Does Mexico’s “3×1 Program for Migrants” Encourage Autodefensas?

By Clarisa Pérez-Armendáriz and Lauren Duquette-Rury*

Autodefensas

Autodefensa in Michoacan / Esther Vargas / Creative Commons

Mexico’s armed vigilante groups, or autodefensas, are more likely to exist in those municipalities where migrant organizations – called hometown associations (HTAs) – help fund projects back home in collaboration with local authorities. HTAs are voluntary civic associations or clubs located in migrants’ destination countries – the United States for Mexicans – comprised of individuals with a shared attachment to a common place of origin. HTAs raise funds that they send home to fund public goods such as roads, health clinics, potable water, electricity, drainage and sanitation, and schools, often in partnership with government authorities. Since 2002, the Mexican government has run a “3×1 Program for Migrants” that matches the remittances that HTAs send back to their origin community at the local, state, and federal levels of government

  • In a recent article, we analyze data from 2,352 Mexican municipalities in 2002-13 that show that vigilante groups were more likely to emerge in 2013 in municipalities where HTAs participated frequently (six or more times during a 10-year period). The vigilante groups are parochial organizations comprised of private citizens who, acting outside of the formal mechanisms or institutions sanctioned by the state, take up arms to provide security for their communities.

The repeated cooperation between migrants and state and local actors appears to enable community members to act collectively in security and justice matters as well as public good projects. Notably, the depth and frequency of contact are more important factors than the amount of investment and the presence of drug-related violence or activities. Mexico’s vigilante groups apparently are not merely a response to contemporary security crisis, state incapacity, or unequal access to security. Rather, they are a function of citizen capacity enhanced by transnational linkages, strengthened by 3×1, to mobilize collectively to provide security for their communities.

  • In contrast to research indicating that migrant-state transnational co-production partnerships contribute to strengthening democracy by enhancing collective organizational capacity through preexisting levels of social capital, resources, and knowledge, we find that HTAs and their communities can marshal their new capacity to form organizations that carry out informal, non-state, extra-legal armed actions. Autodefensas can threaten state capacity and the rule of law. While they tend to be community-based organizations and have contributed to reducing violent crime, the mechanisms for citizens to hold these groups accountable are limited and human rights violations and extrajudicial killings are common.

The 3×1 Program rules prohibit the funding of private security in municipalities. Program funds could conceivably be misallocated strategically, but doing so to fund nonstate armed groups would entail significant risks and costs. It would be easier for HTAs to simply reallocate their collective remittances toward projects – including public security –  outside of the 3×1 program.

  • The HTA’s motives merit further inquiry. While evidence is lacking to demonstrate that HTAs’ desire to protect their investments is a key factor in encouraging vigilante group formation, they and their local co-sponsors are indeed targets of extortion by criminal gangs. They may be seeking to protect their current and future public goods investments by adapting the successful transnational coproduction model for public good provision to specifically enable vigilante group formation in Mexico. The emergence of return migrants from the United States as key leaders of vigilante groups in 2013 –  including José Manuel Mireles and Luis Antonio Torres (“El Americano”) – makes the question of social and political remittances all the more compelling.

July 23, 2019

* Clarisa Pérez-Armendáriz  teaches Politics and Latin American Studies at Bates College and is guest editor with Ana Isabel López García (GIGA-Hamburg) of a Special Issue in the Journal of Ethnic and Migration Studies on how Mexican emigrants respond to and influence political violence in Mexico.  Lauren Duquette-Rury teaches sociology at Wayne State University and is the author of Exit and Voice: The Paradox of Cross-Border Politics in Mexico (University of California Press, 2019).

New Leadership in El Salvador: Breaking from the Past?

By Eric Hershberg*

U.S. Air Force Chief of Staff Gen. David L. Goldfein meets with El Salvador’s newly elected President Nayib Bukele

U.S. Air Force Chief of Staff Gen. David L. Goldfein meets with El Salvador’s newly elected President Nayib Bukele / Joint Base San Antonio / Public Domain

Salvadoran President Nayib Bukele’s stunning defeat of both of his country’s two dominant parties in February was propelled by promises of change and new approaches to challenges that vexed his predecessors. His initial six weeks in office have featured notable gestures toward fresh directions but also grounds for concern. The country’s problems are many and severe. Decades of paltry private investment has produced anemic economic growth, worsened in recent years by a devastating internal security situation. The limited economic growth that has occurred relies disproportionately on remittances from migrants – the value of which exceeds that of exports – but the circumstances of Salvadorans in the United States are growing more precarious, potentially eroding future transfers. In addition, plausible shifts in trade policy by an erratic U.S. administration could undermine the U.S.-CAFTA-DR trade agreement, threatening critical manufacturing jobs. Corruption, meanwhile, is perceived by the population as no less urgent a challenge as joblessness and impunity for the gangs whose extortion and violence torment much of the population.

Bukele’s winning campaign formula was to promise to turn things around with a new vision and new people. One important signal of change was the President’s order to immediately remove the big block letters “Monterrosa” from the barracks of the armed forces 3rd brigade, in San Miguel, and his hosting a dinner at the Presidential residence for family of the victims of the El Mozote massacre that Lt. Col. Monterrosa had overseen. A handful of initial cabinet appointments signaled an inclination toward meritocracy and gender balance. Yet Bukele has more recently appointed to key positions dodgy veterans of the administration of former President Tony Saca (2004-09), who split (and was later expelled from) his ARENA Party to form a new party, GANA. While Saca is serving a 10-year prison sentence for corruption, Bukele, who was expelled from the FMLN in 2017 and thus lacked a vehicle of his own with which to seek the presidency, opted to run on the vacant GANA ticket. The appearance of figures from Saca’s inner circle is thus not entirely a surprise, but it stands out given the degree that Bukele’s largely platform-less campaign highlighted the battle against corruption.

  • One of his pledges was to create a hybrid (national-international) anti-corruption commission – adapted from the experiences of CICIG in Guatemala and MACCIH in Honduras – to hold accountable political elites suspected of extraordinary levels of malfeasance. Yet both domestic and external constraints make such an effort less likely than Bukele might have imagined while on the campaign trail, and the Comisión Internacional contra la Impunidad en El Salvador (CICIES) seems to have been relegated to a back burner.
  • Equally striking is the new President’s doubling down on militarized responses to gang violence, departing from both his campaign rhetoric and his mode of governance as mayor of Nuevo Cuscatlán (2012-15) and San Salvador (2015-18). Whereas he had entered into pragmatic if unspoken accommodations with the gangs in order to secure governability at the municipal level, he’s now declaring all-out war against the maras, sending the military into gang-ridden communities and clamping down on communication from the prisons from which gang leaders continue to direct operations. During the first week of July – a month after assuming office – he asserted that repression was but the first phase of a comprehensive anti-gang strategy, promising a second phase, focused on social opportunity, that would address the structural factors that draw youth toward lives of criminal violence. But details remain thin, and whether funds will be appropriated by a legislature in which GANA has only a small minority of seats remains to be seen.

Bukele represents El Salvador’s first Instagram and Twitter president – with a penchant for announcing sweeping personnel changes without having informed affected staff in advance. His recourse to social media for proclaiming “you’re fired” aligns him with other western hemisphere presidents eschewing traditional channels of communication with public employees and the citizenry, but in El Salvador as elsewhere this justifies concern over how governance through a cacophony of tweets may affect the quality of democracy.

Meanwhile, the new president has wisely emphasized that cordial relations with the United States are an imperative for his government. More than a third of his compatriots reside there, and he has already taken steps to gain Washington’s blessing for his administration. At U.S. urging, he invited the representative of Venezuelan assembly president Juan Guaidó to his inaugural, and when a Salvadoran father and daughter drowned in the Rio Grande, Bukele exonerated President Trump’s border policies, saying “La culpa es nuestra.” Nonethelesss, he has been critical not only of Venezuelan dictators who Washington abhors but also Honduran ones who the Americans enable. Meanwhile, observers in San Salvador opine that, contrary to Washington’s wishes, he will not reverse his FMLN predecessor’s decision to deepen relations with China – he needs Chinese investment and recent history offers little reason for expecting analogous resources to arrive from the U.S. Finding the money needed to provide jobs, security and social welfare to the vast majority of Salvadorans who have lacked them may prove as vexing for the outsider president as it was for leaders of the dominant parties of the post-war period.

July 16, 2019

* Eric Hershberg is Professor of Government and Director of CLALS at American University. He took part in a delegation of AU experts for a weeklong visit to El Salvador in June, during which they met with political leaders across the political spectrum, as well as leading journalists, scholars, NGO leaders, policymakers and diplomats.

Latin America: The Perils of Judicial Reform

by Aníbal Pérez-Liñán and Andrea Castagnola*

Former President of Chile and current head of the United Nations OHCHR Michelle Bachelet addresses the Chilean Supreme Court in 2015

Former President of Chile and current UN High Commissioner for Human Rights Michelle Bachelet addresses the Chilean Supreme Court in 2015/ Gobierno de Chile/ Flickr/ Creative Commons/ https://www.flickr.com/photos/gobiernodechile/22180910394

Conventional wisdom that institutional reforms always strengthen the judiciary is not supported by the facts. A constitutionally fixed number of justices is widely thought to make “court packing” more difficult, and longer terms in office supposedly protect judges from partisan trends. Nomination processes that involve multiple actors should produce moderate justices; high requirements for impeachment should protect judges from legislative threats; and explicit powers of judicial review should assure politicians’ compliance with judicial decisions. Our research, however, shows that institutional reforms often undermine judicial independence, even when they appear to improve constitutional design along these crucial dimensions.

  • Countries with longer democratic traditions such as the United States, Chile, Costa Rica, and Uruguay display low turnover: few justices leave office in any given year, and their exits appear to follow a random pattern. But countries like Bolivia, Honduras, Guatemala, El Salvador, and Paraguay – all of which nominally protect judges from political pressures – display abrupt patterns of judicial turnover. On repeated occasions, a majority of the court has left in the same year, allowing for a complete reshuffle. About half of all exits in our sample took place in years when more than 50 percent of a court left at once, mostly due to political pressures.
  • Some constitutions create turnover by design. Until 2001, for example, Honduran justices served for four years, concurrent with the presidential term. However, less than 30 percent of court reshuffles can be explained by constitutional rules. In Argentina, even though the Constitution grants Supreme Court justices life tenure, presidents forced a majority of justices out of office in 1947, 1955, 1958, 1966, 1973, 1976, and 1983.

Our project analyzed the tenure of almost 3,500 justices serving in Supreme Courts and Constitutional Tribunals in the Western Hemisphere since 1900. We found – against our expectations – that several constitutional reforms increased the likelihood of turnover in the high courts. Because major reforms produce turnover in Supreme Courts and Constitutional Tribunals, they create new opportunities for parties to appoint loyal judges and politicize the courts.

  • Constitutional reforms that involve more actors in the nomination of justices (i.e., “multilateralize” the process) also increase turnover in the high courts. Reforms that constrain the removal of justices (for example, requiring supermajorities for their impeachment) paradoxically have prompted the exit of justices in democracies. Constitutional reforms that granted courts explicit powers of judicial review of government actions increased judicial instability, and reforms that grant life tenure to justices on average created turnover in the high courts, particularly when adopted under dictatorships.
  • Two basic reasons seem to explain these paradoxes. In the short run, reformers exercise (and abuse) “constituent” power, restructuring the courts in ways that force the resignation of incumbent justices or create new vacancies. In the long run, formal constitutional protections for the judiciary create a strategic trap. If parties can use informal instruments, such as threats and bribes, to induce the resignation of judges, their incentives to deploy those blunt instruments are greater when justices are completely isolated from other forms of political influence.

Some features of constitutional design – including life terms and supermajority requirements to impeach judges – do explicitly protect justices against purges. Other constitutional features, however, create incentives for the political capture of high courts. Greater powers of judicial review, for example, make courts politically relevant and, therefore, more important targets. A constitutionally fixed number of seats prevents court “packing” but encourages purging as an alternative. Appointment procedures controlled by the President and Congress make purges profitable for them. Irrespective of their stated goals, constitutional amendments and replacements offer a window of opportunity to reorganize the composition of the judiciary.

  • Judicial purges occasionally pursue desirable goals, like the removal of judges who have been corrupt or obstructed transitions to democracy, but a recurrent pattern of politicized replacements inevitably produces a weak judiciary, creating an unstable interpretation of the laws and the Constitution.

July 9, 2019

* Aníbal Pérez-Liñán teaches political science and global affairs at the University of Notre Dame, and Andrea Castagnola teaches judicial politics at the Universidad Torcuato Di Tella, in Buenos Aires. Their project was supported by the National Science Foundation. Conclusions expressed here do not necessarily reflect the views of the NSF.

Building Walls, Closing the Border: Not the Answer

By Ernesto Castañeda with Maura Fennelly*

U.S. Border Patrol stands watch during border fence reinforcement / U.S. Customs and Border Protection / https://www.flickr.com/photos/cbpphotos/44997385775/in/photostream/

U.S. Border Patrol stands watch during border fence reinforcement / U.S. Customs and Border Protection / https://www.flickr.com/photos/cbpphotos/44997385775/in/photostream/

Trump is widely thought to have originated the call for a wall to keep out migrants, but animosity toward Latin Americans has deep roots in U.S. history and political discourse – and the tough task of reversing it is long overdue. Presidents Bill Clinton and George W. Bush criminalized migration and secured funds to build fences and militarize the border. President Obama also oversaw the deportation of over 2 million migrants, some of whom ended up in camps on military bases.

Immigration remains one of the most debated issues, and immigration policies have a profound impact on families and communities with foreign-born members. Many long-time residents and some politicians see immigration as a cultural threat and are opposed to it. In Building Walls: Excluding Latin People in the United States, we trace the building of symbolic and physical walls between white Americans and Latin people. Boundary formation occurs at three levels:

  • Categorical thinking. The modern nation-state rests on the assumption that exclusion is necessary to protect the welfare of citizens. Migrants can be viewed as a threat to the autonomy of the nation. Immigrants can be “naturalized” and offered full citizen rights, but this assumes that they must change to fit in. One of the main narratives driving strict border surveillance is that migrants will negatively affect the economy, despite research continuing to show that long-term employment rates of American citizens’ are not harmed by immigration. Low-skilled wages are barely affected by immigrants entering the American workforce.
  • Anti-immigrant speech. Minority populations, including immigrants, have been subject to an increase in hate crimes since the 2016 election. White Nationalist groups use social media and the public sphere to disseminate anti-immigrant views. Members of a splinter militia group – the Minutemen American Defense – killed nine-year-old Brisenia Flores and her father in 2009 (and were convicted in 2011). The Minutemen, while declining in membership, have inspired the creation of smaller border patrol groups.
  • Immigration as an experience. Despite some political leaders’ claims of insecurity at the border, U.S. cities right next to Mexico are safe. Research shows that most border-area residents enjoy being next to Mexico. Across the nation, moreover, a vast majority – about 75 percent – believe that immigration is good for the United States. Nonetheless, Latin American migrants still struggle to find a home and a sense of belonging. In interviews, we find that many experience “social invisibility” – a feeling of existing in significant numbers while being unrecognized as full members. Interviews with undocumented migrants we conducted in El Paso reveal that over 75 percent reported that employers, landlords, and neighbors threatened to use their undocumented status against them. These experiences affect migrants’ well-being and mental health.

While the United States maintains durable inequalities between white Americans, Latin people, and other marginalized groups, the historical and social forces shaping our immigration narrative can be changed so that we empathize with, and no longer demonize, people who are looking for a home. Trump’s efforts to expand existing walls and build new ones are central to his strategy. He led the longest government shutdown in U.S. history and declared a national emergency because Congress would not fund it as he wished. However, his threats to close the border, impose tariffs, and other drastic actions show ignorance of the major impact these actions would have on the United States’ access to inexpensive agricultural, industrial, and technological products from Mexico. A border closure would not be sustainable beyond a few days. While polls show that 41 percent of people in the United States support the construction of Trump’s border wall, a majority of Americans know that more walls would not work.

  • The United States does not need a border wall with Mexico. The misleading and inaccurate claims made by politicians about Latin immigrants only further divide the nation – and obscure the positive contribution of Latin Americans, their experiences, identities, and cultures.

July 2, 2019

Ernesto Castañeda teaches sociology at American University and is the author of Building Walls: Excluding Latin People in the United States. Maura Fennelly is a graduate from American University and works with a housing assistance organization in Chicago.

Brazil: Corruption of Anti-Corruption

By Fábio Kerche*

Moro, Bolsonaro, and Paraná governor Ratinho Júnior seated during a visit to the Integrated Center of Intelligence and Public Security of the Southern Region in May 2019.

Moro, Bolsonaro, and Paraná governor Ratinho Júnior during a visit to the Integrated Center of Intelligence and Public Security of the Southern Region in May 2019/ Marcus Correa/ Wikimedia Commons

New revelations about the political objectives and operational decisions of Brazil’s Lava Jato anti-corruption investigators have dealt a blow to their credibility and to the legitimacy of President Jair Bolsonaro’s election. The “Car Wash” Operation began in 2014, with prosecutors and Judge Sérgio Moro leading what was seen as a crusade against corruption and in the process becoming heroes for significant portions of society. It started with an investigation into Petrobras, the biggest state-owned company, and spread across several sectors of the economy. Although the activities of several political parties came under scrutiny, the left-wing Workers’ Party (Partido dos Trabalhadores – PT) suffered the most. President Dilma Rousseff was impeached and removed from office, and President Lula da Silva was arrested – opening the path for Bolsonaro, a far-right politician with an undistinguished political biography, to win the 2018 election.

  • Bolsonaro appointed Lava Jato judge Moro as his Minister of Justice – a move cited by some observers as evidence of the new President’s commitment to fight corruption. Others, however, were concerned that Moro’s acceptance of the job confirmed long-held suspicions, based on his own statements against Lula, that the lawsuit against the former president was a political farce to get him out of the race. Critics said the new job was Moro’s reward for putting Lula, who was leading in all polls during the campaign, behind bars. Some political analysts and journalists even speculated that Moro would run for President in 2022.

The Intercept, a news website co-founded by Pulitzer-winning U.S. journalist Glenn Greenwald, has published internal messages between Moro and Lava Jato prosecutors that confirm they had a political agenda. The communications confirm several violations of the law and ethics.

  • According to Brazilian law, prosecutors and judges cannot exchange information about cases outside of court, particularly in a secret way. Judges, according to the legislation, should listen to the prosecution and the defendant’s attorney in an equitable way. A judge exchanging messages by Telegram with a prosecutor about a lawsuit is illegal.
  • Moro took a firm hand in directing the prosecution team – another violation of LOMAN (Organic Law of the Judiciary). The Intercept has so far released only 1 percent of the conversations, but the information already shows that Moro criticized members of the team, gave others tips on how to proceed, asked for new police operations, recommended press strategies, steered investigators away from looking at possible wrongdoing by former President Cardoso, and undertook other initiatives. Lula’s defense did not have the same “opportunity”: the judicial balance weighed heavily on the prosecution side.

Moro has not been dismissed in the wake of these revelations, and the charges against Lula have not been cancelled – as would have happened in a less turbulent political environment. But there are clear signs that Moro has been losing support in Brazilian society. Even the news media who transformed him into a hero now criticize how he handled Lula’s case, and persons who supported Lula’s arrest now affirm that the former president should be released. The Brazilian Bar Association and some Judges Associations are openly criticizing Moro. Talk of Moro getting a seat in the Supreme Court or running for president in 2022 has evaporated.

Moro and his cohorts’ crusade against the alleged corruption of PT leaders whose politics or style they didn’t like amounts to use of the Judicial System to interfere in politics – if not criminalize what, in many ways, are normal political activities. The apparently illegal alliance between Moro and prosecutors seems to leave little doubt that Lula was convicted in an unfair trial based more on biased opinions rather than objective evidence. His supporters’ claim that he is a political prisoner increasingly makes sense. The Brazilian judicial system is supposed to give every citizen a fair and balanced trial. Although annulling Bolsonaro’s election seems impossible, the fact has been established that Moro was able to interfere in the electoral process by removing the leading candidate from the presidential race. The judicial fraud that marred the 2018 election has dealt yet another blow to Brazilian democracy.

June 28, 2019

* Fábio Kerche is a Researcher at Casa de Rui Barbosa Foundation and Professor at UNIRIO and IESP/UERJ in Rio de Janeiro. He was a CLALS Research Fellow in 2016-2017.

Mexico: Has AMLO Compromised on Human Dignity?

By Alexandra Délano*

Mexican Foreign Secretary Marcelo Ebrard speaks during a meeting in 2018, during which U.S. Secretary Mike Pompeo was present

Mexican Foreign Secretary- designate Marcelo Ebrard participates in a bilateral meeting with U.S. Secretary of State Michael R. Pompeo in Mexico City on October 19, 2018. State Department photo/ Wikimedia Commons

Mexico has always negotiated with the United States from a position of weakness – it depends on its northern neighbor economically and politically more than the other way around – but the recent negotiations, compromising its commitment to human dignity in exchange for avoiding tariffs, may be among the worst outcomes. Tariffs on Mexican products would surely be costly for Washington, as business leaders and Republican legislators have stated recently, but the much greater economic threat is to Mexico. As a result, Mexico has consistently sought to keep the issue of migration separate from trade and other priorities – a delinking that both countries have accepted for the sake of advancing economic integration.

  • Trump has destabilized that tacit agreement by asserting that maintaining the status quo in commercial relations will depend on new steps by Mexico to support expansion of barriers on its northern border, to better control its southern border, and to stop the flow of migrants from Central America. In addition to imposing the tariffs, Trump threatened to abandon the newly negotiated North American Trade Agreement (“USMCA”) and even to close the U.S.-Mexico border.
  • President Andrés Manuel López Obrador (AMLO) has opted for a strategy of minimizing confrontation with Trump. This has implied concessions such as accepting the return of persons awaiting asylum hearings in U.S. courts. Even though this policy, called the Migrant Protection Protocols (or Quédate en México), is not in an official agreement, and even though it does not go to the extreme of establishing Mexico as a “safe third country” – which would obligate migrants to claim asylum in Mexico instead of having the option of continuing their journey to the United States – it is an attempt to appease Trump and maintain the fragile balance in the relationship.
  • AMLO has taken other steps to placate Trump. For example, Mexico and the UN’s Economic Commission for Latin America and the Caribbean (ECLAC or CEPAL) recently announced a development plan for Central America that, although limited in scope and without apparent funding, is an important step towards addressing root causes of migration in the region.

AMLO’s government negotiated to increase its control of the southern border and to continue to host asylum-seekers awaiting a court hearing in the United States. It did so in the absence of an integrated migration strategy, and without a commitment to invest resources, at a time when the budget of the Mexican Commission for Refugee Assistance (COMAR) was just cut 20 percent. The Instituto Nacional de Migración (INM) is also ill-positioned to assume a greater role without addressing its need for the resources and measures necessary to root out corruption and reduce its over-reliance on detention and deportation. Officials from these organizations were not even included in the negotiations – further reflecting the lack of vision and interagency coordination on the migration challenges. Not surprisingly, the INM Commissioner resigned days after the agreement was announced.

  • Mexico’s policies also appear to neglect the need to strengthen multilateral mechanisms to compensate for its weakness in the face of U.S. pressure. Mexico has traditionally been one of the most active promoters of multilateral agreements on cooperation on migration issues, including the Global Compact on Migration approved last year, but it appears unable to build on these accomplishments to either counterbalance Trump’s pressures or guide an internal policy on what to do. It has also failed to build support among G20 allies, including Canada – its second most important trading partner and a player in the extractive activities implicated in driving emigration and internal displacement in Central America and Mexico.

Mexico’s migration policy at this point is very far from the ideals laid out by López Obrador. His primary concern has been to pursue the impossible goal of containing Trump without harming other interests. Above nationalist posturing – claims that Mexico will never negotiate away its dignity – is the need to protect the dignity of persons. A migration policy that prioritizes migration control and that is based on the mood swings of the United States’ government does not meet this basic criterion. It leaves Mexico in the same weak, isolated position from which it cannot negotiate agreements on labor mobility, humanitarian protection, and economic development. Mexico seems to have made a strategic error in response to Trump’s most recent tantrum – one likely to reoccur under even more challenging conditions as the 2020 election nears.

June 25, 2019

* Alexandra Délano is chair of the Global Studies Department at the New School in New York City. This article is adapted from her essay in El País on June 5, Lo que está en juego en las negociaciones con Estados Unidos: la dignidad humana.

Central America: Hybrid Anti-Corruption Commissions Can Work

By Chuck Call*

Map of Guatemala, Honduras and El Salvador, with Guatemala and Honduras territory being covered by photos of well-known politicians being arrested.

Prospects for an International Commission against Impunity and Corruption in El Salvador: Lessons from Neighboring Countries in Central America logo / CLALS / https://www.american.edu/centers/latin-american-latino-studies/Prospects-for-an-International-Commission-against-Impunity-and-Corruption-in-El-Salvador-Lessons-from-Neighboring-Countries-in-Central-America.cfm

If newly inaugurated Salvadoran President Nayib Bukele pursues his campaign calls for the creation of a hybrid international commission to fight corruption and strengthen judicial institutions, he will face tough challenges from entrenched interests. However, the experiences of Guatemala’s CICIG and Honduras’s MACCIH show that a strong investigative mandate, close partnership with vetted national prosecutors, strong international backing, and transparent accountability will increase the chances of success of any such mission. (Full text of the study is here and aquí.) CICIG and MACCIH were born of political crises, but they were given different authorities, faced different expectations, and delivered different results.

  • Both missions have had historic investigative and prosecutorial achievements – bringing former and current senior officials to account as never before and putting powerful elites on notice that impunity will not be tolerated. CICIG has dismantled corrupt networks, exposing their reach into the Congress and the Cabinet, indicting hundreds. MACCIH has helped indict dozens of legislators and a former First Lady. Working with special units of prosecutors, they have also contributed to local institutional capacity to root out corruption.

Both CICIG and MACCIH have struggled against the pressure tactics of the many corrupt officials, legislators, and economic interests who most feel threatened by them. In contrast to Guatemala, where CICIG was key to the adoption of several laws that served as a foundation for effective investigation of organized crime, the Honduran Congress has refused to pass such laws. Legislatures in both countries have changed laws specifically to vitiate prosecutions (including of themselves) advanced by the missions. Corruption among judges, especially in Honduras, has made winning convictions extremely difficult. After CICIG shifted its sights beyond politicians to powerful businessmen a few years ago, Guatemalan elites launched a campaign to smear CICIG as an incursion on sovereignty and a socialist plot. Both missions have confronted constitutional challenges.

Key lessons from CICIG and MACCIH’s experience include:

  • Realistic expectations are important. The legal and diplomatic negotiations and logistics necessary to set up “hybrid” units combining domestic and international investigators slowed both entities’ starts. It took over two years for CICIG to secure its first convictions, and MACCIH’s investigations have led to only 12 cases, although these are major corrupt networks. The focus of many Hondurans on ousting President Juan Orlando Hernández has obscured some of the important cases advanced by the mission and its Honduran partners.
  • Anti-impunity missions can threaten systems of political and economic power in ways that go beyond judicial processes. Despite the technical and juridical character of both the missions, they have exposed in detail how criminal enterprises interact with political parties, elected, and appointed officials, and current and former security officials. The missions have also detailed how legislators receive illicit campaign funds and how they fraudulently spend public monies, forcing changes to these decades-old corrupt practices. In Guatemala, the prosecutions have dismantled corrupt networks involving cabinet ministers, generals, top business leaders and the former president and vice president, altering the political profile of parties and undermining the ability of prominent and corrupt elite structures of power to operate.
  • Strong partnerships with national prosecutorial units and with civil society are crucial for success and sustainability. CICIG and MACCIH could not have achieved what they did without close cooperation with carefully selected and vetted prosecutorial units. Those units, especially the UFECIC in Honduras, carried out much of the investigation and led the prosecution in both countries. The legacy of the hybrid missions rests in the future of these empowered professionals and society’s raised expectations of clean behavior from their public officials. Both missions have generated a greater sense that high-level politicians, officials and elites can be imprisoned for corruption and organized crime. Yet these missions have not heeded or informed civil society as much as they might have. Moreover, these experiences and the likely end to both missions in the coming months show that civil society is vital to educating society on the importance and possibility of accountable governance, and for demanding it from politicians and the justice system.
  • International sponsorship brings both advantages and challenges. The association with the UN (for CICIG) and the OAS (for MACCIH) has brought valuable political legitimacy, professional capacity, and needed resources. But it has also brought complications. In the case of MACCIH, slow and politicized appointments, questionable allocation of resources, and excessive day-to-day oversight from Washington, not to mention personal spats and undue interference by specific member states, have undermined performance and credibility. CICIG’s status as a non-UN body gave its commissioner the independence needed to take on tough cases and ignore political considerations. However, that lack of accountability is seen as having contributed to the alienation of many sectors in ways that left it politically vulnerable. Wavering U.S. support for CICIG since 2017 has emboldened the missions’ critics.

The experiences of CICIG and MACCIH show that, despite ups and downs, hybrid international-national missions can help a society fight corruption. In Guatemala and Honduras, these commissions achieved more than most observers originally predicted by dint of the vision and discipline of their leaders and sponsors as well as the work of courageous national officials and civil society groups often risking their livelihoods and lives. Their performance also shows that getting the mission right and sustainable takes time, communication, and strong partnership with national prosecutors. The main challenge now is that corrupt officials and businesses have become proficient at blocking investigations, prosecutions, and convictions.

  • Creating an International Commission against Impunity in El Salvador (CICIES) may be harder now than before CICIG and MACCIH scored their victories. However, President Bukele may have a historic opportunity to press the country’s two main (but weakened) parties, ARENA and the FMLN, to approve a strong mandate that fits the country’s particular needs. Experts advising then-President Mauricio Funes (himself ironically now on the lam for alleged corruption) concluded in 2010 that the country’s Constitution provides the basis for an international mission with a sufficiently strong investigative powers to have impact. The Guatemalan and Honduran missions show that a strong mandate and significant national and international backing could improve help El Salvador’s justice system reduce corruption and impunity. Such efforts may also have comparable impact in exposing in dirty detail, and perhaps reforming, unaccountable and exclusionary systems of political representation.

* Chuck Call teaches International Peace and Conflict Resolution at American University, where he directs a Center for Latin American & Latino Studies project analyzing MACCIH and anti-corruption efforts in Honduras.

Latin America: Which Election Rules Work Best?

By Cynthia McClintock*

President Nayib Bukele and his wife waving to the crowd on his inauguration day

Inauguration of President Nayib Bukele in El Salvador / PresidenciaRD / Flickr / Creative Commons

Latin American countries’ shift in recent decades from presidential-election rules awarding victory to candidates winning a plurality (“first past the post”) to majority runoff (a second round between the top two candidates if no candidate reaches a majority) has been successful overall. By 2016, 12 of the region’s 18 countries classified as “electoral democracies” used runoff, compared to only one, Costa Rica, prior to 1978. (Click here for a full explanation of the classifications.) Adopted in part due to the traumatic military coup against Chile’s Salvador Allende, elected in 1970 with only 36 percent of the vote, runoff enhanced the legitimacy of incoming governments and enticed candidates towards the political center. The runoff reform also lowered barriers to entry into the electoral arena by the previously excluded political left – a major challenge to many Latin American democracies in the 1980s-2000s.

  • Under runoff, a new party is not a “spoiler” party. Runoff allows voters to vote more sincerely in the first round – for the candidate whom they prefer – rather than strategically, i.e., for the preferred candidate whom they think can win. Also, a party has a second opportunity – if it is the runner-up, to win, but otherwise to have its voice heard, usually through its power of endorsement. Under plurality, if a new party wants to have any chance to win, it usually must ally with another party with an established political base, but alliances are problematic and dilute the new party’s brand.
  • According to virtually all studies, including my study of Latin American elections between 1978 and 2012, the number of political parties was larger under runoff rules than under plurality rules. And, in my study, a “new party” became a “significant contender” considerably more often under runoff.

Because of the increase in the number of parties, many observers opposed runoff. Although five or 10 or, worse yet, 15 or 20 parties indeed pose challenges for governability, evidence shows that a larger number of parties was not in fact correlated with inferior scores for political and civil rights as measured by Freedom House and Varieties of Democracy (V-Dem). Under plurality, the hold of traditional “cartel” parties was not loosened and participation was not expanded.

  • Runoff also impeded the election of a president at an ideological extreme. By definition, a candidate cannot appeal only to the 30-40 percent of voters in a “base” that is outside mainstream opinion. Often, runoff has pulled presidential candidates towards the center – a process evolving over the span of several elections as the need to appeal to the center becomes clearer. Among the presidents in runoff systems shifting towards the center over one or more elections were Brazil’s Luiz Inácio (Lula) da Silva; El Salvador’s Mauricio Funes; Guatemala’s Álvaro Colom; Peru’s Ollanta Humala; and Uruguay’s Tabaré Vázquez. Latin American countries under runoff arguably enter a virtuous circle with lower barriers to entry, the requirement for majority support, and ideological moderation. By contrast, a vicious circle emerged in plurality countries such as Honduras, Paraguay, and Venezuela, where plurality was one factor blocking the emergence of new parties, and perceptions of exclusion abetted polarization.

To date in 2018-2019, elections were held in runoff countries (Brazil, Colombia, Costa Rica, and El Salvador) and plurality countries (Mexico, Panama, and Paraguay). The election in Costa Rica showed the enduring importance of runoff: the evangelical candidate who had won the first round with only 25 percent was defeated by a center-left candidate in a landslide in the runoff. By contrast, legitimacy deficits, with presidents winning less than 50 percent, were likely in both Panama and Paraguay, and a legitimacy deficit was only narrowly avoided in Mexico. Further, in El Salvador, President Nayib Bukele, leading a new coalition, defeated the two long-standing parties. By contrast, in the plurality elections in Mexico, Panama, and Paraguay, new parties did not make significant headway.

  • Overall, in 2018-2019, the trend was towards the candidate, whether to the right or the left, who most effectively channeled voter anger against official corruption. Also, the trend was towards more severe political polarization and, as a result, the growing possibility that the candidate most able to defeat every other candidate in a pair-wise contest – the “Condorcet winner” – did not win. In two of the three runoff countries – Brazil and Colombia – it appears very likely that the Condorcet winner did not reach the runoff. It is not yet clear, however, what, if anything, should be done to counter this possibility.

 Although of course no electoral rule is a panacea, the greater openness of the electoral arena under runoff rules has facilitated the defeat of long-standing parties that had lost majority support but retained political bases. Presidents have been enticed towards the political center and, with majorities of the vote, not suffered legitimacy deficits. There is no ideal solution to the challenge of the emergence of too many parties, but more promising remedies include scheduling the legislative vote after the first presidential round, as in France, and establishing thresholds for parties’ entry into the legislature. A ranked-choice voting system – the “instant runoff” system in place in only a handful of countries – could conceivably work in the long run, but runoff rules have already helped Latin America expand inclusion and secure victors’ legitimacy.

June 14, 2019

*Cynthia McClintock is Professor of Political Science and International Affairs at George Washington University. This article is excerpted from her paper The Reform of Presidential-Election Rules in Latin America: Plurality, Runoff, and Ranked-Choice Voting, presented at LASA in May 2019.

 

U.S.-Mexico: Tariffs, Threats, and Trade Agreements

By Ken Shadlen*

Cargo ships

Cargo ships off shore of Galveston Island, TX / Jocelyn Augustino / Creative Commons / https://commons.wikimedia.org/wiki/File:FEMA_-_38860_-_Cargo_ships_off_shore_of_Galveston_Island,_TX.jpg

The United States’ threat last week to apply tariffs on imports from Mexico, unless Mexico revamped its approach to Central American migrants passing through the country, underscores the power asymmetries in the global economy – and undermines the credibility of U.S. trade agreements elsewhere. President Trump threatened to abrogate U.S. commitments under NAFTA (and the WTO) unless Mexico introduced measures in an area that is not addressed by NAFTA. While the tariffs won’t be applied, at least not now, and there is debate about just how much Mexico changed its migration policies as a result of Washington’s maneuver, the linkage between trade and “non-trade” issues such as immigration, especially within preferential trade agreements such as NAFTA, have deep implications for the political economy of international trade.

  • Many critics of Trump’s threats claim that immigration policy and trade policy are distinct, and that it makes no sense for the administration to link the two. But this misses the point: what is and is not “trade” is determined politically. Since the 1980s, the United States has conditioned market access on the introduction and enforcement of a wide range of “trade-related” policies, including investment, intellectual property, government procurement practices, and so on. Market size confers to the importing country the power to define what constitutes “trade,” and the definition of “trade” thus has changed according to Washington’s preferences. In that sense, Trump’s linkage maneuver is not at all new.
  • On the one hand, NAFTA is the outcome of massive linkage of this sort, as Mexico was required to introduce extensive changes to policies and practices in a range of trade-related policy areas in order to qualify for the agreement. On the other hand, NAFTA was meant to protect against further “ad hoc linkage,” with new conditions attached at the whim of the United States.
  • Prior to NAFTA, Mexico’s exports largely entered the U.S. market under the Generalized System of Preferences (GSP), which offers preferential market access to exports from developing countries under a wide range of conditions. But GSP preferences can be withdrawn unilaterally, and, as the importing country, the United States changed GSP preferences in response to its changing sentiments. Beneficiary countries always ran the risk of having the U.S. Congress and Executive attach additional conditions to the program, like ornaments on a Christmas tree.
  • NAFTA and other NAFTA-like trade agreements that have followed promised to deliver substantially more predictability and stability than the GSP.

Recent events question these premises. In 2017-18, Trump warned that Washington would withdraw entirely from NAFTA unless it was renegotiated on terms more to his liking. Last week’s threat to remove preferential market access unless Mexico changed its immigration policies and practices is precisely the sort of behavior that NAFTA was meant to protect against. The agreement supposedly replaced the unstable preferences of GSP, which were always vulnerable to the whims of U.S. politicians, with a new set of preferences that were clearly defined, had fixed conditions, and were less prone to being unilaterally withdrawn. But evidently it didn’t.

Washington’s actions are similar to if the Mexican government announced it would stop enforcing copyrights and patents of U.S. firms, unless the United States were to substantially increase science and technology assistance to help upgrade the stock of biologists, chemists, and engineers in Mexico. The reaction to such an announcement would be ridicule, and Washington would claim NAFTA (and the WTO) binds Mexico to protect intellectual property. The United States would assert, moreover, that its science and technology assistance is not covered by NAFTA; Mexico’s threat would elicit no change of behavior on the part of the US. 

  • Beyond NAFTA per se, these events make one wonder why any country would sign a trade agreement with the United States. After all, if countries already have preferential market access under the GSP, then one of the main benefits of reciprocal trade agreements is to lock-in and stabilize those preferences – even with the need to make substantial concessions on “trade-related” policy areas. If, in reality, only half of the bargain is locked in, if the benefits can be made to disappear at the whim of the U.S. President, then for many trading partners the benefits of such agreements will be unlikely to compensate for the costs.

June 11, 2019

*Ken Shadlen is Professor of Development Studies and Head of Department in the Department of International Development at the London School of Economics and Political Science.

U.S.-Cuba: You Can’t Get There from Here

By William M. LeoGrande

ventas en cuba

Small Business in Cuba / Alberto Yoan Arego Pulido / https://www.flickr.com/photos/albertoyoan/8775169259

U.S. President Donald Trump’s new economic sanctions against Cuba, imposed earlier this week, include limits on travel and family remittances aimed at crippling the Cuban economy and causing regime collapse, but the biggest losers are the small entrepreneurs, intellectuals, and artists who have been agents of change on the island. Senior administration officials, foremost among them National Security Adviser John Bolton, have been explicit that the goal is to rid the hemisphere of “socialism,” starting with the government of Venezuela and proceeding to Cuba and Nicaragua. Bolton previewed the new sanctions in Miami on April 17  – the anniversary of the failed Bay of Pigs invasion. Now we know the details.

  • Remittances, which were unlimited under President Barack Obama, will be limited to $1,000 per recipient household every quarter – enough to supplement a family’s meager state salary, but not enough to start and sustain a business. The new limits will hit Cuba’s nascent private sector hardest because funds from the United States were the start-up capital for many small businesses, and their supply chains reach back through Miami.
  • Trump has eliminated the people-to-people category of educational travel, which Bolton denounced as “veiled tourism.” This category covered educational tours not involving academic credit – tours run by organizations like National Geographic, the National Trust for Historic Preservation, and the Smithsonian. Authorized originally by President Bill Clinton in the 1990s, people-to-people travel was eliminated by President George W. Bush in 2003, in response to complaints from conservative Cuban-Americans in South Florida. President Obama restored it in 2011. Trump, like Bush, appears to be pandering to the Cuban American Republican base in Miami in the run-up to the next presidential election. Last year, 638,000 U.S. residents who were not Cuban Americans traveled to Cuba – at least two-thirds if not more under a people-to-people license, mostly on cruises, which Trump also banned. These new travel restrictions will cost Cuba upwards of $300 million dollars annually in lost revenue.

Cuba’s private sector will suffer disproportionately from these measures. In addition to losing start-up capital and access to supplies, these businesses will lose their principal client base. U.S. travelers arriving by air are more likely stay in Airbnb rentals and eat at private restaurants than the Canadians and Europeans who come on tourist vacation packages and stay at the big hotels on the beach. Trump’s first restriction on people-to-people travel in 2017, banning individuals from designing their own people-to-people trips, caused a 44 percent slump in private B&B occupancy. The new restrictions will wipe out many of them.

  • U.S. business and people will take a hit too. In 2017, Engage Cuba, a coalition of business groups favoring trade, released an analysis concluding that U.S. visitors to Cuba generated $1.65 billion in revenue annually for U.S. businesses and accounted for more than 12,000 U.S. jobs in the hospitality sector, most of which would be lost if Trump cut off travel. Most importantly, the new restrictions deprive most U.S. citizens of their constitutional right to travel, a right affirmed by the Supreme Court in 1958 in Kent v Dulles. The Court said the right should be limited only in cases of dire threats to national security.

As usual, tougher economic sanctions will make life tougher for ordinary Cubans, but sanctions won’t bring down the Cuban government, which has survived the U.S. embargo for half a century. Economic hardship and U.S. hostility will heighten Cuban leaders’ sense of being besieged, making them less likely to reform the economy or allow any expansion of free expression. Economic, professional, educational, and cultural ties between people in the United States and their counterparts in Cuba will be harder to sustain, impoverishing both. Cuba’s private entrepreneurs, who could be an engine for economic transformation and who Trump claims to support, will suffer from the loss of business from American travelers. U.S. travel companies will lose access to one of the biggest and fastest-growing tourism markets in the Caribbean. But maybe, just maybe, this latest assault on the liberties of Americans by the Trump administration will motivate Congress to finally pass a “Freedom to Travel” bill, assuring that no president can take away the constitutional right to travel just because he thinks it will help him win re-election.  

June 6, 2019

* William M. LeoGrande is Professor of Government at American University.