Crutch to Catalyst? The International Commission Against Impunity in Guatemala
Latin America Report N°56 | 28 January 2016
Dramatic changes upended Guatemalan politics in 2015. Forcing the pace were international prosecutors, bolstered in their fight against corruption and impunity by a great wave of support from ordinary citizens. If Guatemala’s national reforms continue when outside help leaves, it can become a true role model for the region.
Guatemala — one of Latin America’s most violent, unequal and impoverished countries — is enjoying a rare moment of opportunity. A new president, Jimmy Morales, bolstered by a landslide victory, has taken office promising to end corruption. The old political elite is in disarray. Emboldened citizens are pressing for reforms to make justice more effective and government more transparent. Behind these changes is a unique multilateral experiment, the UN-sponsored International Commission Against Impunity in Guatemala (CICIG), whose investigators work with national prosecutors to dismantle criminal networks within the state. CICIG is not a permanent fix, however. Guatemala will lose its opportunity unless national leaders assume the fight against impunity as their own, approve stalled justice and security sector reforms and muster the financial resources to strengthen domestic institutions.
CICIG began operations in 2007 to investigate clandestine security groups that continued to operate within the state following the 1996 accords that ended 36 years of intermittent armed conflict. Such groups still undermine the state, though their main goal now is economic power, not elimination of political opponents. International support and financing guarantee the commission’s independence, though it operates under Guatemalan laws. Unlike traditional capacity-building efforts, it not only trains, but also works side by side with national prosecutors and police, providing them with the necessary technical expertise and political autonomy to hold powerful suspects accountable before the law.
CICIG has promoted and helped implement legislation to create a witness protection program, tighten gun controls, establish rules for court-ordered wiretaps and asset forfeiture and institute high-risk courts for the trial of particularly dangerous defendants. At the same time, it has carried out complex, high-profile probes that resulted in charges against a former president for embezzlement, an ex-minister and other top security officials for extrajudicial executions and dozens of additional officials and suspected drug traffickers for fraud, illicit association and homicide.
The commission has faced significant setbacks and limitations, however. Some high-profile cases have ended in acquittal. Key reforms, such as a judicial career law, have stalled in Congress. While it has helped strengthen certain specialised prosecutorial units, the public prosecutor’s office remains overstretched, even absent, in much of the country. Other institutions essential for combatting impunity — notably the civilian police and judiciary — are still weak, vulnerable to corruption and largely unaccountable.
The most dramatic blows it has delivered against impunity came in 2015 with the arrest of almost 200 officials for corruption, including a multi-million dollar scheme to defraud customs. Working with national prosecutors, CICIG collected and analysed massive amounts of evidence. The evidentiary trail, according to prosecutors, led to President Otto Pérez Molina, who resigned (though denying any criminal activity) and now awaits trial in a military prison.
Much of CICIG’s recent success is due to the determination and persistence of its current commissioner, Iván Velásquez, a jurist known for uncovering the links between politicians and paramilitary structures in his native Colombia. CICIG cannot function, however, without the close collaboration and support of Guatemalan prosecutors. Very different attorneys general — Claudia Paz y Paz, a former human rights activist, and Thelma Aldana, a veteran jurist — have shown the independence and courage to pursue complex, controversial cases against powerful suspects.
A crucial ingredient is popular support. Both the commission and public prosecutors enjoy wide approval among citizens exhausted by violent crime and corruption. The investigations spawned a broad civic movement for justice reform and government transparency. In a country long polarised by ideological, economic and ethnic differences, the anti-corruption crusade has at least temporarily united groups ranging from business associations to labour unions, urban professionals to indigenous leaders.
Anger over government fraud holds this movement together, rather than any clear agenda for change. Elected leaders should channel discontent into positive action by initiating a national debate on the reforms needed to strengthen justice and encourage accountability. Morales, a former television comedian, campaigned as the anti-politician. He has yet to put forward a clear reform program, including new legislation to guarantee the independence of judges and prosecutors, toughen campaign-financing laws and create honest, professional civilian police. Moreover, a weak, underfunded state needs to enact fiscal and tax reforms so that its justice institutions have the resources needed to pay good salaries, provide decent working conditions and extend their coverage across the country.
CICIG’s mandate ends in September 2017, though the president wisely has proposed extending it. International assistance cannot last indefinitely, however. The commission is Guatemala’s best opportunity for genuine justice reform, and it should not be wasted, but the government must start planning for its departure by fortifying its own capacity to fight crime and corruption.
To translate anticorruption promises into clear action plans and prepare for the time when CICIG is no longer needed
To the Guatemalan government:
- Promote, adopt and implement legislation and policies to further professionalise prosecutors and judges, including reform of the selection and recruitment process, longer terms to guarantee independence and new mechanisms to evaluate performance and curb corruption.
- Revive efforts to transform the civilian police into professional forces focused on preventing violence and to revamp its investigative body to work with prosecutors on resolving crimes, including the transfer of capacities and knowledge from CICIG.
- Give police, prosecutors and judges more resources to fight crime and impunity by carrying through tax and fiscal reform, including by challenging private sector leaders, economic experts and civil society to devise proposals for making taxing and spending more efficient, equitable and transparent.
To the Guatemalan Congress:
- Work across party lines and with the president and civil society to devise a strategy, including tax and fiscal reform, for combating corruption and strengthening justice and security institutions.
- Schedule promptly a final vote on the bill to reform political parties and tighten campaign-financing rules.
- Reconvene the working group on justice reform, bringing lawmakers together with CICIG, judges and civil society to propose and debate initiatives to strengthen judicial independence and competence, as well as whether or how to limit the prosecutorial immunity of members of Congress and other public officials.
To the Guatemalan judiciary:
- Provide additional training for judges at all levels on use of criminal analysis, scientific evidence and new prosecutorial tools, such as plea-bargaining with defendant/informants.
- Work with the president, Congress and civil society on the career law and other initiatives to make the judiciary more independent and professional.
To the Guatemalan Public Ministry (MP) and CICIG:
- Expand cooperation to transfer capacities to specialised prosecutors working on complex cases, such as those investigating organised crime, money laundering and human trafficking.
- Strengthen the MP’s internal affairs office to identify, sanction or remove officials guilty of misconduct.
- Work jointly on a strategy to build a professional corps of investigative police.
- Promote accountability within the MP and CICIG by devising measurable goals and benchmarks.
To the U.S., European Union and its member states and other donor states and institutions:
- Continue to provide CICIG with the resources needed to conclude its work, including additional funds for capacity building.
- Encourage other countries struggling with corruption and violence to consider an appropriate version of the CICIG international/national partnership model.
Guatemala City/Bogotá/Brussels, 28 January 2016
Guatemalan democracy survived political earthquakes in 2015. Investigations into massive fraud at the customs agency and social security institute ensnared nearly 200 suspects, including top officials and business people. Wiretaps and other evidence led prosecutors to Vice President Roxana Baldetti, then President Otto Pérez Molina, both now in prison awaiting conspiracy and fraud trials. Prosecutors in separate probes have charged judges with accepting bribes, lawmakers with hiring phantom employees and politicians with violating campaign rules. All this sparked an anti-corruption social movement, as protestors poured into the streets to demand justice, and took place during an election campaign in which voters unexpectedly elected Jimmy Morales, a political outsider, by a landslide.
The catalyst for these changes is a unique multilateral experiment: the UN-sponsored, donor-funded International Commission Against Impunity in Guatemala (CICIG, for its Spanish initials). Created in 2007 to combat powerful clandestine networks that had penetrated state institutions, it is empowered to initiate and conduct investigations in cooperation with national prosecutors. Under the leadership of Iván Velásquez, formerly an investigating magistrate with the Colombian Supreme Court, and in collaboration with Attorney General Thelma Aldana, it has enabled Guatemala to do more, more quickly to combat corruption than any other country in the region.
But CICIG and the public prosecutor’s office cannot transform Guatemala without political support for further legal and institutional change. In his 14 January inaugural speech, President Morales asked the public to stay united against corruption, which he promised his government would “not tolerate”. He has been vague about his policies, however. Whether he has the political will and influence to push reforms through a divided Congress remains unclear.
This report explores CICIG’s unique justice sector reform model, analysing achievements, setbacks and challenges. It looks first at its evolution under three very different commissioners, then examines the 2015 cases that shook the political system and the social movement they generated. Finally, it discusses the reforms needed to sustain progress. Research in Guatemala (April 2015-January 2016), included more than 40 interviews with officials, analysts and activists.
II. CICIG’S EVOLVING MISSION
CICIG emerged to address unfulfilled promises of the 1996 peace accords that ended Guatemala’s 36-year armed conflict. Among the agreements negotiated during a lengthy, internationally monitored peace process was a commitment to dismantle the clandestine CIACS (Cuerpos Ilegales y Aparatos Clandestinos de Seguridad), illegal groups directed by former or current members of the military, intelligence and police forces. After debate over the type of intervention and under pressure from civil society, the government finally signed an agreement in 2006 with the UN that created a unique hybrid mechanism: an international investigative commission operating under Guatemalan law.
While the commission’s principal mission is to break up CIACS, it has other important attributes. It can publish reports on issues relevant to its mandate and recommend policy reforms; request that the government act to protect witnesses and victims; and denounce public employees who interfere with its work before administrative authorities, participating as a third party in disciplinary proceedings. It also has an important capacity-building function. CICIG is financially and politically independent of the government, depending on donors for its expenses. The UN Secretary-General names the commissioner, who chooses his own staff, though Guatemala’s president can decide whether to extend its mandate.
CICIG’s influence depends largely on perceptions of its leaders. The commissioners are its public face and subject to intense media scrutiny. The three it has had — Carlos Castresana, Francisco Dall’Anese and Iván Velásquez — have defined and approached the CIACS issue with different priorities and methods. Two attorneys general from different backgrounds have worked closely with it since 2010, though this has not always been the case with judges.
A. Consolidation and Controversy
- Carlos Castresana
CICIG began in September 2007 under a Spanish jurist known for high-profile domestic corruption investigations and the case against ex-Chilean dictator Augusto Pinochet.
He started it “from nothing. There was no structure, no system”, said a former CICIG consultant. “Without Castresana, CICIG would never have been implemented”, said a veteran human rights activist.
During his almost three years, he hired staff and negotiated establishment of a special prosecutor’s office within the Public Ministry (MP for its Spanish initials). This office is the crucial link with the legal system, litigating in court and processing requests for search or arrest warrants, witness summons and other legal instruments.
Under Castresana, CICIG championed reforms that have given prosecutors essential tools to enhance criminal prosecution and combat organised crime, including legal wiretaps and use of “defendant-informants”, which allows them to negotiate for information. It helped set up the first witness protection program, in collaboration with Colombian prosecutors and the U.S. Marshals Service, and promoted legislation on high-risk criminal proceedings.
During its first three years, the commission also assisted investigations of drug-related killings and of a former president for embezzlement. Its most notorious case involved a Guatemalan lawyer, Rodrigo Rosenberg, who staged (or was manipulated into staging) his own murder to discredit the president. It sparked protests that threatened to bring down the Colom government, until CICIG’s investigation used cell-phone records, security-camera footage and other evidence to show that Rosenberg had plotted his own death. It was one of the first cases to use plea-bargaining (defendant/informant testimony). It was, presiding judges later said, “unlike any other in Guatemala’s history … using scientific and technical methods of investigation to solve a crime”.
Castresana’s term ended in controversy. He clashed with President Colom over appointment of Conrado Reyes as attorney general, accusing him of ties to organised crime. (Reyes denied the allegations). The Constitutional Court annulled the appointment on procedural grounds, but after Castresana had resigned.
“Nothing of what was promised [by the state] is being fulfilled”, he said later. “At a personal level I feel I can do nothing more for Guatemala. I am more useful outside than in”.
2. Francisco Dall’Anese
The UN Secretary-General named Francisco Dall’Anese, former Costa Rican attorney general, as Castresana’s successor in June 2010, within weeks of his resignation. His tenure coincided with that of Attorney General Claudia Paz y Paz, a prominent human rights lawyer chosen after the Reyes debacle. CICIG’s major achievement from 2010 to 2013 was helping to professionalise the MP under Paz y Paz’s leadership. The new attorney general expanded the criminal analysis unit, building databases capable of accessing police records, vehicle registrations and telephone and video information. The objective was to cross-reference evidence in order to identify and dismantle criminal structures, not just individuals.
CICIG lent experts to work directly with prosecutors on money laundering and financial analysis, while advising on creation of specialised units, such as one dealing with human trafficking. It also strengthened the “Special Methods Unit”, which oversaw communications intercepts and was credited with preventing 231 murders in 2013 alone, and created and monitored protocols for the fledgling witness protection program, which provided security, social assistance and/or relocation benefits. Though these joint efforts may not generate headlines, they are among CICIG’s most important contributions and laid the groundwork for collaboration with the MP on the corruption cases of 2015.
“There is no better way to transfer capacity than by working within the prosecutor’s office on a daily basis”, said the head of the MP’s special office against impunity. “It’s also sharing capacity, because CICIG has learned from us too”.
By September 2012, CICIG had investigated and/or charged more than 200 individuals, but its setbacks often received more publicity than its achievements. Perhaps the biggest blow came in 2011, when judges acquitted former President Portillo of embezzling $15 million from the defence ministry. CICIG asserted that prosecutors had presented “conclusive” evidence and urged society to demand “an impartial, fair and independent justice system”.
CICIG ran into more opposition over its investigation into the killings of seven inmates during an operation to take control of Pavón prison. Prosecutors accused the government minister, the national prison director and top police, among others, of extrajudicial executions. The courts convicted the head of the investigative police but acquitted the former prison director. Other defendants, including the government minister, fled the country. In its annual report, CICIG cited the “double standards” of a judicial system that quickly convicted gang members while allowing the “master-minds of extrajudicial killings” to avoid punishment through “frivolous or inadmissible” petitions. “Most of the cases investigated by CICIG are currently stagnant”, it stated, “due to a number of legal remedies that prevent criminal prosecutions from continuing”.
To address judicial malfeasance, CICIG issued a report accusing eighteen magistrates of decisions “contrary to the law … and favourable to criminal networks”. However, nothing reached a court. Dall’Anese fuelled further controversy with a CICIG statement on the trial of former dictator Efrain Ríos Montt for genocide and war crimes during the armed conflict in the 1980s. It was neutral on the merits but called for a halt to a media campaign against the process and reportedly infuriated President Pérez Molina, who had publicly repudiated the genocide charges. A month later Dall’Anese, in conflict with both the judicial and executive branches, announced he would leave in September 2013 for “personal reasons”.
B. Targeting Corruption — Iván Velásquez
When the UN Secretary-General announced appointment of the new commissioner in August 2013, CICIG’s future was in doubt. Some supporters saw it as weakened and complained it spent too much time and resources on relatively minor cases and had failed to win some major ones, such as that against ex-President Portillo. Pérez Molina made clear his opposition to extension of the mandate, which would expire in September 2015, and told reporters CICIG should “transfer capacities to Guatemalan institutions” rather than opening new investigations.
The new commissioner, Iván Velásquez, was uniquely qualified to investigate political corruption, however. As an investigating judge on Colombia’s Supreme Court, he had probed the links between politicians and paramilitaries. Unlike his predecessors, he came from a violence-wracked country where powerful criminal groups had penetrated the state.
“It was easier for Velásquez to understand the social dynamic in Guatemala because it was very similar to what he lived through in Colombia in the 1980s and 1990s”, said an expert on security and justice reform.
He understood the “type of criminal he was dealing with because he had seen it before”, said an ex-prosecutor and government ministry adviser. He also understood the political implications, “that these cases would grow into a snow ball that no one would be able to stop”.
Velásquez focused on five priorities: contraband, administrative corruption, illegal campaign financing, judicial corruption and drug trafficking/money laundering. He maintained that CIACs had become conspiracies to secure and exercise power by economic means and called them RPEIs (Spanish initials for Illicit Political-Economic Networks). “Our objectives did not change”, he said. “The CIACs changed. The RPEIs are their updated version”. This conceptual revision allows case selection based on a strategy to erode impunity’s economic underpinnings.
In his first two years, Velásquez and the MP delivered blows against criminal conspiracies in each priority area. In September 2014, investigators dismantled an extortion ring allegedly led by Byron Lima, an ex-army captain imprisoned for a role in the 1998 assassination of Bishop Juan Gerardi. Prosecutors accused him and accomplices (including the national prisons director) of selling protection and favours, including transfers, cell phones and conjugal visits. Two months later, a CICIG investigation led to the arrest of Haroldo Mendoza, reputedly a leader of one of the most powerful drug trafficking families, for operating a “private army” in eastern Guatemala and responsibility for multiple homicides, disappearances, land theft and other crimes. In both cases, CICIG said it was going after “parallel” powers: criminal syndicates that had taken over state institutions.
Under Velásquez, CICIG has investigated nine members of Congress, five judges and a prosecutor. Among the alleged crimes uncovered are schemes to falsify passports and sell “ghost jobs” in Congress and illegal enrichment through bribes. CICIG also issued a report on illegal campaign financing. Its most prominent case, however, was an investigation into customs fraud that became a scandal that brought down a president and ignited an unprecedented social movement.
III. SCANDAL AND PROTEST
A. "La Línea"
On 16 April 2015, CICIG and the MP revealed that they were investigating a network of senior officials who had allegedly conspired to defraud the state of customs revenues. Early that morning 21 suspects were arrested, including the current and former heads of the superintendency of tax administration (SAT). Juan Carlos Monzón, private secretary to Vice President Roxana Baldetti, was accused of orchestrating the fraud; he was abroad when the arrests were announced and remained a fugitive for almost six months. CICIG and the special prosecutor’s office had been investigating for more than eight months, collecting massive evidence, including financial records, some 66,000 intercepted telephone conversations and more than 6,000 electronic messages. Other CICIG-trained offices also took part: the special methods of the investigation unit did wiretaps and the criminal analysis unit worked with CICIG’s foreign experts to process evidence, including analysis of financial documents. This gave prosecutors physical and scientific evidence, a break with practices that had relied largely on witness testimony or confessions.
The inquiry had started nearly a year earlier, when investigators began to suspect that a group of importers was conspiring with customs agents to secure illegal discounts on duties. Prosecutors dubbed the case “La Línea” for the phone line used to negotiate illegal benefits and kickbacks. According to prosecutors, conspirators manipulated shifts so that agents participating in the fraud were in certain ports or border crossings at specific times. Customs supervisors used a parallel tax table to determine the duties owed by their “clients” after fraudulent verification of their containers’ contents. CICIG maintained, moreover, that the plot extended beyond the SAT, that other officials instructed customs agents how to deploy personnel, apply fake duties and collect bribes.
The arrests forced the president, who had opposed extending CICIG’s mandate despite international pressure, to make an about-face. Revelations about possibly massive fraud within the customs agency touched a nerve, uniting civil society groups across the political spectrum.
“It’s an issue [about which] no one feels divided into left and right”, said a sociologist. “No one is likely to openly defend the corrupt”.
Powerful interests lined up behind CICIG. The Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF, an umbrella body of the main business groups), which had been critical of the commission, joined longtime supporters including the Catholic Church and human rights organisations in calling for CICIG to stay. A justice-sector panel (previously viewed as likely to oppose or condition any renewal) also issued a favourable report. Two days later, the president said he would ask the UN for a new two-year mandate, beginning in September 2015.
La Línea was a game changer. The case not only assured CICIG’s future; it also exposed allegedly historic patterns of corruption. “The structures of customs fraud arrested today”, Velásquez said, “have operated since the Moreno network”, referring to a conspiracy to defraud customs allegedly directed by ex-military officers in the 1990s. According to CICIG, these networks “moved between the public and private realms, between governmental and entrepreneurial domains, between licit and illicit grounds”. The scandal also reached the judiciary. Prosecutors later accused the judge in charge of the case of releasing six suspects from pre-trial detention on bail in exchange for bribes. Powerful defence lawyers working for “law firms of impunity” (bufetes de la impunidad), CICIG said, were colluding with judges to subvert justice. Wiretaps detected the allegedly illegal negotiations.
Over the next months, CICIG and the MP continued to uncover apparent administrative, judicial and Congressional corruption. In May, prosecutors announced seventeen arrests linked to a scheme to defraud the national social security institute (IGSS) by awarding, in return for kickbacks, a $15 million kidney dialysis treatment contract to a firm without adequate experience, possibly contributing to thirteen deaths. The arrested included IGSS board members, such as the president of the central bank and President Pérez Molina’s ex-private secretary.
As cases multiplied — including separate investigations involving a prosecutor, judges and lawmakers — citizens began to look forward to “CICIG Thursdays” (#juevesdeCICIG), when the commission was expected to lob another judicial bombshell. A new wave of activists, unburdened by memories of repression and radicalism that had shaped their elders’ politics, took their demands to the streets.
B. The Civic Awakening
The customs case produced indignation and support for CICIG. The magnitude of the fraud — prosecutors said each conspirator may have received up to $5 million a year — mobilised citizens long infuriated by corruption but powerless to confront it. Activists soon began gathering in the capital’s Constitution Plaza to demand an end to impunity and “punishment for the thieves”.
Tweeting #RenunciaYa! (Resign now!), they called for a peaceful protest on 25 April. Several thousand people, including students, middle class professionals, indigenous and human rights advocates — demanded that the vice president leave.
Her resignation two weeks later, far from deflating the movement, helped fuel weekly Saturday protests. On 16 May, more than 40,000 demanded that the president resign — Otto te toca (Otto it’s your turn) — along with other corrupt politicians. By early June, the tag was #JusticiaYa!, as demonstrators called for the trial of corrupt politicians, officials and the business people who paid them off. Protests spread to regional capitals, Quetzaltenango, Cobán, Chiquimula, Huehuetenango, Escuintla and others.
The high point came in August, after prosecutors announced they were arresting ex-Vice President Baldetti and petitioning for withdrawal of the president’s immunity. Students and other activists called for a general strike to demand Pérez Molina’s resignation. Breweries and other factories suspended operations; shops and restaurants, including large fast-food chains — from Guatemalan-owned Pollo Campero to international franchises like MacDonald’s — shut their doors. CACIF urged members to allow employees to attend the demonstrations, reversing its opposition to any disruption of transit or commerce. Tens of thousands came to Constitution Plaza on 27 August, while thousands more gathered in regional capitals, summoned now by the tag #NoTengoPresidente (I don’t have a president).
C. The New Generation
For those who lived through military governments and the armed conflict, the peaceful protests were unprecedented. There had been nothing like it “since 1962”, said a security consultant, referring to protests against the then-military government’s electoral fraud, which ended in repression. The 2015 protests were massive, peaceful and non-partisan. Protestors condemned corruption without waving party banners. Perhaps most importantly, the organisers were largely young and unknown. “There was a bit of everything at the plaza”, said a human rights leader, “but the leadership was young. It began with social media and came together naturally”. “Finally the new post-conflict generations are emerging”, said an academic. They don’t share our generation’s fear of speaking out”.
Though the protests took place during an election campaign, “there were no platforms and no microphones for politicians”.
Organisers banned masked or hooded protestors, as possible provocateurs. Instead of avoiding police cameras, some youths mugged for them and publicised their participation through social media. Volunteers kept order and collected trash at the end of each rally.
Established but somewhat dormant coalitions joined, demanding that the anti-corruption crusade also address electoral and institutional reform. The Group of Four (G4, representing the Catholic and Evangelical Churches, the human rights ombudsman and San Carlos, the public university) called for a “citizen’s coalition” to push for electoral reforms to address a “crisis of legitimacy”. Business associations voiced support for CICIG and the Supreme Electoral Tribunal (TSE), calling for strict enforcement of electoral rules. On the left, the Social and Popular Assembly, indigenous, peasant farmer and human rights groups, demanded that authorities suspend the vote until reforms guaranteed the participation of native peoples, women and youth. Though the authorities did not postpone the vote, the groups did not disrupt the campaign, which, despite the upheaval, was less violent than those in 2011 and 2007.
On 2 September, Pérez Molina resigned, after Congress withdrew his immunity. Four days later, TV comedian Jimmy Morales eliminated the favourite, Manuel Baldizón, in the presidential election’s first round. The protestors had won their main objective, to oust the president and force him to face trial. Until the general strike, Congress seemed unlikely to desert the president, who sought support from former adversaries in the opposition. The defiance of a broad spectrum of citizens put the political elite on the defensive; the peaceful nature of the protests helped avert any violent response by security forces. The movement also set a precedent that political leaders are unlikely to forget.
“The population has a short fuse” regarding corruption, said a former vice president. “Citizens in general are not going to give the new government six months or even 100 days of grace”.
D. New President, Same System
Morales defeated former first lady Sandra Torres in the run-off on 25 October, 67 per cent to 33 per cent. It worked to his advantage that he ran as the candidate of a small, relatively unknown party: his better-financed opponents led parties under investigation for violating electoral law. Scandal-weary voters were “searching for a political virgin, and that virgin is Jimmy Morales”, said a commentator. Rather than a vote for a candidate or platform, the election was a rejection of politics as usual. “The vote for Jimmy was anti-Baldizón in the first round and anti-Sandra Torres in the second-round”, said the political scientist.
With Pérez Molina’s resignation and a relative unknown to take office, the reform movement seemed to lose steam. “The elections were the perfect way to oxygenate the system so there could be changes but no real change”, said the consultant.
Whether new lawmakers, without the pressure of popular protests, would take up the reform agenda was unclear. Congress was divided into more than a dozen blocs, as the members of defeated parties changed affiliation. The president-elect’s lack of experience or pro-gram left some reformers wondering whether they had won the battle to oust a president but lost the struggle for genuine change. Morales’s ties to military veterans of the armed conflict, including opponents of justice for victims, moreover, made human rights defenders uneasy.
Some reformers worry anger at an unpopular president, not institutional change, motivated the movement. The public “is fascinated by images of a president and vice president arrested for corruption”, said an economist and analyst. “Structural changes interest them very little”. United by indignation, protestors are deeply divided on policy. The movement’s “interclass” nature is not necessarily a strength, said a sociologist. “The sectors don’t trust each other”. A largely conservative society’s distrust of government may also hinder action. The economist called the citizen awakening “very questionable”, simply reflecting “antagonism toward the state and taxes”. For the human rights activist, the question was “whether [young activists] recognise the need to organise for political change, which is very different from organising a demonstration”.
Ultimately, however, the protests also seem to show consensus for more accountability.
“Society”, as the consultant said, “is more vigilant, more aware, more critical, more willing to protest. The people might not take to the streets in demonstrations as massive, but the candle is still lit”. Guatemalans are unlikely to return to passivity.
IV. UNFINISHED AGENDA
CICIG begins 2016 from a position of unprecedented strength, at least in terms of popular approval. According to an August 2015 poll, it is Guatemala’s most trusted institution, with a positive rating of 66 per cent, slightly above the evangelical protestant and Roman Catholic churches (both 64 per cent), and well above the army (50 per cent). Its prestige outstrips that of police (26 per cent), judges (25 per cent), Congress (12 per cent) and the presidency (11 per cent).
But CICIG cannot fulfil its mandate alone. It depends on other institutions. National prosecutors are in charge of some 30 CICIG court cases, with success depending not only on evidence, but also ability to manoeuvre in a judicial system that does not shield judges from political pressure and gives defence attorneys tools to delay sentencing indefinitely. Moreover, that system, and government institutions generally, face severe budget pressures in a country with one of the hemisphere’s lowest tax collection rates. CICIG and its allies must convince Congress to pass adequate budgets and act on legal reforms, some stalled for years. If powerful business interests continue to block fiscal and tax reforms, prosecutors, judges and police will neither enjoy the safeguards to work efficiently and honestly, free from political (or criminal) pressure, nor have the resources they need.
A. Budget Woes
Both Attorney General Aldana and Commissioner Velásquez have warned that prosecutors need more money. “Resources are fundamental”, said Aldana, whose plans to decentralise her institution by adding prosecutors have been frustrated by too few funds.
The MP has offices in only 53 of 338 municipalities. Lack of personnel contributes to a huge backlog that has grown since it was some 1.2 million cases when she took office in May 2014. Only about 3 per cent of new cases opened that month had been decided by March 2015. Though the MP’s budget has grown, it has received far less than asked. In 2015, Congress approved 60 per cent of the amount requested, though even this may not be distributed. In 2014, the MP did not receive about 27 per cent of the budget approved by Congress. CICIG has proposed a temporary tax to fund prosecutors. The UNE’s similar initiative in December 2015 to fund prosecutors with new income taxes on those earning more than about $80,000 a year failed to receive support.
Guatemala has one of the lowest tax burdens in Latin America: 13 per cent of GDP, compared to a regional average of 21 per cent. It also has one of the lowest social spending rates: $179 per capita in 2013 compared to a regional mean of $777. The government likewise spends less on public security: $48 per capita in 2013 compared to an average of $101 in Central America.
Business leaders have fiercely opposed new taxes, arguing that the government must first tackle inefficiency and corruption, but there are some signs their opposition may be softening. Instead of rejecting new taxes outright, CACIF has proposed that revenues be discussed as part of a national security and justice plan. Some individual leaders have directly addressed the need for more government funding. “It is true there is corruption”, wrote the vice president of an influential private foundation, “but it seems we have forgotten that the institutions that should combat it (the MP and courts) cannot carry out their jobs without resources”.
“You want a first-class country while paying third-class taxes”, Alvaro Arzú a conservative ex-president, now mayor of Guatemala City, told a business forum. “It can’t be done”.
B. Pending Legislation
Without the passage of key reforms in 2010 — such as laws authorising wiretaps, providing witness protection and creating high-risk courts — CICIG and the MP would not have been able to investigate and prosecute corruption in 2015. But their legislative agenda has been largely stalled since. More reforms are needed to fight corruption in the political system, make prosecutors and judges more independent, limit public officials’ immunity and expedite criminal proceedings.
1. Electoral reform
Per capita income is among the hemisphere’s lowest, but campaign spending per capita is among the highest. Long, costly, poorly regulated campaigns render elected leaders vulnerable to manipulation by private, including illegal, interests. A 2015 CICIG report estimated that candidates raise most funds illegally via networks created to get influence and favours, like public contracts. Laws regulating parties are loose, making them easy to form and leave: lawmakers and other elected officials change them opportunistically (transfugismo), regardless of constituent interests. Under civil society pressure, Congress has discussed a reform bill based on a TSE proposal to make parties “less like private clubs” by increasing penalties for violating electoral laws, establishing rules for election of party officials, limiting re-election, distributing more free television airtime and raising the number of required affiliates to make forming parties tougher. It fails to address certain issues, such as transfugismo, but would make elections more transparent and officials less vulnerable to influence peddling and other fraud.
2. Reform of the Judiciary and the Public Ministry
The working group set up in May 2015 to discuss judicial reforms — presided over by CICIG and the representative of the UN High Commissioner for Human Rights (UNHCHR) and including representatives of the Supreme Court and the judges, among others — reached consensus on the need to fortify judicial independence but failed to send a common proposal to Congress. At issue is how to improve the process for selecting judges and enhance judicial independence. The Supreme Court (which holds both administrative and judicial functions) chooses trial judges and justices of the peace in competitions criticised as opaque. Selection Commissions, whose deliberations are subject to intense lobbying by private interests, nominate judges for appellate courts. All judges serve renewable five-year terms, which means they have little security of tenure.
The term length and selection process can only be changed by constitutional amendment, which requires approval by two thirds of Congress and a plebiscite. Selection, however, could become more transparent by requiring the commissions to use more objective criteria and opening up their deliberations. Congress is also considering modifying the judicial career law, to promote fairness in recruiting and promotion, and strengthening internal disciplinary mechanisms.
The MP’s organic law needs reform to regulate careers and strengthen prosecutorial independence. The attorney general serves a four-year term and can only be removed by the president for “good cause”, such as negligence, corruption or other crimes. Yet, none of the eleven attorneys general appointed since establishment of the ministry in 1994 has completed a full term. The working group suggested measures that would limit the president’s authority to oust the attorney general and strengthen the independence of prosecutors by establishing clear criteria for recruitment, evaluation and promotion. It is likewise pushing to amend laws regulating political immunity and “amparos” (petitions for constitutional protection). Both mechanisms are needed to protect fundamental political and civil rights but can be abused by suspects to avoid prosecution. Proposed reforms would expedite legal procedures for lifting immunity and make proceedings more transparent. The filing of frivolous amparo petitions by defence attorneys to delay or derail judicial proceedings would be liable to fines or disbarment.
C. Institution Building
CICIG’s most important achievement, according to Velásquez, is its impact on attitudes, inside and outside government. “If there was just confidence in CICIG that would be negative”, he said.
“What is important is that society now has confidence in the MP and in its own justice system. The public knows that impunity is not inevitable”.
Prosecutors also have a new mindset. Before they would not touch certain investigations, not for lack of will or expertise, but because they knew the cases would never go to trial. “CICIG has given prosecutors confidence that if they do their work well, they will be able to bring their results before a judge”. This was on display in early January, when the MP ordered the arrest of fourteen military veterans for war crimes and petitioned to lift the immunity of a new Congressman, who co-founded the president’s party, on the same charges. This demonstrated that prosecutors working independently of CICIG are ready to take on a politically sensitive case involving some of the president’s closest allies.
Whether most prosecutors, including those outside the capital, share this new mentality is not yet clear. The MP has specialised agencies, created or strengthened with CICIG support, that investigate complex cases such as extortion and human trafficking based on material evidence. But its resources are stretched thin, especially outside major cities. CICIG collaboration with prosecutors involved in less emblematic cases has been limited. The prosecutor in charge of the recently created office on human trafficking said, “our agents have received training … but not in a formal, systematic way. CICIG could help us build that expertise”. Prosecutors also need to develop their courtroom skills. According to a former prosecutor, the MP lacks skilled litigators trained in oral argument, which means defence lawyers often outmanoeuvre them in the courtroom. Because judges are not trained (or objective enough) to understand complex investigations, some complicated cases may end with “miniscule” sentences despite a wealth of evidence.
Even more serious is the lack of professional investigative police. Legislation was passed in 2012 to create a new directorate general of criminal investigation (DIGICRI), which was to operate under the government ministry, though separate from the National Civilian Police (PNC). It never received funding for more than a few employees, however, and now exists only on paper. Meanwhile, the PNC’s own investigative division needs training to deal with complex cases, especially white-collar crime.
Security sector reform, a condition of the 1996 peace agreements, remains unfinished business. Strengthening the civilian police is especially urgent. The Pérez Molina government set up three academies in the interior, increasing the force from about 24,000 in 2011 to 37,000 in 2015. Critics point out, however, that conditions and instruction at the academies are poor. To churn out agents quicker, basic training was reduced from a year to six months. President Morales has said he plans to dismantle the National Police Reform Commission, citing lack of results, but he has not proposed a new strategy for overhauling the civilian forces on the front lines of the struggle against gangs and other violent criminals.
Few could have predicted the dramatic changes that upended politics in 2015. Most remarkably, the upheaval was contained within rule of law, without reigniting the bloody cycles of rebellion and repression that have characterised much Guatemalan history. The agents of change were neither soldiers nor revolutionaries but national and international prosecutors, working together through the unique CICIG experiment and bolstered by peaceful demonstrators from across the political, economic and social spectrum. Whether the shakeup will result in sustainable reform is uncertain. The hard work of building domestic institutions capable of combatting impunity without international help remains unfinished.
Though its ultimate success is unclear, the CICIG model could offer hope to other countries where corrupt, abusive public officials undermine fragile institutions from within. The Organization of American States in January 2016 signed an agreement to create a similar entity in Honduras, which is convulsed by protests over alleged corruption. Like CICIG, it is authorised to oversee and collaborate with investigators, prosecutors and judges handling corruption cases and to propose initiatives to strengthen justice system reforms and guarantee government accountability and transparency.
Accepting international help is the easy part. President Morales to his credit has promised to extend CICIG’s mandate beyond its current September 2017 end. He should also promise that his government will use the extra time to pass and implement the reforms that will enable Guatemalan institutions to combat impunity on their own. The international community, especially the U.S., has both the responsibility and interest to help build institutions capable of combating powerful criminals, including those who traffic illegal drugs abroad. Donors cannot bankroll the commission’s mandate indefinitely, however. They must work with the president to make sure CICIG is not a crutch, but a catalyst for genuine change.
Guatemala City/Bogotá/Brussels, 28 January 2016