WOLA: Advocacy for Human Rights in the Americas

Vicente Chapero Ayala

18 Apr 2022 | Commentary

Guatemala’s Attorney General Elections: Judicial Independence and Democracy at a Crossroads

In March 2022, former Judge Erika Aifán, one of Guatemala’s most important high-risk judges who played an integral role in the country’s anti-graft efforts, was forced to flee Guatemala due to threats from the country’s political-criminal networks. She is the 15th high-profile judge or prosecutor to leave Guatemala in less than a year. As of March 22, 2022, 24 former Guatemalan justice operators were forced into exile to protect their lives as well as their physical and judicial integrity. In addition, 10 prosecutors faced spurious legal proceedings, were in preventive detention or had a warrant for their arrest. 

While this recent wave of attacks against independent justice operators under attorney general María Consuelo Porras is part of a ramped up effort to facilitate a complete take over of Guatemala’s institutions, it is both rooted in and facilitated by the country’s long tradition of cooptation of the state that dates back to the internal armed conflict (1960-1996).

Through the infiltration of judicial bodies and the nefarious criminal persecution of justice operators committed to fighting corruption and protecting human rights, those at the helm of Guatemala’s illicit networks ensure impunity for their crimes, aided by an entire state apparatus that has, for decades, worked to benefit them. The level of backsliding that has taken place since the expulsion of the International Commission against Impunity in Guatemala (CICIG by its Spanish acronym) in late 2019 and that has continued at a rampant pace under Consuelo Porras places that much more importance on this year’s attorney general election that began in January 2022. The Public Prosecutor’s Office’s (MP) commitment to fighting impunity and strengthening the rule of law is an essential component of Guatemala’s return to democracy.

Criminalization and Neglect: Porras’ Modus Operandi 

The persecution of independent justice operators carries a heavy weight on Guatemala’s judicial independence. Moreover, a justice system that fails to enforce justice operators’ duty to make impartial decisions according to the law and facts, and instead rejects the right of justice operators to not be subject to pressure and shifting political interests is in need of a complete restoration. 

Since Consuelo Porras took office in 2018, instead of strengthening investigations and criminal prosecution against corrupt networks and organized crime structures, the MP is being used to prosecute justice operators, journalists, and human rights defenders committed to the fight against corruption and the defense of human rights. The onslaught of frivolous legal attacks on Judges Erika Aifán, Pablo Xitumul de Paz, and several ex-CICIG and Special Prosecutor’s Office Against Impunity (FECI for its Spanish acronym) prosecutors are part of a broader strategy to prevent high-level corruption cases from advancing and to re-co opt the MP. 

The ousting of the country’s head anti corruption prosecutor in July 2021 led to the effective dismantling of the FECI created to work alongside the CICIG. This office was responsible for bringing large-scale corruption cases to justice, such as those involving former president and vice president Otto Perez Molina and Roxana Baldetti. During its mandate, the CICIG and FECI unearthed corrupt schemes linked to the justice and political systems like cases of illicit financing and influence from illicit networks in key judicial selection processes. One of the most notorious was the Parallel Commissions 2020 case, brought to light by the FECI, in which a political operator set up a scheme involving over 40 people to influence the selection process for the high courts. In addition to this case, Erika Aifan also oversaw several high impact cases that affected the interests of the political military and economic elites in Guatemala, including the Odebrecht and Bitkov-Migration cases.

Another attack emblematic of the ultimate motive behind this trend was Porras’ transfer of Hilda Pineda, lead prosecutor of the human rights prosecutorial office and the prosecutor that took former dictator Efrain Rios Montt and other military officers to trial for crimes against humanity. With the illegal ousting of Juan Francisco Sandoval, former head of FECI, Porras sought to debilitate investigations into corruption cases involving the government’s highest levels of power, including those in President Giammattei’s close circle. The dismantling of the justice system has now reached the point where what was once was a formidable bastion in the fight against corruption is now another one of Porras’ criminalization tools

Baseless claims around most of the cases were initiated by the Foundation Against Terrorism (FCT for its spanish acronym), a public-facing driver of the strategy to undermine the independent justice sector. FCT is led by Ricardo Mendez Ruíz and lawyers Moisés Galindo and Raul Amilcar Falla Ovalle, who were sanctioned by the United States Government as “foreign persons who have knowingly engaged in actions that undermine democratic processes or institutions, significant corruption, or obstruction of such corruption”; as they have been key architects and operators in the execution of the strategy.

While the aforementioned persecution is evidence of the impact an attorney general can have on the country’s rule of law and democratic processes, there are countless other examples. In 2019, former attorney general and anti-corruption crusader Thelma Aldana was barred from running for President, forced into exile, and the subject of nefarious investigations. Similarly detrimental was Porras’ decision to delay the investigation into allegations of illegal campaign contributions against Sandra Torres, allowing her to continue as a candidate in the 2019 elections. Torres ultimately lost to political outsider Jimmy Morales, who came to power on the National Convergence Front-Nation (FCN-Nación). FCN-Nación was created and financed by hardline military officials connected to the Association of Military Veterans of Guatemala (Avemilgua), who launched an all-out attack against CICIG and other anti-corruption efforts in Guatemala that has continued apace under Giammattei.

The Porras-Giammattei Alliance and its Links to Economic Elites, Illicit Financing, and Corruption

In understanding the impact that Porras’ reign has had on Guatemala’s rule of law, just as important as the cases obstructed by the Public Prosecutor’s Office (MP for its Spanish acronym) are those that have gone uninvestigated. In September 2021, the United States Government sanctioned Porras under the United States–Northern Triangle Enhanced Engagement Act as an official undermining democracy and obstructing investigations into acts of corruption. In spite of that, Porras has been supported by Guatemalan President Alejandro Giammattei as well as the private sector and economic elites, which have played a key role in maintaining the status quo of corruption and impunity.

In February 2022, investigative journalism outlet El Faro linked Giammattei to an illicit campaign financing scheme in 2019, demonstrating how corruption has permeated the highest levels of government in Guatemala and its clear ties to the private sector. A witness testified that Giammattei negotiated a $2.6 million contribution to his campaign in exchange for allowing a former minister to stay on in his post in order to continue operating a corruption network involving 12 highway construction projects. This case underscores the links between corruption, the private sector and economic elites, and also puts the escalation of criminalization of anti-corruption prosecutors and judges into context. According to the investigation published by El Faro, seven infrastructure projects valued at more than $83 million were awarded to construction companies. One of the companies is owned by business magnate Alejandro Matheu Escamilla who financed the presidential campaign of Jimmy Morales in 2016, and received nine contracts worth approximately $104 million in 2018 and 2019 when the same minister was in office.

Investigations into the discovery of $16 million in cash found in suitcases, allegedly linked to Giammattei as well, is what eventually led investigators to the groundbreaking testimony. Porras has used her office to prevent further investigation into Giammattei’s involvement in these two major cases, as the Attorney General should have initiated a criminal investigation. Furthermore, she has blocked investigations by persecuting the prosecutors and judges working on the cases. Investigations into these two cases, publicly acknowledged as the catalyst for Sandoval’s removal – demonstrate the level of influence Porras has over the country’s anti-corruption efforts and the extent to which her term has been to Giammattei’s favor. Moreover, this relationship speaks volumes about Giammattei’s interest in electing the next attorney general and make the case for his involvement in the process to be under immense scrutiny. 

Integrity of the Process to Elect the Next Attorney General

Under Guatemala’s Constitution, Nominating Commissions (CP for its Spanish acronym), made up of representatives from academic, judicial and professional sectors, are responsible for handling several key judicial selection processes, including that of the Attorney General. This commission establishes candidate profiles, a timetable for the nomination process, and a table for assessing the merits of potential nominees. The law requires that this assessment table consider certain essential parameters, including academic, ethical, and professional merits, as well as “human projection”. It also requires that the commissions operate transparently by making their agendas and meetings accessible to the public. After analyzing profiles, the Commission send a list of six candidates to President Giammattei. The process is scheduled to be finalized by the end of April. 

In spite of the legal framework, attorney general elections have been marked by irregularities and influenced by illicit networks. The current Nominating Commission is led by Silvia Patricia Valdes, who has been involved in the Parallel Commissions 2020 case. Valdes also holds the presidency of the Supreme Court beyond the legal mandate, since magistrates for both Supreme and Appellate Courts were to be elected in September 2019, yet the process has been delayed for over two years due to irregularities and corrupt influences. In addition, Raúl Falla Ovalle from Fundación contra el Terrorismo (Foundation Against Terrorism), filed before the Constitutional Court a spurious motion to block candidates such as Judge Ericka Aifán by arguing that serving on the bench does not qualify as “practicing law”, a requirement for serving as attorney general. The Court granted this petition and many experts expressed that the decision is unconstitutional since it unjustifiably excludes judges with relevant experience.  

Far from being a technical process, the selection of the Attorney General in Guatemala is ultimately a political decision as Giammattei will decide from a list of six candidates. In addition to his obvious personal interests, the President’s intent to steer the election in his favor became apparent when he asked a group of international donors, including the U.S., to avoid “meddling” in its election for Attorney General. This not only hinders the international community’s capacity to monitor the observance of several principles from various international standards, but demonstrates the Guatemalan government’s attempts to spin foreign oversight as an attack on sovereignty

Candidate Profiles

There are 15 candidates whose profiles have been examined by the Nominating Commissions, prompting criticism from several civil society organizations and international advocacy groups, as most of the candidates do not meet the requirements, lack independence and are implicated in illicit networks. This is the case of Henry Elias Wilson, investigated by FECI due his links to Gustavo Alejos Cámbara, publicly designated by the U.S. State Department due to involvement in significant corruption. 

Several other candidates were investigated by CICIG and FECI. Jose Urrutia Estrada is the figurehead of an offshore company that channeled more than $1 million from bribes in public works. Luis Donado has been linked to President Giammattei, after a delay in delivering evaluations of state contracts which were under question, including those for the purchase of Sputnik vaccines. In 2014, the CICIG linked Donado to the Mendoza Matta family, allegedly involved in drug trafficking. Another example is Gloria Suchite who annulled the criminal proceeding in the case known as Fénix, led by the FECI and related to millions in social security embezzlement and money laundering in 2003.

This long list of candidates recognized for their links to high level corruption as opposed to their merit, honorability and suitability is alarming. The Commissions should guarantee the election of qualified, capable, and honorable candidates who are committed to impartial and independent justice and not private interests. To that end, they should abide by the Guatemalan Constitution and disregard the candidates that have been denounced for their clear conflicts of interest or involvement in corruption. 

These candidates – including Porras – are attempting to monopolize the final list of six candidates, and with setbacks in the justice sector many honorable candidates did not participate. While there are some honorable candidates, the majority of those on the list are part of a scheme so that if Porras isn’t reelected, there will be someone who will be a guaranteed ally of the executive. Emblematic of the direction the Guatemala’s government has been moving in for the last several years, this election is disguised as a sound electoral process, even though it is completely politically compromised. 

What the Attorney General Election Means for Democracy in Guatemala

The Attorney General holds the highest authority in ensuring adherence to the rule of law, in combating endemic corruption, and protecting human rights in Guatemala. This selection process is fundamental and gives an opportunity to rebuild the justice system, and in turn, strengthen institutions to address structural impunity.  

In addition, Guatemala’s 2023 elections – in which the next president and congress will be elected – are taking place in the context of a major struggle over corruption and entrenched elites working to preserve their privilege. Therefore, the new AG will not only be key in the potential reconstruction of the country’s judicial system but will also play a central role in protecting the legitimacy of the 2023 electoral process. It’s important to acknowledge that the Guatemalan political system is highly fragile and influenced by illicit networks. Party politics are disputed by the elites, and illicit financing has been the norm. A 2015 CICIG report found that most of the country’s political parties rely on funds from powerful business elites or criminal groups, leaving them highly vulnerable to influence peddling.

Room for Hope in Guatemala

Guatemala continues to set itself apart from other authoritarian leaning (or, in some cases, full-blown authoritarian) governments in Central America by retaining, at least on the surface, a democratic façade without its substance, or in other words, a hybrid regime. While El Salvador’s President Nayib Bukele is much more explicit and blatant in his party’s complete degradation of separation of powers and democracy, attacks on the peace accords, closure of civic space and undermining of rule of law, in Guatemala, authoritarian practices are more covert and involve an intricate web of actors. Given the complex process that would take to dismantle Guatemala’s illicit networks and ensure a return to democracy and rule of law, a sophisticated approach by a network of actors is necessary to support this process. 

While it has been weakened, Guatemala’s continued alliance with the USG (and other international actors) on several priorities remains a point of opportunity for improving democratic conditions in Guatemala, and in turn, addressing the drivers of migration. What the international approach is lacking is more strategic and coordinated initiatives.

The U.S. government, for example, has several tools at its disposal, including sanctions, task forces, redirection and strong conditions on aid, partnership and support of civil society actors, and local institutional strengthening. However, what’s missing is a more integrated and cohesive plan so that all these tools are working in tandem and complementing one another. Symbolic condemnation and visa restrictions have not had the desired effect. However, with the added impact of financial sanctions against strategic significant corrupt actors across political, military, economic elites as well as members of organized crime groups, complemented by conditions on assistance and investigations to ensure international funds do not make it into the hands of these corrupt actors, the strategy would start to address these powerful illicit networks from all angles. 

Guatemalan civil society has long been warning that the international community take a strong stance against these trends before there are no longer allies within the judiciary to count on. This latest series of attacks against the justice sector is intended to be the last hurrah of the Giammattei-Porras-private sector alliance in ridding the judiciary of any independent justice officials. The U.S., along with other international actors, still have a strong role in Guatemala and should use this to their advantage through prioritizing a return to the rule of law and democracy over other political ties. The Attorney General election is not only an opportune moment to commit to a more cohesive strategy, but it could very well be the last for years to come.