The United Nations (UN) has delivered a draft Memorandum of Understanding between the Republic of Honduras and the UN Secretariat to the Xiomara Castro government. Three anti-corruption experts shared their experiences in a Twitter Space organized by Contracorriente in order to analyse what is needed for a successful anti-corruption commission in Honduras.
Text: Persy Cabrera
Photography: Jorge Cabrera
Translation by Leslie Dolman
The experience of another country, in this case Guatemala, which has already had a UN-backed International Commission Against Impunity (Comisión Internacional Contra la Impunidad en Guatemala – CICIG), may be the best starting point to understand the obstacles and issues to preparing the way for a similar commission in Honduras (Comisión Internacional Contra la Corrupción e Impunidad en Honduras – CICIH). Moreover, this experience may even provide some insights into how to ensure that the outcomes desired by the Honduran people do not backslide when the commission is dismantled.
Juan Francisco Sandoval, former head of Guatemala’s Special Prosecutor’s Office Against Impunity (Fiscalía Especial Contra la Impunidad – FECI) — recently exiled from his country after being removed from his post — played a key role in the fight against corruption alongside the CICIG. His work resulted in charges against more than 250 people in his country. The experience in Guatemala could help Honduras determine what is needed to establish a functioning CICIH, should it ever be implemented.
Sandoval stressed the importance of political will to ensuring that the CICIH is successful and avoids “going backwards” in terms of corruption. “Why was it not possible to completely dismantle the structures and conditions that promote impunity and that now place the justice system in Guatemala in a regressive situation? It was the lack of political will,” said Sandoval. He added that no international mission on its own can alter the situation in Honduras if it is not accompanied by the political will of the state.
Honduras has already had experience with an internationally-sponsored anti-corruption mechanism through the Organization of American States (OAS). The experience was positive in that it exposed corruption networks such as the Network of Deputies (Red de Diputados). However, the mission lacked political and legal independence, its activities were hindered, and some key figures managed to shield themselves.
Furthermore, there are substantial differences between the levels of independence of the two mechanisms. In Guatemala, the CICIG was empowered to act as a joint prosecutor in the proceedings it initiated with the Special Prosecutor’s Office. In Honduras, the OAS mission could only provide technical support to the Public Prosecutor’s Office and had no power to act in the proceedings.
The National Congress advised the executive branch not to renew the agreement that made he work of the OAS-backed anti-corruption mission (Misión de Apoyo contra la Corrupción y la Impunidad en Honduras – MACCIH) possible. As partial justification for this, they accused the MACCIH of “multiple violations of constitutional rights, guarantees and principles.”
Peruvian lawyer, Ana María Calderón, former head of MACCIH, recalled that in the first case investigated by the mission, the Network of Deputies, there was almost immediate opposition. The deputies created laws to shelve the investigations.
“This first case revealed not only the existence of corruption networks at the highest level that diverted state funds, but also that the elites could unite to generate impunity laws,” Calderón explained.
The head of the Honduran Anti-Corruption Prosecution Unit (Unidad Fiscal contra la Corrupción – UFERCO), Luis Javier Santos, cited regressive tendencies after the OAS-sponsored MICCIH was not renewed, despite having led to the litigation of 14 cases that resulted in the prosecution of 113 individuals.
“Even though it may seem paradoxical, as far as our laws in Honduras go, we were better off before MACCHI arrived,” said Santos. He also pointed out that it was only after the involvement of the mission in the anti-corruption fight that the implicated people, in response, started to reform the law.
Santos, who also served as head of the now defunct Special Prosecutor’s Office Against Impunity for Corruption (Unidad Fiscal Especial Contra la Impunidad de la Corrupción-UFECIC), expressed concern that the UN’s draft Memorandum of Understanding did not identify staffing for the commission. Referring to the Anti-Corruption Prosecution Unit, he said, “I understand, of course, that UFERCO may be chosen as well as others. This may also be subject to negotiation. Why was it not addressed at the end of the memorandum?”
Santos also referred to the Law for the Reconstruction of the Constitutional Rule of Law and to Ensure that Crimes are not Repeated. It provides for the installation of CICIH and the amnesty law approved in the National Congress to eliminate criminal proceedings against political prisoners, environmental defenders, and prior officials of former president Manuel Zelaya (2006-2009). “Any damage that amnesty might have caused has already happened; even if it is repealed, the people who have benefited will not have their cases reversed since it is not retroactive,” he said.
He added that this had led some legal experts to suggest an appeal on the grounds of unconstitutionality that “would return the cases to the approval date.”
Sandoval also expressed concerns about a phased approach being used to deploy the CICIH in Honduras, “I am not sure that a second phase will be established because that assessment will depend on what they find in those first six months.” He added that the environment might be unfavourable for this commission due to regressive tendencies in anti-corruption policies following the non-renewal of the MACCIH.
The political will needed to promote a productive path for the CICIH could start with repealing laws that create impunity, Sandoval argued. As an example, he highlighted Decree 57-2020, which interprets three articles of the penal code related to provisions for confiscation and seizure of documents or objects associated with the investigation of a crime. According to experts — including Sandoval — this decree limits and hinders the seizure of documents in anti-corruption investigations.
“Imagine that in order to seize information, they first have to go and politely ask a state institution or whoever is being investigated if they will willingly hand over the information, ” added Sandoval.
Sandoval also considered that the special status given by the National Congress to UFERCO has a “declarative effect and a political intention” because it is subject to the mandate of the current attorney general, Óscar Chinchilla. He added that “if the intention is to strengthen this office, it should be allowed to work independently, without having to resort to ambiguous documents and phrasing, and be provided with all the human and material resources necessary to carry out the work effectively.”
Prosecutor Luis Javier Santos added that the alleged special status granted to UFERCO “sends the wrong message. The people are being led to believe that UFERCO already has ‘super powers’ and this is not the case.”
Francisco Sandoval’s recommendations to the Honduran authorities can be summarized as political will, repeal of laws that create impunity and an authentic strengthening of UFERCO. He added that those working behind the scenes in Honduran politics must be scrutinized because they are the powers responsible for the resurgence of corruption networks, and consequently, the exile of more than 20 Guatemalan legal system workers, including Sandoval.
On his involvement with CICIG in the anti-corruption fight, Sandoval recalled that, in 2015, a majority supported the battle because it was aimed at the politicians in office. The former prosecutor recommends that Honduras identify “the people behind the public faces, and keep in mind that hidden actors sustain regimes.”
At the end of his participation in the Twitter Space organized by Contracorriente, Sandoval invited Hondurans to become familiar with the history of a country to which he still cannot return: Guatemala. He said that if the CICIH comes to Honduras, they should seize the opportunity and create shielding mechanisms so that the justice system can “withstand all the attacks that it will surely suffer from these hidden actors.”
“I think what these forces– I’m talking about the private sector that exploits the corrupt system – realized at some point in Guatemala is that by ignoring the judicial system, they got the kind of justice they desired. Honduras should take advantage of that experience and verify what went wrong with the CICIG in Guatemala. The high point of the commission also signalled the beginning of the decline, but why was that so? Because they applied pressure to those interests,” said Sandoval.
Furthermore, the former prosecutor of the Public Ministry of Guatemala warned against speeches that appeal to a “false nationalism.” He stressed the importance of civil society in anti-corruption work because, in addition to having an activist role, it has, in his opinion, a pedagogical function in terms of the legal culture.
“You’re going to hear the same old discourse about how ‘We can do this on our own, the sovereignty of the country is being threatened,’ when in reality what is being protected is sovereign impunity. Sovereignty resides in the people,” he concluded.