Reasons for Optimism About Latin America’s Wave of Anticorruption Prosecutions: A Response to Professor Balan

What are we to make of the ongoing wave of corruption prosecutions sweeping Latin America in the wake of the Odebrecht scandal? Many are optimistic that these prosecutions, several of which have implicated very senior political figures, including current and former presidents, signal a turning point for the region. But in a guest post last September, Professor Manuel Balan suggested that this optimism may be misplaced, for three reasons. First, he argued that the enforcement patterns suggest that anticorruption prosecutions are becoming a weaponized—that these prosecutions are being used as a political tool used to bring down opponents, and consequently they lack credibility with much of the public. Second, Professor Balan questioned whether these prosecutions would ultimately be successful in holding powerful, popular wrongdoers accountable, and he argued that these prosecutions will just take down leaders whose positions have weakened for other reasons (such as Dilma Rousseff in Brazil). Third, Professor Balan worried that these prosecutions show that judicial power is increasing at the expense of citizens’ power—that they represent an erosion of “vertical accountability.”

I remain one of the optimists. Indeed, I think that Professor Balan is far too pessimistic about the role that the current anticorruption prosecutions in Latin American can play—and to some extent have already played—in addressing the region’s longstanding corruption and impunity problems. Yet his three objections are worth taking seriously and deserve a direct response. Here’s why I don’t find any of them sufficiently persuasive to share his pessimism:

  • First, while I agree that anticorruption prosecutions have the potential to become a political weapon, and to some extent I share Professor Balan’s concern here, it’s also the case that these prosecutions serve the important purpose of holding government officials accountable for corrupt actions, and a certain degree of politicization may be the price we pay for having vigorous, effective enforcement of anticorruption laws. In an ideal world, prosecutors would investigate and bring charges against politicians regardless of their party affiliation. But in reality, it is understandable and probably unavoidable (at least under current conditions) that prosecutions are more often brought against political opponents. And the political use of anticorruption allegations isn’t necessarily a bad thing, if it encourages rival parties to scrutinize each other. Rather than shying away from doing their jobs, prosecutors hold politicians and government officials from the other party accountable for their actions, with full knowledge that any corrupt politicians in their party will also face charges for their corruption actions in the future. In doing so, competing parties raise the standard across the board for accountability. Ultimately, there is more to fear from lack of anticorruption prosecutions than from the abuse of anticorruption prosecutions. Non-prosecution for fear of looking biased signals tacit acceptance of corruption and allows for the systemic abuse of power with no fear of retribution or accountability.
  • Second, while Professor Balan is skeptical of the ability of anticorruption prosecutions to take down powerful leaders, this claim is in tension with his claim that anticorruption prosecutions are effective political weapons. (A weapon that can only fell a leader who is already weak and unpopular is not much of a weapon.) So if Professor Balan is right that anticorruption prosecutions ultimately won’t be effective in removing leaders who are still popular and effective, then the claim that such prosecutions threaten democracy seems greatly exaggerated. But the threat that a corruption prosecution could ensnare a leader whose popularity diminishes—something that happens to most leaders at some point—may still prove an effective deterrent to those leaders’ engaging in corrupt activity, even when things are going well.
  • Third, while Professor Balan bemoans the fact that anticorruption prosecutions may “signal increasing judicial power at the expense of citizens having a say”—in the form of “popular mobilization and protest”—he misses an important point: Citizens shouldn’t have to take to the streets to be heard. While the citizenry has been able to voice its frustration through protests in the past, it would be a mistake to assume that popular mobilization is the only way for citizens to make their voices heard. The purpose of having a representative government is to have representation (that is, vertical accountability); representatives, in discharging their duties, are supposed to be bound by laws, perhaps especially laws against abusing their public authority (a manifestation of voters’ trust) for private gain. The enforcement of these laws by prosecutors and judges (a form of horizontal accountability) is necessary to ensure that representative government functions. Strengthening horizontal accountability institutions may seem as though it is weakening the vertical accountability of leaders to citizens, but it might instead signal that the government is finally stepping into its role as representing the citizenry. Thus horizontal accountability might be a complement to, rather than a substitute for, vertical accountability. By vigorously prosecuting corrupt leaders, the government is doing for the citizens what it is meant to do without having its hand forced by mass protests. And in situations where those institutions are not fulfilling their duties to the citizenry—for instance, by not prosecuting credible claims of corruption—then the general populace holds them accountable through elections, and, potentially, through popular mobilization.

In sum, while I share some of Professor Balan’s skepticism that the current wave of anticorruption prosecutions will result in massive decreases to corruption in the region, I do not share his deep pessimism. Rather, I see many reasons to be cautiously optimistic about the trend of prosecuting senior figures for corruption, and strengthening of the institutions that can hold such actors legally accountable for their crimes.

3 thoughts on “Reasons for Optimism About Latin America’s Wave of Anticorruption Prosecutions: A Response to Professor Balan

  1. Hi Signa. Thanks for this thoughtful response to Professor Balan’s post. Regarding your first point, I take your point that “a certain degree of politicization may be the price we pay for having vigorous, effective enforcement of anticorruption laws.” And, as you say, it may be possible that this kind of limited deployment of politicized prosecutions will lead to a race to the top as “competing parties raise the standard across the board for accountability.” But I wanted to ask how confident you are in that position. I see merit in it, but it also seems to me to be an equally plausible outcome that increasingly visible political prosecutions undermine public confidence in law enforcement and the judiciary, leading to a fraying of the rule of law and political leaders who are increasingly assertive in maintaining their power so as to not be the victim of a politicized prosecution from a newly-empowered opposition. In other words, I think it’s possible to read Professor Balan’s criticism as saying that politicized prosecutions will lead to a race to the bottom rather than a race to the top, and I’m curious what leads you to think that the latter outcome is more likely. Thanks!

  2. In this part of the world (South Asia) anti-corruption agencies are charged to frying small fishes only. When they go for big fishes there is a danger of issue being politicized. Could there be a blog on how to detach anti-corruption from being politicized? Or is it true that due to link between corruption and politics, there is no solution to the problem?

  3. Signa, you bring up some very good points. Your third point, that “horizontal accountability might be a complement to, rather than a substitute for, vertical accountability” is particularly interesting and comes down to whether we see power as a zero sum game or not. I tend to agree with you. The judiciary keeping a stricter watch and upholding laws could even be seen as judicial accountability to the citizenry in ensuring that corrupt leaders are prosecuted, thereby strengthening vertical accountability and the power of the citizenry.

    Where I disagree is your first point. Politically motivated corruption prosecution is persecution, and sets a very dangerous slippery slope that could be used to influence election outcomes. To me, it doesn’t raise the standard for accountability, but expands the scope of illegitimate uses of power, and poses a serious risk to democratic principles. Even if it does result in ‘tit for tat’ by an opposition that comes to power, I think the behavior being motivated remains a net negative.

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