In an important decision for the battle against corruption in Honduras, the constitutional chamber of the Honduran supreme court on 30 May ruled unanimously that the convention founding the Organisation of American States (OAS)-sponsored Mission to Support the Fight against Corruption and Impunity in Honduras (MACCIH), was constitutional. Yet the ruling was not clear cut with regard to the local anti-corruption unit set up to support the MACCIH.
In recent months the MACCIH, which has been operating since April 2016, has seemed on the verge of collapse, under sustained political attack from within the country, most notably from within the national congress itself.
The supreme court in its ruling threw out a case brought by lawyers for five national deputies implicated in alleged acts of corruption in the congress. The deputies were Héctor Enrique Padilla Hernández, Audelia Rodríguez Rodríguez, Augusto Domingo Cruz Ascencio, Dennys Antonio Sánchez Fernández, and Eleazar Alexander Juárez Saravia. However, it remains somewhat unclear as to whether the ruling will affect the Special Unit against the Impunity of Corruption in the Public Prosecutor’s Office (UFECIC-MP), which works alongside the MACCIH to investigate corruption and bring cases to the Honduran judiciary.
The five deputies, having been among the most high-profile officials investigated by the UFECIC-MP, have sought continually to undermine the unit. In the days running up to the court decision, local Honduran newspapers published an alleged ‘analysis’ of the UFECIC-MP (provenance unclear) appearing to question its legality as an institution. The supposed analysis argued that the unit competed with the constitutionally reserved legislative and judicial powers, the public ministry, the office of the attorney general and the High Court of Accounts. The media later reported, “extra officially”, that the UFECIC-MP would be shuttered. That would seriously undermine the work of the MACCIH, whose principal role is advisory, and which lacks prosecutorial powers, and thus relies upon the public ministry unit to advance cases through to the judiciary.
As an advisory body only, the MACCIH is restricted in its abilities, quite unlike its more established United Nations-backed counterpart in neighbouring Guatemala. The International Commission against Impunity in Guatemala (Cicig), which began operating in 2008, has successfully prosecuted senior officials for corruption and links to organised crime all the way to the highest government levels. To date, the CICIG has survived numerous attempts by domestic opponents – political, business and otherwise – to have its work suppressed and its mandate terminated. It remains in place for now, albeit Guatemala’s President Jimmy Morales has made no secret of his ambition to get rid of it.
On its Twitter account, the Honduran supreme court stated in addition to its main ruling that the constitutional chamber also “expressly establishes in its sentence that all action and accompaniment in the framework of this Convention must adjust to the precepts of the Constitution”. This latter statement appears rather problematic, as it seems to leave open to interpretation the legal validity of the UFECIC-MP. In response, the OAS and the US embassy in Tegucigalpa have reiterated their support of the MACCIH and the UFECIC-MP.
Just ahead of the ruling, the US embassy on 29 May issued a statement via Twitter in which the US Chargé d'Affaires, Heidi Fulton, stressed that “all sectors are in agreement that corruption damages everyone in society” and that, in its short existence, the UFECIC-MP “has shown to be an effective tool for Honduras in the fight against corruption”. The embassy statement continued that the UFECIC-MP is a unit of the public ministry create to fight against corruption and impunity and that it “operates within the law under the supervision of the Honduran judicial authorities” and therefore “should be able to continue its important work”.
Just days earlier, on 15 May, Fulton also took to Twitter to air her concern at the “lack of progress” in nominating a new head for the MACCIH. The previous head, Peru’s former prime minister Juan Jiménez (2012-2013), an internationally-respected jurist, quit in February, alleging that he had not received adequate support from OAS Secretary General Luis Almagro. There is a lack of consensus about who should replace Jiménez. On 23 April, the Hernández government rejected the OAS’ nomination of a Brazilian lawyer, Luiz Antonio Guimarães Marrey, citing concerns about his suitability as a candidate. The MACCIH is currently under an interim head, Ana María Calderón.
The OAS General Secretariat (i.e. Almagro), on 30 May also issued a similar statement, in which it firmly reiterated its commitment to the work of the MACCIH and called for support of its efforts in favour of institutional strengthening in Honduras. In addition, the statement emphasised (in bold font) that one of the Mission’s objectives is “to support, strengthen and actively collaborate with the institutions of the State in charge of the prevention, investigation and punishment of acts of corruption”.
Continuing, the statement also took care to highlight “the active collaboration and the integrated work of the MACCIH with the Special Unit against the Impunity of Corruption in the Public Prosecutor's Office (UFECIC-MP), which has already produced important results” (such as in the case of the congressional deputies accused of corruption, as well as the recent indictment of former first lady Rosa Elena Bonilla (2010-2014), accused (along with other officials) of siphoning off welfare funds worth US$680,000 for personal use.
“This model of collaboration, according to the agreement that created the MACCIH-OAS, establishes that the UFECIC-MP exclusively assumes the cases that were selected by the MACCIH-OAS, with prior knowledge and authorisation from the Attorney General,” the OAS noted.
“Since its foundation, the MACCIH-OAS has actively supported other key steps in the strengthening of Honduran justice, such as the creation of the Criminal Jurisdiction with National Competence in Corruption in the Judiciary, or the certification of the members of UFECIC-MP,” it continued.
The statement concludes that the General Secretariat “appreciates the support received for the work of the MACCIH-OAS from member states and observers, as well as other international institutions”, and calls for “redoubled support for the model of ‘active collaboration’ that is being implemented in Honduras”.
Starting from the events prior to and surrounding the June 2009 coup d’état against former president Manuel Zelaya (2006-2009), the Honduran constitutional chamber has been something of an unpredictable actor. Critics say it has been effectively captured by the executive, which since 2009 has been led by the conservative traditional ruling Partido Nacional (PN).
As former president of congress (2010-2013) and rumoured ‘power behind the throne’, President Juan Orlando Hernández took on the chamber when it questioned former President Porfirio Lobo’s (PN, 2010-2014) hard-line national security strategy (which relied heavily on the military) and re-staffed the chamber with more sympathetic magistrates. Those same magistrates went to remove the constitutional ban on re-election, allowing Hernández to bid for (and win) a second presidential term in late 2017.
While Hernández arranged for the MACCIH in response to nationwide anti-corruption/anti-government protests in 2015, critics have long questioned his commitment to the fight against corruption, accusing him of paying it mere lip-service in order to keep the country’s key partner, the US, on-side. The PN-controlled congress and the local judiciary have continually rejected and/or watered down legislative measures and judicial reforms in support of transparency and corruption, making life very difficult for the MACCIH and the UFECIC-MP. As president, Hernández was able to take a hands-off position, saying that the executive could not interfere with the other state powers. Given his undoubted influence, however, this appeared a rather cynical position.
The latest constitutional chamber ruling again appears quite cynical in that it formally backs the MACCIH, but not explicitly the domestic unit specifically created to support and implement its work (i.e. the UFECIC-MP). As such, the ruling still leaves the future of the MACCIH – still without an active head – shrouded in doubt.
As for President Hernández, the ruling allows him to effectively remain on the fence. Fortunately for him, those US and other foreign investors with a long-established presence in Honduras – some of which are alleged to have close ties to the ruling political and business elite – have shown few signs of concern about the business operating environment in the country, or about the potential reputational risks of doing business in Honduras.
Hernández, who follows orthodox economic policies with the support of the International Monetary Fund (IMF), continues to prioritise Foreign Direct Investment (FDI) in support of export-led growth (largely US-facing). In 2017, real annual GDP growth was 4.8%, with growth of 3.75% forecast for 2018.
However, the IMF in its latest (April 2018) Article IV end-of-mission statement on Honduras also emphasised that “sustained anti-corruption efforts must continue to enhance the rule of law, which is a key determinant for both domestic and foreign investment in Honduras”. In this regard, it added, “it is critical to deepen the advances made in the fight against corruption, including by raising the criminal prosecution rate, enhancing the transparency of the current asset disclosures regime of public officials, and increasing funding and effectiveness of agencies in charge of anti-corruption, anti-money laundering and combating the financing of terrorism (AML/CFT)”. While the Fund made no specific reference to the MACCIH or the UFECIC-MP, the message was clear.
As expected, Trump derogates TPS for Honduran migrants
On 4 May, the US government led by President Donald Trump announced the end of Temporary Protected Status (TPS) for Honduras, effective as of 5 January 2020. TPS, which temporarily allows those fleeing countries afflicted by war or natural disasters to live and work legally in the US, was granted to Honduras in 1999 in the wake of Hurricane Mitch and benefits some 57,000 people.
In a press release, the US Department of Homeland Security (DHS) said that the decision was taken after finding the “disruption of living conditions in Honduras from Hurricane Mitch that served as the basis for its TPS designation has decreased to a degree that it should no longer be regarded as substantial”.
The decision was slammed by US legislators, human rights groups, and think-tanks such as US-based Washington Office on Latin America (Wola), which question whether the country’s conditions are suitable to receive the returning nationals, given Honduras remains one of the most violent countries in the world.
US congressman Jim McGovern pointed out that in its “own description of Honduras, the State Department describes a country where ‘violent crime, such as homicide and armed robbery, is common’ and ‘violent gang activity, such as extortion, violent street crime, rape, and narcotics and human trafficking, is widespread,’ and where ‘local police and emergency services’ fail to respond effectively”.
Wola also points out that violence has been on the rise since President Hernández’s controversial November 2017 re-election amid widespread claims of fraud – with at least 22 victims of that violence. Yet the decision to end TPS for Honduras was not a surprise given similar decisions in recent months with regard to other beneficiaries of TPS – namely El Salvador, Haiti, and Nicaragua.