Guatemala’s Anti-Corruption Experiment: An Exception to the Rule or an Example to Follow?

There is nothing original about inviting independent experts from other countries to help solve complex problems. Yet giving significant legal powers to foreign specialists (needed, for instance, to fight corruption in the government) is not a conventional practice. Guatemala, a Central American country with high levels of poverty, crime and corruption, is an incredible example of both the effectiveness and the vulnerability of this approach. Does it have a future?

Guatemala’s achievements in fighting political corruption have been repeatedly cited as an example for Ukraine. The anti-corruption mechanism that this Central American country has developed is truly unique. The government ceded some of its judicial power to an international commission created under the auspices of the United Nations, fully independent from Guatemalan government and financed by other countries.

As a result, over 12 difficult years the International Commission against Impunity in Guatemala (CICIG) has achieved what most would call impossible. It has helped streamline local judicial institutions and legal system, uncover nearly 60 criminal organizations and stirr the protests that brought about the resignation and arrest of the country’s president, as well as over 340 other influential politicians and public servants.

However, its actions could not go unanswered. The government has initiated a full-blown attack on CICIG and its story might end this autumn.

How has Guatemala managed to achieve this unexpected advance in fighting political corruption and what are the advantages and limitations of this approach to unrooting corruption?

Creating the Commission: a country on the brink of losing a war with organized crime

In 1996, when a 36-year-long civil war that had cost over 200,000 lives ended, Guatemala was facing numerous problems. Former military and paramilitary groups turned to organized crime and increased their influence on the judicial system and the politicians by buying some of them and killing those who opposed them. The state was powerless to fight them and Mexican drug cartels. 93–98% of murder cases remained unsolved and 90% of cocaine was smuggled to the US through Guatemala. Tens of thousands of Guatemalans left their homeland every year escaping high crime and poverty levels.

This lower middle income country where only 13% of GDP were distributed through the state budget had little chance to solve its problems on its own. Therefore, the civil society along with some of the politicians initiated the creation of an international mechanism under the auspices of the UN that was supposed to help the country’s judicial system to fight impunity.

Most of the politicians opposed the idea for a long time, even after it was guaranteed that CICIG would only duplicate some of the functions of the local legal system and not replace them. However, the last straw was the murder of three Salvadorian deputies by corrupt Guatemalan policemen. Afraid that it might lose the fight against crime for good, the Guatemalan parliament finally bent under the pressure of the civil society, foreign governments, and international organizations, and, in 2007, ratified a previously signed agreement with the UN.

The newly created International Commission against Impunity in Guatemala was a unique experiment. Similar commissions were created in other countries with the UN’s involvement, but they only investigated the crimes committed by authoritarian regimes in the past or were tasked solely with monitoring current developments. In Guatemala, the commission received the power to conduct its own investigations of criminal activities, represent the prosecution in court along with local Public Prosecutor’s Office and suggest reforms to strengthen the legal system.

CICIG is independent from the Guatemalan government but is supposed to be a temporary solution: its mandate is to be renewed every two years by the president of Guatemala. What is more, the head of the Commission is appointed by the Secretary-General of the United Nations but is independent from the UN and the commission’s international sponsors.

The Commission’s yearly budget is about $15-18 mn, with over 30% provided by the US and the rest bankrolled by Canada, Sweden and about a dozen other countries. Its investigators are mostly foreign experts with a vast experience of fighting organized crime and recruited from different parts of the world but foremost Latin America and Spain.

Search for an effective strategy: from finding 100 honest policemen to arresting the president

The lack of a well-defined strategy made the commission highly dependent on the decisions of its leaders. The first head of the commission, Spanish lawyer Carlos Castresana, believed that its top priority was to ensure the safety of its staff and establish working relationships with local investigators, policemen, and judges. Importantly, Guatemalan specialists were selected and trained, while a joint investigation unit was created with representatives from both the Commission and the Public Prosecutor’s Office

According to Castresana, after laboriously selecting a hundred of non-corrupt policemen, they were provided with new accommodation to prevent them from contacting “old” policemen. The commission also lobbied the implementation of new investigation instruments such as telephone tapping and plea bargaining. A reliable mechanism for the protection of witnesses was also created along with separate safe courts for trials of influential suspects.

At the same time, the Commission started investigating a number of different crimes, such as the seizure of control over a prison by an imprisoned crime boss and the cover-up of smuggling by the police of border regions. Castresana heavily cooperated with the media and helped made the Commission’s work highly visible.

The breakthrough arrived when the Commission the high impact murder of Guatemalan attorney Rodrigo Rosenberg in 2009. The murder itself was nothing extraordinary for the country where violence had long become commonplace. The big news was the publication of a previously recorded video of Rosenberg accusing the then president of Guatemala of his death.

The Commission proved that Rosenberg organized the assassination himself in order to bring about a political crisis and overthrow the government at the cost of his life. In this way Rorenberg tried to punish the country’s leadership that he deemed responsible for the murder of his beloved, the daughter of a famous businessman. Solving such a complex case in a country, where practically no one trusted the courts and the police, helped the commission win the public recognition and a say in influencing appointments in the legal system.

However, due to procedural loopholes many cases dragged out in poorly financed and corrupt courts and eventually went nowhere. The attempts to replace ineffective judges and policemen were only partially successful and led to an onslaught of threats and smear campaigns. Lives of Castresana and other investigators were perpetually in danger.

Having endured constant pressure from a growing number of enemies for a couple of years, Castresana resigned in protest against the appointment of a new Attorney General with a shady background.

In 2013, Colombian lawyer Iván Velásquez breathed a new life into the Commission. He shifted its focus on uncovering high level political corruption after identifying it as the source of impunity. Velásquez was sure that criminal organizations and industrial groups finanse election campaigns of corrupt politicians in exchange for continued protection and government contracts. The country’s ruling elites sensed the threat from the Commission and started planning its closure.

However, Velásquez and Attorney General Thelma Aldana made public their findings about a large scale corruption scheme at the customs service that involved Vice President Roxana Baldetti and President Otto Pérez Molina. It turned out that major importers paid millions in bribes to the politicians to be exempted from customs fees. Tens of thousands of Guatemalans took to the streets demanding the suspects to be removed from office and arrested. Their demands were satisfied in the spring of 2015, after a couple of months of unprecedented peaceful protests.

“Old elites” strike back

Uncovering extensive corruption at the top of the political system became the Commission’s highest achievements. Yet, as Velásquez said once, “justice doesn’t change states on its own. It just contributes to identifying what ails them.” Therefore, the Commission itself, the Guatemalan people and international organizations expected that anti-corruption mobilization would lead to a national wide dialogue about long-awaited political and legislative changes that would weaken the foundation of political corruption. Some of the protestors demanded that the presidential and parliamentary elections, which were scheduled to be held a few weeks later, were postponed and held later in a reformed institutional environment.

The elections were held anyway. Due to the disillusionment with the established political elites, Jimmy Morales, a famous comedian and businessman won the election, brandishing a slogan “Neither corrupt, nor a thief”. At first, Morales promised to support the Commission, renewed its mandate and initiated a dialogue aimed at implementing political reforms. The requirements towards election campaign funding were raised and a criminal responsibility introduced for breaking them.

However, reforms gradually died out: the parliament voted against a constitutional reform aimed at bolstering the independence of the judiciary. Due to its focus on investigating high-level corruption, the Commission set its sights first on the president’s relatives and then on the president himself. It turned out that a number of businessmen were secretly funding Morales’s campaign.

After the Commission asked the parliament to strip Morales of immunity, he spearheaded a series of attacks by conservative elites on CICIG and the bastions of independence in law enforcement institutions it supported. The Commission was abruptly accused of promoting left-wing ideology, infringing on the country’s sovereignty and abusing the suspects’ rights. 

In September 2018, Morales, surrounded by the military and the policemen, announced that the Commission’s mandate would not be renewed after its expiration in September 2019. In January 2019, he eventually decided to put an end to the commission’s activities and gave its foreign employees 24 hours to leave the country. The Constitutional Court of Guatemala blocked this decision. As a result, the Commission is still operating, but some of its investigators are working from outside the country, while others were denied police protection. The Congress was asked to lift the immunity from prosecution from the three defiant Constitutional Court judges.

Finally, the only highly rated presidential candidate, who openly supported prolonging and strengthening the Commission’s mandate, former Attorney General Thelma Aldana, had her candidacy rejected by the electoral court.

Losing a crucial ally: change in the US’s stance and doubts regarding the Commission’s future

What gave Morales free rein was, many observers argue, the reversal of the US policy in the region. In 2015, a sharp reaction of the Obama administration and especially the threat to cancel hundreds of millions of dollars of aid protected the Commission from the attacks of the then president of Guatemala. However, when Morales announced that he would not renew the commission’s mandate US State Secretary Mike Pompeo responded with a tweet praising Guatemala’s efforts to stop drug traffic and making no mention of the commission.

As Harvard Law School professor Matthew Stephenson wrote in an article for the Global Anticorruption Blog, Trump administration is suspicious of any multilateral initiatives, especially those under the auspices of the UN, and feels connected to the ideologically right-wing governments.

What is more, Guatemala was the first country to follow the US’s example and announce its plans to move its embassy in Israel to Jerusalem.

Morales and his allies also spent hundreds of thousands of dollars on lobbying influential US politicians and journalists. In 2018, US senator Marco Rubio blocked the Commission’s funding due to its suspected cooperation with Vladimir Putin. These suspicions were later refuted and the funding resumed. However, the incident highlighted how fragile the Commission is. Since it faces animosity from almost all branches of power, its success heavily depends on the support of all of its internal and international partners.

The Commission’s story is not yet over. It has the support of 60–70% of Guatemalans, while only 15–20% of the country’s people back Morales. What is more, new movements and parties are slowly emerging that are trying to consolidate anti-corruption forces and fight for their representation in the parliament.

Both of the candidates in the second round of the presidential elections scheduled for August 2019 also have to take into account the public support of CICIG, even though both of them were targeted by its investigations at some point. However, it is currently unlikely that either of them will renew the agreement with the UN without significantly curtailing the Commission’s independence and powers.

The Commission’s achievements and defeats

On one hand, the Commission is probably going to cease its operations in Guatemala in Septemer, with political corruption left undefeated. On the other hand, over the last 12 years, the Commission has withstood the pressure from influential politicians and businessmen, found allies among local law enforcers and achieved quite a lot. More than 340 politicians, officials, policemen and businessmen have been arrested due to the professionalism and independence of foreign investigators who really value their reputation and the Commissions’ mission.

Having streamlined local law enforcement institutions, the commission has saved thousands of lives. The number of crimes left unpunished in Guatemala went down from 95–98% to 70%, which helped drive down the number of murders.

At the same time, due to its limited powers, CICIG has not been able to replace local law enforcement and political institutions. The arrests of corrupt officials have not brought about a significant change in the rules of the game. The Commission’s attempts to increase the level of independence of courts and prosecutors, as well as implement other important legislative reforms, were opposed by the political elites and had only limited success.

As a result, new corrupt networks arise in place of the old ones, while litigation and convictions take years due to a variety of legal loopholes. Another problem is the continued underfinancing and weakness of the government institutions.

Most business leaders see the Commission’s emphasis on campaign financing, which large companies use to win government contracts, as a threat. Therefore, they continue supporting “old” political elites. The commission’s unbending focus on investigating  policy has been criticized by some as “a lack of political flexibility” and antagonized most of the prominent politicians.

Meanwhile, some new movements and parties that represent the people’s disgust towards corruption and want to protect the Commission’s achievement lack financial and media support. As a consequence, a number of commission’s legislative and institutional achievements are still in place only due to the public support and isolated islands of independence in the government system.

Can the Commission serve as an example to other countries?

The Commission’s relative success has prompted other countries with similar problems to consider the implementation of similar mechanisms. The Organization of American States has already created a Mission to Support the Fight against Corruption and Impunity in Honduras, while presidents of Ecuador and El Salvador have promised to create similar institutions in their countries. Ukraine was also advised to create a similar anti-corruption Commission, providing it with a longer mandate and a higher level of independence from the local judiciary.

At the same time, a detailed report by the Open Society Foundations highlights the contingent nature of the Commission’s achievements. It highlights that the Commission achieved significant results in uncovering corruption only after eight years of operation. According to the researchers, it owes its success to a number of favourable factors and clever management decisions that other countries might not be able to replicate. The Commission’s leadership has to take into account that their mandate is limited to two years, needs to be at least tolerated by local politicians and depends on a stable support from donour countries, especially the US. What is more, the foreign origin of the commission makes it an easy target for those who criticise it for infringing the country’s sovereignty and serving some ill-defined foreign interests.

On the other hand, when trying to replicate CICIG’s achievements, other countries can build on its experience and from the very start determine high-priority focus areas with the biggest potential impact. For example, former Guatemalan Attorney General Thelma Aldana insisted that an independent anti-corruption court would have to be created in addition to CICIG to try the cases presented by foreign investigators and help to overcome the resistance of the local judicial system.

It is also important to ensure close cooperation between all interested parties, to develop all the government institutions (instead of focusing solely on law enforcement) and to secure the necessary funding.

However, it is precisely the potential effectiveness of this model that may make governments unwilling to adopt it in those countries where political elites oppose any real change. The creation of the Commission in Guatemala became possible because of its narrow initial mandate on fighting the impunity of criminal offences. Only later, when the commission’s role and the true causes of impunity were reconsidered,  the Commission shifted its focus towards high level corruption and probably took local politicians unawares. As soon as CICIG concentrated on the links between politicians and their corporate sponsors from the industry, it became a threat and fell under consistent and rigorous attack. Therefore, securing a longer mandate and more independence for the commission, thus giving investigators more freedom, might be no easy feat. At this stage, when even the recent establishment of new Ukrainian anti-corruption institutions staffed with Ukrainian experts faced numerous challenges, delegating power to an independent foreign institution would seem to be very unlikely.

Conclusion

Based on just one country’s case, creating an international anti-corruption commission in no way guarantees lasting results and profound changes in the country’s legal system. However, under favourable conditions such a commission can achieve remarkable success in revealing and punishing high level corruption, stimulate the development of state institutions, set precedents of objective investigations, and create a momentum for more comprehensive reforms.

How inevitable these changes are and whether the society is able to seize the opportunity depends on the extent of the commission’s powers and on the specific social and political context. There is little hope for success unless the commission is led by competent managers and given reliable support by influential external and internal allies.