The continuing crackdown on a corruption investigatory body could allow impunity to flourish ahead of this year’s elections.
by Laura Carasik, for Foreign Policy
Guatemala is in the midst of a constitutional and political crisis, escalated by a 24-hour-plus standoff at the capital’s airport on Jan. 5. An investigator with the United Nations-backed anti-corruption commission was denied entry into the country and only allowed in after resounding public pressure. Following months of escalating animosity between Guatemalan President Jimmy Morales and the International Commission against Impunity in Guatemala (known by its Spanish initials as CICIG), he formally expelled the body on Jan. 7. The move has been followed by efforts to punish Constitutional Court judges who had supported CICIG, notably by issuing an immediate injunction to stop the expulsion.
These actions have been widely criticized as an attempt by Morales to impede CICIG’s investigations, including into his own election, and have mobilized protests across the country by a broad group of civil society activists, renewing a long struggle for justice and democracy in Guatemala.
Until this month, the Constitutional Court had been able to protect the commission’s work. By turning to the court, Morales’s crackdown is not only worrying for those who hoped to address endemic corruption, but it also bodes ill for the independence of Guatemala’s judiciary and the rule of law.
CICIG, an innovative, hybrid anti-corruption body, uses international investigators alongside national prosecutors. It was designed to build Guatemala’s own institutional capacity to identify and dismantle the clandestine criminal networks left over from the country’s 36-year internal conflict and advance reforms to prevent their recurrence. These groups infiltrate state institutions, participating in a broad range of illegal activities. Although never intended to be a permanent institution, it appears that in eroding impunity for the powerful, the commission may be a victim of its own success.
The commission’s effectiveness has led to a predictable pushback. Critics argue it violates the country’s sovereignty by intervening in internal affairs, undermines due process protections, pursues politically motivated and selective prosecutions, and interferes with electoral matters.
In response to these accusations, the commission’s chief, Iván Velásquez, sent U.N. Secretary-General António Guterres a spirited defense of CICIG’s work on Jan. 11, methodically rebutting the charges against it. He denounced that “smear campaigns, defamation, and threats have increased after the presentation of cases involving high-powered political and economic sectors,” which, Velásquez said, are directed at those who “prosecute the structures coopting the State to profit and refusing to lose their illegally and illegitimately obtained privileges.” Viewed through this lens, claims of sovereignty cloak attempts to maintain the corrupt status quo.
Since beginning work in 2007, CICIG has in fact been widely lauded for bringing accountability to many cases of corruption and building prosecutorial capacity in a country long plagued by weak institutions. In November 2018, the commission reported that it has worked with the Attorney General’s Office to prosecute more than 680 people; secure 310 convictions in cases involving influence peddling, graft, and illegal campaign financing; identify 60 criminal networks; and press for 34 legal reforms.
And CICIG’s impact is even broader than these numbers suggest. An analysis by the International Crisis Group cited a demonstrable decrease in murder rates, partially as a result of justice reform activities to which CICIG contributed.
An analysis by the International Crisis Group cited a demonstrable decrease in murder rates, partially as a result of justice reform activities to which CICIG contributed.
Despite his current hostility to the body, Morales was elected on an anti-corruption platform, billing himself as “neither corrupt nor a thief.” His predecessor, Otto Pérez Molina, resigned in the face of a massive uprising in response to fraud chargesbrought by CICIG and the Attorney General’s Office. Though he initially supported CICIG, Morales reversed course in 2017 when the attorney general and the commission implicated him and his party, the National Convergence Front, in campaign finance violations and sought to lift his immunity. The commission is also investigating his son and his brother on corruption charges, a trial that has now been hobbled—the presiding judges have dismissed CICIG as co-prosecutors in the case.
This month’s expulsion is just the latest move in a slow-motion crackdown on CICIG.
This month’s expulsion is just the latest move in a slow-motion crackdown on CICIG.
In 2017, Morales attempted to expel Velásquez from the country, a move overturned by the Constitutional Court. In August 2018, he announced that Guatemala would not renew the commission’s mandate, flanked by military and police. The jarring optics sent a chilling reminder of the country’s brutal military past. Four days later, Morales blocked Velásquez’s return.
But Morales has now hit a roadblock. The Constitutional Court immediately responded by issuing a provisional injunction reversing the expulsion, ruling that the president lacked the authority to terminate the commission prior to the expiration of its mandate in September 2019, as it was created by an agreement that was ratified by Congress. The U.N., for its part, says the expulsion is impermissible and that CICIG will continue its work. As the crisis plays out, the commission has been largely neutralized. While CICIG has vowed to keep working and enjoys broad support, with a 71 percent approval rate, its foreign personnel have left to work from abroad, fearing for their safety. The commission’s commitment to continue operating, however, is undermined by Attorney General María Consuelo Porras’s withdrawal of the police support assigned to CICIG on Jan. 24.
The crackdown on CICIG could also have long-lasting effects on the country’s judiciary. After rejecting previous bids to rein in Constitutional Court judges, on Jan. 9 the Guatemalan Supreme Court paved the way for the impeachment of three judges for “exceeding their functions” by issuing rulings on foreign policy, “which is the exclusive responsibility of the executive branch.” This decision refers to the Constitutional Court’s May 2018 reversal of Morales’s decision to expel the Swedish Ambassador Anders Kompass for supposedly interfering with Guatemala’s internal affairs. Though the administration denied the expulsion was related to CICIG, Kompass had recently expressed support for the body.
The three targeted judges have repeatedly ruled in favor of CICIG and issued other decisions defending the country’s institutions. On Jan. 17, a five-member congressional committee was created to analyze the potential impeachment of the judges. Then, on Jan. 22, the process was suspended by the Constitutional Court, prolonging the uncertainty as to the judges’ fates. Independent decisions by chief judges reflect painstaking efforts by civil society to develop an autonomous judiciary. Whether or not they are ultimately impeached, the ongoing targeting of jurists who defend the independence of the courts sends an ominous signal to others who might rule against powerful interests.
These developments constitute what observers are calling a “slow-motion coup,” threatening the country’s legal institutions and weakening efforts against corruption and impunity. These enduring conditions fuel the socioeconomic inequality and exclusion that spurred the country’s armed conflict and continue to immiserate Guatemalans.
These enduring conditions fuel the socioeconomic inequality and exclusion that spurred the country’s armed conflict and continue to immiserate Guatemalans.
Nearly 60 percent of Guatemalans live below the poverty line, and long-standing discrimination against the country’s Mayan majority facilitates deprivation and repression. Unchecked corruption drains state coffers, leaving few resources to invest in ameliorating these conditions. Thousands of desperate Guatemalans feel migration is their only option.
As Elizabeth Oglesby, an associate professor of Latin American studies at the University of Arizona, argues, “no solution [to the migrant crisis] is possible as long as the Central American states remain captured by clandestine criminal networks. Central Americans are fleeing violence perpetrated by those criminal networks, and corruption siphons off resources that could be used for social development to mitigate migration.” The administration’s removal of CICIG and retribution against judges is an attack on Guatemala’s independent judiciary and rule of law, the impacts of which will be felt far beyond the country’s borders.
Aside from humanitarian concerns within Guatemala, self-interest should motivate Washington to shore up its support of CICIG. Though the State Department has backed CICIG in the past, including under former Secretary of State Rex Tillerson, it has offered only tepid support for anti-corruption efforts under current Secretary Mike Pompeo’s watch. In doing so, the Trump administration is ignoring a critical opportunity to exercise its leverage to confront the root causes of the migrant crisis. A number of U.S. lawmakers pushed back in a letter to President Donald Trump, arguing that “The administration’s weak response to this provocation has emboldened the government and its allies, who are facing multiple corruption investigations from both CICIG and Guatemalan prosecutors.” They implored the president “to take urgent action to uphold the rule of law in Guatemala and prevent further destabilization of the region,” through targeted sanctions and the suspension of aid to the government.
The expulsion of the commission also has consequences for the future of anti-corruption efforts in other countries combatting deeply embedded dysfunction. In neighboring Honduras, where an anti-corruption commission has been plagued by challenges since its inception, the successful campaign against CICIG’s work sets an alarming example.
CICIG has been widely touted as an effective, if imperfect, model to dismantle corrupt networks and strengthen institutions in fragile democracies. That transition often requires ongoing international pressure. The United States and other historic backers of the commission should take note. If Morales succeeds in ousting CICIG, it will endanger one of the country’s best chances to build a just, peaceful, and equitable society, and the viability of this model elsewhere will be very much in doubt.
Lauren Carasik is a clinical professor of law and the director of the International Human Rights Clinic at Western New England University School of Law.