For much of the past decade, Guatemala’s citizenry lived through something unprecedented in the country: a popular anti-corruption movement. The International Commission against Impunity in Guatemala (CICIG), a unique UN-backed body lending independent support to the Public Prosecutor’s Office, led Guatemalans through dozens of high-impact cases against some of the most politically and economically powerful people in the country.
This movement took a number of historic steps toward a stronger, more independent judiciary. The Public Prosecutor’s Office, with support from the CICIG, carried out more than 100 corruption investigations that implicated high profile people and prosecuted 660 individuals resulting in 400 convictions to date. Meanwhile, the Commission proposed or helped implement a dozen reforms that modernized investigative methods and tools, and strengthened justice institutions. Through it all, the Guatemalan people supported this unprecedented effort—the most recent polls show that the CICIG enjoyed over 70 percent of popular support from the Guatemala people.
Despite widespread support from the broader Guatemalan populace, a coordinated effort to reverse this important progress began to take shape among members of the corrupt Guatemalan elite. Guatemalan president Jimmy Morales and some of his allies in Congress and the economic sector began a pro-impunity campaign that stigmatized social leaders and justice officials, passed impunity laws that protected them from prosecution, and suffocated media outlets and businesses that supported the fight against corruption. This organized effort also had an international component: lobbying carried out by Guatemalans in Washington had a significant impact on U.S. support for CICIG. For the first time in over ten years, the bipartisan consensus in Congress that backed the anti-corruption body was broken.
Notably, though he himself was under investigation by the Public Prosecutor’s Office and the CICIG for campaign finance malfeasance, President Morales announced his administration would not renew the commission’s mandate, which expired in late 2019. While the Constitutional Court ruled that the president’s decision to unilaterally end the mandate of the CICIG was illegal, the Morales administration ignored the ruling and proceeded with his decision. In September 2019, the CICIG closed its doors after a decade of unprecedented and historic work in Guatemala.
But for this coalition of the corrupt, ensuring the CICIG’s departure was not nearly enough. Today, these forces are leading efforts to reverse many of the achievements made over the past 12 years so that they might regain control of government institutions. In doing so, some of the crucial issues related to rule of law and justice at risk in Guatemala are the independence of the Public Prosecutor’s Office and other justice institutions, the selection process for the country’s high courts, the security of those fighting for reforms and human rights, and ongoing efforts to hold corrupt officials accountable for alleged crimes. After a decade of historic progress, the risk of Guatemalan institutions being co-opted once again by criminal groups is high.
Given the nature of its mandate, the CICIG would not have been able to successfully move politically sensitive cases forward without strong support from the Public Prosecutor’s Office. Over the last 10 years, the CICIG received this support from Attorney General Claudia Paz y Paz (2010-2014) and Thelma Aldana (2014-2018). However, support for anti-corruption efforts has waned under the leadership of current Attorney General Consuelo Porras, who has been unwilling to defend the CICIG or its legacy.
Porras’ lack of action is particularly concerning when it comes to recent trends affecting an office that falls under her purview as attorney general: the Office of Administrative Crimes (Fiscalia de delitos administrativos). Over the last few years, this office played an important role in exposing public officials who committed grave corruption crimes, and was a tool for attorneys general seeking to clean up Guatemala’s justice institutions. However, it has recently been used by family members and lawyers of those linked to corruption-related crimes to file complaints of questionable merit against the judges and prosecutors involved in their cases. Instead of promptly resolving these complaints, they have remained unresolved for months without justification.
Another institution under the attorney general’s purview that’s in limbo is the Special Prosecutor’s Office Against Impunity (FECI by its Spanish acronym). FECI was established in 2008 to work with the CICIG and partnered with the Commission on 92 cases, including some of Guatemala’s largest anti-corruption cases. The highly qualified FECI staff of about 64 now bear the weight of some of the country’s most high profile, complex corruption cases.
After a petition from the head of the FECI, Attorney General Porras has agreed to convert the FECI into a fiscalía de sección (district office) that can continue its work under the purview of the Public Prosecutor’s Office. Without support from the CICIG, the FECI will need more resources and support in order to continue ongoing investigations and respond to new inquiries so that strong democratic institutions free of corruption can flourish in Guatemala.
However, members of the FECI have about 80 lawsuits of questionable merit lodged against them, a tactic used to distract and delay FECI staff from continuing their work. Juan Francisco Sandoval, the head of the FECI, has been systematically targeted, with around 20 lawsuits filed against him as of July 2019. To date, Porras has not given clear indications on what kind of support, continuity guarantees, and protections the FECI will receive now that the CICIG has left Guatemala.
There are a number of key cases moving through the system; however, without clear commitment or support to continue investigating complex corruption, the fate of many of the emblematic cases that were initiated with the CICIG’s support is uncertain.
Below are some major cases to watch:
|La Línea case
This is one of Guatemala’s most emblematic anti-corruption cases, as it implicates both a former president and vice president. The Public Prosecutor’s Office and the CICIG uncovered evidence that Otto Perez Molina’s administration was operating a corruption scheme out of its customs agency, in which custom’s agents would give importers reduced tax rates in exchange for bribes. The bribes went to the then president Perez Molina and vice president Roxana Baldetti and amounted to millions of dollars, according to the judge overseeing the case. The La Línea investigation alone involved 88,920 wiretaps, 5,900 intercepted emails and 175,000 documents.
In October of 2017, Judge Miguel Angel Galvez found enough evidence to send 28 individuals to trial, including many other high level officials from the Perez Molina administration. The trial is set to begin in March 2020, amid mounting public frustration over delays in proceedings. The court presiding over the case, High Risk Court D, has faced increasing pressure to absolve the defendants, which would be a massive blow to Guatemala’s progress in fighting corruption over the last decade.
The “phoenix” case implicates Gustavo Herrera, a well-connected political powerbroker who has wielded significant influence over the selection of top-level justice officials over the past decade. The investigation alleges that Herrera coordinated a network that sought to embezzle some $50 million dollars in public funds from Guatemala’s Social Security Institute (IGSS). The High Risk Court Judge presiding over the case, Erika Aifán, has reported receiving increasing threats since she began handling this case.
|Blanca Stalling and the Impunity Firm
Former magistrate of Guatemala’s Supreme Court, Blanca Stalling was accused of influence peddling in order to protect her son from prosecution. According to the investigation, Judge Carlos Ruano Pineda was approached by Stalling and he later recorded a meeting he had with the former magistrate where she pressured him to avoid sentencing her son for illicit association.
However, Stalling’s links to corrupt networks go beyond this instance. A report by Plaza Pública shed light on Stalling’s various links to the “Bufete de Impunidad,” or impunity firm case that implicates a large network of lawyers and judges who used their connections and influences to guarantee favorable legal results for their clients in exchange for a financial reward. The case exposed the pervasive corruption within the judiciary, its role in ensuring impunity, and served as evidence for the critical role of the Public Prosecutor’s Office and the CICIG.
|Alejandro Sinibaldi and the Construction and Corruption case
In 2017, former presidential candidate and minister under former President Otto Perez Molina, Alejandro Sinibaldi was accused of running a money laundering and corruption network. Sinibaldi is accused of receiving $10 million dollars in bribes from national construction companies which he funneled through shell companies. In exchange, he awarded these companies preferential treatment in contracts during his time as Minister of Housing, Infrastructure, and Communications.
Furthermore, new evidence has revealed an even broader, more complex corruption scheme leading to the second phase of the Construction and Corruption case. This phase identifies a range of new actors who engaged in complex transnational corruption via payments made to offshore companies; payments for contracting advice; bribe payments for illicit electoral financing, and acquisition of goods. About a dozen members of the business community and three lawyers have been sentenced in the second phase of the case, some of whom remain at large.
In December of 2019, the U.S. State Department publicly designated Sinibaldi due to his involvement in corruption, stripping away the ability for he and his family to enter the United States.
|“Illicit electoral finance” case
Also under the jurisdiction of High Risk Court Judge Erika Aifán is the “illicit electoral finance” case against the conservative National Convergence Front (FCN Nacion, by its Spanish acronym) political party. High-level actors linked to this case include some of Guatemala’s most powerful economic elites who had funded the FCN presidential campaign of Jimmy Morales without duly reporting their donations.
Now that the CICIG has left Guatemala, it remains to be seen how the case will move forward, given that many involved in the case led campaigns against the CICIG at a national and international level.
Manipulation of high court selection process
Guatemala is also currently in the process of selecting new Supreme Court justices and Appellate Court judges. Ensuring independent, merited justice officials with the right professional requirements in Guatemala’s highest courts is crucial to the rule of law and independent judicial processes in the country. This process is also where corrupt political operators see the biggest opportunity to regain control of justice institutions in order to ensure their own impunity. By influencing the process by which these officials are selected, criminal actors try to find corruptible allies. The CICIG and the Public Prosecutor’s Office discovered a prime example of this manipulation during the 2014 selection of high court officials.
According to the law, candidates are typically nominated by a commission made up of deans of Guatemala’s law schools, representatives of the country’s Bar Association (Colegio de Abogados), and in the case of the Supreme Court commission, appellate court judges. The list of nominees produced by the commission then goes to Congress who will select a number of candidates to fill the judicial positions. While on the surface, having participation from academia could make the process more objective, the nomination committees have in the past been heavily infiltrated by representatives from fake universities who often arrive with specific political agendas or deals with corrupt actors. What’s more, according to an investigation, Guatemalan businessman and political operator, Roberto López Villatoro, created a parallel structure during the 2014 selection process to influence members of the nomination committee and members of Congress. In one instance, investigators found that López had paid for a luxurious apartment for an appellate court judge who was sitting on the commission.
The 2019 cycle has also been marred with irregularities and alliances that raise questions about the independence of the candidates presented. Although he is incarcerated, it appears that López Villatoro’s network of corruption has endured, with judges from Villatoro’s 2014 target list now sitting on this year’s nomination commission.
One of the most influential political operators during this cycle is former rector of the Universidad de San Carlos (USAC), Estuardo Gálvez. A lawyer of 30 years and a former member of many nomination commissions, Gálvez has garnered significant influence over the process with allies in the USAC and the Bar Association.
In addition to concerns about its independence, the nomination commission has also failed to evaluate judges according to the country’s Judicial Career Law. A series of reforms to the Judicial Career Law were approved in 2016 to incorporate international standards of judicial independence lacking in the previous process. However, the nomination commission failed to implement even basic procedures like interviewing and evaluating candidates. For this reason, the Myrna Mack Foundation called on the Constitutional Court to reinitiate the process, this time carrying out the reforms passed to legitimize the process.
Congress had considered changing the law once again to remove certain standards established in 2016, however, the Court granted the Mack Foundation’s request and the process was reinitiated and a timeline was established. Evaluations of the 346 candidates have since been completed, though the results are not public. Critics warn that the rush to complete the selection process during the current administration so that certain alliances can be maintained, though unlikely, has led to an improvised process. One concerning name still on the list of candidates is Judge Victor Cruz, who has been accused by the Public Prosecutor’s Office of malfeasance and accused by investigative media of receiving bribes to go after former Attorney General Thelma Aldana. Another candidate, Judge Mynor Moto, has been the center of controversy for decisions to release those accused in major corruption cases like Bufete de Impunidad.
Reported threats and attacks against judges increased 22 percent between 2017 and 2018, and many go without investigation.
Beyond systematic efforts to manipulate the process by which justice officials are selected, threats and attacks against individual judges, specifically those overseeing high profile corruption investigations, are on the rise. Reported threats and attacks against judges increased 22 percent between 2017 and 2018, and many go without investigation. Erika Aifán, a judge currently presiding over some of the most sensitive corruption cases, has faced multiple attacks, in addition to having a number of spurious complaints filed against her before the administrative crimes office. In one memorable moment, the day the CICIG ended its mandate, friends and family members of public officials accused of corruption held signs in front of CICIG headquarters with her face on it.
The Morales administration, the president of the Congress, and others have spearheaded multiple attempts to remove Supreme Court justices from the country’s Constitutional Court, in what is seen as retribution for their rulings regarding anti-corruption efforts.
It’s important to note that without the presence of the CICIG—and with an ongoing, powerful backlash from sectors of Guatemalan society hoping to ensure that nothing like the CICIG is created again—over 100 highly trained national staff of the CICIG are struggling to find stable employment due to the stigmatization against the international body.
Beyond justice officials, many human rights defenders and social leaders are also in a heightened state of risk. Many prominent civil society actors that became critical to Guatemala’s peace process, denounced post-conflict violence, and pushed for justice sector reform so that grave human rights abuses could be punished, have also played an important role in the anti-corruption agenda. Powerful Guatemalans who are threatened by a change in the status quo, have engaged in efforts in Congress, on social media, in the courts, and on the streets to intimidate many pro-justice organizations and individuals in the hopes that the desire for change in Guatemala will be quelled.
As noted by the Special Rapporteur on the rights of indigenous peoples after a visit to Guatemala in May of 2018:
“The President of Guatemala has been publicly hostile to human rights organizations; draft legislation in parliament seeks to restrict the work of nongovernmental organizations and social media, driven by private actors, stigmatize indigenous peoples defending their rights, labeling them criminals and terrorists who are anti-development.”
Coordinated defamation campaigns against individual human rights defenders are prevalent on social media in Guatemala, and are often circulated by government-aligned accounts with significant influence or boosted by “net centers,” or centers where hundreds of accounts are managed at a time to amplify certain messages. A recent report by the American Bar Association’s Center for Human Rights notes that, while many of the posts identified attacking human rights defenders via a government aligned account do not explicitly incite violence, the content could be seen as “[m]isinformation that contributes to imminent violence or physical harm.”
Beyond independent justice officials, some of the most vulnerable targets of attacks include:
Since 2017, the Guatemalan Congress has attempted to push through legislation that would severely weaken the fight against impunity by lowering sentences and significantly changing what constitutes a corruption crime. Because of pressure from civil society and a few international actors, most of these attempts have fallen short. However, Guatemala’s Congress has already proved successful in passing a law that arguably favors those facing corruption charges: under approved reforms to the country’s penal code, those accused of corruption and organized crime could see their penalties cut by as much as 50 percent should they accept the charges. Some of the crimes that this law would reduce sentencing for include money laundering and bribery. Critics argue that law lacks technical elements that would prevent it from being used as an instrument for impunity.
Though less than a week remains until a new Congress takes office, advocates are concerned that the current Congress will attempt to approve the controversial Bill 5377, a reform to the National Reconciliation Law that would grant blanket amnesty to perpetrators of grave human rights abuses committed during Guatemala’s civil armed conflict. This would result in the release of those who have been convicted as well as those awaiting trial for related charges. Congress has attempted to move the bill forward on a number of occasions over the last two years. However, with two-thirds of Congress being replaced on January 14, civil society fears some outgoing members will feel they have nothing to lose by passing the legislation.
While less feasible, Congress has been considering other worrisome legislation. Congress has contemplated actions that would appeal the agreement that established high risk courts in Guatemala equipped to oversee the high-impact, complex corruption cases before them. Congress has also apparently contemplated amending or revoking many anti-impunity laws, such as the asset forfeiture law (ley de Extinción de Dominio) or efficient collaborator law (ley de colaboración eficaz) that carry out sophisticated methods of investigation and re-purpose seized assets. Congress has also weighed Bill 5257 which attempts to limit the activities of non-governmental organizations (NGOs). Civil society organizations argue that the law would impose excessive limits on the way international funds are processed, granting the Guatemalan government undue authority to restrict or even shut down operations of an organization dubbed to be outside the “public order.” The fear is that this law would impose onerous registration requirements that would hobble the activities of NGOs located in Guatemala’s interior. The proposed “NGO law” also appears to breach international human rights standards such as freedom of association, which grants individuals the right to collectively organize without interference.
In another worrisome move by Congress, the Constitutional Court granted an action presented by National Party of Hope (UNE, by its Spanish acronym) party members, which establishes that the Tribunal Supremo Electoral, the country’s electoral authority, must issue reports before the Public Prosecutor can charge individuals with the crime of illicit electoral financing. Head of the FECI, Juan Francisco Sandoval, has criticized this decision claiming that the new rule will put current cases of campaign finance in jeopardy.
Furthermore, the risks against anti-corruption advocates have only increased following the creation of a congressional commission ostensibly dedicated to “investigating” the CICIG’s work. The commission, established by several members of Congress, many of which are under investigation for corruption, is a space created to attack those who have publicly supported the CICIG and denounce those dedicated to strengthening rule of law. Members in the anti-CICIG commission announced that they would present a report of their findings on January 10.
Amid growing outrage from civil society groups, the Attorney General’s Office requested that the Constitutional Court disband the commission, arguing that it is the responsibility of the Attorney General’s Office, not Congress, to assess the legitimacy of investigations. Despite the fact that the Court ruled in favor of this opinion, a new commission with a different name but the same objective is still taking testimony from those accused of corruption and their family members in regular morning sessions. In one example, the commission recently heard from former police director Erwin Sperisen, a dual Swiss-Guatemalan citizen convicted of extrajudicial killings in Switzerland, in a case that was originally supported by the CICIG, and Blanca Stalling, who approached the commission to criticize the pro-justice movement and activists like Helen Mack, among others.
There is concern that one of the main purposes of this congressional commission is to explore ways that those implicated in CICIG investigations can now carry out legal actions against Guatemalans who worked with CICIG or supported the anti-corruption agenda.
The new challenges to Guatemala’s fight against impunity have significant implications for U.S. policy goals and interests. The State Department has said its objectives in Guatemala include helping institutionalize democracy and respect for human rights and the rule of law, while also cooperating with Guatemalan authorities to fight money-laundering, corruption, and transnational crimes like human trafficking and the drug trade. These goals are impossible to achieve without reliable partnerships in the region and strong local institutions.
While applauding Guatemalan leaders for entering into a misguided migration agreement, the Trump administration has grossly overlooked some of the most important elements that drive migration: impunity based organized crime and negligent government.
The United States has invested years in training capable prosecutors, judges, members of the Public Prosecutor’s Office and accountable police, many of whom have done invaluable work in prosecuting corruption, fighting drug trafficking, and combating human trafficking. However, these highly trained justice sector officials are now feeling abandoned by international actors, given the premature departure of the CICIG and the tepid responses from the Trump administration in light of attacks and measures to undermine the rule of law.
While applauding Guatemalan leaders for entering into a misguided migration agreement, the Trump administration has grossly overlooked some of the most important elements that drive migration: impunity based organized crime and negligent government. Corrupt leaders in Guatemala cozied up to the Trump administration while simultaneously debilitating the Rule of law, undermining their own democracy. The short and long term implications for stability and security in the region are dire. It is past time for U.S. policymakers to ask themselves whether they are willing to see years of significant efforts to professionalize and strengthen Guatemala’s justice sector overwhelmed by the current push back against anti-corruption efforts.
Alvaro Montenegro is a member of the civil society groups JusticiaYa (Justice Now) and the Alianza por las Reformas (Alliance for Reforms). In this capacity, Montenegro was one of the founders of the anti-corruption movement sparked in 2015 by the investigation into and subsequent stepping down of former President Otto Perez Molina, and has since participated in an array of legislative reform processes. Mr. Montenegro is a published author of books and writes columns for acclaimed regional news outlets like El Faro and Plaza Pública.
Adriana Beltrán contributed significantly to this article.