Guatemalan Democracy: Hanging on By its Fingernails

In a country where an average of 17 murders are committed each day and 98 percent of criminal cases remain unsolved, the May 10, 2009 assassination of prominent Guatemalan lawyer, Rodrigo Rosenberg, could easily have been dismissed along with thousands of other ill-handled and heavily manipulated political murder investigations. Instead, the dramatic elements of a video recording shown at the attorney’s funeral, in which Rosenberg forewarns the viewers of his own death as a result of the alleged plotting of President Álvaro Colom, his wife Sandra Torres, and Colom’s chief of staff Gustavo Alejos, has brought Rosenberg’s murder to the height of national attention.

Revelations of the 2007 Presidential Election: Social Divisions and the Disloyal Opposition
In light of the recent sharp protests that erupted in the aftermath of the video’s release, the political divides of Guatemala’s economically and culturally conflicted society are even more obvious now than before the garish Rosenberg murder. The government bussed thousands of Colom’s supporters from the country’s rural area to the capital to counter the protests of equally large numbers of urban middle and upper class residents using the event as a wedge to call for Colom’s immediate resignation. While the prevalence of violence and corruption is a common matter of concern among Guatemala’s citizens, effective solutions to these problems are a point of persistent division and predictable ineffectuality. The counter protests in the days following Rosenberg’s funeral mainly stem from denouncements by the political factions, which had become even more manifest during Guatemala’s 2007 presidential election.

Guatemala’s ballot of that year was less a matter of determining the best candidate than the lesser of two evils. Otto Pérez Molina, the founder and candidate of the right wing Partido Patriota (PP), is a graduate of the School of the Americas. From 1992 to 1993 he murderously commanded Guatemala’s infamous army intelligence unit known as G-2, and also served as the head of the Presidential General Staff (EMP) of President Ramiro de León in 1994. Human rights groups have repeatedly implicated the G-2 and the EMP in political assassinations and massacres led by death-squads throughout Guatemala’s 36-year civil war that cost the country some 200,000 victims, particularly during the years of Pérez’s command. Colom, the center-left candidate of Unidad Nacional de la Esperanza (UNE), was investigated in 2004 for illegal transfers of government funds into accounts belonging to his political party. He eventually “found a check” and returned the $65,000, while managing to maintain his freedom at the same time that the authorities had imprisoned Controller General Oscar Dubón Palma. Since this incident, Colom has continued to face allegations of corruption as well as charges of using political influence to evade justice.

The campaigns of both candidates addressed the issues of violence, crime, and corruption that have plagued Guatemala since the signing of the 1996 Peace Accords. These agreements were supposed to end the longest civil war in Latin American history, but instead left the country with a fragile system of quasi-democracy, if that. Colom’s campaign, symbolized by a dove, promised increased spending on social programs, improvements in the country’s violence-prone security forces, and a review of the status of Guatemala’s notorious judiciary. Pérez’s campaign, under the slogan “mano dura, cabeza y corazón,” (tough hand, head, and heart) predictably called for increasing the involvement of the military in domestic politics, reinstating the death penalty, and using the tough “mano dura” policy of the civil war era to solve Guatemala’s manifold security problems.

During his campaign, Pérez established a sizeable base in Guatemala City, where rates of drug violence are so elevated that citizens prefer the risks of a “mano dura” approach to any alleged benefits introduced by the Colom administration. In contrast, most of Colom’s support during the election campaign came from poor, rural and indigenous voters and his plans to enact a tax increase pushed the country’s wealthy and business elite—who adamantly do not want to “hand their money over to a corrupt state”—even closer to the opposition. While the support of the rural poor was necessary for Colom’s victory, elements coming from low social and economic status that have been continuously marginalized, have had little influence beyond, episodically, the ballot box in a government that is easily and frequently bought over by the highest bidder. Rifts between the elite and the marginalized have provided a fertile habitat for the Rosenberg assassination and a long line of political killings to destabilize many of the country’s all-but failed political institutions.

Electoral Divides
The pervasive divisions in Guatemala’s civil society make underhanded maneuvering by the opposition an inevitable fact of life. Colom defeated Pérez by a 5.5 percent margin in the second round run-off election, in which only 48.2 percent of the voters participated in comparison to 60.5 percent in the first round. Analysts have suggested that apart from being a case of voter fatigue, the low turnout was a result of the negative and often violent campaign tactics that have characterized this election cycle. More than 50 political activists and candidates from all parties were killed during the campaign, in which some voters claimed that the violence surrounding the election was sufficient to either scare them from casting their votes or to encourage them to withhold their votes in protest. If the violence emanating from both sides during the election was enough to deter such voters from participating, then perhaps it is sufficient evidence of the dangerously antagonistic atmosphere in which the administration and the opposition have existed. This might be enough to render a destabilization plot crafted by the opposition sufficiently plausible to begin explaining the Rosenberg assassination.

Of further significance are the backgrounds of radio and T.V. journalist Mario David García and former Guatemalan liaison to El Salvador’s rightwing extremist ARENA party, Luis Mendizábal. As the presidential candidate for the ultra-right Nationalist Authentic Central party (CAN), García lost the 1985 election to Vinicio Cerezo, Guatemala’s first civilian president since 1970. Cerezo proposed tax and minimum wage increases, much like Colom has done. García’s controversial television program “Here is the World,” was shut down after he was charged with being involved in an attempted coup on May 11, 1988. Twenty-one years later, Luis Mendizábal and Mario David García, reportedly close friends of Rosenberg, distributed video copies of Rosenberg’s accusations, which they had helped him record a week before his death.

In addition to its response to the Rosenberg case, the Colom administration has labeled this year’s surge in the murders of bus drivers as related to the destabilization plot spearheaded by the opposition. At first, such claims might seem far fetched and intended to perpetuate the twisted moves of Guatemala’s corrupt politicians and their rightist supporters, but with suspicious figures like García, Mendizábal, Pérez, and even Colom purportedly involved in the affair, Guatemala’s history of corruption and violence is too appalling for anything, no matter how garish, to be simply dismissed.

What have you done for me lately?
Apart from viciously exacerbating divisions that already were being emphasized in the 2007 election, the Rosenberg case reiterates a raft of challenges being faced by the Colom administration and provides an opportunity to examine the successes and failures of his administration since its January 2007 inauguration.

Despite the potential pressure on the Colom administration to flirt with the idea of joining Pérez’s iron-fisted campaign, many observers expected that as the country’s first genuinely left-leaning president since the 1954 CIA-backed coup of Jacobo Arbenz, Colom might want to take advantage of the public support associated with his 2007 campaign. In his 2007 essay, “Incoming Government: ‘Trojan Horse’ or ‘The Old Man and the Sea?’,” political analyst Matthew Creelman suggests that the Guatemalan political process, in focusing mainly on market control and prevention of political crises within areas directly under government influence, has led only to a superficial tranquility in previous administrations. The new administration, he maintained, should use the initial momentum afforded by the election to “gain entry to the sanctums of illicit power and attack its own corrupt supporters.” Creelman points out one of Colom’s most daunting challenges: although the president needed the support of corrupt individuals to be elected, he must work against these same officials to pursue constructive change once in office. If Colom were to act quickly, Creelman suggested, he could convince the population of his seriousness and honesty by 1) targeting and then removing corrupt permanent members of the bureaucracy and 2) establishing a “legal channel” in which uncorrupted judicial workers could prosecute a number of selected high-profile cases. The goal would be to flush out impurities from the system. Such a channel would be used to establish a government-led anti-corruption campaign as a social movement, strengthening the relationship between the government and its citizens and encouraging “corruption-compliant” media to follow suit.

In December 2008, Colom took important steps in line with recommendations like Creelman’s. As an effort towards eliminating political corruption and professionalizing Guatemala’s security policy, Colom replaced his Defense Minister, Interior Minister, Deputy Defense Minister, Deputy Chief of National Defense, and Inspector General of the Armed Forces. In March 2009, he established a presidential anti-impunity committee, created a panel to review and declassify military archives from the country’s bloody civil war, and strengthened the country’s police force with a U.S.-trained anti-drug body. Perhaps the most promising indicator of Guatemala’s new path under Colom was his pledge to renew the mandate of the UN-backed International Commission Against Impunity in Guatemala (CICIG), which is due to expire in September 2009 upon the completion of a two-year period of service.

CICIG: Inherent Insufficiencies of Form and Function
The December 2006 agreement between the UN and the government of Guatemala on the establishment of CICIG lists ten factors that prompted the creation of the commission, including the government’s duty to protect its citizens and pursue its commitment to respecting human rights as required by the UN Charter. The most significant obligations involve the Comprehensive Agreement on Human Rights of March 22, 1994 and the Framework Law of the 1996 Peace Accords, which legally binds the state “to combat illegal security groups and clandestine security organizations.” The agreement also considers a March 13, 2003 political compact between the Minister of Foreign Affairs of Guatemala and the Human Rights Ombudsman to create a Commission to Investigate Illegal Groups and Clandestine Security Organizations operating in the country.

CICIG did not begin work until September 2007 due to a slow-moving and fractious Guatemalan Congress. The UN hoped CICIG would enjoy complete functional independence in discharging its mandate, but the Guatemalan Congress rejected the initial agreement involving the UN initiative on the grounds that it threatened Guatemala’s sovereignty and security. Ultimately, the UN decided in what was considered an “unprecedented approach,” that the commission would function as a complement to the State of Guatemala rather than as an independent tribunal, meaning CICIG investigates cases and promotes prosecution but cannot prosecute or make decisions. Either ideally or practically, through this “assistance function,” CICIG strengthens the state institutions that are intended to fulfill judicial obligations.

The successes of CICIG have been slow in coming and lie predominantly in the commission’s policy recommendations concerning criminal procedure. At the end of March 2009, after an eight-year holdup had taken place due to the influence of security companies in the legislature, the Guatemalan Congress approved a reformed arms law proposed by CICIG. As of September 2009, the commission had submitted to Colom reforms for the Immunity Merit Procedures Act, the Code of Criminal Procedure, and the Organized Crime Act to become draft laws for Congress to act upon. Seven months later, Colom signed a national “security and justice” accord that incorporated a number of recommended reforms that came from the top.

Issued in September 2008, the UN’s first annual report on CICIG suggested that the adoption of these reforms would demonstrate the extent to which the commission could fulfill its mandate, but more importantly, “the extent to which justice [could] be expedited and impunity ended in Guatemala.” Yet, like the challenge of Congressional efficiency that CICIG faced in the battle for its initial establishment, the limited implementation of CICIG’s recommended reforms has revealed an inherent weakness of the commission in that “CICIG is forced to cooperate with the institutions it is tasked with investigating.”

CICIG’s failures stem from its mandate requiring cooperation between it and Guatemala’s judicial institutions. In March 2008, the commission became involved in a drug-trafficking case involving eleven fatalities in Zacapa, a city near the Honduran border. With the hope of achieving a high profile success for its criminal justice procedures, CICIG demanded that the case be tried in a court in the capital city. As of February 2009, the case had been transferred back to Zacapa more than four times. The Guatemala City daily El Periódico reported that the Acting Director of the Supreme Court of Justice, Eliu Higueros, admitted the reluctance of Guatemala City’s judges to take on the case.

Nearly a year after the Zacapa massacre, the commission faced what Director of CICIG Carlos Castresana called a “mockery” of justice in the case of former Attorney General Álvaro Matus. Matus led the investigation into the murder of Victor Rivera, an advisor to the Minister of the Interior, who was fired just two days before he was killed. At the time of his termination, Rivera was investigating the deaths of three Salvadoran legislators who were killed while on a visit to Guatemala. On February 3, 2009, Matus handed himself into authorities after CICIG reported to the press that the case “involved ‘an act of organized crime which has been concealed within the public prosecutor’s office.’” The layers of political corruption beginning with the murder of the Salvadoran legislators to the murder of Rivera to Matus’ alleged cover-up scheme should have resulted in a guilty verdict and a high-profile victory for CICIG and Guatemala’s criminal justice system. Yet, Matus was released from his cell the very day that he had turned himself in after the Public Ministry dropped the charges of conspiracy and perversion of the course of justice that CICIG originally had lodged against him.

The Zacapa trial and the release of Alvaro Matus both attest to the impediment that a lack of institutional cooperation (reinforced by Guatemala’s reluctant judges and corrupt members of the Public Ministry) poses a road to effective action that had been encouraged by CICIG. However, because CICIG can only encourage, not demand reform, the commission faces internal limitations in addition to external questions of cooperation.

CICIG’s intentions and the parameters of its mandate are in the right place. As of September 2008, the commission had 109 staff members representing 24 countries, including Guatemala, and a $13.8 million budget from the contributions of thirteen donors. Yet, 41 of the 109 CICIG staff members were security officers and the commission had used 44% of its budget by September 2008 in order to establish its “operating structure.” Perhaps most telling is that the rate of homicides per month actually increased from 448.15 during Oscar Berger’s administration, to 528.07 under the Colom administration. CICIG predicts 6,811 homicides will be racked up in 2009.

Some Small Mistakes with Big Consequences

Most of Colom’s steps toward fulfilling his campaign promises—even those in conjunction with the CICIG—seem to have yielded only superficial, legislative results rather than authentic progress. Considering the lofty hopes that international observers initially had for Colom’s administration, the recent accusations against the President and his allies are bitterly disappointing to say the least, and a gruesome reminder of the low expectations that Guatemalan citizens perhaps rightfully have had for their government. Nevertheless, international support from the OAS, the System for Central American Integration (SICA), and the U.S. has buttressed the country’s efforts to achieve the resolution of violence in the country. The fate of Guatemala’s democratic institutions should have been a matter of concern around the world and firm support is vital to preventing a domino effect that could result in a deteriorating security situation in Guatemala’s neighboring countries, Honduras, Belize, and El Salvador. However, the international implications of what transpires in Guatemala will have a reach far beyond the scope of financial contributions to CICIG and the maintenance of stability in Guatemala. Some analysts have suggested that the verbalized support for Colom from Secretary General José Miguel Insulza of the OAS may do nothing more than deny that democracy is at risk, by falsely pacifying the country and restoring a status quo that had long since failed. It is this status quo that permits instances of political corruption to fall through the cracks of Guatemala’s judicial system signifying the need for more action than CICIG is demonstrably capable of producing.

Two days after the release of Rosenberg’s graveside video, Colom called for the investigation to be led by CICIG and the FBI. Corruption in the Policía Nacional Civil (PNC) is so extensive that the ratio of hired private security officers to PNC officers is 20:1 and the government invests only three percent of its delegated funds in criminal investigations. Thus, a sufficiently-funded, unbiased vehicle would seem preeminently fitting. However, no matter how unbiased, adequately staffed, or well funded it may be, it is unlikely that any investigation by the government will proceed satisfactorily in the eyes of suspects, victims, and observers. For example, as of six weeks after Rosenberg’s death, U.S. Ambassador Stephen McFarland has sent only one FBI officer to assist in the investigation. Furthermore, within 18 days of the release of the video, none of the senior officials accused by Rosenberg had been summoned for an interview. Such inefficiency is inexcusable though perhaps unavoidable due to the corruption permeating the country’s most important institutions. If the Rosenberg investigation is to yield any payoffs when it comes to criminal investigations and effective judicial procedures, then the players involved must adhere to a few minimal requirements. If the FBI is to stay involved, McFarland will need to send more than one agent to assist in the investigation. Considering past failures, the high-powered officials and well-placed businessmen that CICIG investigates as well as Guatemala’s institutions charged with prosecuting and punishing criminals, must operate with total transparency and display at least a modicum of cooperation. Finally, the CICIG website, which reportedly has been “down for maintenance” since May, must be re-launched in order to demonstrate the transparency of whatever commission actions might be forthcoming.

The expectation that reliable evidence exists beneath the surface and if brought up, might be capable of resulting in a fair conviction, has turned out to be somewhat far-fetched. For example, on May 21, an unnamed witness provided the names of three of six people she claimed to be involved in Rosenberg’s murder, but it was the controversial figure Juan Carlos Solis Oliva who actually introduced the evidence. A former judge, Oliva led the 1998 investigation into the still not satisfactorily solved death of Bishop Juan Gerardi and allegedly diverted the inquiry away from the soldiers who were ultimately convicted. Oliva’s stepfather Colonel Byron Lima Estrada, and the colonel’s son, Captain Byron Lima Oliva were two of the three military men implicated in the murder that Juan Carlos Solis Oliva “independently” had investigated. Clearly, corruption runs deep regarding Guatemala’s legal system, necessitating the establishment of checks and balances in order to conduct anything like a fair investigation.

What to Take Away from the Rosenberg Scandal
As Ricardo Stein, Special Advisor to the Resident Coordinator of the United Nations System in Guatemala has suggested, “every administration since 1995 has had its Rosenberg.” The assassination is not the cause of institutional crisis in the country but rather an indication of the deleterious intertwining of the social, political, and economic crises afflicting the nation’s institutions. The Rosenberg case should be used as a means to putting an end to what Stein calls the “politicization of the judiciary,” and the less frequently acknowledged, “ ‘judicialization’ of the political system.” Stein believes the problem afflicting Guatemala is one of court verdicts being issued based on political preferences and a sea of bribes of corrupt officials (“politicization of the judiciary”), which legitimizes the average Guatemalan’s tenacious belief that the judiciary as well as the executive branches are corrupt. However, it is the belief that the judicial system is encouraged to target cases of political corruption for special attention (“‘judicialization’ of the political system”) that slows improvements in the judiciary. If the judicial system is used to fight for rival political parties, there is little room for the impartial investigations and trials needed to uphold democracy.

In spite of the challenges presented by the Rosenberg case, the incident has brought about an almost unprecedented mobilization of the Guatemalan citizenry, particularly of the youth, who have demanded swift response to cases like Rosenberg’s. On May 14, 2009, the authorities arrested Jean Anleu Fernández on charges of “inciting financial panic” because of his Twitter comment encouraging Guatemalans to withdraw their money from the allegedly corrupt government-owned bank, Banrural. Twitter users and outraged citizens responded with Paypal contributions to Fernández’s $6,500 bail. On June 14, 2009, tens of thousands took to the streets of Guatemala City once again in protest of corruption, violence, and impunity that characterizes the country’s public life. Incidents like the Fernández case and protests regarding the Rosenberg scandal show that the challenge of translating campaign promises and written laws into progressive action—of giving substance to Guatemala’s dreams of democracy—ultimately rests with the nation’s citizens. While CICIG can help improve Guatemala’s formal institutions, only the public can empower a head of state to undertake the transformation of informal institutions that permit formal institutions to effectively function. When Guatemala’s civil society creates and holds fast to a lattice of trust and shared understanding of social conventions and democratic beliefs and practices, then the resolution of cases like the assassination of Rodrigo Rosenberg will be considered victories for the judicial system rather than charades of it.