouTube video that he intended to run against Abdel Fattah el-Sisi in the upcoming Egyptian presidential election, he was detained and put on a military trial for announcing his bid while still serving in the military. In an uncharacteristically prompt trial on December 19, he was sentenced to six years in prison and is now awaiting an appeal before a military court.
Konsowa, who had previously tried to resign from the military to run in the 2015 parliamentary elections, is not the only presidential hopeful to face dire consequences for his intentions. After declaring his decision to run, Ahmed Shafik—Egypt’s former prime minister and air force pilot who ran in the 2012 presidential election—was deported from the UAE and held incommunicado for 24 hours upon his return to Egypt. Following this episode, he indicated he no longer wishes to participate. Sami Anan, the former Chief of the General Staff of the Armed Forces, was detained on January 23 after announcing his intention to run for president, and is now accused of incitement against the military and of violating military code. Khaled Ali, a prominent lawyer, withdrew on January 24, citing the absence of a democratic process or any possibilities for competition. Sisi currently stands unchallenged.
Military officers, though not banned from political participation, have to resign from the military before running for any office. In May 2013, the Supreme Constitutional Court upheld the constitutional right of Egyptian military and police personnel to political participation—thereby rejecting a draft law by the then Islamist-dominated Shura Council that would have denied military and police personnel their right to vote. The court’s decision made clear the difference between denying the right to vote based on “temporary and objective” conditions (such as age or mental disability) and depriving an entire group of people (such as military personnel) of a right. The law was thus rejected on basis of preventing discrimination. In addition, the court explained that exempting citizens based on the nature of their employment further impinges on the right to work, which is also protected by the Egyptian constitution.
However, the 2014 constitution changed this, specifically in Article 87. Although the constitution establishes that participation in public life is a national duty and that “every citizen has the right to vote [and] run in elections,” it adds ambiguity with the clause: “the law shall regulate the exercise of this right.” This leaves room for the regime to distinguish between the possession and exercise of a right. Article 87 further states that “performance of these duties may be exempted in cases specified by the law.” This formed the legal basis for Interim President Adly Mansour’s Decree 45/2014, which excluded active military and police personnel from political participation—further violating the Supreme Constitutional Court’s 2013 decision.
Mansour’s decree forms part of a multi-layered scheme by the Supreme Council of Armed Forces (SCAF) to eliminate political competition from military personnel it does not endorse. SCAF also exercises excessive control over the National Elections Commission, which under Articles 208 and 209 of the 2014 constitution is exclusively responsible for setting the regulations and procedures for elections. Yet its structure provides a number of filters for the president (currently essentially a SCAF delegate) to influence the commission and eliminate competition. First, the president must approve the commission’s members, who are selected by judges who are themselves appointed by the president. The constitution does not specify to whom this commission should report, which in practice means it reports to the president. Its decisions had been final and could not be appealed until January 8, 2018, when it announced that appeals can be brought before the Supreme Administrative Court.
Moreover, the commission is inconsistent in deciding the logistical and procedural matters of elections, making it difficult for opposition figures to organize a campaign. In the 2014 presidential election, the commission decided to extend the voting window for an additional day when low turnout threatened to undercut the election’s credibility and undermine Sisi, whom SCAF supported. In the upcoming presidential election, candidates have only 18 days to collect 25,000 endorsements from across 15 governorates to qualify. Candidates not backed by SCAF cannot anticipate the commission’s decisions, but SCAF-backed candidates can.
SCAF also exerts control over potential military candidates through the Judicial Committee for Officers and Personnel of the Armed Forces. Article 196 of the 2012 Constitution—which remained in the 2014 constitution as Article 202—established that administrative disputes of military personnel would be relayed to this committee instead of to the State Council, which adjudicated all administrative disputes in the country. Interim President Adly Mansour used this article to justify Decree 11/2014, which established a Supreme Judicial Committee for Officers and Personnel of the Armed Forces. The Supreme Judicial Committee is headed by the Minister of Defense and Joint Chiefs of Staff and hears appeals of the Judicial Committee’s rulings, though its own rulings cannot be appealed. Through these committees, SCAF members and their deputies issue definitive administrative decrees disguised as judicial rulings. The committees’ final decisions add an additional filter against any potential contenders in elections.
In Konsowa’s case, annulments of his resignation (an administrative matter) have therefore been protected as a final judicial decision. His predicament comes down to another legal loophole. According to Egyptian law, any military personnel must submit copies of their resignations in order to appear on voting lists—and unlike in civil law, military law requires a resignation be officially accepted before it is legally valid. Konsowa received two rejections by non-response and once, without any reasoning provided, by an official notification issued on October 22, 2014 by the Committee of Armed Forces Personnel Affairs and ratified by the Minister of Defense. In response to these rulings, Konsowa filed three lawsuits at the Judicial Committee for Officers and Personnel of the Armed Forces, which rejected his appeal, a decision that was upheld by the Supreme Judicial Committee.
Furthermore, questioning the constitutionality of the committees, Konsowa filed another seven lawsuits at the State Council to receive recognition of his resignation from a constitutionally valid body. One case from February 29, 2016 was against Minister of Defense Sedki Sobhy for rejecting his resignation. This case specifically disputed the non-judicial, therefore unconstitutional, composition of the Judicial Committee. During this prolonged process, he also made three requests to the office of the Minister of Defense to receive permission to resign and run for president in October 2015, February 2016, and August 2017. None of these requests were answered.
Although Konsowa’s case is still pending, it did succeed in pressuring President Sisi to issue Decree 5/2017 on February 5, 2017, amending the composition of the Supreme Judicial Committee and stipulating that it be headed by a member of the military judiciary. The new Supreme Judicial Committee still refused Konsowa’s request to annul its predecessor’s decision. Undeterred, Konsowa filed another suit on January 12 with the Supreme Constitutional Court, calling into question the constitutionality of Mansour’s Decree 11/2014—which excluded the military from political participation and formed the basis for a previous rejection of his appeal at the Supreme Judicial Committee. The Supreme Constitutional Court is yet to set a date to hear the case despite Konsowa’s impending deadline for the presidential election in March. This protracted legal battle demonstrates how fervently SCAF wants Sisi to win the election.
SCAF’s control of all constitutional and legal mechanisms regulating the transfer of power was further affirmed by the arrest of former Lieutenant-General Anan. Despite this iron-clad control, Konsowa’s persistence and Anan’s confrontational speech, which solicited a reprimand from SCAF, signal dissatisfaction with Sisi among the armed forces. This raises a critical question about the depth of the division SCAF is trying to hide and the extent to which SCAF is willing to risk the unity of the armed forces.
Sawsan Gad is co-founder and general coordinator of the Egypt Parallel Constitution initiative, which promotes constitutional reforms in Egypt. Follow her on Twitter @Sawsaga.
