Countries at the Crossroads 2006 - Guatemala

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

Introduction

Nine years after the signing of accords officially ending a brutal 36-year armed internal conflict that claimed some 200,000 mostly indigenous Mayan lives, the fragility of Guatemala's peace has been revealed once again. Two events shook the country during the summer and fall of 2005. In July, firefighters, summoned to investigate a possible gas leak in a munitions plant, found a vast police archive instead. The plant's vermin-infested rooms contained piles of documents lying in bundles, tossed in plastic bags, and meticulously filed in cabinets, their drawers labeled with their content – "assassinations," "disappearances." The firefighters had stumbled upon an official history of Guatemala's 36-year counterinsurgency (1960-1996), data that security forces had consistently denied existed.

One month later, massive mudslides coming on the heels of Hurricane Stan buried indigenous communities in the western highlands. Stan destroyed the lives and livelihoods of those who had already lost everything once, or in some cases twice, before – during the civil war and earlier, during a powerful earthquake that shook parts of those same highlands in 1976. It was in the rubble of the earthquake that the military lost its struggle for the hearts and minds of Guatemala's indigenous poor, leaving room for a guerrilla movement to capitalize on the state's total disregard for their suffering.

Because the fault lines of peace and democracy remain so close to the surface in Guatemala, the outcome of these events in large part hinges on how the state responds. Government resolve to catalogue and to disseminate archive contents, currently under the control of the human rights ombudsman's office, and to use emerging evidence to provide justice and reform the country's security forces would offer the ruling Berger administration an unprecedented opportunity to deepen Guatemalan democracy. Similarly, by coming to the assistance of survivors of Stan in ways that affirm their human dignity, the government can turn another historic page, fostering a new relationship between state and society that is based on an elite commitment to respect, tolerance, and equality for the country's majorities that is more than rhetorical.

Accountability and Public Voice – 4.35

November 9, 2003, closed an electoral campaign marred by intimidation, violence, and fraud. Legal battles and street clashes pitted supporters of the governing Guatemalan Republican Front (FRG) against those who sought unsuccessfully to block a constitutional reform permitting the presidential candidacy of the former dictator, General Rios Montt. The contest was further tainted by widespread allegations of misuse of state funds by the FRG, murky campaign financing, and vote buying.

These concerns notwithstanding, the elections themselves were regarded as mostly free and fair by a contingent of international intergovernmental and nongovernmental organization (NGO) observers, joined for the first time by a local observer team composed of civil society organizations. They commended the country's Supreme Electoral Tribunal for its professional oversight job. Turnout was higher than expected, with roughly 57 percent of registered male and 43 percent of registered female voters waiting in long lines to cast their ballots. Voters chose among 11 presidential candidates, representatives from 21 different political parties and coalitions competing for congressional seats, and a plethora of civic committees, locally based organizations contesting mayoralties. Choices encompassed a variety of ideological perspectives, ranging from the conservative Grand National Alliance (GANA) coalition, the National Advancement Party (PAN) and National Unity for Hope (UNE) parties, to the populist FRG and the political left, represented by the Guatemalan National Revolutionary Unity (URNG), the former guerrilla organization turned political party, and the newly formed Alliance for a New Nation (ANN), which competed only for congressional seats.¹

The electoral outcome was cause for renewed optimism about the prospects for democracy in Guatemala. Rios Montt's third-place finish excluded him from a runoff round in which GANA candidate and former Guatemala City mayor Oscar Berger beat his rival by an eight-point margin. Not only was the former mayor regarded as an honest political figure – a welcome contrast to outgoing president Alfonso Portillo – but GANA's election signaled the triumph of yet another new political force, the third to govern the country since the signing of peace accords in December 1996.

Nevertheless, these elections highlighted persistent challenges to deepening democracy in Guatemala. Elections again took place without the political party and electoral reforms stipulated in the 1996 peace accords. Potentially significant numbers of eligible poor and indigenous voters were denied the ballot, unable to afford travel to distant polling centers, deterred by a cumbersome voter registration process, or turned away at polling booths because they lacked the requisite documents. In addition, in the absence of legislation regulating campaign finance and access to a media heavily controlled by a handful of elite interests, the political playing field remains highly uneven. The array of ideologically diverse parties masks circumstances in which incumbents have unregulated access to state resources; conservative forces, most notably the incumbent GANA, count on extensive and favorable media coverage as well as generous campaign donations.²

While the independence of Guatemala's branches of government is constitutionally guaranteed, the ruling party's legislative majorities during both the PAN (1996-2000) and FRG administrations (2000-2004) afforded the executive so much autonomy that the legislature became a virtual rubber stamp. GANA's razor-thin margin of victory – 49 seats to the 42 secured by the FRG – should have enabled Congress to exercise its full range of deliberative, legislative, and oversight powers. Yet it has not lived up to its promise. Internal party divisions (within 18 months, 36 deputies resigned from the party on whose slate they had been elected) limit the opposition's capacity to provide effective oversight and initiative, fostering policy logjams.³ Not surprisingly, two-thirds of Guatemalans surveyed in October 2005 believed the Berger government has done nothing to resolve their problems.⁴

In mid-2004, the government approved an initial electoral reform mandating a combined identity and voter registration card and the establishment of voting centers outside the major towns. Under pressure from civil society organizations, Congress agreed to introduce a second generation of laws, likely to encounter greater resistance, focusing on tightening campaign finance and political party structures.⁵

During the first year of the Berger administration, the clandestine groups that permeated official structures during the FRG government seemed to have retreated. They have reemerged more recently however, and political leaders have continued to receive threats.⁶ The creation of a proposed UN Commission to Investigate Illegal Armed Groups and Clandestine Security Apparatus (CICIACS), which would have demonstrated the much-needed political resolve to combat entrenched impunity, remains bogged down in political and judicial wrangling.⁷ Meanwhile, the Berger administration is criticized as overly captive to business interests. Individuals with close links to industry and the agricultural export sector head 23 of the 35 ministries, secretariats, and presidential commissions. The civil service has also come under scrutiny for its cronyism. Vice President Eduardo Stein has personally urged the introduction of merit criteria, to reverse a trend in which 18 percent of all civil servants are currently political appointees, by far the highest proportion in Latin America.⁸

The peace negotiations and resulting accords generated unprecedented opportunities for ongoing international and civic engagement in the implementation process. The international donor community operates without restrictions, its support designed to deepen democracy in such crucial areas as the administration of justice.⁹ Civic groups, which do not face especially onerous registration requirements, have participated alongside government officials in commissions established to consider public sector reform, tackle pressing policy issues, and formulate legislation. Nevertheless, increasingly disillusioned by the slow pace of reform, those engaged in the discussion of socioeconomic and indigenous rights issues claim their recommendations are ignored and denounce what they consider a ploy by the government to substitute dialogue for action.¹⁰

The state protects freedom of cultural expression and seeks neither to control media content nor to limit access by government critics. In June 2005, the courts took an initial step to ban libel laws, ruling that provisions permitting the jailing of journalists for the slander of government officials were unconstitutional.¹¹ In contrast with the confrontational relationship that prevailed during the FRG administration, the Berger government enjoys almost too close a relationship with a print media now criticized for failing to feature critical views articulated by civil society. Additionally, the state has done little to protect journalists. During the first six months of 2005 alone, some 31 reporters suffered threats and violence while covering public protests or investigating the activities of those involved in the counterinsurgency of the 1980s and in organized crime today. Only one individual has been tried and convicted for acts of violence against journalists.

Recommendations

• Urgent steps must be taken to establish the CICIACS.
• Dialogue with civic actors must not be an end in itself; the resulting policy proposals should be formalized and incorporated in legislation.
• The Supreme Electoral Tribunal must receive the funding needed to enable the implementation of enacted electoral reforms.
• Initial electoral reforms must be complemented by second-generation political party and finance reform, which are as crucial to the consolidation of democracy as the initial set of reforms.
• To truly guarantee freedom of the press, those who threaten and harass journalists must be prosecuted to the full letter of the law, with consideration given to increasing penalties as further deterrence.

Civil Liberties – 3.42

Although the Guatemalan constitution forbids the practice of torture, the National Civilian Police Force (PNC) is reported to use it systematically in securing confessions during interrogation of alleged criminals and in the treatment of inmates.¹² The police are also suspected of sexual abuse. Some 25 women registered formal complaints during the first 10 months of 2005, while an internationally funded study by the Comparative Institute of Penal Studies found that 99 percent of all women detained by the PNC have been victims of harassment, torture, or rape.¹³ Few such cases are investigated, and while probes into police mistreatment of detainees have resulted in the dismissal of more than 500 officers over the past year, they have rarely led to the punishment of offenders; some 640 new cases now require investigation.¹⁴

Desperately overcrowded and underfunded prisons have been the scene of a recent rash of riots and daring escapes. The quality of food and medical care is abysmal, most guards are poorly trained and paid, pretrial detainees are often held together with convicts, and female prisoners are sometimes kept with male inmates. Making matters worse, prisons have become a bastion for gangs in recent years, with rival gangs often held in the same facility, contributing to an alarming increase in prison violence.

The constitution prohibits arbitrary arrest and detention, guarantees habeas corpus, limits pretrial detention to three months, and allows every citizen the ability to defend his rights by appealing for constitutional shelter. In practice, however, many of these rights are routinely violated without prospect of redress, notably in the case of minors, suspected gang members, and those too poor to post bail, who subsequently languish in overcrowded detention facilities. The Public Defenders Institute estimates that as many as 65 percent of all inmates have yet to be convicted of a crime.¹⁵

Clandestine groups and members of organized crime, holdovers from the FRG era, continue to intimidate opposition leaders and social activists. Peasant activists have received anonymous threats, while squatters have been violently evicted and even killed by security forces or landowners. Representatives of popular sector organizations protesting Guatemala's ratification of the Central American Free Trade Agreement (CAFTA) in March 2005 were brutally repressed, with one member killed. During 2005, 214 human rights workers were threatened and two were assassinated.¹⁶ Although not directly implicated, the Berger administration has failed to provide adequate security, investigate the crimes, or confront the illegal groups and clandestine security apparatus it publicly blames for grave abuses against the human rights community.¹⁷

Initially, the GANA fared better in confronting crimes of the past, and seemed more willing than its predecessors to acknowledge state responsibility for massacres committed during the armed conflict. Forensic anthropologists even worked unimpeded, and for the first time ever, a senior official, Vice President Stein, visited the site of an exhumation. It was also on the Berger administration's watch that the police files were discovered and turned over for safekeeping to the human rights ombudsman. In early 2006, however, violations again increased and the director of the forensic anthropology foundation, Fredy Peccerelli, received renewed death threats that have yet to be satisfactorily investigated.

Men and women enjoy equal civil and political rights, Guatemala has ratified all international conventions protecting women's rights, and an active women's movement has fostered gender equality through legal reform. Structural obstacles, however, continue to militate against gender equality. Between 1999 and April 2005, 1,877 mostly young, urban women have been raped, tortured, and killed. Little effort has been made either to prevent or to solve these crimes. Only one of a paltry 151 cases investigated has resulted in a conviction. At fault are poor police training, inadequate resources, and ingrained societal attitudes, which tend to dismiss the crimes as "passionate problems" or the victims as prostitutes.¹⁸

Party structures discriminate against women, placing them so low on party lists that their electoral prospects are seriously diminished. The proportion of female deputies dropped from 13.8 percent to 8.9 percent between 1995 and 2003. Although their numbers doubled during the same period, only eight women are mayors today.¹⁹ Other appointive offices display the results of similar gender bias, with the welcome exception of the Supreme Court, to which Congress elected a female president in October 2005. Female voter registration increased between 1999 and 2003, although this remains an uphill battle given higher rates of female illiteracy and the fact that women are more likely than men to lack the requisite birth certificates and identity cards. The government has passed reforms calling for attention to the education of girls and orphaned children.

Guatemalan women face discrimination in other spheres of life as well. Women's annual income is one-third that of men – despite the disproportionately high numbers of women employed in industry and services.²⁰ Women's groups also blame machista attitudes for the laxness with which the penal code continues to treat sexual offenders.

Guatemala is a country of origin, transit, and destination in the trafficking of women and children for the purposes of sexual exploitation and illegal adoption.²¹ As many as 2,000 young girls may be working as prostitutes in Guatemala, and some 1,500 children are illegally adopted from Guatemala each year.²² Evidence suggests that security forces, immigration officials, and elements of organized crime are complicit. The government has pledged to become more aggressive in breaking up trafficking rings and to pass legislation, still under discussion in Congress, that increases trafficking penalties and formally regulates the adoption process.

The constitution pledges respect for the customs, traditions, and social organization of Guatemala's indigenous people, who make up 45 percent of the population. This is echoed in a 1996 peace accord on the Identity and Rights of Indigenous Peoples, which urges the construction of a pluricultural, pluriethnic, and plurilingual state. The Berger government moved forward to establish a National Reparations Commission (CNR), which had been announced by the outgoing FRG administration, to compensate the mostly indigenous victims of the 36-year armed internal conflict, and recently announced the creation of a commission to investigate the fate of the disappeared. The country's most prominent female indigenous leaders have been appointed to official positions: Nobel Peace Prize winner Rigoberta Menchu as goodwill ambassador for the peace accords, and Rosalina Tuyuc, director of the Widows Association (CONAVIGUA) as president of the CNR.

Some legal and institutional progress has been registered. The passage of a decentralization law guarantees indigenous representation on local development councils, and new legislation requires state services to be provided in Mayan languages. The criminalization of racial discrimination paved the way for the April 2005 conviction of five Guatemalan politicians for hurling racist epithets at Rigoberta Menchu and for other rulings upholding the right to wear indigenous dress and practice Mayan spirituality.²³ School curriculums are to be revised to include a pluricultural focus; the numbers of bilingual teachers, judges, and court interpreters are gradually increasing; and state institutions have been established to protect indigenous rights.²⁴

Despite these advances, embedded structures of inequality and discrimination have yet to be dismantled. Discriminatory practices continue in a culture that concedes its own intolerance. Three-quarters of the indigenous population are poor and one quarter extremely poor, a stark contrast with a ladino population in which 38 percent live in poverty and 6.5 percent in extreme poverty. Indigenous Guatemalans have on average completed 3.5 years of schooling, in contrast to 6.3 years for the ladino population. And indigenous women are paid roughly 80 percent less than their ladino counterparts, indigenous men 64 percent less than theirs.²⁵

Guatemala is a signatory to conventions guaranteeing the rights of people with disabilities, has its own laws mandating equal access and opportunity in all spheres of life, and has committed itself to a peace accord that addresses the needs of those disabled by the armed conflict. Yet little effort has been made to enforce the provisions outlined in any of these, or even to identify the disabled population. It is only in recent years that the human rights community has begun to include a focus on people with disabilities.²⁶

The free practice of religion is constitutionally enshrined; the state does not seek to regulate either faith-based organizations or religious instruction in schools. Obstacles to the practice of Mayan spirituality do arise, however, at times leading to violent clashes. Landowners forbid access to sacred sites located on their holdings, while Catholic and Protestant leaders sometimes prevent the use of ceremonial places situated near their churches.²⁷

The right to freedom of association is recognized, but membership is not compelled. In the case of unions, however, that freedom is observed primarily in the breach. Despite common violations of international labor standards, including landowners' failure to pay minimum wage and maquila owners' dismissal of pregnant workers, less than 3 percent of the labor force is unionized. Only three legally recognized unions exist in the maquila sector, where 40 percent of the economically active population works. Fear of reprisal and lack of recourse militate against unionization. Labor organizers reported 45 death threats in 2004 alone. Decisions to unionize often result in the dismissal of employees, and although labor courts may uphold workers' rights, employers routinely circumvent their decisions without fear of sanction.

Procedural hurdles also make it difficult to stage strikes. In determining the legality of a strike, labor courts assess whether workers are conducting themselves peacefully and whether other forms of mediation have been exhausted. "Illegally" striking workers can be fired, and the government reserves the right to suspend any strike deemed prejudicial to essential activities and services.

The year 2005 was marked by a series of marches and demonstrations as popular sector, Mayan, and women's organizations protested discrimination, femicide, working conditions, the granting of foreign mining contracts, and the signing of CAFTA. Workers precluded from striking by existing labor legislation increasingly resort to illegal work stoppages. Several protests have engendered a violent official response, culminating in the injury and death of demonstrators.²⁸ Alarmed by the scale of protests, Congress introduced legislation to permit the prosecution of illegal strike participants and organizers.²⁹

Recommendations

• The government must take decisive measures to ensure greater respect for political and civil liberties. Initial steps should involve concerted efforts to dismantle clandestine groups and to prosecute their members, as well as to reform the police to end the prevalence of torture.
• The government must also devote greater resources to the investigation and prosecution of femicide. In an effort to deter and solve these crimes it should hire female investigators and police officers, while also working to change deeply ingrained machista attitudes through education.
• Wholesale reform of the penitentiary system is urgently needed to address the pressing problems of arbitrary and extended pretrial detention. The reform should include a census of the inmate population, accompanied by measures to upgrade facilities, improve treatment of detainees, weed out guards with ties to organized crime and gangs, and augment the pay and training of new hires.
• The elimination of ethnic and gender discrimination requires addressing its embedded structural causes: poverty, inequality, and the continued political exclusion of women and indigenous people.
• The government must review labor legislation to ensure that it meets international standards, including the rights to form unions, engage in collective bargaining, and stage strikes.

Rule of Law – 3.16

Guatemala's laws affirm the independence of the judiciary, the presumption of innocence of those charged with criminal offenses, and the right to fair, public, and timely hearings with access to independent counsel. In practice, however, the country's judicial system falls short on all counts – so short, in fact, that the current vice president recently declared the rule of law in Guatemala to be "an international embarrassment."³⁰

The Peace Agreement on Strengthening Civil Society and the Role of the Army calls for judicial modernization and reform to counteract the corruption that constrains judicial independence. In response, the 1999 passage of a judicial career law and code of ethics provided for the adoption of standardized, transparent practices in the recruitment, selection, training, and evaluation of judges, the establishment of a disciplinary board mandated to investigate and sanction ethical breaches, and standardized training programs targeting both entry-level and sitting magistrates.

The enactment of several of these measures has modernized the judiciary, notably in terms of selection, training, and oversight of judicial personnel. Other efforts have been offset by financial constraints, judicial impunity, and the politicization of the judicial process. The judiciary has consistently been denied the resources it requires to function effectively. Its proposed budget for 2006 is 637 million quetzals, approximately $850,000, which is roughly half the requested amount. As a result, reform is stymied. Guatemala lacks courtrooms and qualified personnel (judges, prosecutors, and investigators) to process the enormous backlog of cases that the overburdened justice system faces as it confronts the dual challenges of a decade-long transition to peace and the rule of law and the conversion from a Spanish inquisitorial model to the standard European model, which is evidence based and prosecutorial.³¹ As a result, it frequently takes more than a year from the time an accused criminal is apprehended for a trial date to be set – indigent defendants, in particular, often languish in prison – and suits tend to drag on, sometimes for years thereafter. Not surprisingly, citizens tend to take justice into their own hands, as expressed in the alarming rise of vigilantism.

Judges and prosecutors who investigate and try individuals with ties to drug trafficking and organized crime are also susceptible to bribes and vulnerable to intimidation. During the first five months of 2005, 38 judges, magistrates and prosecution lawyers were threatened and two judges and three lawyers assassinated.³²

Critics have charged the current government with politicizing justice and judicializing politics. The first speaks to long-established practices inherited by the GANA. Prosecutors work under the auspices of the Public Ministry, and Congress selects the judges on appeals courts, the Supreme Court, and the Constitutional Court. Politicization of the selection process has a ripple effect, as the Supreme Court is responsible for overseeing judicial decisions as well as naming, transferring, and dismissing lower court judges. The Berger administration has refrained, however, from the blatant interference in the judicial process that characterized its predecessor. After a prolonged legal and political battle, the government accepted Constitutional Court decisions prohibiting direct financial payments to ex-PAC members and declaring the CICIACS unconstitutional.

The judicialization of politics is a more subtle charge. Critics argue that the government uses the courts to settle political disputes and to undermine its opponents. Even those who applaud investigations and trials of people accused of graft claim justice is biased, blind to abuses of power of governing party members and associates.³³

Although all persons, irrespective of gender, ethnic origin, nationality, and sexual orientation, are entitled to equal protection under the law and are to be treated equally before the courts, the Latin American aphorism "justice is for the poor" remains as true as ever in Guatemala today. Despite the reopening of the Public Defenders Institute and efforts to provide more court interpreters and bilingual judges, the quality of public defenders remains poor, there has yet to develop a culture of pro bono defense, and the number of justice officials who speak a Mayan language lags far behind demand. As a result, convictions of the politically and economically powerful for crimes committed against indigenous and poor people remain the exception rather than the rule. The country's elite command resources enabling them to resort to legal devices, such as constitutional shelter, to halt proceedings or to prolong them indefinitely through appeals. They also tend to face sympathetic judges – whether as a result of bribes and threats or because of political affiliation. For instance, the continued presence of FRG-appointed justices may explain why so few former FRG officials charged with abuse of power have either been convicted or served prison terms; why former President Portillo, accused of embezzlement, remains a fugitive in Mexico; and why the establishment of the CICIACS was aborted.

In March 2004, the government announced its intention to demilitarize the Guatemalan state by enacting a military reform stipulating reductions in personnel and budget that surpassed targets set in the peace accords. These efforts resumed a process paralyzed by the assassination of Bishop Gerardi two days after the release of the church-based Truth Commission report in April 1998 (which Gerardi oversaw) and reversed during the FRG administration. The reform has yielded significant changes without destabilizing the democratic political process. The number of troops was slashed from 27,000 to 15,500 and the budget trimmed to 0.33 percent of GDP, half the amount allowed by the accords.³⁴ For the first time, the post of defense minister was occupied by an official with no connection to the civil war, and the current minister has proposed the creation of a new civilian position of vice minister.

In consultation with civil society organizations, the armed forces published a White Book on National Defense and followed it with the public presentation of a new military doctrine in July 2004. To be enacted over the next five years, the doctrine affirms institutional respect for human rights and the democratic process and pledges to engage in continued open dialogue with civil society. More specifically, the armed forces have committed themselves to rationalizing promotion procedures, reforming their educational curriculum, enhancing transparency with respect to military spending, and eradicating corruption within the institution.³⁵

The Guatemalan legal system has also increasingly used its powers to investigate and hold military and police officers accountable for a series of crimes, including human rights violations, kidnappings for ransom, and corruption. The two most recent cases include the October 2005 confirmation by the Supreme Court of 40-year sentences against 14 military officers implicated in the massacre of returned refugees in Xaman a decade earlier, and a lower level tribunal's sentencing of a former police commissioner to a 37-year prison term for the kidnapping for ransom of the nephew of the president of the Bank of Guatemala.³⁶ Officers implicated in corruption scandals involving diversion of Ministry of Defense funds are also currently facing trial.

These are small advances. Much more remains to be done to address the continuing challenge of impunity and to ensure that the military's commitment to reform remains steadfast and deepens. The need to rein in security forces deeply implicated in the drug trafficking and organized crime that they are supposed to be fighting, the persistent abuse of human rights by members of the police force, the assertion of civilian control over the intelligence services, the increasing demand for justice in Guatemala by victims of the armed conflict, and the likely appearance of irrefutable evidence of crimes long denied in the cache of police documents discovered in the munitions depot this past July are but a sampling of the difficult challenges that lawmakers must confront. As evidence of the likely resistance, the armed forces have recently proposed changes to their code that would allow military trials for high-ranking and retired officers convicted of common crimes.

In terms of property rights, the challenge in Guatemala is not over the right to own property either alone or in association with others, which is constitutionally guaranteed, but rather over who has rights to which land. Issues of land tenure and access have provoked escalating conflict over the past several years, leading to squatting by peasants claiming titles to often disputed lands, frequently followed by forced evictions by landowners and members of the security forces. The communities, mainly indigenous, displaced by the armed conflict have been especially victimized and vocal, having lost land rights on the basis of improperly applied abandonment criteria, which assume that they voluntarily abandoned their holdings when in fact they had to flee advancing army or guerrilla forces.³⁷

In June 2005, some nine years after the peace accords pledged to review land tenure, the government passed enabling legislation.³⁸ The law calls for the creation of a national land registry and the launching of a review of the status of idle lands and of lands illegally acquired during the armed internal conflict. It also provides for the creation of a system of agrarian tribunals and the training of experts to aid the process. As a complement to the seven envisioned agrarian courts, the government plans to increase the number of alternative dispute resolution centers dealing specifically with land issues above the 25 that currently exist.

Contracts and concessions awarded to foreign mining companies have caused persistent and at times violent clashes between the state and indigenous communities over the past year. Indigenous communities have publicly protested and held popular consultations and referendums in which they have signaled their massive opposition. They charge that the awarded contracts unduly favor foreign interests, are insufficiently tied to reinvestment in social development, and harm the environment. They also accuse the government of neglecting its legal obligation to consider indigenous rights as they pertain to natural, nonrenewable resources and are expressed in both a reformed municipal code, governing reconstituted local development councils, and in Covenant 169 of the International Labor Organization. In the few cases brought before the courts, judges ill trained to adjudicate on matters pertaining to customary law have tended to uphold the legality of the concessions.

Recommendations

• The government must dedicate itself to building a climate in which the rule of law prevails. This includes: upgrading the investigative and prosecutorial branches of the Public Ministry; building more courtrooms and training more personnel to address the backlog of cases and to confront the demands likely to arise from the recently approved Cadastral Law; improving security so as to protect judges and lawyers; purging the judiciary and the security forces of those with ties to organized crime and the clandestine security apparatus; ensuring that customary legal traditions are incorporated into judicial decision making.
• The government must stand firm in its commitment to modernize and reform the army. It must ensure that reforms introduced are sustained and should carefully consider proposals to create a regional security force and to replace the army and police with a national guard. It should also insist that officers charged with crimes continue to be tried in civilian courts.
• The Cadastral Law must be the first in a rapid series of steps taken to address land tenure conflicts, a key to sustained peace and the gradual eradication of extreme poverty.

Anticorruption and Transparency – 3.10

The Berger administration has refrained from excessive involvement in the economy to the extent that the World Bank estimates that only 5 percent of government revenue currently comes from state-owned enterprises and property. At the same time, bureaucratic regulations, ambiguous requirements, and widespread allegations of customs office corruption continue to hamper the establishment of private businesses.³⁹

Early on in its tenure, the probusiness GANA signaled its commitment to eradicate corruption. The government has zealously pursued high-ranking former FRG officials and associates accused of graft. Until recently, less attention had been paid to lower-ranking and local office holders. Critics still charge that the Berger administration continues to practice its predecessors' custom of awarding contracts to businesses owned by relatives or friends.⁴⁰ Given the current degree of interpenetration of elite economic and political spheres, this is a particularly vexing problem.

Probity legislation has tended to get stuck in no-man's-land. A 2004 law introduced to enhance transparency through a monitoring system that oversees bids for state contracts, resulting concessions, and subsequent purchases, is now being extended to cover NGOs that receive public funds. As is, however, the law is routinely circumvented in all spheres of government. A package of proposed changes to the penal code designed to enhance integrity by insisting on public financial disclosure, penalizing bribery of public officials and other forms of influence peddling, as well as the use of privileged information, has been sent to Congress where, like so much other legislation, it now languishes.

The government has yet to tackle possible conflicts of interest in the private sector and has not intervened in an educational system perceived as only moderately less corrupt than most public sector institutions.⁴¹ Nonetheless, GANA officials have conceded the need to reform other state institutions in ways that enhance their effectiveness and transparency and generate greater public trust. Toward these ends, it has established a special commission charged with modernizing the state sector that engages in dialogue with civil society organizations mandated to pursue similar objectives. It has also recently agreed to collaborate with USAID in eradicating corruption within the judiciary along lines contemplated in the Inter-American Anti-Corruption Convention, which Guatemala ratified in 2001.⁴²

The six-year-old Superintendence of Tax Administration (SAT) receives mixed reviews. It has been criticized for failing to exercise its autonomy, and its customs office is seen as particularly riddled with corruption. At the same time, the SAT recently announced an 11.6 percent increase in tax revenue collected during the first six months of 2005, has begun to ferret out tax evaders (even pinpointing corporations employed by the public sector), has proposed a raffle designed to cultivate a tax-paying culture, and is working with the executive in pushing for legislation that would impose penalties for tax evasion.

The Comptroller General's Office is charged with overseeing the proper use of public resources. In the past, the office itself was a site of corruption, charged during the recent electoral campaign with channeling funds into political party coffers and with abuse of power as evidenced by the recent conviction of a former comptroller general for money laundering. In a promising sign of a newfound willingness to exercise oversight, the comptroller's investigation into expenditures for 2004 revealed some 500 anomalies involving 56 public institutions, ranging from the National Peace Fund to the Ministry of Defense and local development councils.⁴³ Perhaps as a stopgap move while reformist measures urged by the local NGOs and members of the international community are considered, the government has hired a foreign accounting firm to audit congressional spending.⁴⁴

Allegations of corruption are given widespread media coverage, especially those pertaining to the FRG administration that had been at loggerheads with the press. At times media attention may hamper ongoing investigations by divulging names of suspects and sources. Allegations of corruption by government officials at the national and local levels, meanwhile, are poorly investigated, a function of inefficiencies and biases in the judicial system, as well as the absence of witness-protection programs. In addition, those presumed guilty of corruption are often linked to those charged with its prosecution. The police compete with political parties for highest billing in popular perceptions of the most corrupt institution in Guatemala, while the judiciary and the military follow close behind.⁴⁵ Given this environment, it is hardly surprising that journalists, prosecutors, and judges who investigate and prosecute graft frequently become the targets of threats and violence.⁴⁶ For their part, victims of corruption have few formal means of redress. They rely on a court system that rarely convicts and even more infrequently punishes. Nevertheless in certain high-profile cases, including the pillaging of the Social Security Institute and the SAT during FRG rule, the state has demanded and even retrieved a portion of the diverted funds.

The government engages in meaningful legislative review of the budgetary process, which receives ample media coverage, and does not intervene in the disbursement of foreign assistance. Access to information remains a source of tense debate. Some 65 percent of all requests for government information made between October 2002 and June 2004 were rejected, a rate that increased to 78 percent during the 2003 electoral campaign. A law guaranteeing access is currently under consideration in Congress. In the interim, the government provides web-based information about its services and decisions, including budgets and expenditures. However welcome a step, it is also one that permits selective disclosures and restricts access to the literate with internet capabilities.

Recommendations

• The government must display the same resolve to weed out and prosecute corruption within its own administration and ranks as it has shown in its willingness to go after former FRG officials. This could be achieved in part by appointing an anti-corruption czar.
• The government must pass conflict of interest and access to information legislation.
• A culture of greater trust in public institutions should be fostered by addressing concerns voiced by civil society watchdog organizations, publicizing work emerging from the government's comprehensive review of the state sector, and ensuring that legislation formulated is passed and enforced.
• Legislative efforts, which could include the naming of an anticorruption czar, should focus on addressing embedded institutional corruption, whether in the customs office, the police and military, or the judiciary.

Author

Anita Isaacs is an associate professor of Political Science and the Benjamin Collins Professor of Social Sciences at Haverford College. She is completing a book on the challenges of truth and justice in postwar Guatemala.

Notes

1 "Guatemala" in Political Database of the Americas (Washington, D.C.: Georgetown University and the Organization of American States), http://www.georgetown.edu/pdba/Elecdata/Guate/guatemala03.html(accessed March 27, 2006).

2 "Towards a new New Left?," Inforpress: Central America Report, vol. XXXII, no. 19 (20 May 2005) pp. 6-7.

3 Ibid.; Monografia de Partidos Politicos 2000-2004 (Guatemala: Asociacion de Investigacion y Estudios Sociales [ASIES], 2004); Diego Achard and Luis Gonzalez, Political Parties in Central America, Panama and the Dominican Republic (Washington, D.C.: Inter-American Development Bank [IDB], 2004); Fredy Portillo, "En 17 meses hubo 36 'transfugos,'" Siglo Veintiuno, 14 July 2005, http://www.sigloxxi.com.

4 "Descalifican a Ministerios", Prensa Libre, 14 November 2005, http://www.prensalibre.com(accessed March 27, 2006).

5 Monografia (ASIES); "9th and Final Report on Fulfillment of the Peace Accords in Guatemala" (Guatemala City: U.N. Verification Mission in Guatemala [MINUGUA], 30 August 2004), http://www.nisgua.org/articles/minugua_Final_Report_Aug2004.htm.

6 Political violence that includes the assassination of an advisor to one opposition party, the Patrido Patriota, and of a Congressional deputy to the opposition, UNE, has increased again more recently as Guatemala looks forward to the next electoral campaign. See Prensa Libre, "Presagios de violencia en proceso electoral" April 8, 2006, (accessed April 8, 2006).

7 For a discussion of CICIACS, see The United Nations and the Government of Guatemala, "Agreement Between The United Nations and the Government of Guatemala for the Establishment of a Commission for the Investigation of Illegal Groups and Clandestine Security Organizations in Guatemala," January 7, 2004, http://www.tula.ca/health/guatemala_issues/ciciacs-eng.pdf(accessed April 5, 2006) and Amnesty International Press Release, "Guatemala: President Berger's political will to end impunity on the line," August 7, 2004, http://web.amnesty.org/library/index/engamr340152004(accessed April 5, 2006).

8 See Laura Zuvanic and Mercedes Iacoviello, "El Rol de la Burocracia en America Latina" (IDB, 2005). Brazil trails Guatemala with 9.5%, followed by Bolivia with 9%. If these three countries are excluded the Latin American average dips to just 1%.

9 "9th and Final Report" (MINUGUA); "Guatemala Embarks on Judicial Reform," released August 30, 2004, http://www.nisgua.org/articles/minugua_Final_Report_Aug2004.htmand The World Bank, "Guatemala: the role of judicial modernization in post-conflict reconstruction and social reconciliation," Social Development Notes: Conflict Prevention & Reconstruction (Washington, D.C.: World Bank, February 2005) (accessed April 4, 2006). http://extsearch.worldbank.org/servlet/SiteSearchServlet?qUrl=&qSubc=wbg&ed=&q=guatemala+administration+justice&submit.x=8&submit.y=3, (accessed March 27, 2006).

10 Centro de Estudios de Guatemala [CEG], 6 April 2005), http://www.c.net.gt/ceg/(accessed March 27, 2006).

11 Committee to Protect Journalists, "Guatemala," in Attacks on the press 2004: Documented cases from the Americas for 2004 (New York: Committee to Protect Journalists [CPJ], no date), http://www.cpj.org/attacks04/americas04/guatemala.html; accessed March 27, 2006 International Freedom of Expression Exchange, "Guatemala: Top Court Rules Against Insult Laws" (Toronto: International Freedom of Expression Exchange [IFEX], no date), http://www.ifex.org/fr/content/view/full/67505/?PHPSESSID=b06cefb651a5598a831329dfdf17e1b6(accessed March 27, 2006).

12 "9th and Final Report" (MINUGUA).

13 "Investigan a 25 policias denunciados por abuso contra mujeres" Centro de Estudios de Guatemala, 25 November 2005 and "mujeres organizadas densuran a autoridades del sistema por violencia contra ese sector," 26 November 2005, Centro de Estudios de Guatemala.

14 "PDH denuncio poca investigacion a policias acusados de delitos" (CEG, 23 May 2005).

15 Pablo Rodas Martini and Mariela Bautista, "Guatemala Integrity Assessment: Civil Society, Public Information and Media," The Center for Public Integrity, nd, http://www.publicintegrity.org/ga/country.aspx?cc=gt&act=ia; "PDH Critica Situacion de Carceles," Centro de Estudios de Guatemala, La Semana en Guatemala, del 22 al 28 de agosto de 2005.

16 The most recent murders include two members of the national peasant union, CONIC. See Prensa Libre, "La Conic insiste en protestas," April 8, 2006 (accessed April 8, 2006).

17 Guatemala Human Rights Commission-USA, Guatemala Human Rights Update, 18, 3 (Washington, DC: Guatemala Human Rights Commission-USA, February 2, 2006) http://www.americas.org/item_25369(accessed March 26, 2006).

18 Guatemala: No protection, No Justice: Killings of Women in Guatemala (London: Amnesty International [AI], 9 June 2005), http://web.amnesty.org/library/Index/ENGAMR340172005?open&of=ENG-GTM; Leonardo Cereser, "Feminicidos, en alza constante desde 2001," Prensa Libre, 12 July 2005, http://www.prensalibre.com/pl/2005/julio/12/118621.html(accessed July 14, 2005).

19 Luz Mendez, "Enhancing the Role of Women in Electoral Processes in Post Conflict Countries: Guatemalan Case Study" (Cambridge, MA: The Initiative for Inclusive Security, January 2003), http://www.womenwagingpeace.net/content/conflict_areas/articles.asp#guatemala(accessed December 12, 2005).

20 Informe Sobre Desarrollo Humano 2005 [Human Development Report 2005] (New York: United Nations Development Programme [UNDP, 2005], http://hdr.undp.org/reports/global/2005(accessed March 27, 2006).

21 Laura A. Langberg, Summary of Final Report on the Trafficking of Women and Children for Sexual Exploitation in the Americas (Washington, D.C.: Organization of American States [OAS], Inter-American Commission of Women [CIM], 1 August 2002), http://www.oas.org/cim/English/Proy.Traf.SumFinalRep.htm(accessed July 15, 2005).

22 The Protection Project, "Guatemala" (Baltimore, MD: Johns Hopkins University, Protection Project, 2005), http://www.protectionproject.org/guatemala.doc(accessed March 27, 2006).

23 "Menchu case ends in a 'safe' sentence," Central America Report, 8 April 2005; "Guatemala politicians were racist," BBC News, 5 April 2005, http://news.bbc.co.uk/2/hi/americas/4411207.stm(accessed December 13, 2005).

24 "9th and Final Report" (MINUGUA).

25 Indigenous Peoples, Poverty and Human Development in Latin America: 1994-2004: Guatemala – Highlights (World Bank), http://web.worldbank.org/WBSITE/EXTERNAL/COUNTRIES/LACEXT/GUATEMALAEXTN/0,,contentMDK:20505837~menuPK:328123~pagePK:141137~piPK:141127~theSitePK:328117,00.html(accessed December 12, 2005).

26 Guatemala: Rights of People With Disabilities (Chicago: Center for International Rehabilitation [CIR], nd, http://www.cirnetwork.org/idrm/reports/guatemala.cfm.

27 Issues of Family Unity, Identity and Culture: Guatemala (Geneva: Internal Displacement Monitoring Centre [IDMC]/Internal Displacement Project [IDP], 26 August 2004, http://www.db.idpproject.org/Sites/IdpProjectDb/idpSurvey.nsf/wViewCountries/B8FAFFB7EB35B8D7C1256EFA005E7D31(accessed December 12, 2005).

28 Journalists at CAFTA Protests Threatened," "Protests Against CAFTA continue," in Guatemala Human Rights UPDATE 17, 7 and "CAFTA Protests Continue," in Guatemala Human Rights UPDATE 17, 8 (1 and 15 April 2005) (Washington, D.C.: Guatemala Human Rights Commission [GHRC]/USA), http://www.ghrc-usa.org; Carol Pier, "DR-CAFTA Falls Short on Workers' Rights" (New York: Human Rights Watch [HRW], 27 July 2005, http://hrw.org/english/docs/2005/07/27/usint11493.htm(accessed December 12, 2005).

29 Guatemala Human Rights Update, "Government Attempts to Criminalize Demonstrations," 17, 8 (April 15, 2005) http://www.ghrc-usa.org/Publications/UpdateIndex.htm(accessed March 26, 2006).

30 "Stein pide depuracion en ministerio de justicia," Prensa Libre, 25 November 2005, http://www.prensalibre.com/pl/2005/noviembre/25/index.html(accessed March 26, 2006).

31 Graeme Thompson, "Putting Guatemala's Justice System on Trial," IDRC Reports (Ottawa: International Development Resource Centre), 3 December 2004, http://web.idrc.ca/en/ev-67553-201-1-DO_TOPIC.html#aaa.

32 For a discussion see "Matan a juez de Chiquimula," Prensa Libre, 26 April 2005, "piden seguridad para jueces y magistrados," 26 October 2005.

33 "Analisis de Situacion, 25" (Guatemala City: Fundacion Derechos, Economicos, Sociales y Culturales para America Latina [DESC], 16 August 2005) (accessed December 10, 2005).

34 See for instance, "Concluye reduccion militar," Prensa Libre, 30 June 2004 (accessed April 4, 2006)

35 "9th and Final Report" (MINUGUA).

36 "40 anos de carcel," Prensa Libre, 22 October 2005 http://www.prensalibre.com/pl/2005/octubre/22/126122.htmland "Condenan a plagiario de Lizardo Sosa,"Prensa Libre, 14 October 2005, http://www.prensalibre.com/pl/2004/octubre/14/99411.html(accessed April 5, 2006).

37 For a discussion of these topics see Refugees International, "Forgotten People: Internally Displaced Persons in Guatemala," http://www.refugeesinternational.org/content/article/detail/6344/?PHPSESSID=5ce00f92779c166324e1d(accessed April 5, 2006), and Internal Displacement Monitoring Centre, "Lack of Progress in Implementing Peace Accords Leaves IDPs in Limbo," http://www.internal-displacement.org/8025708F004CE90B/(httpCountries)/ADC95A48885DA5B3802570A7004CF4E3?opendocument&count=10000(accessed April 6, 2006).

38 "Ley del Registro de Información Catastral" (Fundacion DESC, 2005), http://www.fundadesc.org/documentos.htm(accessed December 15, 2005).

39 "Guatemala," in 2005 Index of Economic Freedom (Washington, D.C./New York: The Heritage Foundation/The Wall Street Journal, nd, http://www.heritage.org/research/features/index/country.cfm?id=Guatemala(accessed December 15, 2005).

40 Global Integrity: An Investigative Report Tracking Corruption, Openness and Accountability in 25 Countries: Guatemala (CPI, 2004), http://www.publicintegrity.org/docs/ga/2004Guatemala.pdf(accessed December 14, 2005).

41 Global Corruption Barometer 2004 (Paris/Berlin: Transparency International [TI], 9 December 2004), http://www.transparency.org/pressreleases_archive/2004/2004.12.09.barometer_eng.html(accessed December 14, 2005).

42 "Hacia una nueva legislacion contra la corrupcion," Alerta Legislativa 10, 52 (April 2005) (Guatemala: Accion Ciudadana), http://www.accionciudadana.org.gt/file1/af%20abril%202005%202.pdf(accessed December 8, 2005).

43 See for instance, Prensa Libre, "anomalias millonarias," 30 May 2005, http://www.prensalibre.com/pl/2005/mayo/30/115461.html(accessed April 5, 2006).

44 "Coalicion por la Transparencia" (Accion Ciudadana, nd), http://www.accionciudadana.org.gt/servicedet.asp?id=118(accessed December 15, 2005).

45 Global Corruption Barometer 2004 (TI).

46 "Cerigua documenta ataques contra periodistas guatemaltecos" (IFEX), http://www.ifex.org/20fr/content/view/full/69300/?PHPSESSID=2602611d4c8d3be3cf70bcb965624639, (accessed December 10, 2005).

47 "Lider del Congreso apoya proyecto de ley de aceso a la informacion" (IFEX), http://www.ifex.org/20fr/content/view/full/68315/?PHPSESSID=2602611d4c8d3be3cf70bcb965624639; "Una evaluación anticorrupción revela que el secretismo todavía debe superarse en las Américas" (TI, 29 September 2005), http://www.transparency.org/pressreleases_archive/2005/2005.09.29.secrecy_es.html (accessed December 15, 2005).