Monday, August 2, 2010

Corruption, Impunity, and the OAS High Commission

Today begins a litany of denunciations by the far right of the OAS report as covered in the pro-coup press of Honduras.

Unlike the bombast in Proceso Digital that we blogged about yesterday, these attacks are all carefully attributed to specific individuals with institutional positions lending them credibility at first glance.

In Honduras, corruption falls under the purview of the Consejo Nacional Anticorrupción, the National Anti-corruption Council. This quasi-governmental organization monitors corruption, and accepts denunciations of corruption, but does not investigate or prosecute; the responsibility for that lies with the Public Prosecutor.

The CNA consists of an Assembly composed of representatives of a 12 different civil society groups. Religion is represented both by someone from the Archbishop's office, and from the Fraternal order of Evangelical Churches. Business is represented by someone from COHEP, labor by someone from the Confederation of Workers, and so on. Funding comes as part of the regular government budget, and is supposed to be supplemented by international grants. It's director is called a coordinator.

The Consejo Nacional Anticorrupción is particularly ineffective, as the Millennium Challenge Corporation noted in its FY 2010 report, covering 2008, where Honduras scored lower than the mean in controlling corruption.

Oswaldo Canales is the representative of the Evangelical Churches of Honduras on the council. He is also the coordinator of the Honduran CNA, and was appointed to that post in October, 2009. In today's La Tribuna, Canales, asked about the OAS High Commission report in this capacity, repeated two slogans of the far right in Honduras: "the law is for everyone, equally", and "international organizations need to obey their charters and stop interfering in Honduran internal affairs".

La Tribuna writes:
Canales, although he admits he does not know all of the report of the OAS, regretted that decree "erased and [created] a new account" for presumed acts of corruption in the administration of Zelaya Rosales, this will affect the obligations which the country has with other organizations, and this when these governmental authorities had declared 2010 the year of transparency.

Meanwhile in El Heraldo, Roberto Herrera Cáceres, identified as ex Secretary General of SICA, argues that the report might violate the UN Treaty on Corruption. Herrera Caceres is a noted jurist, which for some reason is not mentioned in the article. Under the presumption of innocence introduced into Honduran jurisprudence in the last decade, opinions about cases should be formed only after they are heard. Herrera Cáceres does not speak after having studied the case against Zelaya or even the OAS report. He's making a political statement dressed up superficially in legalese.

Predictably, Luis Rubi has also come out against the report, raising the same objection in El Heraldo that somehow dismissing this charge would violate international corruption treaties. Rubi, citing the OAS Convention Against Corruption, says,
The Treaty of the OAS against corruption does not permit that these crimes be subject to amnesty.

That seemed curious to us, so we reviewed the OAS Inter American Convention Against Corruption, which can be found here. It makes no mention of amnesty. Neither does the UN Convention Against Corruption, which can be found here. The only discussion of amnesty in the context of corruption is endorsement of its use as an investigative tool in the UN Anticorruption Toolkit.

Neither body envisioned the corruption that is being practiced in Honduras now: using the courts as a political weapon.

Juan Orlando Hernandez, President of the Honduran Congress, insisted that the amnesty he helped approve in January does not apply to corruption charges, nor to violations of human rights. True, but irrelevant.

According to the OAS report, the charges at issue against Zelaya were brought under Article 17 of the Inter American Convention Against Corruption. Article 17 reads, in full
For the purposes of articles XIII, XIV, XV and XVI of this Convention, the fact that the property obtained or derived from an act of corruption was intended for political purposes, or that it is alleged that an act of corruption was committed for political motives or purposes, shall not suffice in and of itself to qualify the act as a political offense or as a common offense related to a political offense.

Which is all about determining if the act was a political offense or common offense, as it relates to Articles 13, 14, 15, 16, not in general. So what are those articles about? They are about, respectively, Extradition, Assistance and Cooperation between States, Cooperation between States regarding property, and Protecting Bank Secrecy.

The OAS report (in paragraph 3i), quoting information supposedly supplied by Porfirio Lobo Sosa, says
He made reference, nonetheless, to the cases where it is not possible to apply said law [the amnesty] in virtue because they involve accusations whose dismissal would imply a violation of Article 17 of the Inter American Convention Against Corruption which is in effect in Honduras.

Lobo uses Article 17 to say that Zelaya's crime is not covered by the amnesty, but Article 17 does not apply. It isn't relevant, since it only refers to a determination of the nature of the crime for the purpose of extradition, cooperation between states, etc (Articles 13-16). Another red herring?

Dismissing the charges against Zelaya does not, as Proceso Digital and Oswaldo Canales asserted, strengthen impunity in Honduras. The Honduran Congress already did that when it carefully crafted the amnesty bill so that it blocked prosecution of those who staged the coup. Neither the reporters behind Proceso Digital nor Canales complained about the amnesty bill.

Nor does dismissing the remaining charges against Zelaya contravene the "apply the law to everyone, equally" precept that the far right trumpets in this instance. In the international context, Honduras was not under the rule of law when the charges were brought against Zelaya, after the June 28, 2009 coup.

Corruption is a serious problem in Latin America. Honduras is no exception. However, corruption charges don't happen equally to all corrupt individuals. Instead, corruption charges can be another tool in the arsenal of those in power against their political foes. So, in Latin America, when someone is charged with corruption, it is necessary to look at who is being charged, by whom, and under what conditions.

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