The Muslim Brotherhood does not exist.
That sounds absurd. But in Egypt, legally speaking, it is essentially correct.
Of course it depends on whom you ask. According to the Brotherhood, it's always been a lawful entity and all attempts to either illegalize it or force it to conform to normative Egyptian laws have been invalid. But, the organization's own actions tell a very different story.
Since its founding in the late 1920s, the group has operated as some kind of strange hybrid of Leninist-style political party, secret society, and cult. Its precise legal status was somewhat nebulous until it registered itself in 1945 as a "political, social, and religious institution." In 1954, following an attempted assassination against Gamal Abdul Nasser, the organization was declared illegal and ordered disbanded.
The campaign of suppression, arrest, executions, and torture that followed played a significant role in radicalizing the Brotherhood and setting the stage for the emergence of even more extreme Islamist groups. But during that phase there was no question: the Brotherhood was straightforwardly an illegal and persecuted organization.
Anwar al-Sadat took a different approach to the Brotherhood. After gradually releasing its members, he issued a general amnesty freeing remaining prisoners in 1975. Between the late 1970s and the downfall of Hosni Mubarak, the Brotherhood operated in a twilight zone, neither clearly legal nor illegal. It had no clear official status, except as an officially-designated "prohibited group," but it also operated openly and under its own name.
This reality was a double-edged sword for the Brothers.
On the one hand, it allowed them to conduct their business without any transparency whatsoever. Everything could be, and was, done in secret. There was no state oversight of their budget, membership, hierarchy, decision-making, foreign backing or other activities, as there would be with any lawful, registered organization.
On the other hand, it created the constant threat that, because they were, in fact, operating outside of any recognizable legal framework, they could be at any time disbanded, dissolved, or repressed – simply by applying the law.
In 1977, then-Supreme Guide Omar El-Telmesani filed a lawsuit challenging the 1954 declaration. That suit ultimately failed in 1992, but continues to be effectively contested to this day.
The Brotherhood seemed to have the best of both worlds after the fall of Mubarak. On the one hand, its newly created and properly registered Freedom and Justice Party allowed it to operate in, and win, open elections. On the other, the "mother organization" remained shrouded in secrecy.
This prompted numerous political and legal figures to file suit seeking the disillusion of the Brotherhood on the grounds that it had no actual existence under the law. One such lawsuit is still pending before the Supreme Administrative Court, which, before the ouster of former President Mohammed Morsi, postponed its decision until September.
However, in March a judicial review panel working for the Court issued a nonbinding but damning report finding that the Brotherhood indeed has no legal status in Egypt and therefore ought to be disbanded. The Brotherhood reacted by seeking to register itself as a NGO ("number 644," it claims) under the law, which was facilitated in unheard-of and extremely suspicious speed by Morsi's Insurance and Social Affairs Minister, Nagwa Khalil.
But almost all observers understand this was a stalling tactic. The present law prevents NGOs from operating as political movements and subjects their budgets and other operations to state scrutiny. The Brotherhood was clearly counting on Parliamentary majority to pass a new NGO law that would have legalized its secretive practices while simultaneously cracking down on human rights groups.
With the ouster of Morsi and the implementation of an interim transitional phase, the Brotherhood is right back where it has typically been throughout its history: in a kind of legal limbo. The group insists it is determined to legalize its status, but seems equally committed to maintaining its secret-society and cult-like practices and avoiding scrutiny, transparency, accountability, and oversight.
Everyone sensible agrees that one of the most important elements of any transition is normalizing the role of the Muslim Brotherhood in Egyptian political life. One of the most important means of achieving this is to clarify what, precisely, it is and give it a clear legal status.
The Brotherhood is not going to get what it wants: the ability to operate legally and secretly at the same time. To be incorporated into the system, it needs to abide by the law. But the transitional system needs to clarify what laws do and don't apply to it, so that we will know exactly what we are talking about, other than a nebulous secret society, when we refer to the Muslim Brotherhood.
Egyptian society can't make much headway to political normalcy if one of its largest and most powerful groupings, legally speaking, simply doesn't exist.