Guatemala’s Presidential Runoff: What Next for Rule of Law and US Relations?

Irene Estefania Gonzalez / Inter-American Dialogue

On July 10, 2019, the Inter-American Dialogue hosted an event titled, “Guatemala’s Presidential Runoff: What Next for Rule of Law and US Relations?” The event featured Sadaf Khan, Staff Director for the Western Hemisphere Subcommittee at the U.S. House of Representatives Foreign Affairs Committee; Martín Rodríguez Pellecer, the director and CEO of Nómada; Brittany Benowitz, Chief Counsel at the Center for Human Rights at the American Bar Association; and Hugo Maul, Director General of the Guatemalan School of Government. The event was moderated by Michael Camilleri, director of the Peter D. Bell Rule of Law Program at the Inter-American Dialogue.

The conversation centered around three central topics: 1) the current state of Guatemala's rule of law infrastructure; 2) the future of Guatemala's International Commission Against Impunity (CICIG); and 3) the role of the US in supporting a productive and mutually beneficial relationship with Guatemala. 

Discussion of the first topic revealed a grim state of affairs. Pellecer stated that the recent elections brought to light that Guatemala was not a "full democracy," but one in which the only ones allowed to participate are those aligned with "the system," or a network of judges, military leaders, economic and political elites, and organized crime members that  serve as gatekeepers to the political system. The election should have been a tiebreaker for the reformist and counter-reformist projects, the former led by CICIG, its supporters, and Thelma Aldana, Guatemala's former Attorney General and would-be presidential candidate, and the latter led by representatives of "the system", or most of the other candidates. However, with the disqualification of Aldana on spurious charges, and the participation of other candidates with legitimate cases against them - e.g. Sandra Torres, who is being investigated by CICIG for campaign finance violations - the reformist project was not allowed representation. The status quo, then, is one in which two former Attorney Generals who upheld and reinforced the rule of law - Thelma Aldana and Claudia Paz - and prosecuted various officials within "the system" cannot return to the country because they are persecuted by those allied with "the system."

Maul identified deeper problems within the political and rule of law infrastructure. First, the appointment of civil servants: officials in the civil service are appointed by members of past political parties in power, which leads to the perpetuation of old problems and absence of the necessary training to address them. Second, the sheer extent of corruption tainting public agencies: bureaucrats at the street level are regularly afraid to sign documents or do their job because they are afraid of being caught up in something illegal by CICIG. Public agencies such as the Independent Public Accounts Comptroller are controlled by mafias who benefit from lack of government oversight and efficiency, and so even public servants that want to behave in a transparent, accountable manner have difficulty doing so.

Another huge problem is corruption and inefficiency in the appointment of judges. "The whole judicial system is captured by organized crime groups," asserted Maul. "It is no secret that the way we elect the Supreme Justice to the Supreme Court is completely contaminated by very dark forces within Guatemala... The entire chain of justice administration -- which begins with the police and ends with the courts -- is screwed up." This is compounded by extreme inefficiency, where out of 100 cases that enter the court system, only 15 receive a verdict. Lack of judicial credibility and rule of law undermines Guatemala's appeal as a destination for Foreign Direct Investment, as companies do not feel that their rights will be fairly respected. 

Benowitz agreed, affirming that the Guatemalan judicial system is compromised by corruption and wealthy business interests. She recommended a total reform of the current process, including compelling the production of all the previous legal writings of the previous judges and establishing a private confidential review of the bank records of the candidates, where any suspicious income can be examined. She recommended an international council to appoint judges in a transparent manner. 

On the subject of CICIG, no panelist was particularly optimistic about the renewal of its mandate. Established in 2006 by the United Nations to support the Guatemalan Public Ministry in its investigations of networks of corruption in the government, CICIG cooperated with the Special Prosecutor Against Impunity (FECI) and the Attorney General to bring various prominent public officials, including former President Otto Perez Molina, to justice. However, its investigations against current President Jimmy Morales and his cadre have led Morales to announce that he will not renew the mandate of the Commission when it expires in September. Neither Sandra Torres nor Alejandro Giammattei, who proceeded to Guatemala's second round of elections, have expressed support for it. Camilleri mentioned that Torres has claimed she would support a public referendum for its renewal, but Pellecer clarified that it was actually Torres’ Vice Presidential candidate, Carlos Raul Morales, that proposed it, and she was not totally enthusiastic about supporting it. 

Both Torres and Giammattei are currently or have been under investigation by CICIG, and its ability to expose and demand accountability from bad actors in Guatemala's "system" has led to it being the most popular institution in Guatemala, supported by 70% of the population. All panelists agreed about the need for a CICIG-like body to exist, especially Benowitz, who stated that by assessment by the American Bar Association there remains a need for an independent investigative body to support efforts against the grand corruption that has captured key ministries in the government, efforts that cannot be completed currently by the justice sector in Guatemala. Benowitz emphasized that CICIG was instrumental in unraveling just how extensive corruption is in the Guatemalan government. If not CICIG, another body that has a hybrid or international element to it should exist to propel these investigations. However, added Pellecer, it is important that any future commission can benefit from US support without being beholden to US political wishes. For instance, when CICIG was investigating Otto Perez Molina and looking to begin impeachment proceedings, the US was opposed to it for reasons of “stability”, but CICIG was able to decide to independently begin proceedings.

Regarding the US's relationship with Guatemala and the Northern Triangle, Khan emphasized the distinction between the attitude of the US administration and that of Congress. Having a productive relationship with the Northern Triangle is in the US interest, she stressed, and that is something that Congress will continue to focus on regardless of what the Trump administration decides to do. The clearest example of this was Congress' initiative to maintain $577 million in funding for the Northern Triangle when the Trump administration threatened to cut off all aid. That being said, the funding is by no means a blank check to administrations in the Northern Triangle: assistance is written in such a way as to ensure transparency and effective implementation in light of realities on the ground. Mostly it is geared towards helping local partners and civil society members looking to effect change in their communities, be it through economic support funds or through similar programs for the Inter-American Foundation.

This conditionality helps the US see where the Guatemalan government is able to meet standards for implementation such that it is comfortable sending US taxpayer money abroad. US funding currently has twofold certification: the Guatemalan administration has to certify that these changes are taking place, and Congress also has an opportunity to review that certification and amend it if something is amiss. Moving forward, Congress hopes that there will be political will to keep collaborating on programs to strengthen the rule of law. 

Benowitz further stressed the importance of funding conditionality as a means for placing pressure for progress on key corruption cases brought forth by CICIG. CICIG has brought over a hundred cases forward that remain open, and there are a hundred-plus individuals with arrest warrants that are still at large. Benowitz recommended that the US government give the current Attorney General a short time frame to progress on those cases, and then possibly begin investigating her if she is not committed to doing so. A committed Attorney General is key to reinforcing the rule of law. Furthermore, the State Department should take its power to implement sanctions against corrupt individuals more seriously: for example, when Rep. Norma Torres asked for a list of people that would qualify for US Magnitsky Sanctions, the State Department in Guatemala offered up a list of names that included various officials including some living abroad in the United States, but no sanctions were implemented. Corrupt officials should be removed of the wrongful gains of their corruption, and this needs to be returned to the Guatemalan people.

As such, the United States should support a public referendum on CICIG if it is a legitimate possibility, and otherwise should support some other version of an international investigative body, be it a national or even a regional body. In the absence of such a body, added Pellecer, the least the US can do is be a shield for FECI, the Public Prosecutor’s Office Against Impunity within the Guatemalan government, which worked in conjunction with  that collaborated with CICIG that has been under attack by the Attorney General. Maul added that the US could also rethink the destination of development assistance to Guatemala, and focus not only on bringing opportunities to remote rural areas but also create opportunities in urban areas in order to stimulate productivity at the city level.  

Watch the recording of this event here


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