Little chance Canadian journalist Mohamed Fahmy can be pardoned as new trial begins

Egyptian President Abdel Fattah el-Sisi keeps saying he would be happy to deport jailed Canadian journalist Mohamed Fahmy because of the black eye it has given Egypt's justice system. But it is clearly not up to just him anymore, Sasa Petricic explains.

Power struggles, Egyptian pride why no presidential pardon for Canadian Al Jazeera journalist

The three jailed Al Jazeera journalists, from left, Mohamed Fahmy, Peter Greste and Baher Mohammed stand behind bars at a court in Cairo in May 2014. Greste has since been released. Fahmy is to undergo retrial. (REUTERS)

Five big suitcases sit by the door, the green Egyptian passport next to them. This is the apartment in the comfortable Mohandessinneighbourhood of Cairo that MarwaOmara is all set to leave. In an instant.

She's been expecting a call from Egyptian officials for days now, telling her that her fiancé, Mohammed Fahmy, the jailed Canadian-Egyptian journalist, will be freed, deported to Canada.

"Now, all that's on my mind is to get Mohammed out and to be with him on the same plane," says Omara. "I'm not going to relax until I see him on that plane in the sky."

But that call hasn't come. In fact, Fahmy's case has taken an unexpected and more ominous turn.

The Egyptian-born Canadian journalist has been in a Cairo prison for more than 400 days. He and two colleagues — Australian reporter Peter Greste and Egyptian cameraman Baher Mohammed — were working for the English network of Al Jazeera TV when they were arrested in December 2013.

Paraded on national television like they were some kind of terror cell, the three were portrayed as the propaganda wing of the now-outlawed Muslim Brotherhood, which had just been thrown from power by General Abdel Fattah el-Sisi a few months earlier.

Today, Fahmy and Mohammed were back in court, held behind soundproof glass, as the retrial began.

They have always said they were simply journalists with a recognized global news organization, doing their job.

Brother of jailed Egyptian-Canadian journalist says his family is 'completely shocked' that a retrial has been set 8:06

Police and prosecutors here argued otherwise, and a judge convicted the trio last spring. Fahmy and Greste were sentenced to seven years in prison, Baher Mohammed to 10. All were declared terrorists.

Today, not even el-Sisi, elected president since the arrests, seems to believe they are dangerous criminals.

"If I had been in office at the time, I would have wanted no further problems and would have asked them to leave the country," he told Der Spiegel magazine in an interview published this week.

He regrets the controversy, recognizing, it seems, that while Fahmy and the others were convicted for damaging Egypt's international reputation, it is Egypt itself that has done more harm on that front because of the publicity and Western reaction surrounding the arrests.

The Egyptian president used his powers to deport Greste back to Australia a week ago, muting at least some of the international campaign to have the journalists freed, and putting the spotlight on Canada to do more to get Fahmy released as well.

Back in court

Egypt's court of appeal, it seems, also has problems with the guilty verdict. Last month it overturned the lower court's decision and ordered the new trial.

Australian journalist Peter Greste waves as he arrives back in Brisbane on Feb. 5 after being freed from an Egyptian prison. His release may have put more pressure on Egypt's courts not to let Fahmy go. (Reuters)

"The criminal court's verdict lacked evidence to support its ruling," the appeal judges declared in their reasons. The lower court acted too hastily, they said.

Indeed, the original trial was confused and rushed. Prosecutors argued the three had deliberately edited TV stories to support the Muslim Brotherhood and to harm Egypt. But they presented no evidence that proved that.

Irrelevant pictures of trotting Arabian horses and old footage from Africa were the only videos pulled from the journalists' laptops and shown in court. Fahmy was never cross-examined.

Why then were they convicted, or even charged?

Partly, it was the political atmosphere here in Egypt at the time. Anyone even rumoured to be associated with the Brotherhood was targeted, not only by the authorities, but by the many pro-el-Sisi media and the public, whose hatred of the Brotherhood was at its peak.

Al Jazeera was especially despised, because it is backed by and based in Qatar. The Gulf state was vilified by Egypt for supporting the Brotherhood financially and through propaganda on its TV networks.

Indeed, the Arab-language channel of Al Jazeera was shameless in its glorification of the group — though not the English network for which the trio worked.

But el-Sisi himself points to another key element in this debacle. "I never wished these problems on myself. They harm Egypt's reputation. But the situation we found ourselves in at the time was one of political turmoil and confusion," he told Der Spiegel.

In other words, disagreement and competition among government agencies, who each wanted to prove their zeal for catching "terrorists" played a role.

Power struggle

Even though he is president, and massively popular in Egypt, el-Sisi has been struggling to get government departments to work together: the police and Interior Ministry, the prosecutors and the courts, the Foreign Ministry, and even his own presidency office.

Some of these groups have been staunchly opposed to letting the case drop, or to letting any of the three journalists go.

Prosecutors, for instance, argued against deporting Greste because it would look as if foreigners get special treatment.

Fahmy is not the only high-profile journalist in Egypt's prisons. Egyptian news photographers protested against the detention of photojournalist Abou Zeid, also known as "Shawkan", earlier this week. Shawkan has been held in an Egyptian prison without charge after being detained in August 2013. (Reuters)

And they are dead set against releasing Fahmy because they consider him an Egyptian, just like the thousands of other Egyptians in prison here who do not have the option of a presidential deportation order.

Fahmy had dual nationality, Egyptian and Canadian, until a few weeks ago when he gave up his Egyptian passport in order to qualify for deportation. That plan doesn't seem to have worked.

The Canadian government also seems to have struggled with Fahmy's dual nationality.

For months, then-foreign affairs minister John Baird seemed reluctant to get involved, saying this case was "complicated." This, while Australia threw all its political weight behind getting Greste released.

Baird did finally come to Cairo to lobby Egypt's foreign minister last month, and now Stephen Harper's office says the prime minister also contacted el-Sisi at some point about the case.

But Canada's clout is obviously limited. And Egypt has always proudly resisted looking like it is being bullied by outside powers.

Still, the international campaign to pressure Egypt into releasing Greste did have an impact here, says H. A. Hellyer, Egypt analyst with the Brookings Institution.

Egyptian authorities "hated that every time there's an interview, that there's a press conference with any Western journalists, or any public event, that this case got brought up time and time again," he says.

With Greste out, with pictures of him now on the beach in Australia, the pressure has dropped markedly, he says. Releasing Fahmy now seems less urgent.

So now, Fahmy and Baher Mohammed seem destined to go through a whole new trial.

No option

Under Egyptian law, the court now has no option but to retry the whole case, something that will take months. The judge doesn't have the power to drop it, and granting bail in a "terrorist" case is considered highly unlikely.

What's more, once this process starts, el-Sisi cannot invoke his power to deport.

Marwa Omara, Fahmy's fiancee, has had their bags packed for weeks now, hoping he would be allowed out of the country. (Reuters)

Still, based on the court of appeal's comments, there is a good chance the men will be acquitted, or perhaps convicted and sentenced to a shorter term, possibly being released after spending more than a year in jail.

Egypt would be able to say it went through its judicial process, despite international pressure. The hard-liners here will have had their way, satisfying the campaign against "terrorism".

As for Mohammed Fahmy, a quick run to the Cairo airport for that plane to Canada must now seem like an impossible dream, for him and his fiancé.

About the Author

Saša Petricic

Asia correspondent

Saša Petricic is the CBC's Asia correspondent, based in Beijing. He has covered China as well as reported from North and South Korea. He previously reported on the Middle East, from Jerusalem, through the Arab Spring and the Syrian civil war. He has filed stories from every continent for CBC News. Instagram: @sasapetricic


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