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.

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.

Ecuador: Moreno Reverses Another Correa Policy

By John Polga-Hecimovich*

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President Lenín Moreno / Flickr / Archivo Medios Públicos EP / Creative Commons

Ecuadorian President Lenín Moreno’s announcement last week that he had withdrawn diplomatic immunity for Wikileaks co-founder Julian Assange was long in coming and consistent with his efforts to reverse the excesses of his predecessor, ex-President Rafael Correa. In a three-minute-fifteen-second speech via Twitter, Moreno listed the reasons for his decision: Assange’s disrespectful and aggressive conduct, Wikileaks statements against Ecuador and, above all, Assange’s transgression of “international conventions.” Predictably, Correa, who originally offered the asylum protection, accused Moreno of being “the greatest traitor in Ecuadorian and Latin American history” who had committed a crime “that humanity will never forget.” Wikileaks accused Moreno of trading Assange to the United States for debt relief. Rhetoric and accusations aside, Assange had long been on shaky ground with the Moreno administration, and recent leaks of the president’s personal information made the decision seemingly inevitable.

  • Correa offered Assange asylum in 2012 to thumb his nose at the United States and contest claims that he did not protect freedom of the press. After Wikileaks leaked hundreds of Democratic Party campaign emails in 2016, he restricted Assange’s internet access at the embassy in London but, for ideological consistency, continued to support his infamous houseguest. Moreno possessed no such ties when he took office in May 2017 and called Assange “an inherited problem.” Assange’s asylum impeded Moreno’s ability to seek greater security and commercial cooperation with the United States.
  • The Wikileaks founder did not seem to understand the significance of this change. Not only was he messy, demanding, and abusive toward embassy staff; he reportedly violated his asylum conditions and, according to Moreno, tried to use the embassy as a “center for spying” – prompting Ecuador last October to impose a protocol regulating his visits, communications, and other matters. The tipping point for the Ecuadorian government was in February, when an anonymous source sent a trove of emails, phone communications, and expense receipts to Ecuadorian journalists, supposedly linking the president and his family to a series of corrupt and criminal dealings, including money laundering and offshore accounts, leading to a corruption investigation by Ecuador’s attorney general. A website also published leaked personal material unrelated to corruption, including photos of Moreno and his family lifted directly from his phone.

Moreno’s decision is unlikely to significantly affect his political capital. Although polls show his approval rating continues to decline as he pursues fiscal austerity policies, public opinion on this issue is likely to split along existing pro-Correa and anti-Correa lines. Further, given that personal information was already leaked, Moreno does not seem to fear potential reprisals from Wikileaks or others for his action. Nor does he appear to harbor additional political ambitions: he has all but ruled out running in the 2021 elections, and his once-dominant Alianza País (AP) party performed poorly in the March 24 regional elections, managing to win a paltry two of 23 governorships and only 28 of the 221 mayoralties. If anything, Moreno should be more worried about the attorney general’s investigation than the fallout from booting Assange.

Little by little in his two years in office Moreno has neutralized Correa’s political power and reversed his predecessor’s policies – often provoking the ex-president (see previous posts here and here). In the last six weeks alone, Moreno announced he would launch an international anti-corruption commission; hosted and expressed his support for Venezuelan opposition leader Juan Guaidó, saying that Venezuela and Ecuador “are both on the way out of the abyss in which we were placed: this poorly named 21st century socialism”; and signed a $4.2 billion loan from the IMF – all actions that would have been unthinkable from 2007 to 2017. Ultimately, giving Julian Assange asylum was politically costly and brought no benefits to a government that’s too weak to waste political capital on an international troublemaker. Recent events may have triggered his ouster from the embassy, but the writing has been on the wall for some time now.

* John Polga-Hecimovich is an Assistant Professor of Political Science at the U.S. Naval Academy. The views expressed in this article are solely those of the author and do not represent the views of or endorsement by the Naval Academy, the Department of the Navy, the Department of Defense, or the U.S. government.

Peru: President Vizcarra Surprisingly Paves the Way for Liberal Project

By Carlos Monge*

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Prime Minister Salvador del Solar and President Martin Vizcarra / canaln.pe / Creative Commons

One year in office, Peruvian President Martín Vizcarra has made significant strides toward strengthening neoliberal economic policies and opening the way for a liberal project in Peru – while maintaining 50 percent popular support.  Prime Minister César Villanueva took the hit for a fall in the polls last week, setting the stage for Vizcarra to name a new cabinet this week to give a push to his agenda.  The new Prime Minister – lawyer, actor, and film director Salvador del Solar – espouses a market economy with strong state regulations against corruption, tax evasion, and monopolies, while defending human, women’s, and LGTIBQ+ rights.

  • His opponents have been weakened. Former President Alberto Fujimori is back in jail, his presidential pardon revoked.  His older daughter, Keiko, is in prison, while awaiting trial on corruption charges, and his younger son, Kenji, is under investigation for links to drug trafficking.  Fujimori family long-time confidant Jaime Yoshiyama returned from the United States directly to prison for violations of campaign finance laws.

None of this seemed remotely possible only a year ago when Vizcarra, a Vice President, returned to Peru from his posting as Ambassador to Canada and, on March 23, was sworn in as President, after President Kuczynski resigned amid serious corruption charges.  Indeed, Vizcarra appeared destined to be a weak president facing a strong and ruthless parliamentary opposition.  The question then was if he would last or, rather, when he would fall.  Vizcarra initially seemed to follow his predecessor’s appeasement policies, attempting to govern without the permanent obstruction of a Congress dominated by Keiko Fujimori’s Fuerza Popular and its close ally, APRA.  He even consulted with Keiko about potential cabinet members and important policy matters.  Keiko, on the other hand, remained convinced that she should have won the 2016 elections and sought to govern the country through her control of the Congress, even hoping to generate a political crisis leading to new national elections that she was sure she would win.

  • Vizcarra soon grasped Keiko’s intentions and sided with citizens’ widespread indignation caused by the leak of audio recordings that confirmed enormous levels of corruption in the judiciary and its connections to political parties such as Keiko’s Fuerza Popular and APRA. Despite desperate efforts by these parties and their allies in both the judiciary and the General Attorney’s office to block ongoing investigations, both Keiko and Alán García, the APRA leader and former national president, were in serious trouble.  Vizcarra embraced the anti-corruption platform and confronted head-on the same leaders and parties he had initially tried to appease.
  • Bypassing the Fuerza Popular and APRA’s domination in Congress, Vizcarra succeeded in organizing a referendum last December that approved a package of reforms he proposed to reduce corruption. (He even convinced citizens to vote NO on one of his four reform proposals – the return to a two-chamber parliament – after Fuerza Popular and APRA introduced a provision that would open the way for parliamentary re-election in 2021, which another reform prohibited.)  With an average of 80 percent of voters supporting his position on all four measures, Vizcarra scored a huge victory– clearing the way for him to move forthrightly on his political and economic agenda.

Early posturing for the 2021 elections shows that Vizcarra may have opened a previously nonexistent space for liberal politics in the country.  In fact, his new Prime Minister has presidential aspirations and Julio Guzmán and his Partido Morado have recently registered, and they are –as Vizcarra is – – a “liberal” or “sort of liberal” politician.  The traditional right, including Fuerza Popular, APRA, the CONFIEP business guild, and others, have strongly criticized the values and economic views of the new Prime Minister, but the days that the only face of the right was a mix of state capture by large economic groups and conservative values and policies – a mix Alán García and Keiko Fujimori represent so well– seem to be over.  The emergence of a liberal project also represents a challenge for the left, traditional champion of liberal values.  If those liberal values now find liberal champions, the left will have to remain true to them while – at the same time – displaying its total opposition to the continuity of neoliberal economic policies and pushing for a set of distinctly leftist policies in the social, environmental and cultural realms.

March 15, 2019

* Carlos Monge is Latin America Director at the Natural Resource Governance Institute in Lima.

Honduras: MACCIH Still Trying

By Aída Romero Jiménez

MACCIH Feb.22.2019

Luiz Antonio Marrey, Special Representative of the Secretary General, Spokesperson of the MACCIH / Flickr / Creative Commons

MACCIH, the OAS-sponsored mission to support the fight against corruption and impunity in Honduras, continues to investigate cases but with a lower profile than one year ago– and under growing political pressure.

  • Without MACCIH, most observers believe, cases like La Caja Chica de la Dama – for which ex‑First Lady Lobo is awaiting trial in prison – would not have developed. MACCIH is also credited with shutting down the Red de Diputados, a network of Congressmen accused of misappropriating government funds; the Pacto de Impunidad o Fe de Erratas, legislation that effectively shielded Congressmen involved in the Red; the Pandora case, which accused 38 lawmakers of stealing funds from the Ministry of Agriculture; and serious charges against former President Lobo’s brother.
  • Although MACCIH provides important leads and analytical capacity to UFECIC, the special prosecutor unit created to investigate corruption cases, its most valuable support comes from the political cover it provides as an internationally sponsored entity. It is often the public face of anti-corruption efforts in the country, even though Luiz Antônio Guimarães Marrey, the spokesman since last June, and his deputy have significantly scaled back their use of social media since the previous spokesman, Juan Jiménez Mayor, irritated the government with his public profile.

MACCIH’s successes have provoked resistance and, at times, a strong backlash from powerful sectors that feel threatened by its work, not unlike what has occurred with the International Commission against Impunity in Guatemala (CICIG).  When Guatemalan President Jimmy Morales banned the head of CICIG, Iván Velásquez, from returning to the country, several Honduran Congressmen were quick to state that the MACCIH mandate similarly had to be revised, and that its involvement in investigations had to be reigned in to ensure it was not overstepping its limits.  Echoing CICIG’s critics in Guatemala, they also alleged that MACCIH was violating the country’s sovereignty.

  • The Honduran Constitutional Court was already gunning for MACCIH when it ruled in May that UFECIC was unconstitutional. (UFECIC has continued its investigations without further interference, but local observers believe this could change at any moment.)  Congress has also redoubled efforts to reform Article 115 of the General Law of Public Administration to effectively shield itself from Public Ministry investigations into their handling of public funds.  Legislators want to transfer authority for such inquiries solely to the Supreme Auditing Tribunal, which civil society actors claim is sympathetic to the Congressional leadership.
  • The lack of judicial independence has remained a serious obstacle. In a high percentage of cases that go to trial, the charges have been reversed or downgraded, signaling just how fragile and corrupt the Honduran justice system is.

MACCIH’s progress in fulfilling its mission makes it vulnerable to attack and, possibly, non-renewal when its mandate expires in January 2020.  MACCIH spokesman Guimarães Marrey said in December that 11 new cases will soon be announced.  Many Hondurans hope that President Juan Orlando Hernández will be among the targets, on the assumption that he was aware of or involved in drug trafficking operations for which his brother, Tony, is under arrest in the United States.  Whether that happens or not, pressure on MACCIH is unlikely to abate.  Guimarães Marrey earlier this month re-released a draft “Effective Collaboration Law” – MACCIH’s main legislative priority – allowing plea-bargaining in return for accurate information leading to prosecutions.  Legislative opposition to the proposed legislation is strong, and its prospects – like MACCIH’s – remain uncertain.

February 22, 2019

*Aída Romero Jiménez is a team member of the CLALS project Monitoring MACCIH and Anti-Impunity Efforts in Honduras.

Venezuela: When Will the Military Flip?

By Fulton Armstrong

venezuelan military marching

A military exercise in Caracas, Venezuela. / Cancilleria del Ecuador / Flickr / Creative Commons

Venezuelan leader Juan Guaidó and his backers, including the Trump administration, are increasingly focused on swaying the country’s security forces to switch allegiance from Nicolás Maduro to the National Assembly President.  Guaidó has appealed to the military to support his efforts to “restore constitutional order” and is pushing through the legislature a law giving amnesty to cooperating officers for certain crimes committed since President Chávez took office in early 1999.  U.S. officials, apparently to shake up the armed forces, continue to say that “all options are on the table”; National Security Advisor John Bolton held a notepad at a press briefing referring to “5,000 troops to Colombia.”  Maduro, for his part, continues to orchestrate loyalty pledges from senior officers and preside over military exercises.

  • Several small units of the military have flipped, and Maduro’s military attaché in Washington – serving there for a number of years to get medical treatment – has declared loyalty to Guaidó. The vast majority of the officer corps, however, still maintain an appearance of commitment to Maduro.

The most common explanation for the military’s apparent loyalty cited by Maduro’s opponents is that the high command has been bought off by opportunities to engage in corruption.  Other factors, however, may better explain why the institution has stuck with him this long.

  • Ideological reasons? Most available information suggests that Madurismo – with its gross, incompetent mismanagement of the economy, corruption, and thuggery – is not attractive to the officer corps.  But they appear to know that Chavismo has deep roots; that the elites, including the more hardline opposition, don’t understand the significance of change since 1999; and that efforts to return to the pre-Chávez era would be destabilizing and bloody.
  • Financial reasons? Although historically and perennially corrupt, senior officers arguably have been able to do more corruption under Maduro than under another regime.  That said, in their heart of hearts, they probably know a lot of their activities will continue under any government.
  • Distrust of the opposition? The military traditionally has communicated better with opposition moderates, such as Henrique Capriles, and in recent years has shown no trust in the faction that Guaidó comes from and its leader, Leopoldo López.  Information is very limited, of course, but many officers may believe that this group’s obsession with overthrowing Maduro and its no-negotiation stance has contributed to the crisis.  Senior officers’ confidence in Maduro’s ability to hold the country together seems to have evaporated, but the opposition have not presented a viable, comprehensive alternative.
  • Concern about the López-Guaidó faction’s ties with Colombia and the U.S.? Good information is elusive, but senior officers’ posture suggests that they see Bogotá’s strategic objective to keep Venezuela weak and Washington’s objective to purge the country of Chavismo and themselves.
  • Concern that the “international community” will not give them a fair deal? Distrust of Washington seems obvious, but – within their logic – senior officers almost certainly are suspicious of OAS Secretary General Luis Almagro, the Lima Group, Brazilian President Jair Bolsonaro, and others as intolerant and biased.
  • Belief that, in the face of total chaos and widespread bloodshed, they can force a last-minute peaceful solution onto Maduro? Senior officers presumably have good enough intelligence to know when and how to intervene – and persuade Maduro to accept a peaceful solution and fly into exile.  The bigger problem at this point is that they do not see a viable alternative to sticking it out.
  • Fear that Maduro’s people have deeply penetrated officer ranks, and their lives will be at stake if they move against him? As the scope of the crisis grows and the credibility of Maduro’s power begins to slip, this would appear now to be less important.  Officers talk among themselves more than outsiders think.

The Venezuelan military’s threshold for intervening against civilian governments of any stripe has always been high, amplified by the embarrassment of the reversed coup against Chávez in 2002.  None of the factors that, on balance, still appear to favor sticking with Maduro is unmovable.  Distrust of the United States, OAS, and the Lima Group – the outside forces that legitimized Guaidó’s claim to power – leave the military with no reliable allies; Cuban, Russian, and Chinese friends can provide no solace.  A credible negotiation proposal from someone like Mexican and Uruguayan Presidents López Obrador and Vázquez, especially if backed by Pope Francis, could conceivably give them a credible direction in which to push Maduro.  But at this moment – subject to rapid change – the balance still argues in favor of the military fearing a new course.

Colombia: Slow to Deal with Conflicts of Interest

By María Paula Ángel*

Image of Nestor Martínez

Nestor-fiscal.jpg / Wikimedia Commons / Creative Commons

Revelations about Colombian Attorney General Nestor Humberto Martínez’s knowledge of serious cases of corruption prior to his election is raising questions about his ability to do his job with impartiality and independence – and about the efficacy of Colombia’s anti-corruption measures.  Martínez was a legal advisor for Grupo Aval – a partner with the Brazilian firm Odebrecht on a major infrastructure project – with whom a project auditor shared his deep concerns about corruption.  In 2015, Martínez confirmed to the auditor the range of the crimes, including “bribery, money-laundering, use of false documents, improper management, abuse of confidence, fraud, aggravated theft, misappropriation,” according to recordings of unchallenged authenticity.  Martínez failed to report this knowledge to the Supreme Court when he was being considered as a potential Attorney General.  Critics point out that this case makes clear Martínez’s multiple conflicts of interest during the campaign and now as fiscal general tasked with investigating the massive Odebrecht corruption case and the death of the auditor and his son, who were poisoned to death last November.

The Colombian Constitution requires public servants to declare, under oath, their assets and income and the private interests they may have due to their private past before assuming public office, when leaving office, or when the competent authority requests it.  This Income and Asset Disclosure System (IAD), formally implemented in 1995 and managed by the Administrative Department of the Public Function (DAFP), is supposed to provide a means for monitoring inconsistencies or irregularities in officials’ declared income and assets, and for detecting and avoiding potential conflicts of interest before they occur.  Information on the Attorney General’s previous clients, for example, should have identified potential and actual conflicts of interest.  However, the system has major flaws, and it is very difficult for the state or citizens to take advantage of the information:

  • A combination of a badly designed legal framework, political resistance to implementation, resource and capacity constraints, and lack of public awareness of its usefulness hamper DAFP’s work. There are no penalties for failure to submit information.
  • The DAFP only verifies the receipt of the submitted forms; the review of the completeness and accuracy of the information is only carried out, if at all, on a random basis. Similarly, when citizens have asked for a copy of a public servant’s submission, DAFP and the official in question have – unlawfully – denied access, arguing the latter’s right to privacy.  In the rare cases that access is approved, processing and analysis are highly unlikely because documents are often handwritten.

The case of Attorney General Martínez underscores the need for Colombia to move beyond rhetoric and get serious about disclosure and accountability.  Martínez has been through the revolving door in and out of government on at least eight occasions – common for public servants.  The World Bank Group and the United Nations Office on Drugs and Crime (UNODC) offer a range of “good practices,” elements of which are being implemented in the region – albeit also imperfectly.  Argentina has electronic data management procedures that have automated submissions and allow targeted verification of completeness and accuracy of the information more feasible for about 33,000 declarations annually.  Despite its myriad corruption scandals, Guatemala is among the countries that make disclosure compliance statistics publicly available, thus allowing citizens to hold accountable public servants that do not comply.  In Paraguay, the Criminal Appeals Court ordered the government to grant a journalist’s request for IAD submitted by public servants who occupied the highest public positions between 1998 and 2017.  Not one of these countries has adopted a comprehensive, effective approach to anti-corruption, but there is no reason that Colombia shouldn’t lead the way.

January 25, 2019

* María Paula Ángel is a researcher at the Centro de Estudios de Derecho, Justicia y Sociedad (Dejusticia), in Bogotá.

Colombia’s Duque: The End of the Road for Empty Politics?

By a Colombia Watcher*

Iván Duque

Colombian President Iván Duque. / Casa de América / Flickr / Creative Commons

Colombian President Iván Duque’s first 100 days in office have left three important baskets empty: the basket of public policy, the basket of new ideas, and the basket of trust in government.  His problem is not so much that he is a puppet of his mentor, former President Álvaro Uribe; it is that they have failed to jettison their recent past and articulate a credible vision for Duque’s four-year term.

  • Duque’s economic development plan was hurriedly prepared with little policy guidance from the president’s office. It consists of a long list of sector-by-sector aspirations that bear no connection with either the current budget or realistic medium-term fiscal planning.  The underlying assumption appears to be that the government will somehow – on its own – abandon a longstanding tendency toward clientelism based upon contractual power for a results-driven technocracy.
  • Duque’s financial strategy appears to be stumbling. Congressional opponents say his nominee to be Finance Minister, Alberto Carrasquilla, is guilty of corruption in a previous job.  Instability in global prices torpedoed Duque’s plan to rely primarily on proceeds from a new oil boom, so the government has wagered on a highly unpopular and inequitable tax reform.  Reducing federal expenditures is out of the question — key constituencies depend on the government’s purchasing power – and a serious review of fiscal decentralization also appears beyond Duque’s political will and expertise.  Going back to debt financing would face legal, fiscal, and political challenges.
  • Achieving his promises to reduce corruption also appears difficult. The lack of accountability in the Odebrecht corruption case, in which supporters of Uribe (as well as former President Santos) reportedly were involved, has fueled cynicism.  Unlike in other Latin American countries, no high-level economic or political Colombian is in jail on Odebrecht corruption charges.  Moreover, leaks of irrefutable recordings and documents demonstrate efforts by the country’s attorney general, Néstor Humberto Martínez, to cover up irregularities.  (The auditor who leaked the evidence was subsequently killed, as was his son when he returned from Spain to attend the funeral.)

The new administration faces other challenges.  Polls taken immediately after the economic plan was announced showed that public support for the government continued its free fall after reaching the lowest level recorded during a president’s first 100 days in office.  The government appears to be looking for legal ways to abandon the already fragile peace process with the former FARC guerrillas – already undermined by the fact that killings and disappearances of local civic leaders continue unabated.  Dissident FARC members are returning to the jungle or joining the growing number of criminal bands that operate in both the cities and the countryside.  Protests joining students and workers from various sectors, including healthcare and transportation, continue to affect essential services in a way not seen in Colombia in recent years.

Restoring public trust in Colombian institutions will be a monumental task for which Duque does not appear to have a credible path forward.  He will probably struggle to distance himself from some of his scandal-plagued financial and political backers, but they will demand unconditional support and loyalty amid public outcry and pressure.  The coalition that ensured Duque’s second-round victory in June was temporary – united only to stop his leftist opponent – and is already showing signs of abandoning him.

  •  Duque may try to make international support a pillar of his presidency, as Uribe and Santos did, but even that is not going to be easy. He cannot expect the same enthusiastic endorsement Santos received from the European Union, Canada, or UN agencies, who applauded his focus on the peace process and building democracy from the bottom up.  There are already voices in the Duque government opposing efforts begun under Santos to meet the conditions for Colombia’s admission into the OECD club.  Duque may be optimistic of gaining U.S. support – heartened by the Trump administration’s reduced emphasis on human rights and democracy in the bilateral relationship – but the most Duque has gotten so far is some continuation of support for anti-drug efforts.  His desperate efforts to develop a strong direct relationship with President Trump have not yet borne fruit.

Duque appears burdened by the bonds that brought him to power – with members of his coalition, with former president Uribe, and with political and financial backers – that have either weakened or are now embroiled in scandal.  Delivering results and inspiring public trust and support may be beyond his skills, raising the prospect – still unlikely – that he might someday be tempted to resort to repressive tools.

November 29, 2018

* The author is a long-time Latin America specialist with particularly deep expertise on Colombia.

U.S.-Guatemala: Are Donald Trump and Jimmy Morales Brothers in Arms?

By Anthony W. Fontes*

Jimmy Morales and Donald Trump

Guatemalan President Jimmy Morales meets with U.S. President Donald Trump in February 2018. / Executive Office of the President of the United States / Wikimedia

Guatemalan President Jimmy Morales’ announcement last month that he would not reauthorize the joint Guatemala-United Nations anti-corruption commission to remain in the country apparently was made with confidence that President Trump would approve, or at least turn a blind eye.  Morales’ gambit followed months of public threats against the International Commission against Impunity in Guatemala (CICIG), which has been investigating and prosecuting high-profile organized crime and corruption cases for over a decade.

  • His attempt to revoke CICIG’s authority and refusal to allow CICIG’s highly respected lead prosecutor, Iván Velásquez, to re-enter Guatemala after a trip to the United States are widely understood as intended to halt investigations into Morales’ own alleged illegal campaign financing during the 2015 presidential election. Even after Guatemala’s Constitutional Court – the nation’s highest judicial authority – ordered Morales to allow Velásquez entry, the president refused to budge.
  • Some U.S. politicians have joined in the international condemnation of Morales’ efforts – 23 members of the U.S. Senate and House wrote a letter to Secretary of State Pompeo asserting that he “must counter” the maneuver. But the Trump administration has remained largely silent; Pompeo in early September reiterated U.S. “support for Guatemalan sovereignty” – code for a hands-off policy – and, using words similar to those Morales has used in advocating dilution of CICIG’s mandate, announced his backing for a “reformed CICIG.”

Several explanations for Washington’s soft approach to Morales’ action have emerged.  Some pundits muse that the administration is repaying him for relocating the Guatemalan embassy in Israel to Jerusalem when the United States did.  Others opine that Trump fears pushing Guatemala into China’s arms amid reports that it will follow El Salvador’s recent decision to break relations with Taiwan.  Yet another, less strategic and more personal explanation might illuminate the equivocation – that Trump simply empathizes with Morales because they have a lot in common.

  • Both first emerged in the public eye as TV personalities. While Trump was building his brand on “reality TV,” Morales hosted a popular daytime talk show, where he became known for lowbrow comedic antics that included blackface.  In their campaigns, they fed on simmering discontent about the corruption of the political establishment, and trumpeted their lack of political experience as a prime reason to vote for them.  They both defeated the former first ladies of left-leaning presidents considered by large swaths of their electorates as corrupt.
  • More importantly, both presidents face far-reaching criminal investigations that have cast long shadows over their first years in office. Despite Trump’s vociferous denials to the contrary, the Special Counsel investigation into his campaign’s possible collusion with Russian efforts to influence the 2016 election has been a constant thorn in his side.  CICIG, whose investigations into former President Pérez Molina were pivotal to his arrest and impeachment, has represented an existential threat to the Morales administration since the day he took office in 2015.  CICIG’s work put his son and brother behind bars for fraud.  (Trump’s son and son-in-law are reportedly under investigation too.)  CICIG has doggedly pursued investigations against Morales and his supporters in Congress for illegal campaign financing, among numerous other charges.

The two presidents’ efforts to resist and deride the investigations into their activities expose perhaps the most striking (and disturbing) of their shared affinities.  To protect themselves, they appear willing to tarnish and undermine public institutions integral to democracy and law and order.  Trump attacks the free press and the FBI as “deep state” conspirators.  Morales has aligned with members of the Guatemalan Congress to give immunity from prosecution to politicians in office accused of a laundry list of crimes, contravening a fight against powerful criminal organizations embedded in government.  By violating decrees by Guatemala’s Constitutional Court, Morales has placed his administration on a collision course with the nation’s constitutional order.

  •  The potential long-term damage to democratic institutions suggests that the “democratic wave” that swept across the Americas in the second half of the 20th century has crested. Under the Trump administration, the United States now risks becoming a beacon for anti-democratic politicians like Morales across the hemisphere, giving political cover and guidance to those who would hasten democracy’s demise for the sake of power.  The rule of law in liberal democracies is predicated on transparency and accountability – and is threatened by executive intimidation of institutional checks and balances.

October 2, 2018

*Anthony W. Fontes is an Assistant Professor in the School of International Service at American University.