Today’s guest post is from Professor Manuel Balan of the McGill University Political Science Department:
There seems to be a surge in corruption prosecutions of current or former presidents throughout in Latin America (see, for example, here, here, and here). In the last year we have seen sitting or former presidents prosecuted for corruption in Brazil, Guatemala, El Salvador, Honduras, Colombia, Costa Rica, Ecuador, and Panama. In Peru, Pedro Pablo Kuczynski resigned from the presidency amid corruption probes, and the last three former presidents are either facing trial or serving time for corruption. Argentina may soon join this list as a result of the so-called “Notebook Scandal,” which has triggered a fast-moving investigation that has already snared 11 businessmen and one public official, and is getting closer to former President, Cristina Fernández de Kirchner. (Argentina’s former vice-president Amado Boudou was also sentenced to almost six years in prison for corruption in a separate case.) Indeed, it now seems that Latin American presidents are almost certain to be prosecuted for corruption at some point after leaving office, if not before. My colleagues and I have documented the growing trend of prosecution of former chief executives in the region since democratization in the 1980s: Out of all presidents who started their terms in the 1980s, 30% were prosecuted for corruption. Of those that entered office in the 1990s, 52% were or are being currently prosecuted for corruption. In the group of presidents that began their terms in the 2000s, 61% underwent prosecution for corruption. And, remarkably, 10 out of the 11 presidents elected since 2010 who have finished their mandates either have been or are currently being prosecuted for corruption.
The explanation for this trend is not entirely clear. It’s probably not that Latin American presidents have become more corrupt. Some have suggested that the uptick in corruption prosecutions is a reaction, by the more conservative legal establishment, against Latin America’s “Left Turn.” But the trend towards increased prosecution is hardly limited to the region’s self-identified leftist leaders; in fact, left and non-left leaders are nearly equally likely to be prosecuted for corruption. Part of the explanation might have something to do with changes in prosecutorial and judicial institutions, media, or public expectations—the reasons are still unclear, and likely vary from country to country. Whatever the explanation, is this trend something to celebrate? Some observers say yes, arguing that the anticorruption wave sweeping Latin America is the result of Latin American citizens, fed up with corruption and taking to the streets in protest, putting pressure on institutions to investigate and punish corrupt politicians.
While I wish I could share this optimism, I think it’s likely misplaced.
- First, while the data does not seem to support the notion that these anticorruption prosecutions are mainly the backlash of the conservative establishment against Leftist leaders, it is nonetheless the case that prosecutions of former chief executives are most likely to take place when the executive is governed by an opposing political party or coalition. This is a worrisome indication that there may be strong political motivations behind many of these prosecutions, and raise concerns about the potential weaponization of judicial proceedings. (This is not necessarily to say that judges and prosecutors are themselves politicized, though they may be; instead these prosecutions may have been activated by political actors attempting to pursue politics by other means.) This is an ominous sign for the peaceful alternation of power that is a key element of any democracy. While in the past a media scandal would have been enough to hurt a politicians’ reputation, the (ab)use of this tool in the last decades has hindered the credibility of these media allegations, to the point that they increasingly become politics as usual and part of the background noise of everyday politics.
- Second, the optimistic view that the trends in Latin America signal that powerful, popular leaders can be felled by credible corruption allegations does not seem consistent with most of the cases. Rather, in most of the cases where a current sitting president has been removed and/or prosecuted for corruption, the president was already unpopular—or the economy was doing poorly. Corruption proceedings may further hurt the popularity of president, of course, but in most cases the presidents prosecuted for corruption were politically vulnerable even before prosecutions started.
- Third, though the optimistic view sees these anticorruption prosecutions as an outgrowth of popular mobilization and protest—and hence a manifestation of strengthened vertical accountability from leaders to citizens—in fact these prosecutions may signal increasing judicial power at the expense of citizens having a say. As Frances Hagopian has argued in the context of the Brazilian case, stronger horizontal accountability institutions (like courts and judges) are eroding vertical accountability. True, citizens have mobilized in response to corruption claims. But what these demonstrations really signal is the weakening of voter-party linkages and deficits in vertical accountability.
So, while the optimists look at the wave of prosecutions of current and former Latin American presidents and see a combination of citizen mobilization and independent prosecutorial and legal institutions taking down powerful leaders, a closer examination of the evidence suggests that what we’re really seeing, on the whole, is an alienated, angry citizenry, and judicial processes triggered by political opponents to take out leaders who already were (or were becoming) weak and unpopular. While only time will tell whether this wave of prosecutions will result in lower levels of corruption moving forward, the evidence so far regarding these prosecutions, their political underpinnings, and society’s potential desensitization to corruption allegations make me doubtful, if not outright pessimistic.
Thank you for the insightful post! As someone who has more recently become interested in global corruption (and anti-corruption efforts), the statistics cited here are almost unfathomable–i.e., that recent Latin American Presidents are more likely than not to be prosecuted for corruption! Your first bullet point addresses my initial questions, which was: are these prosecutions at all politically motivated? Though hard to prove, it is troubling that the prosecutions tend to be brought while the party opposite of the defendant is in power. Hopefully, the perception that high-level government leaders in these countries can be prosecuted for primarily political–rather than legal–reasons does not disincentivize strong candidates from pursuing elected office (assuming that they are running for the office for the right reasons). Conversely, however, hopefully these prosecutions do indeed disincentivize potential candidates from running for elected offices if they covet said office so that they can abuse their power.
Separately, is there any sort of “heat map” that shows, by country, the frequency with which high-level government officials are prosecuted for corruption?
Thanks for the comment. The incentives and constraints put forth by this near certainty of prosecution are fascinating. In the anti-corruption world we generally associate higher likelihood of detection (and of negetive consequences) to a lower likelihood of engaging in corrupt behavior. In other words, we think that enforcement matters, and that it sends strong signals to future politicians, who willbe less likely to engage in corruption as a result. Part of the point of the research project that is summarized in this post is to cast some light on why this expectation (which is based on most of the existing formal models we have about corruption) does not pan out as clearly as one would hope or expect. My sense here, and the point of the formal model I am developing, is that when there is this almost near certainty of prosecution, we simply cannot equate corruption detection to corruption prosecution. The political motivations behind at least some of these prosecutions end up casting doubt on whether these signal actual detection or simply an instance of weaponized legalism. All this to say that my pessimism isn’t only about levels of corruption moving forward, but also about the incentivesand constraints that these prosecutions pose for politicians in power or looking to run for office…
And about the heat map: that would be wonderful to have! Undfortunately, I have never come across a systematic database of corruption prosecutions of high level government officials. We had to construct the one for presidents and former presidents from scratch. And even that was quite time consuming… Would be great to have that, say, for all cabinet members. All I know about is the database that Maria Popova and colleagues have put together for Romania and Bulgaria. But that’s about it.
Professor Balan, many thanks for your reply! Regarding the heat map, I was actually reached out to via LinkedIn by someone who saw my question, and he pointed me to a very helpful source, of which you may or may not be aware. In case of the latter, here is the link: https://traceinternational.org/Uploads/PublicationFiles/GER2017.pdf
While not “heat maps” per se, the report (of which there are versions dating back to at least 2010 here: https://traceinternational.org/ger) does graphically show–by country–the number of investigations / enforcement actions related to bribery of foreign officials and domestic officials, respectively.
Additionally, the Good Samaritan also sent along an article he authored about bribery prosecutions of heads of state across South Africa, Brazil, South Korea, Panama and Peru, which is very interesting and insightful (especially for someone like me who is looking to get a better global overview / understanding of the issue). Here is the link for his article: https://mlexmarketinsight.com/insights-center/editors-picks/anti-bribery-and-corruption/cross-jurisdiction/comment-odebrecht-samsung-others-caught-in-bribery-prosecutions-of-former-heads-of-state
Thanks, Professor Balan, for this fascinating post. I was especially struck by your third point, which I find somewhat counterintuitive.
I generally think of strong horizontal accountability institutions, such as a muscular court system, as an effective check on the venality of politicians. (This assumes the court system is sufficiently independent and hasn’t been captured by political actors. My understanding is that Brazil, which is cited above as an example, is generally considered to have a relatively independent judiciary.). However, your point is that when strong institutions provide effective horizontal accountability, it can actually erode the electorate’s ability (or willingness?) to hold political leaders accountable.
This argument strikes me as a reframing (in the anticorruption context) of the countermajoritarian difficulty we study in American constitutional law. Courts, at times, short-circuit the democratic process, leading to less accountable political institutions. Such countermajoritarian interventions are legitimate when done in order to protect discrete and insular minorities.
However, what’s confusing to me in your third point is that, in the case of judicial action against cronyism and corruption, such action would not seem to be countermajoritarian. Conversely, judicial intervention in such a case likely tracks/reflects majority sentiment amongst the electorate. I probably need to spend more time with the literature to understand your argument, but judicial action in such a case would seem to me to effectuate vertical accountability, rather than erode it, by promoting the popular will (get those crooks out of office!).
It’s also possible to imagine a situation in which the majority of a populace approves of looting by their elected political leaders, such as when those leaders share a group identity with that same majority of the electorate, and the looting is done at the expense of an out group. However, judicial efforts against corruption in this case would be justified in order to protect the discrete and insular minority group, and thus less vertical accountability might be deemed a “good” thing in this case.
Finally, it appears to me that horizontal accountability institutions—especially public fora such as courts—can buttress vertical accountability through their information provision role. In a typical countermajoritarian scenario, a court invalidates a statute that was publicly enacted by the political branches. In such a scenario, the information provision role of the court has no bearing on whether we think the court’s intervention is desirable, because the information the court examines (draft legislation, committee reports, legislative history, etc.) is generally already public. However, in an anticorruption proceeding, the acts at issue were necessarily intended to be kept secret, and much of the hard evidence presented in court was likely unknown to the public prior to the prosecution. Once the evidence is made public in a judicial proceeding though, it can be widely disseminated and the electorate can act on it in subsequent elections or through lobbying their representatives, protesting, etc.
Horizontal accountability institutions, then, by providing public access to information, would seem to aid and effectuate vertical accountability in at least some ways. If this is at all true, should we be less worried about the prosecutions highlighted above than your post suggests?
Thanks for the comments and questions. Your sense for the linear relationship between horizontal and vertical accountability is, in fact, in line with most of the literature on the issue. We generally think that these two go hand in hand, and that a strong system of institutional checks actually helps keep politicians acocuntable not only to the judiciary and controlñ agencies, but also to the population at large.
The problem with how these prosecutions are playing out in some cases, and in particular in the brazilian case, is that this direct link appears not to work out as expected. Basically, the problem arises because–eventhough the brazilian judiciary itself is to an extent independent–these proceedings are triggered by political elites for political reasons and with political objectives. As you say, generally “judicial intervention in such a case likely tracks/reflects majority sentiment amongst the electorate”. But what happens when it does not? and when, regardless of possible disagreements on the exact merits of the case, a large part of the population believes that the proceedings are restricting their political choices by removing a potentially popular candidate for what they consider is a relatively minor (or at least not a major) offense? To put it concretely, many believe that the way (or the timing) in which the corruption cases have advanced in Brazil has been set so as to remove Lula from the list of presidential candidates. Similarly, many thought Dilma’s removal (for a proven violation of norms that had been also bent or broken by many of her predecessors) was politically motivated. In this context, is vertical acocuntability–the control of government officials by societies, mainly through electoral means–strengthened or weakened? It is plausible to think that some political actors are weaponizing the judiciary to achieve the political results they cannot get in elections.
Some caveats here: I do think the PT governments engaged in corruption, and that political leaders should pay the consequences. And I am far from excusing this behavior. However, I recognize that voters make their choices based on many factors, and that corruption may not be the main concern or first order priority for voters. In that scenario, I understand that they may consider that they are shortchanged by judiciaries making political choices for them…
Castañeda, in a recent NYT op ed puts in terms of a conflict betwee democracy and rule of law. i think he gets at a similar point. See here: https://nyti.ms/2wgHzNN
And again, thanks for the thoughtful and interesting comments!
Professor, thanks so much for your thoughtful and interesting reply. That all makes sense. It sounds as if the anticorruption prosecutions you discuss are, in a way, an abuse or “corruption” of the prosecutorial/judicial processes. Theoretically (ideally?) apolitical institutions are harnessed by political elites for politically-motivated selective prosecutions, which in turn undermines democratic accountability. Perhaps an appropriate response then would be jury nullification. I don’t know how many of the countries you discuss might try corruption cases in front of a jury, and certainly jury selection would be a fraught process with significant potential for interference, but nullification would seem to be the ultimate democratic response to an undemocratic prosecutions.
Thank you for this very interesting post! I watched the impeachment of President Rousseff very closely, having just returned from living in the northeast of Brazil. I very much agree that the impeachment process was politically motivated. That being said, I’m curious about whether there any similarities or strong comparisons to be made between the two impeachments of Collor and Rousseff? Do you think that, aside from the weaponization and politicization of impeachments, would citizens who witnessed the impeachment of Fernando Collor and Rousseff also view impeachment as less of an extraordinary procedure but rather an appropriate political tool?