Honduran Congress Deepens Authoritarianism By Legalizing Political Corruption

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Above Photo: Demonstrators protest up against a line of military police during Juan Orlando Hernández’s inauguration for a second term in office. Tegucigalpa, Honduras, January 27, 2018. Photo by Heather Gies

As Honduran President Juan Orlando Hernández was sworn in for a second term Saturday amid ongoing protests and cries of election fraud, the scandal-rocked president promised to tackle corruption. But thousands of anti-government demonstrators facing off blocks away against local police, the armed forces, and military police under plumes of teargas saw the vow as disingenuous.

For protesters, Hernández has kept a stranglehold on power through electoral fraud and military might, consolidating what they slam as a “narco-dictatorship” that pads its own pockets while condemning the majority to misery in the most unequal country in Latin America.

Marred by widespread allegations of fraud, the November 26th elections plunged Honduras into its worst political crisis since the 2009 US-backed military coup. Weeks of protests, the country’s largest since thousands-strong anti-corruption marches in 2015, were met with brutal military repression. Over 34 people have been killed, mostly at the hands of the military police and other state forces, which have so far not been held accountable. Meanwhile, social movements have denounced a growing state-led intimidation campaign targeting anti-fraud activists with threats, harassment, and detentions.

As the crisis becomes marked by deepening authoritarianism, on January 18th Honduran lawmakers passed a new Budget Law to protect corrupt politicians from legal proceedings.

The law blocks the public prosecutor’s office from investigating cases regarding the management of public funds, and protects politicians from prosecution for corruption dating back more than a decade.

The incendiary legislation has been seen as a direct attack on the anti-fraud movement’s efforts to challenge impunity among Honduran politicians.

The new Budget Law follows years of increasingly concentrated state power and systemic impunity. Bulldozing the rule of law, a 2009 coup against President Manuel Zelaya swept in an era of generalized lawlessness. Many Hondurans have little trust in traditional political parties. They also understand vote buying and corruption to be commonplace in Congress – practices that not only benefit members of Congress personally, but also drive the approval of policies and resource concessions that serve the economic elite and sell Honduran resources off to the highest bidder.

Over 60 current and former lawmakers and public servants are under investigation for corruption in probes that only got underway when an internationally-backed anti-impunity mission arrived on the scene.

The independence of the courts also is highly questioned. According to a 2015 report from the Inter-American Commission for Human Rights, civil society organizations in Honduras estimate impunity rates for violence and human rights abuses range between 95 and 98 percent. The crisis is epitomized by the failure to bring to justice the masterminds behind the murder of internationally-renowned indigenous resistance leader Berta Caceres.

Legalizing Corruption

The new Budget Law was published in the official government journal, La Gaceta, on January 19th, a day after it was approved in Congress. But a video released on January 26th reveals that the clause of the reform that shields lawmakers from being held accountable for pocketing public funds was not included in the version voted on in Congress.

The congressional steering committee, controlled by the right-wing National Party, added it after the fact. In the video, National Party lawmaker and head of the congressional budget commission, Francisco Rivera, motions to National Party secretary Ramon Villeda to hurry up reading out the bill, which never gets to the final and key clause.

“This gives a clear message that corrupt politicians governing us are afraid of being prosecuted for their looting of public institutions,” Mario Suazo, a Congress member with the left-wing Libre party, said of the law. “They continue violating the Constitution. Not even the political crisis stops them.”

Suazo claimed it was not the first time the text of a bill has been changed after being approved by Congress.

The Organization of American States’ Mission to Support the Fight Against Corruption and Impunity in Honduras (MACCIH) characterized the irregular approval as “very grave” and demanded an investigation. Earlier, the MACCIH slammed the reform as an “impunity pact” that lets at least 60 politicians and officials under investigation off the hook, including the head of Congress, and cripples the possibility for future probes. Despite its weaknesses and limitations, the MACCIH’s creation underlined the inability of Honduran institutions to address systemic corruption.

This recent move to tie the MACCIH’s hands must be understood as an attempt to eclipse the last bright spot in the fight for accountability and further undermine democracy in a country already void of avenues for recourse.

Social organizations swiftly echoed the criticism, arguing the law further consolidates unaccountable control over the country’s institutions.

“We know the levels of corruption … but this has reached the limit of audacity,” said Gabriela Blen, a leader of the 2015 anti-corruption movement known as the Indignados that prompted the creation of the OAS mission. “They’re passing the limit of what corruption is capable of – they are legalizing it.”

Congress secretary, Tomas Zambrano of the National Party, passed off the discrepancy between the version of the law put to a vote and the version published in La Gaceta as human error and said it will be rectified. But MACCIH chief Juan Jiménez did not mince words in response. “This is not an error, it’s a crime,” the Peruvian lawyer and politician said.

Hernández sent a letter to OAS Secretary General Luis Almagro on January 28th calling to reopen dialogue between Honduras and the OAS on “issues of mutual interest,” suggesting the president could be eying renegotiations around the MACCIH’s role. Almagro responded highlighting the importance of strengthening the MACCIH and its ability to investigate corruption, then named former Guatemalan President Alvaro Colom to mediate talks.

The clause in the new Budget Law that has sparked outrage states that pending an audit of lawmakers and officials’ use of public funds, there can be “no legal action to claim any kind of administrative, civil or criminal responsibility.” The law applies retroactively back to 2006, covering the administrations of post-coup National Party Presidents Juan Orlando Hernandez and Porfirio Lobo, Roberto Micheletti’s coup regime, and the government of ousted President Manuel Zelaya. Zelaya was then of the Liberal Party and is now a leader of the left-wing Libre Party and Opposition Alliance Against the Dictatorship.

The law robs the public prosecutor’s office of its constitutional mandate to investigate, handing responsibility to audit over to the comptroller, known as the Tribunal Superior de Cuentas (TSC).

The TSC is widely considered a toothless and ridiculed institution. Economist Rodulio Perdomo of the Social Forum for External Debt of Honduras (FOSDEH) characterized it as “highly fragile.” On a scale of one to 10, he rated its institutional aptitude as a two. He also said the TSC has a reputation of issuing accountability reports that follow the whims of political power to protect politicians’ reputations.

“The TSC is one of the most discredited institutions in the country,” he explained.

The TSC is slated to audit lawmakers and public servants’ management of public funds, including high-profile corruption cases the MACCIH had spearheaded. A Honduran judge already cited the new Budget Law reform as a reason to shelve a case the MACCIH pushed forward investigating five former lawmakers accused of participating in a fraud network to siphon off more than $55 million in public funds through non-profit organizations. The new Budget Law is also set to put a stop to investigations into former First Lady Rosa Elena Bonilla, wife of Porfirio Lobo, for alleged embezzlement of some $510,000.

Congress member Suazo said the accusations leveled against the five lawmakers are just the tip of the iceberg in a larger problem of suspected vote buying in Congress and the use of shell NGOs to illicitly transfer money into lawmakers’ pockets. The TSC is unlikely to proceed vigorously in the investigations, and the new Budget Law will block anyone looking into these cases.

MACCIH: A “Perverse Calculation” and an Ultimatum

Lawyer Wilfredo Méndez argued that in addition to unmasking lawmakers’ quest to enshrine impunity, the new law represents a “total lack of respect” toward the MACCIH and its work.

If not overturned, the reform could also spell the end for the MACCIH with little to show for itself two years after being installed.

The MACCIH was launched in 2016 after months of anti-corruption protests. The protests were sparked by a massive embezzlement scandal in the country’s cash-strapped public health system that came to light in 2015. The $300 million corruption scheme implicated the National Party in funneling at least $90 million from the social security institute into President Juan Orlando Hernández’ 2013 presidential campaign.

An estimated 3,000 patients died as a result of the supplies shortages and other problems induced by the scandal.

Hernández’ administration was also shook by accusations of being a “narco-dictatorship,” highlighting alleged drug trafficking links among high-level government officials, including the minister of security and chief of police. As a prosecutor in a New York drug trafficking hearing said last year, evidence has pointed to nothing other than “state-sponsored drug trafficking” in Honduras.

A popular slogan repeated at recent protests connects the dots between impunity for the government’s corruption scandals and the allegedly fraudulent election. “They stole from the social security institute and now they want to steal the elections,” many protesters have said. Both corrupt incidents join up with the new budget law to form a continuing line toward deepening authoritarianism.

“This has become an ultimatum for the MACCIH,” said Méndez, director of the Center for the Investigation and Promotion of Human Rights (CIPRODEH). “The MACCIH’s days are numbered because political groups are not going to backtrack.”

But Méndez also accused the MACCIH of carrying out a “perverse calculation” to not disclose the names of politicians under investigation for corruption before the election. In its latest statement, the MACCIH said over 60 current and former lawmakers and officials are implicated in its probe. Among them is the National Party’s Mauricio Oliva, who was re-elected last week as president of Congress.

“The MACCIH had the obligation to make these denunciations before the elections,” Méndez argued, adding the failure to do so now has led to “irreversible damage” for the anti-corruption organization and for the country’s battered democracy.

Blen, who ran for Congress in the recent election with the Opposition Alliance Against the Dictatorship, argued it was not lack of political will that stopped the MACCIH from releasing the information earlier, but institutional limitations.

“The MACCIH has had a lot of obstacles, beginning with the weakness of its mandate. Its mandate is ambiguous,” she said, adding that there also are suspicions of internal OAS attempts to sabotage the mission.

The social movement alliance the Coalition Against Impunity has called on MACCIH to release the full list of lawmakers under the investigation. The group highlighted the unequal treatment of politicians under investigation for major crimes and individuals participating in anti-government protests in recent weeks. Hundreds of anti-government protesters have been detained. And dozens of social leaders have been publicly named and criminalized, in some cases with their faces circulated on social media.

Meanwhile, the coalition argues that the public has the right to know the names of the political elite facing investigations for ransacking the country’s public coffers.

The video revealing the irregularity of the vote could be MACCIH’s lifeline, allowing for a case to be made on grounds of unconstitutionality.

Méndez argued that if the law is not overturned, it makes little sense for the MACCIH to continue.

“Not even the secretary general of the Organization of American States has the moral high ground to be able to have the necessary strength in the country to make his voice heard,” he said, recalling that OAS chief Luís Almagro dismissed his earlier calls for fresh elections in Honduras in light of irregularities by vowing last week to work with the new government. “Political groups in Honduras now have lost respect for the MACCIH and for the secretary general of the Organization of American States himself.”

“If the MACCIH isn’t doing anything in the country, the best thing would be for it to withdraw,” he concluded.

Almagro expressed total support for the MACCIH and its leader, Juan Jiménez. US charge d’affaires in Tegucigalpa, Heide Fulton, called the new law “a monumental step backward in the fight against corruption,” while the Canadian Embassy expressed support for the MACCIH and said efforts against it were “very worrying.” For many Hondurans, both were welcome condemnations after the US and Canada officially acknowledged the contested election results. The Honduran Council of Private Enterprise (COHEP), the country’s largest business and trade organization, urged Congress to repeal the reforms.

Congress, meanwhile, overseen by a National Party-controlled steering committee, released a statement rejecting the MACCIH’s criticism, claiming that “far from creating impunity,” the new law “promotes transparency.”

Protecting the Authoritarian Status Quo

The economist Perdomo of the Social Forum for External Debt of Honduras said both the alleged election fraud and the new law protecting corruption are anti-democratic moves stemming from the same root: an effort to secure four more years of the status quo under Hernández.

He argued that the law deepens an existing lack of transparency and springs Honduras into peak secrecy when it comes to the management of public funds. Honduran society already lost trust in politicians and institutions, he said, due to their maneuvers to cover up how resources are used. As an example, he cited the controversial secrecy law.

The secrecy law, passed in 2014 in Hernández’ last days as head of Congress before being sworn in for his first term as president, stripped the Institute for Access to Public Information of the power to release information in the public interest. The powers were instead distributed to state agencies. Reporters Without Borders slammed the law as an attack on freedom of information that “turns state-held information into a private reserve.”

Independence of the courts and prosecutors’ offices has also been questioned. In 2012, as head of Congress, Hernández led a “technical coup” against the constitutional branch of the Supreme Court, stacking it with judges friendly to the National Party. The same court issued the controversial ruling in 2015 that paved the way for Hernández’ bid for a second term in office despite a constitutional ban on presidential re-election.

For Blen of the Indignados anti-corruption movement, the latest blow to the fight against corruption underlines the need for deeper reform. She pointed to Guatemala as a model to follow. In that country, the International Commission Against Impunity in Guatemala (CICIG) counted on the Guatemalan attorney general as ally. If such a collaboration took place in Honduras, the MACCIH would be more empowered to carry out investigations. But with the lack of “institutional and democratic guarantees” in Honduras, she said, the task will continue to fall to social movements to pressure for accountability.

The Honduran anti-corruption movement, known as the Indignados, that led to MACCIH’s creation had demanded a UN-backed anti-corruption body modelled on Guatemala’s CICIG. Major graft probes spearheaded by CICIG and the attorney general have touched the top levels of Guatemalan government, including former President Otto Pérez Molina, who stepped down under social movement pressure in 2015.

Hondurans’ calls for CICIH were instead answered with the MACCIH. Critics said the MACCIH lacked the autonomy and investigative strength to root out corruption effectively. Now, even this watered-down anti-corruption mission’s future in the country could be under threat.

But Congress member Suazo was optimistic that movements and leftist political leaders will be able to unmask the authoritarian government as part of the broader struggle to restore democracy in Honduras. .

“This all strengthens civil society,” Suazo said. “The population is still organized, it’s waiting anxiously, and we will continue to protest until the dictatorship falls.”