The Guatemala Example: Is it a model for bringing corrupt Ukraine officials to justice?
A government and judiciary ridden with graft continue to hobble Ukraine’s fight against corruption, leading many to consider the situation hopeless.
But the Central American nation of Guatemala has managed to extricate itself from a similar situation, establishing rule of law after decades of corrupt rule.
Manfredo Marroquin, Transparency International’s Guatemala director, was in Kyiv this week to promote his country’s path in breaking impunity.The path included allowing a team of international investigators to come and build corruption cases for independent local prosecutors.
The initiative has been wildly successful, landing Guatemala’s president, vice president and two directors of the country’s tax collection agency in prison.
Marroquin said that all segments of Guatemalan society have taken notice – the private sector, the press, the military and government officials.
“It’s cut off their oxygen,” Marroquin said. “Now everybody is really afraid of justice for the first time ever. Everything is changing.”
Many argue that allowing a team of international investigators to conduct similar work in Ukraine could be an effective way to cleanse the notoriously corrupt government.
The International Commission Against Impunity in Guatemala, known by its Spanish acronym CICIG, began in 2008, two years after its creation by the United Nations General Assembly.
Marroquin said that the Guatemalan government allowed CICIG to come into existence as a way to make activists “shut up,” but “didn’t realize what could happen.”
The legislation granted U.N.-backed investigators broad powers to support the Guatemalan public prosecutor, including the ability to wiretap, conduct remote interviews and file complaints against public officials obstructing its work.
Purge corrupt officials
The team has used these powers to go after top Guatemalan officials thought untouchable, bringing a cleansing that many in Ukraine can only dream about.
In 2014, the commission began to investigate discrepancies in the customs service. Investigators found that import companies could call a special telephone number that would allow them to receive reduced customs duties in exchange for bribes to government officials.
As the investigation wore on, the commission found that shell companies used to launder money from the bribes had been awarded millions of dollars in contracts by the president’s office, despite having no discernible activity. That part of the probe culminated in September 2015, when President Otto Perez Molina resigned amid an indictment on charges of fraud, racketeering, and bribery. The investigation also brought down Molina’s Vice President Roxana Baldetti, who is alleged to have taken $38 million in bribes for government contracts.
Both are awaiting trial and deny any wrongdoing.
But the probe has not stopped. On June 16, prosecutors added new charges against Baldetti and Molina. The new indictment accuses the two of corruption and money laundering over a series of alleged embezzlement schemes.
The probe has touched the private sector as well. On July 10, the police arrested the owner of one of the country’s biggest hotel chains over allegations of evading more than $2.8 million in taxes. One week before his arrest, the businessman had been on the cover of the Central American edition of Forbes.
Marroquin said that government officials initially opposed CICIG’s efforts, leading to two commissioners being “kicked out by the government for the cases they were investigating.” At first, prosecutors only managed to file a few cases, sparking criticism that the effort was a “waste of money” which only compromised Guatemalan sovereignty.
Guatemalan prosecutors present the cases in court, while the international team works behind the scenes.
CICIG had a breakthrough after it started to go after Guatemala’s corrupt judiciary, Marroquin said. CICIG published a report about “judges of impunity,” naming 18 judges suspected of taking bribes in exchange for rulings in favor of organized crime groups.
“So the judiciary knew they were being watched,” Marroquin said.
Recovering dirty money
CICIG is not meant to last forever.Investigators have a mandate that must be renewed every two years, and work closely with prosecutors to create effective institutions.
Money recovered from corruption cases is being reinvested into making Guatemalan institutions more effective. Marroquin said that money forfeited from fraudulent contracts signed with the imprisoned president is being used to increase police officers’ salaries by $100 each month.
“We’ve never had this much trust in the public prosecutor,” Marroquin said. “Everybody is now doing what they should have been doing.”
In Ukraine, a recent poll by the International Republican Institute showed that most Ukrainians would be convinced that their country is headed in the right direction if steps were taken to fight corruption and break impunity among top officials, with the most popular measure being the abolishment of “immunity for judges and members of parliament.”
Daria Kaleniuk, head of the Kyiv-based Anti-corruption Action Center, said that there are four models for foreign intervention in Ukraine’s criminal justice system.
The least radical option, Kaleniuk said, would be to have a foreign panel commissioned to pick judges for cases brought by the National Anti-Corruption Bureau of Ukraine.
“These people will ensure the transparency and credibility and the real competitiveness of the selection process of anti-corruption judges,” Kaleniuk said, calling it a “must-do.”
Another proposal would see an international team sit as jurors in anti-corruption cases. In both of these scenarios, Ukraine’s right to prosecute its own criminal cases without foreign interference would be largely preserved.
But more far-reaching proposals, in which foreigners actively work as investigators, are also discussed.
One scenario would have Ukraine form joint teams with European prosecutors to investigate limited corruption cases, similar to the one used to investigate the crash of flight Malaysian Airlines flight MH17, killing 298 people. Such a team would work under Prosecutor General Yuriy Lutsenko, a loyalist of President Petro Poroshenko.
Another idea, which Kaleniuk admitted was unlikely, would see a Guatemala-style commission of 30 to 40 investigators arrive in Ukraine with expansive powers and a mandate to investigate high-level crime.
All of these proposals, however, would require approval by the Ukrainian parliament and Poroshenko’s support.
When Guatemala first appealed to the U.N. to create the commission, it was not met with immediate support. Instead, Marroquin said, the country had to spend two years lobbying a skeptical general assembly with the help of an ambassador with “all the contacts and credibility to do the job.”
Kaleniuk said that the European Union had so far failed to support the installation of an international investigative team into Ukraine.
“There should be will coming from both the Ukrainian side and the international community,” Kaleniuk said. “And frankly for something like the Guatemala case, I don’t see will coming from both sides.”
Kaleniuk added that the E.U. was afraid to “take responsibility” for such a project. “They are afraid to lose, to fail to deliver results,” she said, adding that such a project was unlikely to occur until the international community was “ready to share the responsibility and share the burden.”
Establishing rule of law could also be complicated by a situation in which senior Ukrainian government officials are implicated in corruption.
“They would be the first ones in jail!” Marroquin laughed, after being asked how a Guatemala-style system could be created under these conditions in Ukraine.
But he did point to the strength of Guatemalan civil society as a crucial factor in allowing the country to go as far as it has gone in fighting corruption.
“I think the Guatemalan case proved that if you combine will, tools, and the support of the people in an objective like this, change can happen,” he said. “It won’t be easy, because it took more than 10 years, but it’s possible.”
by Josh Kovensky for Kyiv Post