The Prosecution's Case and the Defense

The following is a summary of the charges brought against prof. Saad Eddin Ibrahim, as well as the arguments presented by both the Prosecution and the Defense during his two trials before State Security courts that sentenced him to 7 years of imprisonment, and his third and final trial by the Court of Cassation after the State Security Courts' sentences were twice overturned on appeal.

Charge #1: That the defendant conspired to bribe government employees of the State-owned TV and Radio.

On this charge: the defendant was acquitted in the first trial by the State Security Court on 21, May 2001.

Charge #2: that the defendant violated Military Decree No. 4 of 1992, by accepting---as Chairman of the Ibn Khaldoun Center for Development Studies (ICDS)--- donations from the European Commission (EC) amounting to 245,000 Euro, as well as accepting---as Treasurer of the Association for the Support of Women Voters (HODA)---the sum of 126,000 Euro, without taking prior permission from the Ministry of Social Affairs.

The Prosecution's Evidence and Argument:
(a) That the European Commission did in fact fund two projects of ICDS, and HODA; and
(b)That although the Military Decree in its preamble states that its purpose was to prohibit the kind of fund-raising activities normally undertaken to raise Free Donations from the general public---listing gala events, athletic competitions, and such similar means---to help victims of natural catastrophes, yet the Decree concluded that list by the all?inclusive statement "or for any other reason." And that, moreover, the Decree did not explicitly specify that it applies only to entities registered as NGOs (non-governmental organizations).

The Defense's Argument:

1- It is a settled point of law that the meaning of a legal clause is to be sought in the totality of the statute and the reasonableness of the meaning assigned thereto. It is also generally conceded that a Military Decree is enacted as an expression of a specific purpose; that is, it is not intended as an abstract proposition but is an expression of policy arising out of specific situations and intended to attain particular ends. The specific situation that Military Decree No.4/1992 was intended to address was the devastating incident of the 1992 earthquake, and the fear of exploitation of that catastrophe by certain individuals and groups to collect donations that go into their own pockets. It was also intended to prevent landlords and tenants from exploiting the earthquake to circumvent housing laws. This is why the decree included items dealing with "donations" as well as others dealing with "housing." Clearly there is nothing that links these two seemingly disparate items?donations and hous ing? save the fact of the earthquake. Hence also the fact that the statute was promulgated by military decree, because of the urgency of the situation, rather than wait and have it pass through the legislature as would have been the normal procedure had there not been the emergency of the earthquake.
In view of the above, it is not reasonable to apply that Decree to the financial activities of two private entities contractually committed to execute a particular project, as is the case between the EC and the ICDS.

2- Moreover, the Decree was clearly intended to apply only to NGOs, by virtue of the fact that the authority which the Decree specified for issuing permissions was the Ministry of Social Affairs, which is the ministry in charge of NGOs. Consequently, the Decree does not apply to either the Ibn Khadoun Center (ICDS) or the Association in Support of Women Voters (HODA), since both are registered as private companies, not as NGOs, and the Ministry of Social Affairs has no jurisdiction over civil companies which fall under the purview of the Ministry of the Economy.

3- The funds paid by the European Commission to both ICDS and HODA were not free donations. They were the shares of the EC in the funding of two projects, as per the terms and conditions of written contracts which defined clearly the tasks, responsibilities, and rights of the contracting parties. These included that ICDS and HODA contribute 20%, and 40% respectively, of the total cost of the projects and the European Commissions right to audit the accounts of these projects, and, in case of default by its Egyptian partners, its right to cancel the contracts and demand return of all monies it had paid,
In short, both ICDS and HODA are private civil companies and the nature of their relationship with the European Commission was governed by the kind of detailed contractual document normally drawn between two private organizations. The exhaustive clauses of these contracts and their stringent conditions categorically exclude the categorization of the funds paid by the EC as the kind of free donations referred to in the military Decree No. 4.

4- With regard to the phrase or for whatever reason in the Military Decree which the Prosecution claims covers any and all funds received by Egyptians regardless of whether they are free donations or not, the defense submitted two arguments, each of which was sufficient to negate the Prosecutions contention that that phrase is all-inclusive:
The first, is that it is a settled point of law that when general words such as or for any other reason follow a listing of things (such as the list of fund-raising activities prohibited in the Decree), then such words are not to be construed in their widest sense, but are held to apply only to things of the same nature as those specifically listed. Moreover, if the phrase or for whatever reason was indeed intended to cover all transfers of funds, unconstrained by any conditions or events, then all that came before that allegedly all-embracing phrase (the mention of natural catastrophes, and the listing of prohibited fund-raising activities) becomes redundant verbiage that was totally needless?a situation that cannot be entertained in any interpretation of a legal statute.
The second refuting argument is that if the claim of the Prosecution is accepted, then?in view of the fact that both ICDS and HODA are private companies that have entered into civil contracts with a European partner?all business contracts in Egypt cannot be implemented before taking prior permission from the Ministry of Social Affairs?a patently absurd proposition.

5- What is particularly striking in this charge is that there are dozens of private and quasi-governmental research centers like ICDS and HODA in Egypt, all of which have for years received funding from abroad for their research projects without taking prior permission from any governmental authority. Yet not a single one of them has ever been indicted or tried on the basis of this Military Decree. Thus to charge and try Dr.Ibrahim on the basis of this Decree is a unique incident in Egyptian criminal history. It can only be interpreted as a case of flagrant selectivity by which the state chose to target one person (and by doing so to send a chilling message to other private institutions concerned with democracy and human rights.)
Adding to the bizarre nature of this charge is that the Ibn Khaldoun Center has since its inception in 1988, been publishing its annual financial report which clearly indicated all the fundings it received from abroad. Such transparency is tantamount to a public notification to the Egyptian authorities regarding the funding received by the Center. It is therefore unexplainable why the authorities have permitted this practice to continue for eight years before deciding to indict Prof. Ibrahim.
Indeed, the whole issue of foreign funding for research centers was publicly and heatedly debated in the most prominent Egyptian daily papers in 1994, i.e., two years after the promulgation of Military Decree No. 4 of 1992. That debate was initially launched by a virulent attack on the Ibn Khaldoun Center and Dr. Ibrahim for planning a conference on minorities in the Arab World, in which he included among the minorities the Copts in Egypt. Why did the government wait to prosecute him until many years later? And why did it only select the funding of the European Commission, when there are many other ICDS projects funded by other donors that were simultaneously under execution? The likely answer is that Dr. Ibrahim, had provoked the anger of the regime (at the time of his arrest) by his plans to train Egyptian election monitors for the fall 2000 parliamentary elections. His arrest, trial and conviction by the regime would not only put an end to his irksome activism and effectively silence him, but wou ld also send a message to others working in the field of human rights that there are strict limits to how far they can go.


Charge # 3: That Dr. Ibrahim is guilty of the felony stipulated in statute No. 80 D of the Penal Code, which criminalizes "any Egyptian who intentionally, and for personal gain, disseminated false rumors abroad regarding domestic conditions that might have the effect of defaming the State and undermining its prestige." These alleged false rumors to which the Prosecution referred, related to statements by Dr. Ibrahim concerning the rigging of elections and religious persecution against Egypts Coptic citizens.

The Prosecution's Evidence and Argument:
As proof of its charge against Dr. Ibrahim that he has spread lies and rumors abroad regarding the rigging of elections and the persecution of the Copts, the Prosecution submitted in evidence one faxed letter dated three years earlier (!) in September 1997, addressed by him to a German Protestant Organization. This fax constituted a proposal for a joint project to promote a more democratic culture. In its preamble was mentioned that (i) the 1995 national elections were marred by violence and the arrest of opposition candidates; and (ii) the Copts are increasingly subjected to discrimination by certain political factions, and exposed to physical and psychological harassment by the Islamists.
These statements, the Prosecution claimed, were obvious lies, obvious to every honest citizen in the land. The fact that this letter was faxed to the German Organization, the Prosecution said, proves conclusively that these alleged lies were disseminated abroad, since electronic means (i.e. the fax) were used to deliver the statements outside Egypt.

The Defense's Argument:
1- What Dr. Ibrahim is charged with having said regarding elections and the Copts are neither lies, nor rumors, but substantiated facts that were widely discussed in the Egyptian press. The prosecution failed to provide any evidence whatsoever to contradict these facts. Moreover, Dr. Saad was never questioned regarding these charges during the interrogation phase following his arrest in June 2000.

2- The distinction between speaking at home or abroad is totally meaningless in this era of open skies and instant communication between all parts of the globe. It is ridiculous to assume that what is said internally is not heard abroad. Indeed an important task of all foreign embassies is to monitor the local press and intellectual circles and to report to their home country.

3- It is absurd to imagine that any single individual, helped by a handful of young social researchers, can provide studies that would contribute in any significant manner to defaming a country or influencing the overall policy of foreign powers. The torrent of information published and aired in the Egyptian media swamps any individual contribution by a single researcher.

4- If it is claimed that the statements made by Dr. Ibrahim have harmed Egypt, it was incumbent upon the government to: (i) Show clearly the extent of the harm that befell the country as a direct consequence of these statements, as distinct from similar statements published by other writers in the Egyptian press who day in and day out have attacked the government on all fronts; and (ii) Indicate why only the statements of Dr. Ibrahim on these two issues were singled out as deserving of prosecution.
The prosecution failed to address these crucial points.

5- The prosecution has conflated "Egypt" with the ruling "regime." The "prestige" of the regime and its criticism should not be disingenuously interpreted as an attack on the Egyptian nation, as is the want of authoritarian regimes in order to suppress opposition.

6- The writings of Dr. Ibrahim did not accuse the government of persecuting the Copts, but rather with institutionalized discrimination against them. This he has been saying for years, and so have other prominent Egyptian Moslem and Coptic writers, and it is certainly no secret to international observers. Dr. Ibrahim has documented this discrimination in several of his books and articles over the last two decades. It is therefore not understandable how the statements cited by the Prosecution in its indictment of Dr. Ibrahim could be of such calamitous dimensions as to endanger, now, Egypts national security.

7- Even if, hypothetically, the statements regarding the elections and the Copts were untrue, this should provide no cause for prosecution. Error is inevitable in all public debate, hence even false statements directed against the government should be protected with the heaviest possible presumption that they are made without malice, in order to ensure that free speech remains uninhibited and robust.
The Egyptian government and its President have repeatedly stated their commitment to these values, leading researchers like Dr. Ibrahim to believe that such exercise of opinion was welcomed. Hence, the principle must be upheld that a government does not entrap its citizens by calling for democratic practices and then criminalizing their actual exercise.

8- Consequently, the expression of opinion should receive absolute protection because it is essential to the workings of a democratic society and the protection of its central values of freedom.
Debate on public issues will be severely inhibited if a speaker must run the risk of having to provide conclusive proof of his statements in court. This would have a chilling effect on all free speech regarding public affairs. To provide a minimum of justification to penalize Dr. Ibrahim on this count, the following at least should have been conclusively proved beyond any reasonable doubt by the Prosecution: (i) that his spoken or published material was disseminated with full knowledge of its falsity, or with reckless disregard for the truth; and (ii) that this was done with malice aforethought in the face of clear and present danger to Egypts national security. The Prosecution failed completely to provide any evidence regarding these points.

9- Finally, the government cannot act in a selective manner with regard to citizens who perform the same act. Thus, if an act is punishable by law, then all such acts that are brought to the attention of the government must be punished. The government is not permitted to pick and choose selectively at its own arbitrary discretion among those guilty of that act.
A myriad number of analysts and commentators have accused the government in lectures and in the Egyptian Press of systematic rigging of elections. Indeed this is an established fact of life that is recognized by all Egyptians: young and old, rich and poor, the educated as well as the illiterate. Samples of many clippings to that effect were submitted to the Court. Several other writers have pointed to blatant institutionalized discrimination against the Copts. Numerous samples of these accusations too were also submitted to the Court. The words which the Prosecution quoted above from the personal fax sent by Dr. Ibrahim to the German Protestant Organization---within the context of a proposal to fund a scholarly research project---pale completely beside the vitriolic attacks on the government by other writers on these two issues. None of these writers were ever brought to trial for such criticisms.


Charge # 4: That the defendant through ruse and trickery managed to acquire monies belonging to the European Commission by means of concluding an agreement with the latter to fund a fictitious project; and that he contrived expenses, and manufactured 60,000 voter registration cards of Egyptian citizens for the purpose of embezzling the Donors funds.

The Prosecution's Evidence and Argument:

(a) The Evidence presented:

1- The testimony of Nibal Abdel-Nabi, who worked for some time as a secretary in ICDS, and then became treasurer at HODA. In her testimony she claimed that she had deposited cheques drawn from the HODA account, amounting to 160,000 Egyptian Pounds ($40,000), in Dr. Ibrahims personal account. She further claimed that employees were forced to sign bogus checks in order to re-cycle money back into the Center's account and those employees who did not comply were threatened with dismissal.

2- The existence of 60,000 photocopies of voter ID cards, were presented as evidence of forged documents based on the Prosecution's allegation that none of the names on them were found on the official registered voting lists.

(b) The Argument put forth:

1- Prosecutors argued that even though the contracts between the European Commission and both ICDS and HODA are private civil contracts, yet the State has the right as well as the obligation to pursue fraud wherever it is found, and prosecute the perpetrators in order to protect society's moral fiber.

2- Prosecutors claimed, but showed no evidence except Nibals testimony, that Dr. Saad planned and organized the voter registration scheme to falsely register voters in order to take additional money from the EC.

The Defense's Argument:

1- The testimony of Nibal Abdel-Nabi appears to have been fabricated in order to implicate Dr. Ibrahim. This is suggested by the fact that it was Nibal who phoned Dr. Ibrahim three days before his arrest and asked to bring some of her "important papers" to store at his home, which she did. These were later found to be the alleged forged registration cards. She was the only one among those indicted who was not detained in prison during the period of the interrogation by the Prosecutor prior to the trial. All other defendants were held in prison for 45 days. Nor did she appear in court during the entire course of the trial, except on the two final days in which the Court passed sentence. (Nibal received a one year suspended sentence)

2- No ruse or trickery was used by Dr. Ibrahim in contracting with the European Commission. The EC has a permanent office in Cairo, and entered into contracts for the two projects in question after numerous visits to the offices of ICDS and HODA, and after lengthy detailed discussions to ascertain the feasibility of the projects and the ability of ICDS and HODA to execute them. On the other hand, the Prosecution failed to provide any evidence of the ruse and the trickery that it claims was used to lure the EC to enter into contractual agreements with ICDS or HODA. Nor did the Prosecution produce any evidence to substantiate its claim that the projects were fictitious. On the other hand, the defense presented substantive reports approved by the EC detailing the project's activities, as well as several affidavits by the EC expressing its full satisfaction with the way the projects were conducted, and with their financial accounts.

3- The contrived aspect of this case?which aimed solely at penalizing Dr. Ibrahim for his activism against the authoritarian practices of the regime?is clearly exposed by the Prosecution's treatment of Ms. Amina Shafik. Dr. Amina Shafik, in her capacity as Secretary General of HODA was responsible in her testimony for the work at this organization in the same capacity as that served by Dr. Ibrahim at ICDS. Although she admitted her full responsibility for the activities of EC project, the Prosecution, for no understandable reason, did not implicate her in charges against HODA, but indicated Dr. Ibrahim instead. There can be hardly stronger evidence of the selective and punitive aspect of the Prosecution's entire case.

4- The 60,000 voter registration cards that the Prosecution claimed were fabricated were in fact only photocopies of registration cards. The Prosecution thus failed even to show that any forgery of any kind was committed. A State Security Police investigator testified that the names on the photocopies were fictitious and did not appear on any official list of registered voters. However, no official voter lists were submitted to support this allegation, nor was any affidavit from the competent authorities submitted as evidence to either the presence or absence of these names from the lists of registered voters in the districts in question.

5- Regarding the purpose of the photocopies of voter IDs: One of the goals of the EC projects was to encourage and promote political participation by Egyptian citizens. This goal was addressed through activities such as rallies and education campaigns, and producing television spots. These were the activities that ICDS and HODA were committed to undertake as per their contracts with the EC. The EC never required nor did ICDS or HODA promise in any contract to help register a specific number of voters in order to obtain the project funds. The registration drive by ICDS was no more than a voluntary initiative on its part, and the photocopies were merely an administrative procedure intended to provide a rough criterion of the effectiveness of the activities of its staff in the field.

6- Finally, the Prosecution claimed that Dr. Ibrahim embezzled the projects funds by means of issuing bogus expense checks, which he then deposited in his personal bank account. To investigate the veracity of this charge an expert committee of the Central Bank of Egypt was commissioned by the Court to look into all the personal bank accounts of Dr. Ibrahim as well as those of ICDS and HODA. The final report of the Committee?which was submitted as evidence to the Court?determined the following:
(i) That they found no evidence in Dr. Ibrahim's personal account of the alleged bogus checks.
(ii) That his personal account showed no evidence of any undue or suspicious activity.
(iii) That he has not transferred any amounts from the accounts of ICDS or HODA to his own personal account, except for a rent payment owed to him (for the HODA premises). Nor were there any withdrawals from said accounts of ICDS or HODA for his own personal use.
(iv) Contrary to the Prosecution's allegations the Committee reported that Dr. Ibrahim has, since 1997, provided loans from his personal account to both ICDS and HODA, and that the total of the outstanding loans, up till the time of his arrest, was 395,096 Egyptian Pounds ($100,000)

7- It is unprecedented that the state should inject itself in a civil contract between two private entities who entered into a contractual agreement voluntarily, in the absence of any complaint by either party against the other. Such unsolicited state intervention forms a dangerous precedent of interference in private contractual relations that will send a chilling signal to the business community in Egypt and abroad. In this case no public funds whatsoever were at issue, nor had the parties attempted to move funds outside the country. The opposite was true: the contract brought flows of funds into Egypt and provided useful employment for young persons to engage in socio-political development activities fully in line with the frequently-declared objectives of the highest leadership of the country.

8- What is most striking about this charge which?together with the 7-year prison sentence it drew in two trials before State Security Courts?is its surreal nature, for the EC not only did not register any complaint, but after knowing of the charges leveled against Dr. Ibrahim, stated in several official affidavits submitted to the Court that it (the EC) was fully satisfied with the professional and financial execution of the projects, and that the accounts of the projects were examined by EC auditors and found satisfactory. Under these conditions it is hard to imagine a more bizarre indictment of embezzlement, let alone one that warrants a conviction.

9- In fact this manner of State intervention in a purely private civil contract is unique in the annals of Egyptian courts. It violates not only the basic tenets of reason, but also the basic right of citizens to be held safe from arbitrary intervention in their private affairs. Not to restrict the jurisdiction of the State in such private contractual agreements would open the floodgates to State intervention in every aspect of private life---a situation which has no precedent in civilized nations not even in the most entrenched authoritarian systems.