Today’s guest post is from a Guatemalan official who, due to the sensitivity of his/her government position, prefers to remain anonymous:
In Guatemala, the Attorney General plays a central role in the efforts to counter corruption. Guatemala’s 1993 constitutional reforms put the AG in sole control over the Public Ministry, the nation’s principal law enforcement institution. These constitutional reforms also gave the AG substantial autonomy: The Public Ministry is ensured financial and administrative independence, and the AG has control over the Public Ministry’s personnel and policies. Although the President has the power to appoint the AG, the President must choose a candidate from a shortlist of six candidates chosen by a Nominating Commission composed of the President of the Supreme Court, the Deans of the Guatemalan Law Schools, and two representatives of the Guatemalan Bar Association; this process is designed to produce qualified candidates for the Office and reduce the President’s ability to select a loyalist crony. Additionally, the AG serves a fixed four-year term in office and cannot be removed before the expiration of that term unless a court has determined that the AG has engaged in criminal wrongdoing.
The AG’s power and independence can help in the fight against high-level corruption by powerful political figures, as was demonstrated by the Public Ministry’s investigation into graft allegations against then-President Otto Perez Molina and Vice President Roxana Baldetti—an investigation which ultimately led to their resignation, prosecution, and incarceration (While this investigation was prompted and supported by the then-operative International Commission Against Impunity in Guatemala, known for its Spanish acronym CICIG, CICIG lacked unilateral prosecutorial authority, and the AG’s decision to pursue cases against the most powerful elected officials in the country was crucial.) Unfortunately, while the AG’s power and independence enables the AG to be an agent of positive change in the fight against impunity, those same factors mean that the AG can also be an obstacle to change. Guatemala has learned this the hard way under the current AG, Consuelo Porras.
When Porras took office in 2018, many people, both inside and outside Guatemala, believed that the country was reaching a turning point in its fight against corruption and impunity, and expectations were high. But her time at the Public Ministry has been a disappointment. Many regard her tenure as head of the Public Ministry as one the reasons why Guatemala’s anticorruption movement has faltered; overall, she seems to favor maintaining economic and political status quo, and a return to “business-as-usual.” Not only has she failed to provide bold leadership in the Public Ministry, but her policies have undermined the independence and effectiveness of Guatemalan law enforcement authorities. Worse still, there are allegations that she is personally involved in wrongdoing—and these allegations are credible enough that the U.S. government placed her on the “Undemocratic and Corrupt Actors” list and revoked her visa.
Guatemala’s recent experience raises important questions about the costs and benefits of giving one unelected official so much power over criminal law enforcement. But while it might be wise to examine the constitutional and statutory provisions regarding the AG’s powers at some point, right now Guatemala faces a much more pressing issue: the selection of a new AG. Porras’s tenure is coming to an end, and the selection process is underway; the President will appoint a new AG next month. Whoever the President selects will play a crucial role in determining whether Guatemala’s stalled anticorruption efforts can get back on track.
Whoever the new AG might be, there are three things that he or she can and should do to restore hope in Guatemala’s fight against corruption and impunity:
- First, the AG should bolster the Special Prosecutor’s Office against Impunity (known by its Spanish acronym FECI). The office, which is part of the Public Ministry, was created when CICIG was still operating, and FECI worked alongside CICIG to investigate corruption crimes. Even after CICIG was shut down in 2019, FECI continued advancing various high-profile investigations against government officials and other powerful actors, and it was widely regarded as highly effective. Unfortunately, AG Porras gradually undermined the work and independence of the office, harassed its personnel, and eventually fired FECI’s respected head prosecutor. As a consequence, public trust in FECI has diminished. Guatemala’s next AG will need to restore that confidence. One of the first things the new AG should do is replace FECI’s current head, who has been persistently accused of blocking or undermining investigations and prosecutions of powerful figures. The next AG should use a transparent hiring process select a qualified prosecutor to lead this unit. More broadly, the new AG needs to bolster FECI’s autonomy and integrity, for example by establishing stringent rules that prohibit the AG from vetoing ongoing investigations or firing personnel without cause.
- Second, the AG needs to restore institutional links with the international community. For many years, particularly when CICIG was still operating, the Public Ministry received significant capacity-building and training support from abroad. This financial and technical cooperation greatly strengthened the operational capacity of the Public Ministry to investigate grand corruption schemes. (To give just one example, the U.S. government helped the AG’s office to build the infrastructure for its phone tapping unit, which proved crucial in the investigation of several high-profile corruption cases.) Unfortunately, many of these international cooperation programs were suspended during the AG Porras’s administration—in part because of her personal involvement in various scandals. The new AG needs to reach out to the international community to restore confidence and expand cooperation initiatives to bolster the Public Ministry’s law enforcement efforts.
- Third, the new AG should be involved in pushing for the constitutional and legislative reforms in the justice system. After the joint investigation that led to the resignations of the sitting president and vice president in 2015, CICIG and the AG worked closely together to produce a package of proposed reforms to attack the root causes of corruption and impunity in Guatemala. But despite garnering strong support from civil society organizations, academia, and international partners, Congress did not enact these reforms. Once Porras became AG and CICIG was shut down, momentum for such far-reaching reforms stalled. The new AG needs to recapture that momentum. Especially now that CICIG is gone, the new AG is better positioned than anyone else in Guatemala to put justice sector reform back on the national agenda. The new AG should reach out to institutional allies and relevant stakeholders to advance an across-the-board strategy to promote these necessary changes.
Whoever is appointed as Guatemala’s next Attorney General will have the opportunity to use the broad powers and protections granted by the Constitution to make meaningful progress in Guatemala’s ongoing struggle with entrenched, high-level corruption. But if the next AG fails to take strong and decisive action to reverse Porras’s legacy of scandal, inaction, and political favoritism, Guatemala’s dispiriting anticorruption backsliding will only worsen. In this setting, a single person can make an enormous difference, for good or ill.