Why the OAS MACCIH Will Likely Fail

Multiple articles (here and here, for example) appeared in the press Wednesday echoing what we have been saying in for some time: that the OAS proposal for a Mission de Apoyo Contra la Corrupción y la Impunidad en Honduras (MACCIH) seems designed to fail, given Honduras's, and more particularly Juan Orlando Hernández's, history of meddling in the judicial system.

The indignados marches formed the context and motivation when Juan Orlando Hernández proposed the Sistema Integral Hondureño de Combate a la Impunidad y Corrupcion (SIHCIC).  He made the proposal as an attempt to shut the indignados protests down.

At the same time he proposed a "national dialogue" to open up the process to improvement, but no part of the SIHCIC process involved actually generating concrete suggestions from the dialogues, and there was no actual legislative proposal or even a report resulting from them. 

Hernández chaired the first several meetings, with groups usually allied politically with him, then turned the entire process over to a congressman to oversee.

The SIHCIC proposal has five basic components:

• first, a support committee for the Public Prosecutor's office to include both Honduran and international jurists that would audit the actions of the Public Prosecutor's office and aid in the pursuit of corruption

• second, a similar support committee to oversee the Consejo de la Judicatura, the group that disciplines judicial misbehavior

• third, a group responsible for the security of judges and their families

• fourth, an observatory of the judicial system involving academic and civil society members

• fifth, a business integrity group that would promote transparency and ethical standards for businesses and could propose rules and legislation to support them.

The proposal suggests nothing about judicial independence. It keeps the existing balance of power, tilted extraordinarily strongly towards the executive branch, and in fact, would reinforce it. 

The indignados rejected this proposal precisely because it did nothing to further judicial independence.  They continued to call for the establishment of a CICIH along the lines of the CICIG which has been successful in Guatemala. 

However, some of the indignados, including a leader, Tomás Andino, believe that even a CICIH might not work.  Andino said:

Guatemala has a relatively greater independence of powers than Honduras, which does not function as a democratic state...Here, a U.N. commission would be embedded in a corrupt system.

Because the indignados and other groups refused to participate in Hernández' dialogue, given its closed nature and lack of a mechanism for incorporating any results of the dialogues into legislation, Hernández eventually asked both the OAS and UN for mediators and facilitators. 

The OAS sent John Biehl del Rio who met with many of the same groups that Hernández had, then met in turn with the indignados and other groups that had not participated in the dialogues.  However, he was partisan from the start.  He openly rejected the indignados' call for a CICIH and dismissed the opposition in Honduras in inappropriate ways. 

As a result of his recommendations the OAS instead proposed, and Juan Orlando Hernández accepted, the Mission de Apoyo Contra la Corrupción y la Impunidad en Honduras (MACCIH), designed to take another two years to perform studies and make recommendations.

MACCIH, not unsurprisingly given John Biehl's antipathy for the indignados, parallels and expands on the SIHCIC proposal of Hernández.  It calls for the formation of a set of international judges and lawyers to advise the Public Prosecutor's office and provide technical support to the investigative services.  It uses the Centro de Estudios de Justicia de las Americas (CEJA) to write a series of reports and recommendations on the justice system in Honduras.  It invokes the OAS's Mecanismo de Seguimiento del Implementación del Convención InterAmericana contra la Corrupción (MESICIC) to evaluate and recommend legal changes necessary to fight corruption and bring Honduras into line with the Inter-American Convention against Corruption.  It also calls for the establishment of an observatory of the judicial system to monitor its progress.

A Woodrow Wilson Center report authored by Eric Olsen and Katherine Hyde pointed out nine weaknesses of the MACCIH proposal that, they say, "must be addressed if this and other efforts are to be more than mere window dressing".

For us the most relevant and pressing of their questions is this one, which we also have been asking:

The priority of the MACCIH seems to be assessment and recommendations for institutional reform.  There is little question that institutional reforms are needed, but I know of at least two internationally sanctioned, highly credible assessments of Honduras's law enforcement institutions and justice system in the last four years, and their findings and recommendations are very sound.  Yet the government of Honduras (both current and previous) failed to act on the vast majority of these recommendations.  The question is whether it is really necessary at this point to carry out additional costly assessments and evaluations and again develop reform proposals when much of the work has already been done.  Why not adopt the recommendations that have already been made by international bodies -- including ironically, the OAS just six months ago -- and get to work now.

We would go further and suggest that Juan Orlando Hernández himself, while head of the Honduran Congress, was one of those who "failed to act on the vast majority of recommendations" for judicial reforms. While head of Congress he initiated questionable procedures to remove four sitting Supreme Court justices because he didn't like their ruling on Model Cities. Why does anyone, including the OAS, think that suddenly this will change, that the Honduran government will now act to implement the suggestions?

The MACCIH proposal has won support from James Nealon, US Ambassador to Honduras, who immediately after its announcement tweeted his approval.  But Foreign Policy magazine called it "more like a tool to appease the masses rather than an effective tool for reform."  Carlos Ponce of Freedom House said recently:

"The solution is not making more reports, but bringing change to Honduras.  We’re not talking about India or Brazil but a small country with lots of potential — but a lack of will to change. The families in power are in bed with factions in the government that also control the media. Corruption is linked directly to political parties, so you have to change the power structure."

Nothing in MACCIH even seeks to addresses this fundamental problem.  Without a demonstrated "will to change" there is no reason to expect MACCIH to bring about meaningful change in Honduras and more than previous studies cited in the Wilson Center report have.

 Meanwhile, Judicial independence in Honduras and Corruption in Honduras were the topics of two hearings last week at the Inter American Commission on Human Rights (IACHR in English and CIDH in Spanish). 

The government of Honduras boycotted the hearings. That should give those supporting the MACCIH pause; is there any will to examine these basic questions?

Mediating The Status Quo

Yesterday John Biehl del Rio, the Chilean diplomat designated by the Organization of American States to be their representative to the National Dialogue in Honduras, with the title of "mediator", called the indignados and LIBRE "pig-headed" and "imbeciles".

That's not how you mediate a dialogue, that's how you end one.

The job of a facilitator or mediator is to listen to both sides of an issue and to try to bring them into conversation about their common ground.  It's not the role of a mediator to publicly insult one side in the process they are mediating.

By his words, Biehl has been showing all along that he isn't really a mediator.

Gentle readers will recall that in June, in response to the marchas de antorchas, with their demand for an international commission against impunity and corruption, Honduran President Juan Orlando Hernández unilaterally announced a Sistema Integral Contra la Impunidad (SICA, "Integrated System against Impunity") and called for a "National Dialogue" whose participants the government would designate.

The proposal, not immediately available to the Honduran press at the time, called for the establishment of several oversight committees for the Honduran judiciary, all of the committee members appointed by the Executive Branch.  It specified no procedures or reporting mechanisms by which the "National Dialogue" would provide any input or revision to the proposed SICA process or composition.

Hernández presided over the first few meetings himself, meeting with jurists and business, before turning the whole process over to a Congress member to organize and oversee.

Some parts of civil society saw the National Dialogue as a government show, with no stated objective, and refused to participate.

Those not participating include the indignados, who for the last 16 weeks have marched every Friday calling for a Comision Internacional Contra de la Impunidad (CICIH) and for President Hernandez to resign. The two opposition political parties that were first on the ballot this last election (LIBRE and PAC) have refused to participate for much the same reasons: the control of the process by the current government and the lack of any connection between the "dialogue" and possible reforms.

Hernández's proposal "reforms" the Judicial Branch by making it responsible to committees for judicial oversight and review established and appointed by the Executive Branch.  This further erodes judicial independence.

This was the official response of the government to the indignados, and it was hoped that it would weaken support for their calls for a CICIH, and silence their calls for Hernández's resignation.

When that didn't work, Hernández formally asked the OAS and UN for facilitators or mediators to help bring all of Honduran civil society to participate in the National Dialogue.  Enter John Biehl del Rio.

Biehl del Rio has a fairly long history of engagement with Honduras.

As a chief adviser to Costa Rican President Oscar Arias, he was the principal mediator for the San Jose Accords intended to return José Manuel Zelaya to office after the 2009 coup.  Before that he spent 4 years in and around Tocoa in the Bajo Aguan, teaching peasants about cooperatives.

It may be that in Honduras, Biehl del Rio sees similarities to how he described his native Chile in 2010:

"There is a political world that needs to go.  When the national task fundamentally consists in practicing the art of disagreeing to thereby gain power, there prevails a will and ambitions that destabilize the possibility of a good government.  The culture of confrontation which we inherit from the past, severely limits the ways to satisfy the necessities of the people.  To use and supply yourself with stereotypes from another historical epoch to exercise opposition or to govern is to deliberately damage the country....If the opposition looks for the failure of the government to rise to power, it is jointly responsible for restarting one of the worst nightmares of the country."

The nightmare Biehl del Rio was referring to in Chile was the rise of the military which overthrew Salvador Allende. While Biehl del Rio was not a supporter of Allende, he went into exile after Pinochet took power.

In Honduras, however, it seems the place of the military in his critique is taken by the indignados and political parties opposed to the current president. Much of what Biehl del Rio has said about the opposition in Honduras echos the sentiments about Chile quoted above.

Biehl told the Honduran press that

There are many people who have taken this hard time for Honduras as a kind of political pre-campaign, and this crisis as an opportunity to kill their possible rivals.  This I have noted in conversations. With these people it is very difficult to make advances because they only have one thing in mind.  Hondurans are very political, at least in Tegucigalpa and San Pedro Sula.  They give the impression that everyone wants to be president and as such their positions are very sharp and cutting because they see that this is a weak moment."

So for Biehl, the indignados are merely pre-campaign presidential politicking.

But Honduras isn't Chile, and there are indications that Biehl del Rio may not completely understand Honduran politics.

Among his other pronouncements he called the Honduran Congress "representative of the people (or Nation) and a transversal cut through society", suggesting it should play a leading role in the National Dialogue.

Now the Honduran Congress is many things, but it does not represent Honduran society, directly or indirectly.  Congress members are loyal and answerable to the political party that ensures their election, and do not represent a local constituency. There is really no way to consider these political insiders a "transversal cut" through society-- nothing in the Honduran political system works that way. This is part of the problem that has brought so many people out on the streets.

Biehl del Rio may see similarities to his Chile in 2010, but in the intervening years, he's lost his ability to say this diplomatically, and is reduced to calling the Honduran opposition names.

That means instead of mediating, he has adopted a side-- with a president elected by a minority of voters in an intensely split election, whose party is wrapped in a scandal over the financing of that very election, and who is trying to insist that he knew nothing of the money moving around. It's a bad side to be on, and it is unfortunate that it has led him to dismiss the largest show of public engagement in governance in modern Honduran history.