This August 1, at the request of President Andrés Manuel López Obrador, Mexico will hold a public referendum known colloquially (for reasons explained below) as the referendum on “putting ex-presidents on trial.” Although López Obrador has conducted other public consultations regarding government projects, this will mark the first official referendum (consulta popular) held in accordance with the Mexican Constitution. According to the Constitution, the results of the referendum will be binding if at least 40% of the electorate participates.
Mexican authorities have an obligation to investigate serious crimes attributed to former presidents or to any other top official; in other words, victims’ right to justice cannot legally be put to a popular vote. For this and other reasons, the upcoming referendum has given rise to a range of questions. Below, we summarize some of the key points to keep in mind to understand what is at stake this August 1.
What is the August 1 referendum about?
On September 15, 2020, following a procedure laid out in Article 35.VIII of the Mexican Constitution, López Obrador sent the Senate a proposed referendum question on whether the public was for or against investigating alleged crimes committed by the five presidents who governed Mexico from 1988-2018.
Concretely, López Obrador proposed the following question:
Are you or are you not in favor of the appropriate authorities, in accordance with applicable laws and procedures, investigating, and, where appropriate, punishing the alleged commission of crimes by former presidents Carlos Salinas de Gortari, Ernesto Zedillo Ponce de León, Vicente Fox Quesada, Felipe Calderón Hinojosa, and Enrique Peña Nieto before, during, and after they held office?
To justify his proposal, López Obrador stated that the thirty years comprising these five presidential administrations had been characterized, among other things, by “generalized corruption… the massive violation of human rights, impunity as the norm, and the breakdown of the rule of law in extensive areas of the country.” Despite this, López Obrador specified that he was against putting the former presidents on trial. He stated that, if the citizenry also voted against such trials, then “no one will be able to accuse [the relevant state institutions] of covering up or concealing illegal conduct” if such institutions fail to bring charges against the ex-presidents.
However, leaving the investigation of these types of crimes up to a referendum is incompatible with constitutional and international law, since victims have a right to justice that cannot be cancelled by popular vote. In this regard, Inter-American law prohibits the use of amnesties or similar measures to prevent the investigation of serious human rights violations.
Precisely as a control mechanism provided for in the Constitution, Mexico’s Supreme Court (Suprema Corte de Justicia de la Nación, SCJN) analyzed the constitutionality of the referendum in October 2020. In a divided decision that was widely questioned by legal experts, the SCJN ruled that the referendum’s subject matter was constitutional, but it modified the question. Thus, the new question that voters will answer on August 1 is:
Are you or are you not in favor of the pertinent actions being taken, in accordance with the constitutional and legal framework, to undertake a process of shedding light on the political decisions made in past years by political actors, aimed at guaranteeing justice and the rights of potential victims?
Unpacking the question approved by the SCJN is no easy task. The new phrasing seeks to communicate that the referendum will not be about placing former presidents on trial, but rather about bringing to light the truth regarding political authorities’ actions; however, the question also continues to reference justice. The SCJN did clarify in its corresponding ruling that, even if the referendum has the necessary participation to be binding, its results cannot cancel authorities’ existing obligations, which include reporting and investigating crimes. Government bodies would instead be obligated to take into account the referendum’s result to help guide the exercise of their discretionary powers.
Citing the question approved by the SCJN, a group of civil society collectives and human rights organizations have launched a campaign calling for the referendum to reinvigorate actions to guarantee victims’ rights in a broad sense. However, López Obrador continues to present the referendum as a vote on placing five former presidents on trial.
In this context, some analysts characterize the referendum as an effort by the federal government to bolster its legitimacy by capitalizing on the public’s broad rejection of prior administrations (a driving factor behind López Obrador’s landslide victory in the 2018 presidential election). In terms of truth and justice, the practical implications of the upcoming vote remain to be seen.
What are the predicted results of the referendum?
Various polls show that the majority of Mexicans favor accountability for corruption and other crimes committed by former presidents, by a margin close to 9 out of 10 in some surveys. This trend is more pronounced among people who say that they will vote in the referendum, so it is unlikely that the option of “no” will win on August 1.
However, public sentiment faces an uphill battle to achieve a binding “yes.” The threshold of 40% voter participation—required by the Constitution to make the result binding—is a difficult goal for a referendum, keeping in mind that 52% of voters participated in Mexico’s massive June 6 elections. The referendum has also faced logistical difficulties: the National Electoral Institute requested, but did not receive, additional funding to carry it out. As a result, the Institute announced that it will work with the resources it has and will set up approximately 57,000 polling stations, equivalent to about 35% of those installed for the recent elections.
In light of the above, the referendum may not produce a legally binding result. Still, a “yes” result, even if not binding, would generate broad expectations for López Obrador to uphold his commitment to take into account the will of the voters. In this sense, the president has a wide array of options available to promote access to truth through the executive branch. What he cannot do is bring criminal charges against people, since this is the role of the National Prosecutor’s Office (Fiscalía General de la República, FGR); the executive branch could, however, seek to submit relevant information to the FGR.
Up until now, how has the FGR acted in cases of former presidents and other high-level former officials?
Over the past two and half years, during which the federal government has underscored that one of its main objectives is to combat corruption, the FGR, led by Alejandro Gertz Manero, has brought charges against several members of former President Enrique Peña Nieto’s cabinet. These include:
Pursuing justice for corruption at the highest levels is, without a doubt, an area that has needed much greater attention for many years. At the same time, the FGR has been criticized not only for the incomplete results so far in its high-profile cases, but also for acting selectively and without independence from the executive branch. During López Obrador’s administration, the FGR has repeatedly behaved in ways that coincide with the president’s positions.
The FGR has not brought any former presidents to trial, although, according to available information, several of them are referenced in ongoing investigations, as is the case in the aforementioned Odebrecht scandal.
With respect to human rights, the Inter-American Court of Human Rights determined in 2018 that Mexico should investigate the role of Peña Nieto in the Atenco case, which centers on a two-day-long 2006 police operation in the State of Mexico (where Peña Nieto was governor) in which police carried out arbitrary mass arrests and torture, including sexual torture of women. As a result of the international ruling, the FGR reopened an investigation into the events, but it has not made significant progress and has faced obstruction. As another example, there have been repeated calls to investigate former President Felipe Calderón for his role in serious crimes committed in the context of Mexico’s war on crime. These examples do not constitute an exhaustive list of cases in which the former presidents may be implicated.
What is the current context of access to justice in Mexico?
Although accountability for former presidents and other political actors is of transcendental importance, reducing impunity in several areas cited in López Obrador’s referendum request—such as violence and human rights violations—requires changes beyond shedding light on political decisions of the past or prosecuting former presidents. The need for these broader changes cannot be overstated in a country whose homicide count remains at record levels and where the government recognizes the existence of almost 90,000 disappeared and missing people.
At the national level, most crimes committed against the population go unreported for reasons including fear, the belief that filing a complaint is a waste of time, and mistrust in the authorities. Crimes reported to authorities lead to investigations in approximately 7 out of 10 cases, but most investigations do not lead to prosecutions. Only an estimated 1.4% of total crimes against the population result in a suspect being brought before a judge, reparations measures, or a similar concrete result. With this in mind, there is an urgent need to reinforce witness security, dignified treatment of victims, and other investigative actions so that victims can report crimes and have reasonable expectations of a meaningful investigation.
Regarding corruption, in addition to moving this agenda ahead at the federal level, it is essential to address challenges at the state level to strengthen the investigation and punishment of corruption crimes. With regard to human rights, the overwhelming majority of torture and disappearance cases go unpunished. At the federal level, 2021 has seen action on some high-profile cases, notably the trials initiated against a group of marines for forced disappearance and against ex-Federal Police commander Luis Cárdenas Palomino for torture. It will be important to monitor these cases, including the extent to which they reveal more information on command structures involved in serious human rights abuses, a weak point in the investigation of other human rights cases.
One of the Mexican justice system’s crucial obligations is to ensure accountability for those who, as presidents or as other high-level officials, have committed serious human rights violations, corruption, or other crimes. It is essential that victims of such crimes receive justice regardless of public referendums, recalling that the Supreme Court itself has confirmed that human rights cannot be left up to a popular vote.
No matter the outcome of the upcoming referendum, to reduce impunity and strengthen the rule of law, Mexican authorities must prioritize improving the investigation and prevention of organized crime, gender violence, human rights violations, common crime, and the other forms of violence that Mexico’s population suffers on a daily basis.