The mystery in a Mubarak trial isn't the verdict, it's the crime
It was hardly surprising that Egypt's Court of Cassation decided this week to send deposed president Hosni Mubarak and his minister of interior, Habib El Adly, for a retrial.
The "trial of the century" captivated many - it was after all the prosecution of a former dictator and his senior security officials aired live on television after the uprisings - but it was shoddily run. Both the prosecution and the defence did a poor job, the judge barely controlled his courtroom and the whole thing bore more resemblance to the dramatic soap operas of Egypt's daytime television than to a Nuremberg moment. The Court of Cassation's decision, then, was expected and appears fully justified.
What is perhaps a little surprising is that the news was welcomed with something of a national shrug of the shoulders. I remarked to a friend that the news had not elicited much emotion, in contrast to the riotous court sessions during the trial, and the near-hysterical anticipation of the verdict, which was delivered in June.
Then, many Egyptians, particularly among Tahrir revolutionaries, were suspicious that Mubarak's friends in the armed forces - who then were running the country - might scheme to let him off. The restrictions they imposed on which senior officials testified, and how, certainly suggested that. Although a conviction was secured, there was no doubt that in many respects this was a political trial: no matter how badly the prosecution did its job, there was no way Mubarak would be let off. Nor was it likely that he would receive the death penalty. My friend suggested there has been so little attention to the decision for a retrial simply because it all feels "like ancient history" now.
It would be a mistake to dispatch Mubarak to the dustbin of history where so many of Egypt's pharaohs, emperors, sultans, kings and presidents now lie, but the difference may indeed be context.
During his first trial Egypt was still, in a sense, in the Mubarak era, or an extension of it. There was real mystery about whether his trusted defence minister, Hussein Tantawi, in charge of the country, would really send his old friend to the gallows. Restoration of the Mubarak system, if not of the man himself, was a real possibility - after all Ahmed Shafiq, a former air force general who once called Mubarak "my soul", narrowly lost the presidential vote. The transition leadership under Gen Tantawi appeared intent on sapping revolutionary morale and stalling real change.
Attention to the trial, then, was in part about keeping pressure on the military regime, for two reasons: to ensure that the victims of regime repression were avenged, and to claim a symbolic victory against the old order.
The election of Mohammed Morsi as president, and the accompanying rise of the Muslim Brotherhood as Egypt's dominant political force, has changed this context. Revolutionary activists are now more concerned about preventing the Brotherhood from gaining full hegemony than they are about a return of Mubarakism.
The importance of winning elections, which gives control of state institutions, is slowly but surely dislodging the revolutionary reality that protests and focused public outrage are enough to create facts on the ground.
The country has just undergone the first crisis of this new era, over the president's powers and the new constitution, and now faces a looming economic crash. Justice for the martyrs of the revolution is still important, but must now compete with many other pressing issues. Egypt has moved on.
This new context could bring an advantage: a less politicised trial, without the grandstanding and political calculation of the last one.
New evidence has come to the fore, including - according to a government commission assigned to investigate the 2011 uprising - the revelation that Mubarak had an encrypted television feed of the events in Tahrir Square.
Also, security officials have said that Mubarak gave direct orders to repress the protesters, something he denied. The former president's allies in the region - notably in Saudi Arabia - have got over the shock of seeing their old friend humiliated. The Mubarak myth has been deflated by the pathos of live television footage of an old man lying on a stretcher and picking his nose as his lawyers bickered.
The former president is almost certain to spend his last days in prison, and that appears to be good enough for many Egyptians. Even so, it is a shame that the trial will be restricted to the events of 18 days (although other legal processes are focused on allegations of corruption). And it is a shame that only symbolic figures like Mubarak and El Adly were convicted (although the retrial may offer a new chance to convict other security officials).
It would be far more interesting to create an extraordinary tribunal for Mubarak, where he would have to account not only for his behaviour in 2011 but for the three decades of his rule. Such truth-seeking was never a priority for the authorities (who had too much to hide) nor for the revolutionaries (whose focus was revenge).
It is not clear whether Mr Morsi or the new parliament would be inclined (or legally able) to set up such a tribunal. Despite pressure from civil society, there has been little interest in transitional justice, or even in taking the time to understand how the mechanisms of Mubarakism operated.
The intensity of the present moment has, for two years now, eclipsed the desire to get to grips with the past. Mubarak remains in the press - which obsesses over his comings and goings from prison to military hospital and over rumours of his passing - but is actually completely inaccessible. Journalists, historians and all Egyptians would be greatly interested in hearing what he has to say.
Issandr El Amrani is an independent journalist based in Cairo and a visiting fellow at the European Center for Foreign Relations. He blogs at www.arabist.net
On Twitter: @arabist
Updated: January 17, 2013 04:00 AM