, , , , ,

It is official, the referee and kingmaker in Egypt’s post-Mubarak upheavals, the Egyptian army, has now one of its own as the country’s new president. Former army chief Abdel Fatah el-Sisi has overwhelmingly won the presidential election held on May 26th‑28th, gaining around 93% of the votes cast. As the last major component of the remaining processes meant to bring the military dominated transition of post-Morsi Egypt to a close (by having an army man as president), this election marks the last chapter in the ruling political elite’s efforts to return Egypt back to normal politics.


It is to be recalled that ridding on massive protests that erupted in Egypt on 30 June 2013, the military took the decisive step of removing Egypt’s first democratically elected President Mohamed Morsi on 3 July 2013. Although many in the international community did not condemn it, they did not either welcome the ouster of Morsi. Indeed, Egypt’s international relations, including with its major ally the US, soured following Morsi’s removal and the suspension of Egypt’s 2012 constitution.


Most notable in terms of international action was, the African Union’s (AU) principled decision on 5th July 2013 suspending Egypt’s membership in the Union. The AU treated the ouster of Morsi as unconstitutional change of government prohibited in its various instruments to which Egypt has subscribed. Under the Lome Declaration of 2000, unconstitutional change of government was defined i) military coup détat against a democratically elected government; ii) intervention by mercenaries to replace a democratically elected government; iii) replacement of a democratically elected Governments by armed dissident groups and rebel movements; and iv) the refusal by an incumbent government to relinquish power to the winning party after free, fair and regular elections.


In its decision, the AU did not specify which of one of the four instances listed under the Lome Declaration applies to the case of Egypt. Despite this omission and the reluctance of AU officials at the time to call it a coup, it was generally considered that the overthrow of Morsi, although backed by huge popular support, was a military coup.


In the light of the above, perhaps more than others in the international community, this presidential election is of significant consequence to the AU. Given that this election represents the last major component of the remaining transitional processes, the AU is now expected to decide on whether to reinstate Egypt to full membership. Unlike the case of Madagascar, which was reinstated at the January 2014 AU summit after its successful presidential election in December 2013, the case of Egypt presents a serious challenge.


Many critics found the election of El Sisi worrisome. In their view, El sis will take the election as a licence to continue with the draconian steps taken during the transitional period including the bloody crackdown on the Muslim Brotherhood and its supporters, the outlawing of the group, the mass arrest of protesters, critics and journalists and the closing down of the political space for opposition and dissent. As one observer aptly summed it ‘the election –extended into a third day of voting amid low turnout — will undoubtedly formalize an authoritarian regime that is a military dictatorship in all but name’.


It is not for the reasons that critics find El Sisi’s election worrisome that this election presents a serious challenge for the AU. El Sisi’s electoral victory strikes a major blow to AU’s norm banning unconstitutional changes of government.


This norm in banning perpetrators of unconstitutional changes of government from participating in elections held for restoring constitutional order seeks to close the door for legitimizing the unconstitutional seizure of power through elections. As noted above, given that Egypt’s president-elect played the decisive part in the removal of Morsi, the application of this rule would logically lead to keeping the suspension of Egypt. This would mean keeping Egypt ‘in the cold’ for a prolonged period of time. Given the strong probability that El Sisi may stay in power for more than one term, upholding Egypt’s suspension would mean that Egypt has to wait until such an unknown time when El Sisi would be replaced.


On the other hand, lifting the suspension of Egypt upon the conclusion of the election without regard to who won the election would mean going against a norm. It would amount to conferring recognition to the legitimization of unconstitutional change of government through election.


Some argue that AU’s readmission of Egypt would not be so serious a breach. They cite as evidence AU’s decision that lifted Mauritania’s suspension from membership after the coup leader, who is now the Chairperson of the AU Assembly, was elected as the country’s president in 2008. Since the rule banning the legitimization of unconstitutional seizure of power through election became legally binding only in 2010 through a decision of the AU Assembly, this contention is unacceptable.


While there is little space for ambiguity on the binding applicability of the rule to the case of Egypt, it is nevertheless clear that on Egypt, the AU seems to be between a rock and a hard place. Either it has to lift the sanction on Egypt and have a dented credibility or uphold its principle and create the de facto exclusion of Egypt for an indefinite period of time.


Should the AU opt for the first option, then it is unlikely for it to avoid being considered as having accepted the legitimization of unconstitutional seizure of power through election and hence failing to uphold its principle. It will have no moral or political credibility for applying this rule in the future.


Given the stark consequences of opting for either options, it would be a matter of choosing the better of the two evils. In the particular circumstances of this case, this determination turns on the question of which one can serve the object and purpose of the AU norm on UCG and the application of the sanctions regime best. Alternatively, it would be decided on pragmatic considerations.

If at all the AU opts for the first option by giving more weight to the fulfilment of other conditions of the norm on UCG and on account of the need to avoid the indefinite suspension of Egypt, it is imperative that it explicitly states that this does not in any way set a precedent to any future cases. Without such an explicit statement, the rule banning the legitimization of unconstitutional seizure of power through election will have no chance of being applied and respected in future cases.

Unlike its stand in July 2013 when it broke ranks from the rest of the international community, this time around AU seems disposed to join others in the international community in giving precedence to pragmatism over principles.

All the indications are that there is very little appetite within the AU to keep Egypt’s suspension. There are a number of AU member states that are resigned to the idea of lifting Egypt’s suspension even if this would be contrary to AU’s established norm. As far back as January 2014, AU’s High-level Panel on Egypt expressed its hope that, with the forthcoming national elections, the transition process in Egypt will be completed. On its part the Peace and Security Council, the body that suspended Egypt, stated that it ‘looks forward to the early completion of the process to restore constitutional order’ and expressed ‘its readiness to take the required decisions (a euphemism for lifting of sanctions) based on a report to be submitted by the High Level Panel [on Egypt].’

While there is no unified position in the AU Commission, there is little chance that those who advocate for upholding the AU norm would win the battle. This became clear when the Commission sent election monitors to Egypt for observing the presidential election. This was a very subtle statement recognizing and legitimizing the candidacy of El Sisi, the person behind the July 2013 coup.

Both the US and the EU are bent on giving Egypt’s vote a clean bill of health. As an article on the Guardian put it ‘Washington, London and Brussels are already finalising carefully-crafted statements about the will of the Egyptian people and pressing forward with the promised “democratic transition”. There will be euphemistic calls for “inclusiveness” and widening the country’s “political space”. There may even be some critical words about justice and human rights. But there will be congratulations for Egypt’s new strongman.’

Nothing different is expected from Addis Ababa. While the views of those opposing the lifting of Egypt’s suspension will be reflected in strong demands for inclusivity and deepening of democratic processes and expression of serious concern on violent crack down on opposition and protestors, in the end there will be the decision lifting Egypt’s suspension. To make Egypt’s return to the AU complete, El Sisi will be welcomed by the Chairperson of the AU Assembly, Mohamed Ould Abdel Aziz, current President of Mauritania who was elected as president after overthrowing a democratically elected government in 2008.

It is a perfect case of déjà vu!

Be sure to see a great deal of diplomatic scrambling to make this happen as in the very near future as the 23rd summit of the AU Assembly schedule to take place in Malabo, Equatorial Guinea starting from the 3rd week of June. By then El Sisi will be sworn in and will certainly kill to be there and deliver a speech telling his peers Egypt is back, back with a vengeance.