Cases against former Latin American leaders: a challenge for the credibility of the courts

Some fly the flag for the values of justice. Others, those who have been investigated and their followers, talk only of persecution. In the middle, there is a lot of noise and a collection of institutions that regularly find themselves called into question. From Mexico to Argentina via Brazil, Ecuador, Bolivia and Colombia, leaving power has become an almost automatic precursor to ending up in front of a judge. Every case is different, as are the scope of the investigations and the seriousness of the accusations, but the phenomenon is transversal and has opened a debate surrounding judicial independence, impunity and political interference in Latin America.

The recent quashing of Luis Inácio Lula da Silva’s convictions in Brazil, confirmed this week by the Supreme Court, is the latest example of a trend that is putting the credibility of the courts to the test, or in the worst of cases undermining them. The general premise throughout the region is the deep entrenchment of a corruption that for decades has co-existed with the political class and corroded the system. It has also eroded the trust of a population who, ever more divided, wind up championing their political beliefs while they turn their backs on the rule of law. These are the main judicial processes former Latin American leaders have been implicated in or affected by.

Brazil

The jailing – and subsequent annulment of the conviction – of former president Lula da Silva laid the Brazilian judicial system bare in the eyes of the world. According to investigators, Lula was the primary beneficiary of a corruption scheme within the state-owned energy company Petrobras. His sentencing in 2018 on charges of money laundering and corruption was held up as a trophy by investigators, whose probe had shaken up the political establishment for four years. In 2021, having had his political rights restored by the courts, it is the leader of the Workers’ Party (PT) who is now placing the entire case on the ropes after uncovering some 100 messages between the public prosecutor and the presiding judge, Sergio Moro, apparently conspiring to have Lula da Silva convicted.

The broad-ranging investigation, dubbed Lava Jato (Operation Car Wash), has lost prestige and momentum. The current president of Brazil, Jair Bolsonaro, has also not raised any complaints at the winding up of the operation. An investigation into his own son, Senator Flavio Bolsonaro, over alleged money laundering has led the president to abandon the anti-corruption rhetoric that won him the general election. “I have brought an end to Lava Jato because there is no more corruption in the government,” said Bolsonaro last October. It was a radical turn in the story of a politician who won power by convincing Brazilians that he would fight against the misappropriation of power, and who installed Moro as his minister of justice. Moro hung up his robe in 2019 and a year later stepped down from his government role, accusing the president of interfering with the running of the Federal Police.

Today, Bolsonaro retains his grip on power surrounded in parliament by allies who were investigated in Operation Car Wash. The investigation that rocked Brazilian politics followed in the wake of another large-scale corruption case, the so-called mensalão scandal of 2005, which focused on political bribes to members of Congress in exchange for backing government projects during Lula da Silva’s first term in office. It was also far from the first to fall into the hands of the Supreme Court.

Lava Jato’s longevity led to the belief that it would have a different ending to other judicial operations targeting politicians and entrepreneurs, which have always had a tendency to be thrown out of court on technical grounds. The sense of impunity was interrupted by mensalão, which led to the conviction of several PT politicians but during which Lula da Silva was not accused of wrongdoing. It was during the dozens of televised court sessions of the mensalão trial in 2012 that the population at large became familiar with the names of Supreme Court judges.

The influence of judicial power in Brazilian politics became apparent a year later with Operation Car Wash. The Supreme Court justices refuted government decisions with express judgments and politicized dates for hearings. Judges regularly give interviews to get their opinions across to the wider population.

Mexico

In Mexico, the crusade against former president Enrique Peña Nieto and his entourage has become increasingly intense as the Public Prosecutor’s Office scrutinizes the six-year term (2012-18) of the man who was tasked with modernizing the venerable Institutional Revolutionary Party (PRI), which had governed Mexico uninterruptedly for 80 years up to the year 2000. The key figure in the domino effect of corruption the former president and his close confidants are accused of coordinating is Emilio Lozoya, the former chief executive of state energy company Pemex and Peña Nieto’s campaign manager.

Lozoya, who was extradited from Spain last August, stands accused of being the front man of a multi-million-dollar web of bribery connected to the Brazilian construction firm Odebrecht, which was at the center of a worldwide corruption scandal and in 2019 admitted making slush fund payments to election campaigns across Latin America. After reaching an agreement with prosecutors, Lozoya confessed to distributing suitcases full of Odebrecht money during the election campaign. He also said that several members of parliament received bribes to support Peña Nieto’s drive to privatize the energy sector. The former Mexican president, who now lives in Spain’s capital, Madrid, has not made any statement on the accusations against him. For the time being, prosecutors have only ordered the detention of his former Secretary of Foreign Affairs, Luis Videgaray, as part of the investigation while making clear their belief that Peña Nieto used Videgaray and Lozoya as “instruments.”

Other ministers of Peña Nieto’s administration have also fallen into the hands of the judicial system. Rosario Robles, former Secretary of Social Development and Secretary of Agrarian, Land and Urban Development, is in preventive custody for her alleged involvement in a vast corruption case known as La Estafa Maestra (the Master Scam) involving the embezzlement of huge amounts of public funds. At the end of last year former Secretary of Defense Salvador Cienfuegos was arrested in the US on charges of drug trafficking. After an unprecedented extradition to Mexico, he was cleared.

In the face of mounting evidence linking Peña Nieto and his entourage to various alleged crimes, President Andrés Manuel López Obrador has proposed a controversial public poll, which has been backed by the Supreme Court, to let citizens decide if five former Mexican presidents should be put on trial.

Argentina

The justice system does not enjoy a good public image in Argentina. Its credibility has fallen to below 8%, less than half its rating a decade ago, according to the latest data from the Argentinean Observatory on Social Democracy. The government, far from seeking to reverse this trend, has accused the judiciary of being politicized. And the political establishment scored a recent victory when the Federal Court of Criminal Cassation shelved an investigation into former president and current vice-president, Cristina Fernández de Kirchner, known as the “dollar futures” case, related to alleged fraud in the purchase of currency and one of the weakest cases currently open against Argentina’s leader from 2007-15. As far as the opposition are concerned the judicial changes sought by the government have only one objective: to guarantee the judicial impunity of Fernández de Kirchner.

“In March or April 2018, when he wasn’t even considering running for office, Lula was sentenced in Brazil, where Judge Moro and the prosecutors invented a case to incriminate him. I wrote a note called ArgenLula to show the similarities with what was happening in Argentina at that time,” President Alberto Fernández said last week.

“I have no doubt that something happened here that had never happened before: the government using the justice system to harass their opponents. I have no doubt. And so it happened with Lula, who found emails between Judge Moro and the prosecutors asking for rulings to be rushed through to prevent [Lula da Silva] from running as a candidate. In Argentina things like this are also going on: calls, telephone cross-checks and emails convening the judiciary, which the former president knew existed,” added Fernández in reference to the publication of alleged meetings between former president Mauricio Macri and judges who were ruling in a case against a business group with links to Fernández de Kirchner.

If the government’s proposed judicial reform prospers, the power of federal judges will be diminished: the number of magistrates will rise from 12 to 46. The major cases against Fernández de Kirchner, which include allegations of money laundering, illicit association and fraudulent administration among others, are in the hands of this court.

The vice-president denies the allegations against her and has claimed she is the victim of judicial harassment, a theory that has garnered the support of the new Minister of Justice, Martín Soria. “She, who has nothing to do with this, who is innocent, who was accused in the media, politically and judicially, only asks for the same judicial system to clear her of blame and charges, which is what it should do when one has done nothing wrong,” said Soria.

Some of the cases against Fernández de Kirchner appear to have little solid grounding, but not those that are looking into the rapid enrichment of the Kirchner family during her 12 years in power. However, it is clear that cases involving the political elite gather momentum or are slowed down depending on who is occupying the presidential palace of Casa Rosada, which only serves to add to the lack of public confidence in the judges in the eyes of a polarized citizenry.

Peru

In order to understand the scope of corruption in Peru it is sufficient to state that six of the past seven presidents are currently under investigation. But it is not just that. The judicial system, which it is to be understood is responsible for reining in corruption, was itself embroiled in a scandal in 2018 that uncovered a systemic mafia that included the payment of bribes in return for rulings and irregularities in the appointments of judges and prosecutors. The long shadow of wrongdoing threatens the entire institutional system of a country where almost a quarter of the population live in poverty and have no access to drinking water but where corruption is considered the most pressing national problem.

Alberto Fujimori (1990-2000) is in prison for corruption and crimes against humanity. Alejandro Toledo (2001-2006), Ollanta Humala (2011-2016) and Pedro Pablo Kuczynsky (2016-2018) stand accused of involvement in the Odebrecht scandal, as did Alan García, who committed suicide when he was about to be arrested. Martín Vizcarra (2018-2020) is being investigated for alleged illegal payments. Only Valentín Paniagua, the interim president between 2000 and 2001, is not under the judicial microscope.

In this landscape, which also extends to members of Congress and city mayors, the judiciary has come down hard on former leaders linked to Odebrecht, whose influence in Peruvian politics came to light in 2017. With various cases ongoing, Toledo is in custody in the US pending an extradition order, Humala served time in prison and Kuczynsky remains under house arrest.

The judicial system, while the investigations remain open, is pending a reform that political instability has temporarily put on the back burner and that will be in the to-do tray of the new president after the run-off between Pedro Castillo and Keiko Fujimori in June.

Colombia

The juxtaposition of the words “political leader” and “justice” in Colombia usually produces the same result: Álvaro Uribe. The former president elicits almost equal parts veneration and hatred among Colombians. His supporters view him as a victim of persecution and everybody else, not necessarily limited to opponents and detractors, want to see the air surrounding the man who governed during one of the darkest periods of the war with the FARC cleared.

Under his two terms from 2002 to 2010, the Colombian military carried out over 6,400 extrajudicial killings of civilians who were subsequently passed off as FARC guerrillas killed in combat, the so-called “false positives.” That number was calculated by the Special Jurisdiction for Peace in February, almost trebling the previous estimate of the Public Prosecutor’s Office.

The investigation that led to Uribe’s house arrest last August was marked by this historical context but is also connected to the alleged manipulation of witnesses in a case against paramilitary activity that was initiated in 2012. The accusation by leftist leader Iván Cepeda sought to prove links between Uribe and paramilitary organizations. The latter in turn accused Cepeda of orchestrating a plot against him, but the judiciary shelved that case and opened another one against Uribe that was passed to the Supreme Court. However, after his arrest Uribe stepped down from office and renounced the legal protection the presidency offered, leading his case to be referred back to the Public Prosecutor’s Office, which in March recommended the case be dropped. Since then, it has been in the hands of a judge who will decide whether it should be shelved or if Uribe will face trial.

Beyond its judicial repercussions, the case against Uribe, much like his political persona, has for years been dividing the country. Colombia recently emerged from an armed conflict lasting half a century and the path to reconciliation is based on the principle of seeking the truth. The severity of the suspicions surrounding the former president and the accusations against him have been measured precisely by the pain caused by the war and the desire of vast swaths of society to draw a line under the conflict.

The current president, Iván Duque, has consistently defended his predecessor. Like Uribe, he has unequivocally rejected the peace agreements brought about by former president Juan Manuel Santos that led to the demobilization of the FARC. Uribe is not prepared to admit any kind of responsibility and it is in the hands of the judiciary to determine his future.

Ecuador

It was one of his first messages after the results of the election were made known last Sunday and he repeated it on Monday in his first public statement: the president-elect of Ecuador, Guillermo Lasso, promised there would be no persecution on his watch. “That has had its day,” said the veteran conservative leader. That statement alone would be unprecedented under normal conditions, as would being asked about it during a press conference. But Ecuador has a very recent precedent.

Former president Rafael Correa remains one of the most influential figures in Ecuador’s politics but he exercises that influence from afar due to his legal problems. Over the past four years the courts have amassed a dozen cases against Correa and last year the leader of the so-called “citizen’s revolution” was sentenced in absentia for bribery. Correa currently resides in Belgium, his wife’s native country, and in an interview with EL PAÍS he stated that he is being prevented from returning to Ecuador due to the fear he will run again for the presidency, and win.

The investigations into Correa began when he left office in 2017, passing the baton to his protégé Lenín Moreno, who will himself hand over power to Lasso in May. Moreno won the 2017 election largely because he presented himself as a continuity candidate allied to Correa’s ideals, but once in office he broke with his mentor, who he had served under as vice president from 2007 to 2013. Correa refused to return to Ecuador to face a trial that he believes is overtly political. And he chose to continue playing his hand from abroad. Correa backed the candidacy of his political ally Andrés Arauz in the elections but the latter was defeated by Lasso in the run-off.

Correa’s return to the political fold in Ecuador remains complicated. Despite Lasso’s assurance that the persecution has had its day, the justice system will nonetheless run its course.

Bolivia

Bolivia’s most recent leader, Jeanine Áñez, was arrested in March along with other members of the interim administration that governed for a year after arriving in power in the middle of a social upheaval after the resignation and self-exile of Evo Morales, who stepped down amid accusations of fraud at the 2019 election and following the military’s withdrawal of support. Morales left the country, found shelter in Mexico and later sought refuge in Argentina. One of the first accusations leveled at Morales by Áñez’s interim government was of “sedition and terrorism.” Morales returned to Bolivia after 11 months in November, after the election victory of Luis Arce restored his Movement for Socialism (MAS) to power. Áñez was subsequently arrested on the same charges of “sedition and terrorism” and remains in preventive custody.

This cycle of political attrition not only represents a judicial process questioned by various organizations including Human Rights Watch: it is also a portrait of a broken society and of a political class that prioritizes personal vengeance over the real and pressing problems Bolivia faces. Arce told EL PAÍS after his election victory that he would not be seeking to settle old scores: “We do not want revenge in Bolivia, there are a lot of things to do.” Arce, who has a more pragmatic track record than Morales, later said that Áñez’s arrest was not based on revenge or carried out as an act of “hatred.”

“What drives us is an unwavering desire for justice,” Arce said.

English version by Rob Train.