Countries at the Crossroads 2005 - Ecuador

(Scores are based on a scale of 0 to 7, with 0 representing weakest and 7 representing strongest performance.)

Introduction

Author

Andres Mejia Acosta is a Killam Research Fellow at the Department of Political Science, University of British Columbia, Canada.

In August 2004 Ecuador celebrated 25 years of democratic rule, the longest period of uninterrupted civilian government since independence from Spain in 1822. During this period, the electoral authority has guaranteed free and fair competition in 7 presidential and 10 legislative elections. Women have gained significant representation in political office; indigenous people have consolidated one of the best-organized political parties in the Americas, gaining several congressional seats, mayoral offices, and cabinet positions in the government.

In contrast to the resilience of electoral democracy, civil liberties, human rights, and more generally the rule of law have been consistently deteriorating over the past decade. Political crises and widespread social discontent abruptly ended the mandate of presidents in 1997 and 2000. Although the military resisted the temptation to assume power, elected leaders crafted quasi-constitutional interpretations to restore democratic continuity. The government has ignored repeated reports of police violence and military interference in civilian matters. State and non-state actors have infringed on freedom of the press. Violent crime is widespread and remains unpunished given the weakness of law enforcement and judicial institutions. Courts remain politicized and largely ineffective, especially for solving and prosecuting controversial government corruption scandals. Survey polls show that this sense of crisis reflects the citizens' eroding trust in existing democratic institutions: the congress, the political parties, and the judiciary.

Over the past two years, the government and political parties have adopted some legislation to promote or ensure judicial reform, government accountability and transparency, freedom of the press, access to information, and anticorruption laws. The success of such reforms, however, is limited by the contentious dynamics of shifting political coalitions. In a context in which presidents lack a single partisan majority in congress, they must constantly seek support from opposition parties by attracting cooperation through the distribution of pork, patronage, and other particularistic goods. This has opened the doors for political corruption. Successful anticorruption initiatives need to acknowledge that corrupt political behavior is often caused by the inherent congressional weakness of Ecuadorian presidents and that corruption often goes unpunished due to the politicization of the judiciary branch.

The armed conflict in Colombia is an extremely disruptive influence for domestic politics in Ecuador. The Ecuadorian armed forces do not have the capacity to control and prevent a growing number of incursions of Colombian guerrilla and paramilitary groups into Ecuadorian territory. The adoption of the dollar as Ecuador's national currency in 2000 has provided an unintended haven for money laundering and the trafficking of arms and drugs. The requests for refugee status from Colombian citizens increased exponentially from 413 in the year 2000 to more than 10,000 at the end of 2003. The Ecuadorian state is able to accept only 30 percent of those but without making any legal commitments to improve the refugees' livelihood. The spread of Colombian violence coupled with the weakness of the Ecuadorian judicial institutions creates a breeding ground for additional government corruption, violent crime, human rights violations, illegal immigration, and growing unemployment. Articulating a concise national security plan and procuring the necessary resources from the international community should be the government's prime concern for facing this imminent challenge to the Ecuadorian state and its democratic institutions.

Accountability and Public Voice – 3.92

Ecuadorian democracy, especially during the past decade, has survived major social and political upheaval. Corruption scandals contributed to the resignation of Vice President Alberto Dahik in 1995 and the congressional dismissal of President Abdala Bucaram in 1997. President Jamil Mahuad was ousted in January 2000, 18 months after his inauguration, by a coalition of indigenous groups and middle-range army officers who opposed his economic policies. Two years later, the same indigenous-military coalition put Lucio Gutierrez, the leading conspirator, in the presidency. This cycle of chronic political instability results from a complex combination of both regional and economic power struggles of the Ecuadorian elite and popular expressions of social discontent. Political alliances are short lived and ad hoc in nature, thus affecting the sustainable implementation of economic policies. Poor economic performance has in turn eroded citizens' trust in democratic institutions.

The Ecuadorian congress has one of the largest numbers of effective parties in the region.² Members are elected for four-year terms with no term limits. The use of a proportional representation formula for the legislature combined with lenient electoral registration thresholds has made possible the proliferation of parties representing the ethnic and regional diversity of the country, but also individual schisms of the political elite. Presidents are elected according to a majority run-off formula; since 1979 there have been 10 presidents from 9 different political parties (only the Christian Democrat [DP] party has put two presidents in office). No president has obtained a single-party majority in Congress; presidents have had to resort to distributing pork, patronage, and policy concessions to cement the loyalty of congressional allies and avoid deadlock.

Elections in Ecuador have generally been considered free and fair since the country's transition to democratic rule in 1979. Electoral participation is mandatory for all Ecuadorian adults, with the exception of the military, who do not have the right to vote (see "Rule of Law"). The Supreme Electoral Tribunal (TSE) – the election monitoring body – is composed of seven members appointed by congress from the political parties that received the most votes in the last election. Through the TSE, the government allocates fixed campaign funds to all parties, as well as additional campaign funding in proportion to the votes obtained by the party in previous elections.³ According to Transparency International's 2004 Global Corruption Report, Ecuador has a low level of public campaign finance disclosure, granting partial access to financial reports filed.⁴ Campaign financing laws have not prevented excessive campaign spending and the disproportionate influence of specific economic interests. Local watchdogs such as Participacion Ciudadana-Ecuador (PCE) have had moderate success in monitoring and demanding the effective application of campaign financing laws. PCE has successfully pushed for establishing legal sanctions for violations of campaign finance caps, while obtaining public access to some campaign expenditure reports disclosed by parties and their presidential candidates during the 2002 campaign.⁵ By September 2004, however, the TSE had not collected the penalty for excessive electoral spending from all parties that exceeded finance limits. According to the law, collected fines should be transferred to public hospitals, but as of September 2004, the accused populist Roldosista Party (PRE), the caudillo-based PRIAN party, and the president's Patriotic Society Party (PSP) have not shown proof of having met their legal obligations.⁶

The Ecuadorian constitution allows for adequate oversight mechanisms to ensure the appropriate checks and balances across government branches. With a simple majority, congress appoints the prosecutor general (Procurador General) from a pool of three presidential nominees. Congress appoints the attorney general (Ministro Fiscal General) upon the nomination received from the Consejo Nacional de la Judicatura (CNJ), an administrative body within the judiciary (see "Rule of Law"). The general comptroller (GC), Ecuador's top auditing authority, is nominated by the president but appointed with a qualified (two-thirds) majority of the members of Congress.

In practice, however, the fragmented and volatile nature of political coalitions has turned mechanisms of oversight and control into instruments of political blackmail or has simply rendered them ineffective. Since inauguration in January 2003, President Gutierrez has been unable to propose a suitable candidate for GC that has the support of a qualified congressional majority due to conflicting political interests between the main political parties (see "Rule of Law"). In the meantime, the lack of a GC has opened multiple spaces for irregularities, as the president and the rest of government officials remain unchecked in their actions.

Conflicting political forces have thwarted the effectiveness of government control agencies. One example is the sudden dismissal of Wilma Salgado, the head of the Deposit Guarantee Agency (AGD) – a government banking insurance bureau – by its board of directors in March 2004. Salgado was appointed to the AGD as a political concession made to the indigenous Pachakutik movement by the newly elected president Gutierrez. In office, she played an active role in trying to seize assets from influential bankers who benefited from a government bailout during the 1999 banking crisis. But with the split of the indigenous from the government in August of 2003, the president's new political ally the Social Christian party (PSC) party – closely linked with banking interests – perceived Salgado to be a liability. In an alleged attempt to preserve his new coalition and to avoid alienating key political and economic interests, President Gutierrez stacked the AGD board that sacked Salgado a few hours later.⁷

Economic lobbies, mostly tied to powerful regional elites, play an influential role in the policy-making process. The son of a banana tycoon in the Guayas province, Alvaro Noboa, ran against President Gutierrez in the run-off to the 2002 presidential election, and Noboa's own PRIAN party remains a pivotal actor in the making of policy coalitions in congress. Changing political alliances combined with the influence of powerful business lobbies have resulted in frequent cabinet reshuffles and political volatility. This is especially true in the economic realm, where finance ministers, central bank governors, and other economic authorities have lasted only an average of 12 months in office.⁸

There is no clear criterion for promotion or dismissal of government bureaucrats in Ecuador. In complex technical sectors such as the finance ministry and the central bank, seasoned public officials carry out operations. But the bureaucracy in other national and sub-national government agencies is populated with political appointees who tend to reflect political quotas of the relevant congressional coalition. The lower bureaucratic ranks comprise a mix of poorly paid career officials, with limited incentives and mostly static ambitions, and temporary employees (public contractors) within the agency, who are largely dependent on patronage.⁹

Government efforts to adopt progressive legislation and strengthen institutions that promote gender equality are reflected in the creation of the National Women's Council (CONAMU) in 1997.¹⁰ The Ecuadorian government has ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), and the 1998 constitution grants significant civil and political rights to protect and ensure more equal participation of women in politics, at home, and in the workforce. According to Consejo Nacional de la Mujer, in the 2000 municipal elections nearly 25 percent of elected public officials were women.¹¹ Women have also gained significant representation in the national government, the cabinet, Congress, and other elected and non-elected local and provincial government posts. The government has also made possible the political participation of indigenous groups, first by granting voting rights to the illiterate in the 1979 constitution and second, by recognizing in the 1998 constitution the multiethnic and pluricultural nature of the Ecuadorian state. Indigenous people – who constitute less than 30 percent of the total population – formed their own political movement, Pachakutik, in 1995 and have gained several congressional seats, mayorships, and cabinet positions since.

In recent years, Ecuador has witnessed the mushrooming of civic groups aimed at influencing and monitoring the policy-making process in many areas, including the defense and promotion of indigenous rights, campaign spending, environmental protection, and fiscal budget implementation. The state imposes no significant restrictions on or legal impediments to the creation and funding of such initiatives. Although in many cases these groups lack the legal and material means to implement their policy recommendations – partly due to government inactivity – they have significantly contributed to raising policy awareness among the population.

The government owns radio frequencies, but it does not control media content. All the media are privately owned and generally outspoken. No conglomerate has monopoly control, and all political parties enjoy some access to state-funded airtime for campaigns. According to the 2004 Reporters Without Borders annual report, however, "press freedom has deteriorated since President Gutierrez took office and his relations with the media are very tense."¹² In October 2003, President Gutierrez joined other heads of state from the Americas to sign a declaration proposed by the Inter American Press Association promising to respect 10 principles of press freedom.¹³ Yet, when faced with widespread public criticism and disclosure of alleged corruption scandals at home, the government moved toward the promotion of libel laws. At the end of 2003, President Gutierrez announced the introduction of a law that would "severely punish" those who "defamed people, spread rumors, who lied and were despicable." Confronted by the media, the president's press secretary clarified a few days later that the president meant not a law but a "campaign" against such things.¹⁴

Repeated cases of intimidation of journalists, both by government and clandestine organizations, indicate a serious erosion of freedom of the press in Ecuador in 2004. The president requested the prosecutor's office to initiate a preliminary investigation of Diego Oquendo, a journalist who asked a government official about campaign donations made by Colombian guerrillas to the Gutierrez campaign. Gutierrez announced that the journalist's remarks were inflammatory and undermined public order.¹⁵ Another journalist, Rodrigo Fierro, was sentenced to six months in prison for criticizing former president Febres Cordero. The prison sentence was not imposed as Fierro is over 70 years old and has had no previous convictions. Threats and intimidation have also come from an allegedly extremist, and clandestine, organization called Legion Blanca. Marco Perez Torres, a news director at Radio Tarqui, received death threats in September and December 2003 as a result of his critical reporting on the government's policies.¹⁶ Amnesty International (AI) and other human rights watchdogs have expressed concern about the possible hardening of state and non-state actors against the press.

In contrast to the delicate situation of press freedom in Ecuador, the government has established effective provisions to guarantee freedom of cultural expression, including the recognition and promotion of indigenous languages. The constitution establishes that the state "will promote intercultural exchange, would base its policies and integrate its institutions according to the principles of equality and equity of cultures" (Article 62).

Recommendations

• The government should promote legislation that requires widespread disclosure of campaign financing and not limit legislation to media spending only. With the help of existing civil watchdogs, the government must design and enforce specific sanctions to punish campaign finance violations.
• The government must observe international commitments to allow freedom of the press at home and refrain from adopting libel laws that directly or indirectly curtail citizens' freedom of expression. It should also adopt a proactive role to investigate, confront, and eliminate clandestine organizations that have repeatedly threatened the freedom of expression and even the lives of individuals.
• The government must expedite the appointment of the country's general comptroller and ensure that public officials in charge of government control agencies are properly appointed and removed. The appointment process should define specific criteria of service and professionalism to protect the agency from political influences.
• The government should promote civil service reform to protect the bureaucracy from shifting political coalitions and improve its technical capacity, professionalism, and remuneration.

Civil Liberties – 4.12

The Ecuadorian constitution and penal legislation contemplates a wide array of provisions to prevent unjustified imprisonment, torture, and abuse by private/non-state actors and allows citizens the power to petition when their rights are violated by state authorities. In practice, the Gutierrez government has failed to address in any effective way numerous reports of police brutality and military misconduct. Despite the adoption of some legal reforms in recent years, these problems are likely to worsen due to the spillover of neighboring Colombia's civil conflict, which could well increase violent crime and affect public safety in Ecuador.

In October 2003, a delegation from AI that visited Ecuador released a report entitled: "With no independent and impartial justice there can be no rule of law."¹⁷ The head of the national police assured AI that the police have not committed human rights violations and that cases of disappearance, extrajudicial execution, and torture were things of the past. Nevertheless, since their 2003 visit, AI has released an average of one "Urgent Action" report per month containing information about grave human rights violations allegedly committed by members of the police.¹⁸ Such reports address two types of problems: alleged death threats against social organizations and political activists and impunity of police forces in alleged cases of mistreatment and disappearance of prisoners.

There is an environment of threats and political intimidation against those who oppose government policies, especially some indigenous leaders. On February 1, 2004, an assassination attempt was made on Leonidas Iza, the President of the Confederation of Indigenous Nationalities of Ecuador (Confederacion de Nacionalidades Indigenas del Ecuador [CONAIE]). According to an AI report, two unknown individuals shouting, "We are going to kill you," opened fire against Iza. He escaped unharmed, but four of his family members were injured and later taken to a hospital.¹⁹ President Gutierrez condemned the attack and called for an investigation. According to AI, the attack on Iza took place in a context of threats and intimidation against indigenous and community leaders who oppose government policies.²⁰ Only two months before the attacks, in December 2003, the police detained another indigenous leader, Humberto Cholango, for a few hours following a critical statement he made against President Gutierrez. These two cases illustrate the deteriorating relationship between the government and some of the more vocal indigenous leaders.

AI has also expressed concern about developments in the Fybeca case, a controversial police operation following an alleged robbery in November 2003 at a pharmacy belonging to the Guayaquil-based company of the same name. Eight people, including two civilians, died during the operation. Forensic reports suggested that some might have been executed.²¹ Three men (Jhonny Gomez, Cesar Mata, and Edwin Vivar) were arrested for the robbery attempt, but no one has seen them since. According to some family members, the prisoners called a few days later to say that their lives were at risk.²² However, the head of the Judicial Police in Guayas province told a lawyer from the ombudsman's office that there was no record of the men being detained at the Judicial Police Headquarters.²³ In the words of Nuria Garcia, author of the AI country report, the "Fybeca case is just one more example of the pattern of impunity that persists in Ecuador. The use of police courts in crimes against human rights is the cornerstone which upholds this pattern."²⁴ AI and other human rights organizations have unsuccessfully campaigned against the government use of police courts in cases of alleged human rights violations. Holding police trials away from public scrutiny increases the likelihood of police impunity. Currently, there are no signs that the case will be investigated by civil authorities. AIcontinues to receive reports of human rights violations by the police, including torture, deaths in custody, extrajudicial executions, and disappearances.

The problems of law enforcement are aggravated by the situation in the country's jails, including overcrowding up to two times beyond capacity, lack of resources, poor nutrition and health, and frequent violence between inmates and jail authorities.²⁵ Inmate riots demanding fair trials and sanitary conditions broke out in April 2004, shortly after a prolonged strike by jail workers who demanded better working conditions. Two inmates died and several civilians and two reporters were taken hostage during the riots. Jail overcrowding is not likely to improve, as recently approved antidrug legislation calls for long-term detention without trial (Prision en firme) even for minor drug offenders (see "Rule of Law").

The escalating conflict in Colombia has amplified problems of law enforcement and human rights violations along the Ecuadorian border. Various sectors of Ecuadorian society have expressed xenophobic sentiments toward Colombian immigrants as they are blamed for rising crime levels. Some irregularities have been found in the detention and trial of foreigners, who in many cases have been denied access to diplomatic representation.²⁶

The government has made some efforts to improve the situation of women and children. Women have gained access to jobs traditionally reserved for men, such as positions in the police and armed forces, but much remains to be done to end job and salary discrimination in the workplace. More generally, existing legislation and civil society groups have worked together to give women a more independent and improved status in Ecuadorian society. Media concern is growing regarding alleged cases of trafficking of children, mostly for adoption purposes, but the government has not allocated material or investigative resources to address these accusations effectively.

The rights of ethnic minorities are ensured by the 1998 constitution, which recognizes the multiethnic and pluricultural nature of the Ecuadorian state. This declaration has had the effect of granting legal recognition to indigenous languages and the right to apply indigenous justice, as long as it does not conflict with existing constitutional provisions. Gradually, the indigenous – and to a lesser extent the Afro-Ecuadorian groups – have gained recognition and tolerance from a mostly mestizo Ecuadorian society. The 1998 Ecuadorian constitution grants extensive rights to people with disabilities, including preferential access to public services, tax exemptions, and nondiscrimination. In practice, the Ecuadorian society needs to play a more proactive role to fully incorporate people with disabilities into the family, the workplace, and the public sphere.

The Ecuadorian constitution upholds freedom of conscience and belief, as long as their expression does not conflict with the fundamental principles and individual rights established by the constitution. The Ministry of Interior is in charge of official recognition and legal registration (personeria juridica) of the diverse religious orders in Ecuador. These groups must submit a declaration of principles and a statement of their beliefs and fulfill other procedural requirements. To this date, religious orders have not been obstructed or interfered with by state entities, nor has the state had to preserve or protect the individual liberties of its citizens from illegal actions or violations of religious orders. Quite to the contrary, Ecuador has witnessed the proliferation of religious organizations, movements, and creeds of the most diverse ideological orientation throughout its territory.

Freedom of association is guaranteed by the state. Labor unions have the right to strike, although public-sector strikes are banned by the labor code. One case of concern is the recent campaign of intimidation and defamation against the Sarayaku indigenous community in the Pastaza province, which actively opposed oil-drilling concessions granted to foreign companies. The Sarayaku claim that oil extraction will damage their environment and way of life and have refused to abandon their territory. Instead, they have proposed alternative and sustainable development mechanisms to preserve their culture. During the second half of 2003, the Inter-American Commission of Human Rights (IACHR) – part of the Organization of American States (OAS) – ordered Ecuador to protect the Sarayaku community, because some of their leaders had received death threats; and some of their members were physically and verbally assaulted during a demonstration in December 2003. The government has paid little attention to these claims and human rights recommendations.²⁷

Recommendations

• The government must adopt a more proactive role to enforce existing legislation in order to protect women's rights. It should investigate accusations of child trafficking and enact sanctions if accusations are proven to be correct. The government should also promote legislation to ensure equal gender conditions in the workplace.
• Existing legislation that allows for indefinite imprisonment without sentence must be immediately reviewed and adjusted according to the severity of cases and to existing international norms.
• The government must address the problem of jail overcrowding by expediting pending trials and giving differential treatment to dissimilar types of offenders.
• The government should fully investigate alleged violations of human rights, torture, and disappearances by police forces and punish those responsible. The government also needs to reinforce and target police-training efforts to interact with civil society in the protection of individual liberties.

Rule of Law – 3.33

Ecuador's judicial system gained formal independence from political influence when constitutional reforms adopted in 1997 took away the legislative power to appoint Supreme Court (CSJ) magistrates. Currently, CSJ magistrates are appointed for life with the favorable vote of two-thirds of its members. Potential judges are nominated by representatives of different social and political sectors including the Bishops Conference, former CSJ presidents, human rights groups, and indigenous organizations. Candidates are required to have basic legal training and some years of experience before assuming the bench. The Consejo Nacional de la Judicatura (CNJ), an administrative and disciplinary body of the Judiciary, may dismiss CSJ magistrates due to incapacity, inability, or disciplinary sanctions. The CNJ is chaired by the president of the CSJ and composed of seven members appointed from outside the court with the favorable vote of two-thirds of CSJ members.

Traditionally, the selection of Supreme Court judges has resulted from intense political bargaining reflecting political, economic, and regional divides. Despite current constitutional provisions for judicial independence, powerful political interests influence the appointment process of CSJ members and their rulings. A recent example of political meddling is the judicial investigation of former president Gustavo Noboa (no relation to the leader of PRIAN) for alleged financial mismanagement. Noboa's political rival, Leon Febres Cordero – with the support of his PSC party – allege that irregularities in Noboa's foreign debt negotiations cost the country $9 billion. Many agreed that the investigation expressed a personal quarrel between the two leaders. In August 2003, Noboa sought and obtained political asylum in Dominican Republic, claiming that he did not enjoy the judicial guarantees to defend himself in the Ecuadorian court system.²⁸

The politicization of the judiciary has affected its ability to prosecute and try other former government officials for alleged cases of wrongdoing. This includes former president and PRE leader Abdala Bucaram and former president and former Christian Democrat Jamil Mahuad, who face corruption charges, and pending extradition cases of several Ecuadorian bankers – some associated with the PSC party. As of September 2004, the CSJ was unable to appoint two new magistrates to the Second Criminal Chamber, which has jurisdiction over these cases. Conflicting political interests between the PSC and PRE parties over the defense of the above-mentioned cases have permeated the judiciary and impeded the formation of the qualified CSJ majority required to appoint these judges.

The constitution guarantees a fair trial and grants the accused access to independent counsel when it is beyond their means. In practice, the effective application of these rights is seriously undermined by the dramatic shortage of defense attorneys. Compared to other Andean countries, Ecuador has the lowest ratio of defense attorneys to the population, with 0.3 for every 100,000 habitants.²⁹ Considering this dramatic disadvantage, people with few resources or no political connections have difficulty obtaining a fair trial in the Ecuadorian judicial system. When judges recruit the services of private lawyers as defenders, these generally have little incentive to defend assigned cases effectively because they are insufficiently compensated and stand little chance of success. Prosecutors are not independent of political direction and control either.

The presumption of innocence until proven guilty is upheld by the constitution. In recent years, increased international pressure to focus attention on the war on drugs has led to the adoption of harsh antidrug legislation; this includes norms like the Law of Narcotic Drugs and Psychotropic Substances (Law 108), which contravene the presumption of innocence and allow for indefinite pretrial detention (prision en firme).³⁰ The conservative PSC successfully sponsored this legislation in January 2004 primarily because accused drug offenders were using their right to habeas corpus to claim release from prison if they had not been tried or sentenced within a year of being detained.³¹ This principle, however, has been applied equally to both minor users and mules.

The Constitutional Tribunal (TC), created in 1997 but operating since 2001, is the legal court of judicial review. The TC is composed of nine members nominated by the president, the congress, the CSJ, and civil society and appointed by a legislative majority. The TC may decide on most constitutional matters with a vote of at least five of its nine members. Over the past year, the influence of political parties is believed to have played a decisive role in the rulings of some TC members. One such example is the role played by the TC when it reopened a congressional inquiry into an influence-peddling scandal against congressman Renan Borbua, a relation of the president. A government-friendly majority in Congress had previously stalled the process that would have stripped Borbua of his legislative immunity, thus allowing a judicial investigation against him. The PSC challenged the congressional decision before the TC, and it is believed that PSC-friendly tribunal members played a crucial role in the decision to return the case to Congress. Ultimately, the scandal was not resolved as Borbua resigned from Congress.

The armed forces remain a moderating force (poder moderador) in democratic politics in Ecuador. They played a key role during the fall of the last two presidents, and they were also pivotal in making possible the appointment of those presidents' successors. Although legislation establishes the accountability of the police and armed forces to civilian leaders, it is weakly enforced due to the politicization and weakness of the judiciary. Despite legal provisions to the contrary, the police and armed forces in Ecuador enjoy de facto independence to rule over certain areas that remain outside the control of the CNJ or CSJ. This has generated a sort of parallel justice system in which judges and prosecutors – subject to the ranks and hierarchy of these institutions – process cases of reported human rights violations or accusations of police brutality.

The military enjoys earmarked and off-budget allocations for the purpose of national security, as well as significant government subsidies and tax exemptions. These concessions appear to have become more frequent during the Gutierrez administration as a way to cement military support for the president. The military has considerable policy-making influence through the National Security Council (COSENA). Member of the military participate on the boards of major state corporations and business enterprises, they control the customs administration, and they receive a share of petroleum revenues for military requirements. Civil-military relations have been further confounded since several former officers were appointed to top government offices. Recent proposals to extend the vote to the military have not crystallized into the political agenda, as there is a shared concern, even within the military, that votes for members of the armed services could contribute to their further involvement in politics.

Given the proximity of the Colombian conflict, the police and the military are playing an ever-growing role in preserving national security, controlling drug trafficking, and combating terrorism. However, they lack the resources, training, and capacity to face such challenges effectively, thus becoming susceptible to corruption and pressures from organized crime. Furthermore, the government lacks an autonomous doctrine of national security, choosing instead to react to war dynamics and military priorities of the Plan Colombia.

The Ecuadorian constitution protects the right to private property, while acknowledging that private property must play a social role (CPE Article 30). The constitution also recognizes intellectual property, as well as collective property with agricultural or residential purposes (cooperativas). Property may be confiscated by the state only if its private possession conflicts with a social purpose and the individual who holds it is compensated by the state. Tensions between the traditional and the formal forms of property are no longer a source of conflict, mainly because of effective land reform in the 1970s. In addition, the 1998 constitution recognized the pluricultural and multiethnic nature of the country, thus accepting traditional claims to land property within existing law.

[Editor's note: In December 2004, a fragile progovernment majority violated the constitutional principle of judicial independence and, based on a simple congressional resolution, dismissed most of the 31 Supreme Court justices. The coalition, centered around the PRE and PRIAN parties, replaced the purged justices with its own partisan allies. Some weeks earlier, congress had also stacked the members of the Constitutional Court and Electoral Tribunal in its favor, thus severely impairing the separation of powers in Ecuador. It is perceived that the goal of such political realignment is to dismantle the PSC's control over the courts and to facilitate the return of the PRE's leader and former president Abdala Bucaram, who lives in exile in Panama and whose trial for government embezzlement is pending.]

Recommendations

• The government should uphold constitutional provisions for judicial independence and separation of powers. To ensure greater impartiality of CSJ magistrates, the government should adopt explicit requirements of service and professionalism for the selection and appointment of justices. In addition, the government should devote more resources to strengthening and developing professional training and advancement of justices at the national and subnational levels, thus ensuring that the career paths of justices are independent from political influences.
• The government must devote more political and monetary resources to improving the training of judges and to recruiting and training more independent counselors.
• The government should work with civil society and professional organizations to improve judicial transparency through the effective use of information systems to facilitate effective monitoring of cases and rulings in the Ecuadorian court system.
• Decisive government action is needed to ensure that cases concerning the violation of civil liberties in the hands of military or police personnel be tried in a civil, not a military court.

Anticorruption and Transparency – 3.42

Ecuador is perceived to be a highly corrupt country, ranking 112 out of 145 countries worldwide according to Transparency International's 2004 Corruption Perceptions Index.³² The 2004 score of 2.4 out of 10 is a negligible improvement over previous years' scores (2.3 in 2001 and 2.2 in 2002 and 2003). In principle, the state protects against conflicts of interest by requiring asset declarations of public officials and by prohibiting judges, members of the armed forces, and government officials from taking part in any private lucrative activities while in office. Since taking office President Gutierrez has made significant efforts to pass additional anticorruption legislation and other auxiliary norms. He set up an anticorruption system (SAE) that strengthened existing anticorruption watchdogs such as the Comision Civica para el Control de la Corrupcion (CCCC).

Yet, corruption remains a significant problem in Ecuadorian politics. An important role has been played by the president himself, who has been accused of packing the government administration with family members, political cronies, and retired military officers. According to Jim Wesberry, director of Proyecto Si Se Puede, an independent anticorruption watchdog, the government has established the legal framework but "has not yet taken concrete measures to fight corruption."³³

Independent investigative and auditing bodies are not fully effective because of political logrolling and legal weaknesses. Under the constitution, several agencies are in charge of auditing the government, the most important of which is the GC. As explained earlier however, the political process has stalled the appointment of the GC for nearly two years (see "Accountability and Public Voice"). The Internal Revenue Service of Ecuador (SRI) had done significant work on auditing and oversight of businesses and their tax declarations, but the sacking of its director in August 2004 for political reasons is likely to drastically undermine efforts to ensure accountability of tax collection. The government monitors and controls universities and institutions of higher education through the Consejo Nacional de Educacion Superior (CONESUP); no significant problems are reported in this sector. The state is not excessively involved in the economy, although the perception of government corruption deters the formation of new businesses and foreign investment.

The creation of the SAE and the proactive role of the CCCC in facilitating the submission of corruption complaints have achieved little success in the fight against corruption. This is partly due to the absence of legal sanctions. Although corruption is a crime in the penal code, the CCCC plays only an investigative role and is not a sanctioning body. The public prosecutor (Fiscalia) has been accused of responding too slowly to cases brought by the CCCC.³⁴ Perhaps most important, presidents who lack adequate congressional support have traditionally offered to make particularistic concessions, allocate public office, and distribute side payments for personal benefit to potential political allies in congress to facilitate policy coalitions. The civil service is the key recipient of this patronage to political cronies. High turnover of government officials reflects the short-term logic of political coalitions. No corruption watchdogs have been set in place to monitor legislative activity. The lack of roll-call voting in the Ecuadorian congress shields legislators from constituency pressures and enables them to form clandestine alliances to exchange political favors for different political goals.

Although formally in place, protections for whistle-blowers and investigators of cases of bribery and corruption are sparse. In January 2004, three men assassinated Patricio Campana, an employee of the state-run oil company Petroecuador, who was investigating a case of fuel theft from the country's pipelines along the Colombian border. According to the president of oil workers, the scandal was likely to implicate government officials selling stolen fuel to proprietors of powerboats and tankers at below-market prices.³⁵ In general, people refrain from lodging complaints for fear of retaliation. The privately owned media have played a very active role in reporting corruption scandals, but there are few instances in which thorough investigative journalism units have uncovered and followed alleged corruption scandals to their ultimate conclusions. A related problem is the lack of judicial capacity to process an avalanche of corruption cases, as new corruption cases eclipse the previous ones.³⁶ There is no government agency or nongovernmental organization that keeps track of all pending corruption scandals.

The adoption of an Organic Law for Transparency and Access to Public Information in May 2004 is an important step toward legally empowering citizens and civil society watchdogs to monitor government activity, although it is too soon to forecast its potential success in curbing government corruption. Another piece of legislation, the organic Law of Fiscal Responsibility, Stabilization, and Transparency, allows for a more comprehensive and transparent budget process. Since its approval in June 2002, a UN initiative, the Fiscal Policy Observatory, has become a de facto watchdog for monitoring government spending and acting as a proactive agent linking society's demands for social spending with policymakers' actions. This effort is partially facilitated by online reporting of government budgetary expenses every three months. A third initiative is the recent approval of a Public Contracts Law that regulates most government contracting. Most government bidding, allocation, and contracting are reported online through a newly established system (Contratanet). The government, however, has not yet disclosed contracting and bidding information in the energy and oil sectors, two areas that concentrate most of government contracting resources and thus offer the greatest opportunities for corruption.

The government channels most non-refundable bilateral and multilateral aid through the Ministry of Foreign Relations, but there are also external funds that are allocated directly to private hands and nongovernmental organizations. The distribution of external funds appears to favor government-friendly authorities or districts.

Recommendations

• The government should enforce disclosure of public contracting in all areas of government activity, including oil and energy.
• The government should consider granting the CCCC more resources to investigate alleged cases of corruption and sanction those responsible. It could also help the CCCC extend the number of branches that receive and process corruption complaints throughout the Ecuadorian territory.
• The government must promote efforts to install a congressional watchdog that effectively monitors legislators' voting patterns by keeping a record of roll calls and disseminating them to constituents.
• The government should promote a structural judicial reform to increase the courts' capacity to investigate, prosecute, and sanction reported cases of corruption.
• The government should show a commitment to improving the rule of law by trying alleged corruption cases against former presidents and bankers.

Notes

1 I acknowledge the research assistance and comments of Santiago Basabe Serrano and thank all the colleagues who provided valuable information for writing this report: Diego Araujo, Romel Jurado, Paulina Larreategui, Cesar Montufar, Michel Rowland, and Norman Wray.

2 J. Mark Payne, Daniel Zovatto, Fernando Carrillo Florez, and Andres Allamand Zavala, Democracies in Development: Politics and Reform in Latin America (Washington, DC: InterAmerican Development Bank, 2002).

3 Law of Political Parties, Article 61.

4 Gene Ward, "The role of disclosure in combating corruption in political finance," in Global Corruption Report 2004 (Berlin: Transparency International[TI], 2004), 46, http://www.globalcorruptionreport.org.

5 Ibid., 52.

6 "Evaluacion del Gasto Electoral" (Quito: Participacion Ciudadana, 2004), http://www.participacionciudadana.org/contenido.php?idContenido=258&idTema=22&idSubTema=77.

7 "Manjarrez, en la Gerencia de la AGD" (Madrid: Iberoamerica Empresarial, 2004), http://www.iberoamericaempresarial.com/edicion/noticia/0,2458,466487,00.html.

8 Andres Mejia-Acosta, Caridad Araujo, Anibal Perez Linan, Sebastian M. Saiegh, and Simon Pachano, "Political Institutions, Policymaking Processes, and Policy Outcomes in Ecuador" (Quito: Facultad Latinoamericana de Ciencias Sociales [FLACSO], InterAmerican Development Bank, 2004).

9 Ibid.

10 Created by Presidential Decree No. 764, 24 October 1997.

11 Consejo Nacional de la Mujer, "Mujer: la constitucion te da derechos" (Quito: CONAMU, 2004), http://www.conamu.gov.ec/index.htm.

12 "Ecuador: Annual Report 2004" (Paris: Reporters sans frontieres, 2004), http://www.rsf.org/article.php3?id_article=10267.

13 Ibid.

14 Ibid.

15 "Ecuador" (Miami: Inter American Press Association, 2004), http://www.sipiapa.org/pulications/report_ecuador2004o.cfm.

16 "Ecuador: Death Threats/Intimidation/Fear for Safety" (Amnesty International [AI], 9 February 2004), http://web.amnesty.org/library/Index/ENGAMR280042004?open&of=ENG-ECU.

17 "Ecuador: With No Independent and Impartial Justice There Can Be No Rule of Law" (AI, 30 October 2003), http://web.amnesty.org/library/index/engamr280102003.

18 Ibid.

19 "Ecuador: Fear for Safety" (AI, 3 February 2004), http://web.amnesty.org/library/Index/ENGAMR280022004?open&of=ENG-ECU.

20 Ibid.

21 "Ecuador: Police Courts Permit Impunity" (AI, 18 November 2004), http://web.amnesty.org/library/Index/ENGAMR280212004?open&of=ENG-ECU.

22 Ibid.

23 "Ecuador: Fear for Safety/Possible 'Disappearance'" (AI, 24 November 2003), http://web.amnesty.org/library/index/ENGAMR280142003?open&of=ENG-ECU.

24 "Ecuador: Broken Promises – Impunity in the Police Courts System Continues" (AI, 2004). http://web.amnesty.org/library/index/engamr280182004.

25 Romel Jurado, expert consultant for Fundacion Regional de Asesoria en Derechos Humanos: personal communication.

26 Gabriela Rodriguez Pizarro "Specific Groups and Individuals: Migrant Workers" (Geneva: United Nations Commission on Human Rights, 18 February 2002), E/CN.4/2002/94/Add.1.

27 In January 2004, Ecuador's Minister of Energy and Mines reportedly responded to the IACHR's precautionary message by stating that "the OAS does not give orders here" ("la OEA no manda aqui"). Sarayacu, "Afirmaciones del Ministro de Energia y Minas ponen en grave peligro el Estado de Derecho en el Ecuador" (Quito: Sarayacu, 27 January 2004), http://www.sarayacu.com/oil/news040127.html.

28 "Ecuador Ex-Head Goes into Exile" (London: BBC, 24 August 2003), http://news.bbc.co.uk/1/hi/world/americas/3177147.stm.

29 Ibid.

30 Sandra G. Edwards, "Ecuador. Illicit Drug Policies and Prisons: The Human Cost" (Washington, DC: Washington Office on Latin America, 2003), 6, http://www.wola.org.

31 Ibid.

32 The Corruption Perception Index (CPI) measures survey responses of business people, academics, and risk analysts and ranges from 10 (highly clean) to 0 (highly corrupt). Global Corruption Report 2004 (TI), 286.

33 "Wesberry: Trabajo del SAE puede ayudar en lucha contra la corrupcion," El Universo, 24 October 2004.

34 Michel Rowland, expert consultant for Proyecto Si Se Puede; personal communication.

35 "Trabajador Petrolero Asesinado por Sicarios" (Quito: Centro de Medios Independientes, 2004), http://www.ecuador.indymedia.org/es/2004/02/4638.shtml.

36 Michel Rowland, expert consultant for Proyecto Si Se Puede; personal communication.