DESA: Fraud and Corruption

On the third anniversary of Berta Cáceres' murder, MACCIH and the UFECIC-MP (Unidad Fiscal Especial Contra la Corrupción y la Impunidad del Ministerio Publico) announced new legal cases against 16 individuals, brought as a result of studying the approval and license allocation processes for the Agua Zarca dam on the Gualcarque river in Honduras. 

So far in the Honduran press, only El Tiempo and Proceso Digital reported it, both digital publications.  The major Honduran print papers have ignored it.

The combined forces of MACCIH and UFECIC-MP chose to investigate the more than 40 complaints about irregularities in concessioning and licensing hydroelectric projects that affect the Lenca people, complaints lodged by Berta Cáceres before her murder, complaints about DESA and the Agua Zarca dam. Ana Maria Calderón, the Corruption coordinator in MACCIH, noted that the implications of their findings have a much larger application:

In light of today's findings, the Mission suggests that the [Government of Honduras] review the remaining active contracts and the norms that regulated them, because to continue with this energy strategy could produce an unbalance in the market and bring about the bankrupcy of ENEE;  its possible that all the contracts tied to renewable sources were let in the same way [as this one].

If all of the many contracts and licensing processes underwent the same irregularities as this contract, it has implications for the future viability of ENEE, the national electric company, which currently runs at a loss.  The Honduran government is due to tell the IMF how they plan to bring this entity to profitability sometime in the next three months.  With more contracts authorized like the DESA one, they probably cannot.

The investigation found that DESA was created in 2009 by two brothers (the Abate Ponces) and almost immediately Roberto David Castillo Mejia was its de-facto representative. 

But Castillo Mejia was also employed full time in ENEE, in the department that reviews and allocates contracts for hydroelectric projects. Very convenient for DESA.

He obtained shares in the firm through a front company formed in Panama, called PEMSA, which had just two shareholders, Castillo Mejia and Carolina Lizeth Castillo Argueta.  Castillo Argueta was the lawyer for the ENEE workers' union at the time, but became DESA's lawyer as well and signed the contract for DESA.  She signed instead of Castillo Mejia to cover up his conflict with his role in PEMSA.  DESA has another investor, Inversiones Jacaranda, owned by the Atala Zablah banking family.

Both David Castillo Mejia and Carolina Castillo Argueta worked directly for the head of ENEE, Roberto Anibal Martinez Lozano, who signed the contract with DESA on behalf of ENEE.  He signed the contract despite knowing DESA was not on the list of ENEE approved contractors (a prerequisite to any ENEE contract).  He signed without investigating how a front company with no technical or financial assets was going to carry out this somewhat tricky contract.  In short, it was an illegal contract, but he signed anyway, even over objections from his legal department.

Fraud happened in the approvals process at a number of government institutions.  SERNA, the environmental resources agency, for example, approved the feasibility study on December 16, 2009, without bothering to locate the land on which the project would take place, or determining who owned that land, or confirming approvals from the municipality where the dam would be located, all abnormalities that the legal department at SERNA noted.  Yet they too recommended approval of the project.

The feasibility study itself was improperly done.  It was submitted to SERNA on October 5, 2009, just 24 hours and 5 minutes after ENEE gave its permission.  Nevertheless, SERNA and Castillo Argueta signed a contract on January 22, 2010 that gave DESA the use of national water.  This contract was signed despite a negative recommendation from the National Energy Council, which noted that DESA did not meet the legal requirements for a contract.

SERNA issued a "Category 2" environmental license for the Agua Zarca project on March 24, 2011.  MACCIH and UFECIC-MP allege the project was miscategorized in favor of DESA, giving them cheaper license fees. The environmental license required a two-year study of the amount of water flowing in the river, and the law specifies that is two years after the water use contract is issued. The study was supposed to contain two years of data on the volume of water flowing in the Gualcarque river.  It was supposed to be current data.

Instead the study contained data from a 2003 proposal previously rejected by ENEE, that Carolina Castillo Argueta had access to because the union she represented was supposed to partially finance the rejected project.

Less than two years after the water use license was approved on January 22, 2010, SERNA issued an environmental approval for the Agua Zarca dam.  They had to know the data included were falsified.

The 2003 project DESA plagiarized asked to construct a 6 MW power plant, and DESA's original request was also to build a 6 MW project. 

In August of 2010, DESA received a concession for a 14.5 megawatt project. 

On May 14,  2011, DESA asked for, and received an increase to 21.5 megawatts. 

DESA said it would add a third turbine to generate this power, but MACCIH suggests that it's not clear the river actually has enough water to support a third turbine, or even fully support the second turbine. Without a constructed project producing power using the proposed model, it's difficult to judge the alleged improvements. 

An economic analysis suggested the proposed investment in a third turbine was intended to increase the total investment DESA had in the project, which would then increase the purchase price ENEE would have to pay for their electricity. 

Higher investment ==> higher purchase price in ENEE's pricing models.

All in all, not only does the project have the problems we knew with community consultation and approval; as an engineering project, its feasibility was uncertain. The record of approvals and contradictory roles of individuals involved is a clear indication of violation of law. And it seems the main purpose in setting the project up the way it finally was approved and was to be implemented might have had more to do with extracting more government money, than with any actual power production.

The sixteen individuals charged in this case are:  Francisco Rafael Rivas Bonilla, Julio Alberto Perdomo Rivera,  Catarino Alberto Cantor López, Luis Eduardo Espinoza Mejía, Anna Lourdes Martinez Cruz, Aixa Gabriela Zelaya Gomez, Dario Roberto Cardona Valle, Mauricio Fermin Reconco Flores, José Mario Carbajal Flores, Oscar Javier Velásquez Rivera, Roberto Anibal Martínez Lozano, Roberto David Castillo Mejia, Julio Ernesto Eguigure Aguilar, Raul Pineda Pineda, Carolina Lieth Castillo Argueta, and Saida Odilia Pinel. 

They now stand accused of Abuse of Authority, failing to fulfill the requirements of a public official, falsification of documents, negotiating in a way not compatible with holding public office, and fraud.

MACCIH to investigate DESA, government contracts, funding

The Misión de Apoyo Contra la Corrupción y la Impunidad en Honduras (MACCIH) announced Thursday that it would begin investigating, not the murder of indigenous activist Berta Cáceres, but the funding and government contracts of DESA, the company building the Agua Zarca dam for possible corruption and money laundering.

Mission spokesperson, Juan Jimenez Mayor announced the OAS mission would look into DESA, how it got its government contracts for the Agua Zarca dam and ENEE electricity purchase, and how it grew from a company with less than $1000 in capital in 2009 to have over $17 million in 2014.  In particular, Jimenez Mayor said the Mission wanted to verify the source of the funds, and whether DESA was money laundering.

Another aspect of the Agua Zarca project that Jimenez Mayor said was interesting was the awarding of the original environmental license in 2010, and the enlarged project environmental license in 2011.  The latter, approved by Dario Roberto Cardona, then sub secretary of the Secretaria de Recursos Naturales y Ambiente (SERNA).  Jimenez Mayor noted that while Cardona was being prosecuted for issuing the expanded environmental license in 2011 without proper consultation with the indigenous communities around Agua Zarca, he wondered why the issuer of the first environmental license, then Minister Rigoberto Cuellar, was not being investigated for the same crime since the same problem exists with the first environmental license issued in 2010. 

Jimenez Mayor also pointed to Congress, and its approval of an electricity buying contract from DESA to ENEE that called for ENEE to purchase more electricity than initially agreed on.

DESA denies there was an increase in its electricity production licensed by Cardona, and maintains it properly consulted with the municipality through open meetings, and that ILO 169 has not been codified into Honduran law.

The Agua Zarca project remains suspended.  The recent withdrawal of two of the international funding agencies (the Netherlands Development Bank (FMO) and the Finland Fund for Industrial Cooperation (FINFUND)) has not resulted in its cancelation because much of the funding comes from the Banco Interamericano de Integración Económica (BCIE) which has not withdrawn its support.

Being An Environmentalist Can Kill You

Global Witness, an NGO that exposes corruption and environmental abuse, released a report this week that called Honduras the most dangerous country to be an environmentalist. 

The numbers are heartbreaking.

Global Witness looked at the period 2002 - 2014 to accumulate statistics on the death of environmental activists around the world.  Brazil had the highest number of deaths, at 477, while Honduras had 111. Almost all of those deaths happened since 2010.  If you look at the rate of death of environmentalists over the last 5 years, it turns out Honduras leads, with 101 deaths.

Here's how the numbers work. 

From 2002 to 2009, Honduras had 0, 1, 2, or 3 deaths per year of environmentalists.  Starting with 2010, those numbers skyrocketed:  21 deaths in 2010, 33 deaths in 2011, 25 deaths in 2012, 10 deaths in 2013, and 12 deaths in 2014.  90% of the Honduran environmentalist deaths occurred in the last 5 years!

Global Witness found that mining and other extractive industries caused the largest number of deaths in 2014, with a tie for the second spot between Water and Dams, and Agribusiness.  These three accounted for 84% of the environmentalist deaths in 2014.

This violence has come down particularly hard on indigenous environmentalists.  Three Tolupan leaders were shot and killed during an anti-mining protest in 2014. 

The Global Witness report came out the same day that another Honduran indigenous environmentalist, Berta Cáceres, won the Goldman Prize:

The Goldman Environmental Prize honors grassroots environmental heroes from the world’s six inhabited continental regions....The Prize recognizes individuals for sustained and significant efforts to protect and enhance the natural environment, often at great personal risk.

Cáceres was honored for her grassroots organizing of opposition to the Agua Zarca dam project.  Agua Zarca was a joint project of the Honduran company Desarrollos Energeticos S. A. (DESA) and SinoHydro, the Chinese government owned company recognized as the largest dam builder in the world.  DESA received a $24 million loan from the Banco Centroamericano de Integración Economico for the project. 

As the Goldman page for Cáceres notes, the project was promoted and approved in a corrupt and fraudulent fashion, failing to do the required consultation with the local Lenca communities that lived within the region slated for the reservoir, a violation of ILO 169 and other treaties to which Honduras is a signatory.

DESA was founded in 2008 and claims to be a Honduran pro-environment company:

DESA has always been concerned for the protection of the environment and because of this all its business practices and maintenance follow strict guidelines to be in harmony with nature.

Nature maybe, but not in harmony with the Honduran people, who they seems to despise. 
 DESA guards killed Tomas Garcia while he was protesting against the dam.  They attacked protesters with guns, clubs, and machetes over and over again during the protest, with impunity for all the wounds and the death inflicted.

DESA doesn't list its ownership or any company officers. DESA was able to employ and command Honduran military troops in the protection of of the dam site and equipment. DESA also arranged for trumped up arms charges to be filed against Berta Caceres, to try and jail her to stop the protests.

Ultimately they've failed.  SinoHydro has left Honduras and the dam project is halted.

And Berta Caceres has been honored with the Goldman Prize, which we can hope will help protect her from the fate of too many other Honduran environmental activists.

Indigenous Leader Berta Caceres Ordered Jailed

"I will keep myself with my head held high and will all dignity: I say to them that those businessmen are mistaken if they think that the Lenca people will stop their historic fight in defense of the common property.... My crime is to carry blankets with the name of COPINH, to yell slogans and to create poems in defense of the Río Blanco..."

Honduras' progressive online news source, El Libertador reported these statements, made on Radio Globo by Berta Cáceres, Lenca activist and leader of the Consejo Cívico de Organizaciones Populares e Indígenas de Honduras (Civic Council of Popular and Indigenous Organizations of Honduras: COPINH).

They came in response to a judge in Intibucá, Alicia Lizeth Naigh Reyes, ordering what El Libertador called "prisión preventiva" (preventive detention) for Cáceres. Preventive detention precedes trial.

In fact, as the notice posted by La Prensa late Friday made clear, this was the final sentencing for Cáceres' participation in Lenca mobilization against the Agua Zarca hydroelectric project in Río Blanco, Intibucá, by a Honduran-Chinese collaboration, DESA-SINOHYDRO

The lawyer for the three indigenous activists, Victor Fernández, said that the two other Lenca activists accused, Aureliano Molina and Tomás Membreño, were released under his parole, required to check in every 15 days.

Berta Cáceres was given a more severe sentence, to be served in the Centro Penal of La Esperanza, in the Department of Intibucá.

What Honduran media did not report is the full militarization of the scene, described by the Mexican news site Vanguardia:

The sentence was delivered... surrounded by some 700 police and military, including some inside the place, among them anti-riot police, who carried metal shields, tear gas bombs, and batons....in front of the court house, some 2000 Lenca supporting Cáceres with signs were present, while inside were Nora Cortina, one of the Mothers of the Plaza de Mayo of Argentina; Carlos H Reyes, Honduran labor leader; and Berta Oliva, director of the Comité de Familiares de Detenidos y Desaparecidos (COFADEH).

Not present at the sentencing was Berta Cáceres herself, who was represented by her legal counsel.

Proceso Digital published a story about the protest at the courthouse, claiming the indigenous protestors took over the building, but this detail does not appear in other coverage. They described the charges against the three Lenca leaders as

inciting the population of the western area of the country to cause damage to a business that is developing a hydroelectric project in the area.

It is apparently on these grounds, of inciting others, that Berta Cáceres was deemed a "subversive" and sentenced to jail.

The coverage of the sentencing, and the mass protest outside the courthouse, should call into question news reports that purported to show that the Lenca were in favor of the dam. El Heraldo, for example, headlined its September 7 story Lencas de acuerdo con construcción de represa, and wrote that

More than 100 residents, representing ten Lenca community organizations [patronatos] on the Río Blanco, north of Intibucá and south of Santa Barbará, signed an agreement of cooperation and mutual understanding with President Porfirio Lobo Sosa with the company Desarrollos Energéticos Sociedad Anónima (DESA) [the Honduran partner in this Chinese-Honduran project], accepting the construction of the hydroelectric dam “Agua Zarca”.

The event publicized in these stories notably lacked any participation from COPINH, although representatives from two other Lenca organizations were involved. According to these press reports, the signatories of the agreement stated that they were satisfied with the consultation of their communities-- a legal requirement for the project to proceed-- and in return, the company developing the project promised financial compensation of various kinds.

Of course, what the carefully orchestrated event held in Tegucigalpa did not address were the concerns of the protestors at the site of the Agua Zarca dam. There, in July, protests were met by the wounding of one protestor, and the death of another, through gunshot from army engineering division. In May, the same army unit was busy evicting protestors from the area of the dam.

In June, Radio Progreso posted video and an article in which the protestors specifically stated that the government had not consulted appropriately with the communities affected, as called for:

free, previous, and informed consultation, under ILO Convention 169, ancient land titles, historic rights and agreements signed between the Consejo Cívico de Organizaciones y Pueblos Indígenas de Honduras, COPINH, and the Estado de Honduras.

In this case, as in others, at issue is whether what the government did meets the standard of "free, previous, and informed" consultation.

The government stresses obtaining signatures from representatives of some groups, but does not address the wider question of whether these signatories are representing the actual position of the people.

The signing, taking place while three Lenca leaders were under trial for protesting, and after others had been wounded, killed, or kidnapped, arguably doesn't meet the criterion of being "free".

And getting signatures on documents on September 7, months after construction efforts and protests against them began, clearly does not qualify as "prior" consultation.