Guatemala and Covid-19: Justice Postponed

Photo courtesy of Alexey Hulsov

This blog piece was co-authored by Jaime Chávez Alor, Latin America Policy Manager at the Cyrus R. Vance Center for International Justice of the New York City Bar, and was originally posted on the website of the International Legal Assistance Consortium (ILAC).

Guatemala is just one of the slew of countries like Brazil, Nicaragua and Hungary that was already experiencing rule of law backsliding long before Covid-19. However, as highlighted in ILAC’s most recent rule of law assessment report, there was a window of opportunity to return to combating corruption and strengthening the rule of law in Guatemala with the ushering in of a new executive in January 2020. Guatemala’s new president, Alejandro Giammattei, even took early steps to show he was serious about fighting corruption by signing an inter-institutional cooperation agreement and establishing a presidential commission against corruption. Even though there were initial signs of hope, there are already unfortunately several reasons to fear that the rule of law will continue to backslide and that the chance for justice will be postponed during the pandemic.

Further rule of law backsliding during Covid-19 is already happening

We have already seen Guatemala’s Congress use a Covid-19 discussion to pass a bill that amends the NGO law. The amendment restricts development NGOs and has been heavily criticized since it was first introduced in March 2017 as being inconsistent with the right of association and freedom of expression. Yet, on February 11, it was “surreptitiously approved after being introduced by three congressmen during a discussion of emergency measures to confront the coronavirus, thus deceiving all transparency and debate in the parliamentary process”.[1] Guatemala’s Constitutional Court provisionally suspended enactment of the law, but its final ruling is on hold as the Court is not in session due to Covid-19.

Added challenges to judicial nominations

More than six months have passed since Congress should have elected judges to Guatemala’s highest benches, including the Supreme Court and Court of Appeals. What was already a nominations process plagued by technical failures and corruption scandals has been further delayed and is likely to become even less transparent due to the pandemic. In the midst of the national quarantine, Guatemala’s Congress met on March 17, and elected judges to the Supreme Electoral Tribunal. The Congressional session to elect the judges was closed to the media as a measure to apparently prevent spreading of the virus. In response, many sectors within Guatemala expressed concern over the lack of transparency in the election process. Despite these concerns, the nine newly elected judges took the bench on March 27. 

Almost as worrying is the fact that the first order issued by the new judges suspended the annulment of six different political parties, economic sanctions against former political candidates, advertising companies and political organisations, several of whom had allegedly illicitly financed past elections. The judges justified their order by stating that the affected parties were unable to appear in their defense due to the public health crisis. This begs the question of whether the judges used Covid-19 as a pretext to justify their ruling after being influenced to suspend the annulments and sanctions. If the answer is yes, this is not a good start for the legitimacy of the newly formed Tribunal which is meant to administer justice and root out corruption in electoral matters.

Covid-19 as a pretext for limiting civil liberties

Not only was the media excluded from the Congressional session to elect new judges to the Supreme Electoral Tribunal, but the government has placed further restrictions on journalists seeking to access and cover other Congressional sessions. On April 4, in response to the limitations, the Human Rights Ombudsman filed an amparo[2] with the Constitutional Court claiming that the restrictions violated Guatemala’s constitution. Similarly, about a week later, more than a hundred journalists, columnists, activists and civil society organizations demanded that President Giammattei and his government stop threatening their freedom of expression and independent journalism. The demand arises from the fact that the government has attempted to silence media outlets critical of the government’s response to the pandemic by using intimidation tactics and excluding journalists from official WhatsApp groups where the government disseminates Covid-19 information.

Can the Constitutional Court continue to resist?

The Constitutional Court has remained a pocket of resistance throughout the attacks on the justice sector and the rule of law in Guatemala, and hopefully this will remain true in spite of the pandemic. In addition to the amparos pending before the Constitutional Court regarding the NGO law and the restrictions placed on journalists, the Court continues to receive amparos during the pandemic. This includes amparos filed by the Human Rights Ombudsman to decentralise Covid-19 testing and for President Giammattei’s failure to appoint a head of the Presidential Secretariat for Women which works to protect the rights of women and children, an amparo requiring President Giammattei to guarantee water and electricity services throughout the health emergency and an amparo to guarantee that the conditions of employees are not modified during the pandemic. It is unclear how these pressing constitutional questions will be resolved while the Court is not in session and how much of a backlog the institution can manage once it is up and running again. How long can justice be postponed during a public health crisis?


Sources

[1] WOLA, “Guatemala: National and International Organizations Condemn Approval of NGO Law,” https://www.wola.org/2020/02/organizations-condemn-approval-of-ngo-law/ (18 Feb. 2020).

[2] An amparo is a remedy to protect constitutional rights and is common to many legal systems in Latin America.

New Report on Guatemala’s Justice Sector – “A Window of Opportunity: Support to the Rule of Law in Guatemala”

The International Legal Assistance Consortium (ILAC) has released a new rule of law assessment report, “A Window of Opportunity: Support to the Rule of Law in Guatemala”. The report examines the state of Guatemala’s justice sector after the closure of the International Commission against Impunity in Guatemala (CICIG) in September 2019. It discusses how recent threats against the justice sector have reversed much of the progress that was made to strengthen the rule of law during CICIG’s existence. 

Guatemala cannot combat corruption and strengthen the rule of law without ensuring an independent and impartial judiciary. With a new incoming executive, the report underlines that the international community must seize the window of opportunity to re-engage with Guatemala in combating corruption. This will require finding new and effective models of development cooperation to ensure more sustainable ways of strengthening the rule of law.

Read the full report here.

ILAC is a global rule of law consortium based in Sweden, providing technical assistance to justice sector actors in conflict-affected and fragile countries. ILAC’s mission is to rapidly respond to and assess the needs of the justice sector in conflict-affected and fragile countries, and help strengthen the independence and resilience of justice sector institutions and the legal profession. Today, ILAC has more than 80 members including individual legal experts as well as organisations representing judges, prosecutors, lawyers and academics worldwide.

Safeguarding women after disasters: some progress, but not enough

Hundreds of Mozambicans were killed and thousands made homelessrecently by Cyclones Idai and Kenneth. Almost immediately, there were reports of a sadly familiar story: women being forced to trade sex for food by local community leaders distributing aid.

Globally, international organisations appear to be grappling with the issue more seriously than before. Yet reports about sexual exploitation keep coming. How does the aid community strategise to protect women’s safety in disaster situations?

Over the past 15 years, I have done research on sexual exploitation of displaced women in Uganda and Colombia. I have also worked with a variety of humanitarian organisations on accountability and legalisation. Through this, I have identified the factors necessary to bring justice to the victims of predatory aid workers.

Sexual exploitation must be recognised as a real and widespread problem. There must be staff and management accountability. Transgressions must be sanctioned through disciplinary or penal measures. But there are also major dilemmas that need to be understood and tackled by governments, agencies and, most importantly, local communities.

Sexual exploitation in aid

The sexual exploitation of disaster and conflict victims is a global – and longstanding – phenomenon. Over the last 25 years, there have been radical changes in the standards of global public morality around the conduct of personnel working for international organisations and NGOs when vulnerable adults and children are involved.

Nevertheless, the willingness to see sexual exploitation as an inherent feature of the international community’s intervention to bring development, humanitarian aid or peace has been much slower to evolve.

It was only 24 years ago that UNHCR issued guidelines on sexual violence and refugees that expressly mentioned international refugee workers as being implicated in sexual violence against refugees.

The sexual abuse of vulnerable women and girls in several African countries by international aid workers was recently described as “endemic”. It was also noted that perpetrators easily moved around the sector undetected.

Several recent cases have been reported from Cote d’ivore, to the Democratic Republic of the Congo, Namibia, Liberia, Sierra Leone, South Sudan and the Central African Republic.

These have involved aid workers and peacekeepers, as well as local aid workers and government employees.

In my research on refugees, accusations concerning “sex for resettlement” registration surface regularly. I found these to be frequent while working on refugee resettlement in Kampala 15 years ago. Despite the UNHCR’s promise to reform, similar accusations keep resurfacing, most recently in Kenya. The time has come for the international community to seriously debate the power mechanisms embedded in the resettlement process that enable sexual exploitation to fester.

What will fix the problem?

The first step is to organise accountability.

Humanitarian accountability first emerged as a concern in the 1980s. It was institutionalised in the 1994 Code of Conduct for the International Red Cross and Red Crescent Movement and NGOs in Disaster Relief . The 1996 Joint Evaluation of Emergency Assistance to Rwanda was a defining moment.

That report resulted in several sector-wide initiatives. Five years ago efforts were made to streamline these in the revised Core Humanitarian Standards.

Throughout this period, sexual exploitation has been considered the worst possible behaviour humanitarian workers can be guilty of. But it has not been clear what constitutes exploitation and in which relationships it takes place. The lack of a definition, the unwillingness to articulate and enforce robust norms for professional behaviour and the absence of effective complaint mechanisms and protections for whistle-blowers have contributed to a culture of impunity for predatory behaviour against aid recipients.

Early policy responses to sexual exploitation were concerned with reputational issues. But over the past 15 years the humanitarian sector has seen a flurry of institutional initiatives to grapple with this specific issue. The effort to prevent sexual exploitation and abuse is led by the Inter-Agency Standing Committee.

The aid sector is now engaging in “safeguarding exercises”. These emerged after the Oxfam scandal in Haiti. The organisation was seen as failing to act on sexual misconduct by staff in the aftermath of the 2010 earthquake, and then to have attempted a cover-up.

Safeguarding includes all actions by aid actors to protect staff from harm (abuse, sexual harassment and violence) and to ensure staff do not harm beneficiaries.

This broad definition represents both a welcome recognition of the scope of the problem and an opportunity for a comprehensive approach. But it also creates some new challenges. Three are particularly worth noting.

The challenges

Who gets a voice: There has been vocal concern about the lack of inclusiveness in how safeguarding is practised. Critics have noted that a safeguarding industry was hatched with little attention to local and national context or participation. There is a view that safeguarding is yet another Western-centric practice. I think this critique is true. But it also creates a dilemma: should global norms about sexual exploitation in international aid be up for local negotiation?

Regulation and criminalisation. In recent years, there have been calls to regulate foreign aid actors more robustly. This is understandable. Aid actors have operated with a great deal of license and even impunity under the humanitarian banner. But drawing up new laws also creates problems. This is particularly true in a context where African civil society generally is under pressure from new restrictive laws that curtail their activities.

Responding to the call to “do something”, the international community has embraced criminalisation and criminal prosecutions to promote and strengthen the fight against impunity. But opting for criminal law and the courtroom rests on a deeply simplistic framing of structural power imbalances in aid. Legal strategies are costly and slow. The focus on sexual violence in disasters and conflicts also risks crowding out concern for other aspects of women’s lives.

Localisation: Since 2016 there has been a significant focus on the localisation of aid. The Charter for Change focuses on contracting, resource allocation, transparency and communication. It highlights the importance of not undermining local capacity. The process is generally painfully slow and a shockingly small percentage of international aid funding is actually allocated to local actors.

At the same time, there is a persistent call for international actors to do, control and know more about what goes on locally to limit corruption, incompetence and abuse. This call comes partly from media in donor states addressing taxpayers, but also from watchdogs within the sector.

This is also the case for sexual exploitation. In its report, Human Rights Watch demands that “international partners, particularly the UN, should ensure greater oversight of the conduct of local officials during the distribution of humanitarian aid”. This will not come for free.

The question is how a balance can be found between control and localisation – and who gets to determine what this balance should be.

This post was originally published at https://theconversation.com/safeguarding-women-after-disasters-some-progress-but-not-enough-116619. For an extended critical commentary on the rapid rise of the Safeguarding concept in the aid sector, see https://jhumanitarianaction.springeropen.com/articles/10.1186/s41018-019-0051-1

CORRUPTION CRISIS OVERTAKES GUATEMALA

A new president takes office with no government experience and a background as a TV personality. He comes to the job after squaring off against a woman candidate, who he accuses of corruption. He promises that things will be different, but he can’t get much done. He’s forced to rely on a small group of retired military officers, some of them with shady pasts. Worse, information starts emerging about his party’s illegal campaign finance schemes, and an independent investigation turns up evidence of wrongdoing. To avoid further scrutiny, the president tries to get rid of the investigator, but runs into political resistance. A constitutional crisis ensues.

 

Sound familiar? Welcome to Guatemala.

 

The president is Jimmy Morales, former comedian, who on August 27 declared persona non grata the head of the U.N. Commission Against Impunity in Guatemala, Colombian jurist Ivan Velásquez. The Commission, known by its Spanish initials as CICIG, was created in 2006 through an innovative agreement between the United Nations and the Guatemalan government in order to deal with clandestine groups that had infiltrated the state and were attacking human rights defenders and others. In 2014, the U.N. appointed Velásquez to the post, and he helped shift CICIG’s priorities to the endemic, large-scale corruption that has sapped the country’s resources and allowed for strategic alliances among government and military officials, economic elites and organized crime. CICIG cannot prosecute, but acts as a civil party in cases brought by the local Prosecutors’ office.

Continue reading

Technology & Accountability MOOC

I am pleased to share that the Program on Liberation Technology (LibTech) at Stanford’s Center on Democracy, Development and the Rule of Law together with the National Democratic Institute (NDI) are proud to launch a free massive open online course (MOOC): Technology for Accountability Lab.  The official announcement follows:

The course is geared for global democracy activists, software developers and other stakeholders to conceptualize, plan and implement technological tools and advocacy strategies to improve transparency by opening political and governmental processes.

This 10-week course – which starts on August 9, 2016 – will feature video lectures by Stanford professors Terry Winograd and Larry Diamond, as well as lecturers from NDI, Transparency International, Sunlight Foundation, Creative Commons, ProPublica, and other experts.

The course includes topics such as monitoring corruption, tracking money in politics, and using technology to monitor election fraud. In order to be relevant to a broad international audience, the course draws case studies and presentations from Brazil, Czech Republic, India, Morocco, Pakistan, Palestine, US, UK and other countries.

Through a grant made possible by the Steven’s Initiative at the Aspen Institute (supported by the State Department and the Bezos Family Foundation), the course materials have been translated into Arabic. For the first time on Stanford Online, participants will have the option of taking the course through an Arabic platform – with extensive language support – to facilitate the participation of youth in the Middle East and North Africa.

Course topics will expose participants to both theoretical and practical applications of the field, which include: monitoring corruption at the grassroots; tracking legislators and their bills; using technology to monitor election fraud; tracking money in politics; and designing innovative technology tools. Participants will also have the option to collaborate on projects to design or implement real-world democracy tools, including advocacy materials, during the course.

NDI and Stanford’s CDDRL – who both have a long tradition of working with democracy activists around the world – developed and designed the course in response to activists’ interest in incorporating technology into their work. The course aims to attract a unique set of global participants with a background in accountability movements who can learn more about the tools that can help them to enrich and magnify their work. No previous experience or exposure to technology is required.

To learn more about the course and register, please visit the course link. Please share this announcement widely with interested participants and professional networks (#TFALAB).Accountability MooC

CICIG’s investigations show web of corruption in Guatemalan state. Now, what’s next?

Two weeks ago, CICIG (International Commission against Impunity in Guatemala) revealed that the Partido Popular (PP), the former governing party of now disgraced and imprisoned former president Otto Pérez Molina and his—also incarcerated—vice president Roxana Baldetti, was engaged in a web of corruption far more extensive than initially thought. Shortly after reaching power, the party, under the direction of President Pérez Molina, had established an organized criminal structure that had seized the state, and developed an elaborate scheme of collusion between the local private sector and the state to enrich public servants and grant companies easy access to government contracts.

The revelations come just as the so-called Northern Triangle countries (Guatemala, El Salvador, Honduras) are about to receive a large infusion of international assistance through the $750 million U.S. funded Alliance for Prosperity that, rather than being limited to security sector support, seeks to stimulate economic development and strengthen democratic institutions. But given what CICIG has now revealed, are Guatemala and the other recipients ready to adopt the structural changes necessary to effectively channel and apply these funds, to address corruption at its roots?

CICIG was established in 2007 under the auspices of the United Nations to investigate organized criminal networks with links to the state. It is bound by Guatemalan law and must work closely with the country’s Public Ministry. CICIG’s operations have had their ups and downs, as has been documented in a recent report by the Open Society Justice Initiative. However, under the current leadership of Colombian prosecutor Iván Velásquez, it has made important strides in uncovering corruption and eroding impunity of even some of the most powerful.

CICIG’s most important case to date was brought to light in April 2015, when the investigatory body revealed a corruption scheme within the country’s customs authority. That case, named “La Línea,” implicated then-President Otto Pérez Molina and Vice-President Roxana Baldetti, as well as other high-level officials. The massive public outcry that followed led to the resignation of both the President and the Vice-President. Since then, CICIG and the Public Ministry have continued their investigations, and in the following months uncovered more such corruption rings involving high-level officials and prominent businesspeople.

Additional information retrieved through searches and phone taps exposed an even more extensive scheme than originally thought. In June 2016, CICIG concluded that the PP, the former government party, rather than having engaged in occasional (but serious) acts of corruption, was essentially an organized criminal enterprise whose primary purpose was to reach power to gain access to public resources for private gain. Continue reading

Four questions for MACCIH, OAS-backed anti-corruption body in Honduras

On Monday February 22, 2016, the Mission to Support the Fight against Corruption and Impunity in Honduras (MACCIH) officially presented itself in Honduras. MACCIH is a hybrid mechanism, backed by the Organization of American States (OAS), which was created to assist Honduran institutions tasked with the prevention of corruption and impunity. The establishment of MACCIH is a drastic measure; an admission that the Honduran State, for whatever reason, is unable to adequately investigate and punish corruption cases. But for those who have followed the situation in Honduras, this is no surprise.

The country suffered a coup d’état in June 2009, which further weakened Honduras’ already frail institutions. It caused a severe deterioration in the protection of human rights, and increased poverty and inequality. Violence shot up to 85.5 intentional homicides per 100,000 inhabitants in 2012, according to the National University’s Observatory of Violence (although the UN Office on Drugs and Crime even registered 90.4 intentional homicides that year).

Six years after the coup, the situation remains dire. According to a recently published report by the Inter-American Commission on Human Rights, Honduras continues to suffer from high levels of violence and organized crime, attacks on human rights defenders, militarization, growing inequality, and a lack of judicial independence. (And its highly criticized Supreme Court selection process does not bode well for the future.)

This situation is, unfortunately, not unique in the region. In the countries that compose the Northern Triangle of Central America—Guatemala, El Salvador and Honduras—levels of (organized) violence are high, government institutions are weak, and corruption and impunity are rampant.

Guatemala found its own way of attacking these problems. Following civil society initiative, the UN-backed International Commission against Impunity in Guatemala (CICIG) was created. After some eight years of operation that had ups and downs, CICIG has recently shown impressive results: it has rolled up crime rings run by notorious criminals and State officials, and has brought to light enormous corruption scandals, for example in the customs authority, in which the highest authorities of the country were involved. This led to the resignation of both the President and Vice-President, both of whom are currently imprisoned, awaiting trial.

The reactions in Guatemala’s neighboring countries were almost immediate: citizens in Mexico, El Salvador, and Honduras called for the creation of similar entities in their countries. However, governments have been reluctant to accede to these demands. No initiative has been taken in Mexico, and El Salvador has only agreed to a U.S.-sponsored anti-corruption program. But in Honduras, following a scandal that involved the embezzlement of social security funds (that were, moreover, allegedly used to finance the governing party), national protesters called for the establishment of an investigative body similar to CICIG, to take on corruption in the country.

On September 28, 2015, the Secretary General of the OAS and Honduran President Hernández announced the creation of MACCIH to assist Honduran institutions in preventing, investigating and punishing corruption. Continue reading

Trade & Development

President Obama in Kenya

Photo Credit

President Obama’s current trip to East Africa (Kenya and Ethiopia) and the recent extension of the African Growth & Opportunities Act (AGOA) are an opportunity to ponder the tenuous link that, without sound domestic policies, exists between trade and poverty reduction. A recent PBS report on Angola provides a stark illustration:

Angola is the second-largest oil producer in sub-Saharan Africa. However, about 36% of the population lives below the poverty line, reports the African Development Bank (AfDB). The country is reportedly flush with money from oil and diamonds; yet Angola ranks near the bottom of the U.N. Human Development Index (149th out of 187 countries).

Angola’s capital, Luanda, has been ranked as the world’s most expensive city for expatriates — beating out Tokyo, Hong Kong, and Moscow. Angola also bears the unwelcome distinction of being the country with the highest child mortality rate in the entire world. The World Bank reported in 2014 that 167 out of every 1,000 children born alive in Angola were likely to die before reaching the age of five. And the government just proposed to cut the health budget by 30%.

What apparently abounds in the country, and accounts for these discrepancies is corruption. Corruption, says Transparency International (TI), is “. . . the abuse of entrusted power for private gain”. Economically, TI continues, it depletes national wealth as corrupt politicians invest scarce public resources in projects that will benefit them rather than their communities. In Angola, judges drive jaguars and the President’s daughter is Africa’s youngest billionaire. Angola is one of the least transparent countries in the world and one of the most corrupt. It is ranked by Transparency International at 161 out of 175 countries and as fifth (5th) from the bottom in Sub-Saharan Africa.

Angola is not the only corrupt country in Africa; nor is corruption restricted to the African continent. Other countries share this scourge. However, the disparities between the wealth generated by the exports of this oil-rich country and the stark conditions in which one-third of its population lives help to shine a bright light on the criminal consequences of corrupt domestic policies.

Angola will, undoubtedly, continue to benefit from its ability to export its oil under AGOA. Trade alone, however, can only do so much.

As we continue to explore this topic, we will address some questions that occurred to us about the connections between corruption and the legacy of colonialism and the present role of the companies doing business in Africa.