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.

The Role of Mercy in India

There has been such a sustained focus on the right to impose death that it sometimes eclipses its essential corollary, namely the sovereign right to spare life. In India’s modern political system, this power to spare life remains in the form of executive clemency. Executive clemency, enumerated in Article 72 of the Indian Constitution, represents an escape valve where officials unaffiliated with the judiciary can survey the landscape and make decisions on factors beyond the law. Thus, the most logical use of clemency powers is when an individual wrongly convicted, can demonstrate that the system failed or that they are innocent. Critics, however, have argued that this conflicts with the demands of justice and equality, demands a liberal state presumably must heed. Due to mercy’s arbitrary and capricious nature, the state, they argue, should be lawful, not merciful. A study of the mercy petitions rejected by various Presidents in recent history lends some merit to their argument since it reveals a trend of politicization of mercy.

For example, the rejection of Saibanna’s mercy petition came right after the December 16 gang rape; a time when the government needed a facile gesture to show that it was tough on crime against women. He had been sentenced to death for murdering his second wife and daughter after having been convicted for murdering his first wife, however his case was riddled with glaring judicial blunders from start to end. Both the trial court and the High Court convicted and sentenced Saibanna under s. 303 of the Indian Penal Code which provided for mandatory death sentence but had been struck down as unconstitutional some twenty years earlier. The Supreme Court took full notice of the s. 303 issue but then noted that the session’s court faulty finding did not prejudice the cause of the accused since there was no record of any mitigating circumstances.

However what the Court failed to consider was that in cases under s. 303 there is no sentencing hearing, and hence no opportunity to bring on record mitigating circumstances. Moreover, the Court squarely based its death sentence verdict on the erroneous view that Saibanna, already undergoing a life sentence, could not be sentenced to life imprisonment again, and therefore the death sentence was the only available punishment. Thus in effect, the Supreme Court revived mandatory death sentencing. So glaring were these errors that a campaign had been launched pursuant to which fourteen eminent retired judges of the High Court and the Supreme Court
wrote to the President asking him to commute these death sentences. They said that it would be unconscionable and a blot on the administration of justice to execute Saibanna whose petition had been pending for 25 years. These factors should have necessitated the commutation of the death sentence by a government with even an iota of respect for the rule of law. Continue reading

Talking justice in Uganda: has the conversation evolved?

(Reposted from African Arguments)

The relationship between the International Criminal Court (ICC) and African civil society is certainly an interesting one. On the one hand, the proliferation of conflict on the continent has led to an ever increasing deficit in justice, and the ICC is seen by some as a crucial component to filling this hole. On the other, many actors have expressed concern about the prominence accorded to the ICC: some have accused it of being another form of neo-colonial domination; others have expressed concern about its detrimental impact on domestic peace processes or wider justice efforts, especially in the context of inadequate understanding of local contexts; while others have criticised it for failing to protect those who collaborate with it or address the needs of victim communities. Meanwhile, the water around those with legitimate concerns and critiques has become increasingly muddied by attacks on the court by those in positions of power who see rubbishing accountability as key to their survival.

While these differences of opinion have sometimes led to constructive debate, with local and international civil society genuinely seeking to find the right paths forward, they have also – possibly more frequently – led to an acrimonious stand-off. Too often, raising concerns about how the ICC is doing its job has been equated with favouring impunity.

In many respects, the reaction to the ICC’s engagement in northern Uganda was the first iteration of this debate. Eleven years later, the recent reported surrender in Central African Republic of Dominic Ongwen, one of the commanders of the Lord’s Resistance Army (LRA), and the prospect of his trial, provides a good opportunity to revisit these disagreements. While the landscape has shifted considerably since 2004 – including an end to armed conflict in northern Uganda, the Juba Peace Process, ongoing local initiatives such as the Beyond Juba initiative, and the creation of a division of the Ugandan High Court to hear war crimes and related cases, not to mention heavy investment by the ICC in outreach activities in northern Uganda, and a new prosecutor at the ICC itself – many of these tensions remain. Without wanting to simply rehearse old and tired debates, it is worth looking back to the ICC’s initial engagement in Uganda in order to reflect on whether or not the renewed focus that has been put on the war as a result of Ongwen’s pending trial, presents an opportunity to address them.

When the government of Uganda announced on 29 January 2004 that it was making the first referral of a country situation to the ICC, the stakes were high. The ICC was a new institution with the formidable mandate of ending impunity for the worst crimes throughout the world, and northern Uganda was its first situation. On paper, the LRA seemed a perfect target. Its notorious leader, Joseph Kony, abducted and abused children, carried out atrocities of the most appalling nature, and had a cultish aura that seemed to negate any rational political agenda. It was also responding to a request from the government of Uganda to investigate the LRA, which presented it with the opportunity to test out its mandate in the relatively uncontroversial waters of a state referral.

However, the announcement of the ICC’s investigation, followed by the issuing of arrest warrants in 2005, created considerable tension and a bitter debate on the ground in Uganda. Positions polarised around the appropriateness of different forms of justice, with the ICC and a number of international human rights organisations speaking out in favour of criminal accountability as a necessity for peace, and many local human rights and civil society organisations, and community leaders in the north, speaking out in favour of prioritising peace negotiations and considering other forms of justice. The vigorous exchange that followed significantly undermined the areas of mutual understanding and common ground that could have led to a healthy discussion on ending the war and creating an environment of sustainable peace – and the role of pursuing accountability for international crimes in those pursuits. Instead, it set up a false distinction between the demands of justice and the demands of peace.

One of the substantive concerns that local civil society expressed was the lack of focus on accountability for the actions of the government of Uganda. For those in the north caught up in the midst of the war, although there was minimal support for Kony’s actions, the government was perceived to be as much a source of instability and human rights abuses as the LRA. It had not only failed to protect its citizens, but had compounded their misery by forcing much of the rural population into so-called “protected villages”. Therefore, they wanted accountability not only for the government’s inability to protect civilians, but its alleged complicity in their suffering. By focusing so predominantly on the role of the LRA alone (reports to the General Assembly do not even mention information on government crimes until 2010), the ICC was seen to be not only failing to recognise wider grievances that lay at the root of the conflict, but was inadvertently promoting the government’s narrative of the conflict – that the LRA had no legitimate political agenda and was merely a “terrorist” or “criminal” group. As a result, it appeared to have become complicit in the political manoeuvring that has enabled President Museveni to maintain power for almost three decades.

Eleven years later, this concern remains valid, not least given the fact that political space in Uganda seems to have only contracted. The fact that the ICC has still only brought charges on one side of the conflict (albeit recognising the legal realities around this decision) means that many still see the ICC as pursuing one-sided justice. The difference now, is that even those that have always been strong supporters of the ICC have acknowledged this as a problem – although their response has been somewhat different, arguing that it is better to take what justice we can get and continue to work on government accountability in other fora where possible.

Of course, the ICC was only ever intended to be part of the solution. It cannot address the many injustices that are the result of structural inequalities in society, rather than the result of individual actions – although, ideally, individual prosecutions would help to highlight and expose these structural factors. However, the risk is that a focus on the “criminality” of a few may actually come to be seen as an explanation for all the violence, thereby obscuring the root causes. It points to the need for complementary approaches that significantly take into account the role played by the government of Uganda in the war, and allow for the re-building of civic trust that has been so severely depleted. Inevitably, these concerns have come sharply into focus with the appearance of Ongwen at the ICC, suggesting that any outcome of his trial is unlikely to be seen as “justice” from the perspective of those who lived through this painful conflict unless broader issues are also addressed.

Positively, Ongwen’s status as both a victim and a perpetrator (however that might be interpreted) has been widely debated since his arrest, highlighting not only the atrocities he is alleged to have committed but also the government’s failure to protect him from abduction in the first place. The extent to which this narrative is explored and addressed in court is going to be a key component to the quality of justice delivered by the trial. The emphasis that is placed on the issue of cause and effect and the complicity of both sides will have an impact on the external perception of the validity of the final judgment, whatever it may be. If managed appropriately, actors outside the court could use it to help build pressure for other justice processes.

The trial of Ongwen, therefore, creates an opportunity for local and international civil society to put the pressure on the government of Uganda to renew dialogue on, and promote implementation of, its transitional justice policy framework, and to expose factors behind the war that have remained concealed. Of course, these are all complex issues and the ICC’s proceedings against five people, much less the trial of a single individual, were never going to be sufficient in addressing the massive deficit in justice in northern Uganda. However, unless Ongwen’s case is understood in its broader context, it has the potential to, inadvertently, do more harm than good.