After a several month negotiation with the Organization of American States, the ruling party, the opposition, and civil society, the Government of Honduras agreed to form a new anticorruption body that offers the Central American nation the hope that the endemic corruption blamed for making it one of the poorest, most unequal, and most violent societies in the Western Hemisphere can be brought to heel. On January 19, Honduran President Juan Orlando Hernández signed an international accord with the OAS establishing the Mission to Support the Fight against Corruption and Impunity in Honduras (known as MACCIH, its initials in Spanish). MACCIH was inspired by the success of a similar body in neighboring Guatemala, the International Commission Against Impunity (known too by its Spanish initials, CICIG), which, as readers of this blog (here, here, and here) or of a June 2015 Washington Office on Latin America report know, has made significant inroads in taming corruption in that country.
Like CICIG, MACCIH is a hybrid international-domestic agency. Its staff will be international civil servants paid for, and accountable to, the OAS and immune from Honduran law, yet MACCIH’s staff is tasked with the same mission as Honduran law enforcement agencies, to ferret out corruption in the Honduran body politic. As with CICIG, in creating MACCIH the hope is to establish an independent, incorruptible body of investigators, prosecutors, and judges able to pursue cases where, thanks to corruption, incompetence, or intimidation, their Honduran counterparts have not. But important differences between the powers granted MACCIH and those CICIG enjoys make observers wonder whether, as Washington College Professor Christine Wade recently wrote, MACCIH isn’t a “ruse designed to appease domestic and international critics” of the government.
For MACCIH to be something more than a way to buy time until the furor over the recent corruption scandals that spawned it fades from view, it must overcome three challenges.
1) Ensure it can investigate corruption crimes no matter who the suspect is. Here is where the difference between MACCIH and CICIG could be critical. Section 4.1 of the agreement between the United Nations and the Guatemalan government establishing CICIG provided that it could open a criminal investigation without having to seek the approval of the Guatemalan public prosecutor (fiscal general) or any other agency or official of the Guatemalan government. MACCIH enjoys no such power. It is to “oversee the work of” Honduran prosecutors and judges (§ 2.1.1), and it can receive allegations of corruption, but it must then forward any allegation to “the competent Honduran authorities” (§ 220.127.116.11). If Honduran officials refuse to initiate a case, MACCIH’s only recourse is to note the refusal in its semi-annual report to the OAS Secretary General who will, after the Honduran government reviews it, make the report public.
The WOLA review of CICIG found the most important ingredient in its success was its ability to initiate criminal proceedings against anyone in Guatemala no matter their office. CICIG has all the powers of the Guatemalan police – the right to subpoena documents, interview witnesses and suspects, and conduct undercover surveillance, and together with its unfettered right to investigate, CICIG has been able to build strong, air-tight cases that even a weak, compromised judiciary could not refuse to pursue. MACCIH can select, from a list provided by the Honduras’ chief prosecutor (fiscalía general), those Honduran investigators, prosecutors, and judges it wishes to work with, but, if for reasons bad (corruption) or understandable (threats against them or their family), the Hondurans do not want to push a case forward, MACCIH is left only with private pleas and the threat, somewhere down the road, of public exposure to force the authorities’ hand.
2) Be able to report publicly on any roadblocks it encounters. If, as Lincoln sagely observed, the most potent power of all is the power of public opinion, then the ultimate source of MACCIH’s power will be its ability to expose to citizen scorn and rebuke any investigator, prosecutor, judge, or other Honduran official who frustrates its mission. But what information MACCIH can make public will depend upon how the 2014 Law on Classification of Public Documents Related to Security and National Defense is interpreted. Widely criticized at the time of enactment for its potential to hide from public view any subject government considers “sensitive,” it could rob MACCIH of its most powerful weapon. Indeed, it could even block investigations, for the law can bar government employees from divulging information to MCCIH or its Honduran counterparts that has been classified. Classification decisions are made by the National Council of Defense and Security, senior members of the Armed Forces and plus agencies with responsibility for the area of concern (§ 5), and the law is silent on whether there is any right to appeal its decisions to the courts.
3) Avoid/work around adverse rulings by the court. The accord establishing MACCIH is open to interpretation in many areas, and there are any number of ways an unfavorable or outright hostile ruling by the Honduran courts could cripple if not destroy MACCIH — from upholding unduly broad secrecy classifications to the wholesale invalidation on constitutional grounds of the agreement with the OAS. Indeed, the Guatemalan Constitutional Court almost derailed CICIG before it got started, ruling that the power the agreement assigned it to prosecute was invalid because Guatemala’s Constitution reserved that power to the national prosecution service alone (Expediente No. 1250-2004). Only through deft maneuvering by CICIG’s chief coupled with a stroke of good fortune, the appointment of a brave, incorruptible chief prosecutor, was CICIG able to navigate around this roadblock.
Honduran judges have considerable latitude when interpreting both the broadly-worded laws passed by the national assembly and the open-ended provisions of the Honduran Constitution. One early test of the legal establishment’s commitment to fighting corruption will be if the courts avoid issuing rulings that gut the agreement with the OAS. One early test of MACCIH’s leadership will be, if the courts turn hostile, whether it can engineer ways around their hostility.
There is much at stake with MACCIH. The gross corruption that seems to infect so many Honduran institutions has kept the country mired in poverty, created a culture of impunity, and sparked the mass migration of Hondurans to Mexico and the United States. To ensure MACCIH gets off to the right start, that its mission is not compromised by a reluctance to investigate high-level officials, by overly broad secrecy rulings, by unfriendly court opinions, or by any of the other myriad of roadblocks that could be erected will demand skill, determination, and courage on the part of the government, the OAS, and MACCIH’s leadership. Civil society and the international community must remain vigilant, ensuring that the government, the OAS, and MACCIH all live up to the bargain they struck and, accepting no excuse for backsliding in a fight that may well make or break the Honduran state.