Semester Long Journal (50%)

REVISTA DE CIENCIA POLÍTICA / VOLUMEN 39 / N° 2 / 2019 / 265-284

Guatemala 2018: FacinG a constitutional crossroad

Guatemala 2018: frente a una encrucijada constitucional

KATE BRANNUM
American Public University System, USA

ABSTRACT

Guatemalan politics were dominated in 2018 by political strife between the Jim-
my Morales administration and the International Commission against Impunity
in Guatemala (CICIG). The most pressing issues in Guatemala continue to be co-
rruption and the weakness of the rule-of-law. The year began with but guarded
optimism that CICIG could continue its work despite worries about the President’s
commitment to democracy, but ended with a constitutional crisis that threatened
CICIG’s work in Guatemala. With general elections approaching in 2019, democra-
cy in Guatemala hangs in the balance. However, at the end of 2018, the makeup of
the election was still in doubt and Guatemala was in a constitutional crisis that has
not been resolved.

Key words: CICIG, Corruption, Constitutional Crisis, Indigenous Rights, Civil So-
ciety

RESUMEN

En 2018, la política guatemalteca fue dominada por los conflictos políticos entre el gobierno
de Jimmy Morales y la Comisión Internacional contra la Impunidad en Guatemala (CICIG).
Los temas más apremiantes en Guatemala siguen siendo la corrupción y la debilidad del
Estado de Derecho. El año comenzó con la preocupación por el compromiso del Presidente
con la democracia, pero con un optimismo cauteloso de que la CICIG pudiera continuar con
su trabajo, sin embargo, terminó con una crisis constitucional que amenazó el trabajo de la
CICIG. Como año previo a las elecciones generales de 2019, el 2018 fue año clave para la
democracia guatemalteca. A finales de 2018, la preparación de las elecciones aún estaba en
duda, en un contexto de crisis constitucional no resuelto.

Palabras clave: corrupción, crisis constitucional, derechos indígenas, sociedad civil

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I. INTRODUCTION

Guatemalan politics was dominated in 2018 by political strife between the
Jimmy Morales administration and the International Commission against
Impunity in Guatemala (CICIG). This strife is linked to all other major political
issues such as protests against the presidency of Jimmy Morales, migration to
the US, human-rights issues, and controversy over inadequate preparation for
and response to the eruption of the Fuego Volcano. The year began with signs
that Morales would more strongly resist CICIG, but guarded optimism that
CICIG could continue its work. The year ended, however, with a constitutional
crisis that could spell the end of CICIG’s progress in reigning in corruption and
strengthening the rule-of-law. The corruption crisis has permeated Guatemalan
life to the point that the major online journal for political analysis, Nomada
Guatemala, has an entire section titled, “Corruption is not normal.” The most
pressing problem in Guatemala continues to be corruption and the weakness
of the rule-of-law, which affects all aspects of politics and society. Guatemalans
had hoped that the combination of a president who ran against corruption and
the encouraging work of CICIG would lead to continued change. However,
2018 was the year that Morales and his supporters moved to constrain efforts
by CICIG to help Guatemalan officials fight against corruption.

II. BACKGROUND ON CICIG

The International Commission against Impunity in Guatemala, known by
its Spanish acronym CICIG, is funded by the U.N., the United States, and
the European Union, and has worked with Guatemalan agencies since 2007
to bring corrupt officials to justice and to help strengthen the rule-of-law.
CICIG’s mandate allows it to investigate the existence of illicit security forces
and clandestine organizations, support the work of Guatemalan institutions
(principally the Attorney General), make recommendations to the Government
for the adoption of new public policies and procedures, and provide technical
assistance to legal institutions, such as the Public Prosecutor’s Office and the
National Civilian Police (CICIG 2006). CICIG and the Attorney General’s Office
have investigated corruption in all three branches of government. In connection
with the Attorney General’s office, they have investigated current and former
Congress members, former President Otto Pérez Molina, and former Vice-
President Roxana Baldetti, who were arrested on corruption charges in 2015
in a case that involved bribing Guatemalan tax officials for lower import taxes
(Elías 2017).

Initially, President Jimmy Morales ran against corruption and refrained from
interfering with CICIG activities. However, as anti-corruption activities moved
closer to his connections and eventually his family, he became more negative
toward CICIG. His lack of cooperation turned to outright opposition after

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CICIG recommended that his brother and son be indicted on corruption charges
(Vera 2017).

III. SOCIAL ISSUES

Many of Guatemala’s social challenges were complicated by continued
corruption and weak rule-of-law. Guatemalan society in 2018 was heavily
influenced by continued security concerns, the eruption of the Fuego Volcano,
and repression of indigenous and human-rights activists. The challenges
presented to Guatemala by crime and violence goes far beyond their economic
impacts. Every aspect of Guatemalan society is affected by a lack of physical
security. Homicide, extortion, narcotrafficking, gang attacks, and other forms of
violence continue to be a major issue with the continued strength of organized
criminal gangs like Barrio 18 (18th Street) and Mara Salvatrucha (MS13).

There has been steady progress in reducing homicides particularly since
CICIG went into full effect. Civilian National Police (PNC) data shows a
steady reduction of the homicide rate in Guatemala over the past nine years.
According to PNC data, a homicide rate of 47.6 per 100,000 inhabitants in April
2009 fell to 31.3 in April 2014, and 23.5 in June 2018 (IACHR, 2018, 626 ). It is
important to note that official Guatemalan police reports only count those that
die immediately as homicides; in other words, victims who die of their wounds
later are not included in their homicide statistics (IACHR, 2019). However,
even though the homicide may be underreported, the trend still holds. The
International Crisis Group conducted a study which supported the idea that
CICIG has had a strong impact on the decline in homicides. According to the
International Crisis Group, homicides declined sharply in Guatemala after
CICIG came into existence, while homicide rates continued to rise in a control
group (International Crisis Group 2018).

Even with lower homicide rates, the Guatemalan law enforcement and judicial
systems have been unable to meet even low expectations when it comes to
investigating and prosecuting homicide cases. It has had an extremely low arrest
and conviction rate. CICIG reported in 2015 that the impunity rate for homicide
was close to 95% (CICIG 2015). Moreover femicide has actually increased.
Guatemala has one of the highest femicide rates in the world (Yagoub, 2016).
There were 307 femicides in 2018 (United Nations – 2018. para.12.). Guatemala
has taken steps to put in place the appropriate laws. The against Femicide
and Other Forms of Violence against Women (decree 22-2008) was approved by
the Guatemalan Congress in 2008 and has specialized courts at the national level
for the prosecution of crimes related to violence against women and femicide.
However, despite the creation of these courts, a culture of impunity persists
(UNODC 2019 ).

The danger to women and children, along with economic factors, is a major factor
in the number of migrants seeking to enter the United States through Mexico

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(Human Rights Watch 2019). The level of violence has also led to vigilantism,
particularly in rural areas. Frustrated citizens who see that courts routinely
ignore rules for timely trials enact their own form of justice particularly when
faced with the inequality of the system. Wealthier prisoners can delay their
trials for long periods of time while poorer ones may stay in pre-trial detention
for long periods.

One of the ways the Morales administration has responded to high crime rates
is to use military police for domestic policing. While military troops were
initially requested by various districts, their continued use throughout the year
constituted a breach of the wall between civilian matters and military defense
especially given that they were used to control crowds during protests (Taft-
Morales, 2019). In 2017 the Morales administration announced plans to move
those troops to border areas (Baires 2017). However, it never fully implemented
that plan and continued to use troops in 2018 for domestic policing and control
of civil society actions. Their use to control protests against Morales’s actions
towards the CICIG has been particularly controversial (Isacson 2018).

IV. HUMAN RIGHTS

According to the 2010 census, 41% of Guatemalans are Mestizo (Ladino) and
39% are indigenous. These are the highest percentages in the Americas. The
majority of indigenous people in Guatemala are Maya.: K’iche’ (11%), Q’eqchi
(8%), Kaqchikel (8%), Mam (5%), and other Mayan (7.5%). The indigenous
in Guatemala continue to face widespread discrimination and lack of
representation. Currently, they are struggling with discrimination in three main
areas: land rights, the judicial system, and the killing of indigenous leaders. The
next section discusses threats to both human rights defenders in general and
indigenous leaders in particular.

The general atmosphere was threatening for Human Rights Defenders in 2018.
According to the Human Rights Defenders Unit of Guatemala, there were
391 attacks and 26 killings against human-rights activists in 2018 (OMCT &
UDEFEGUA 2019). Many of those killed were indigenous leaders fighting to
protect their lands. Indigenous activists are even more vulnerable than Ladino
activists, given that they work in more remote areas and have historically
been more likely to be targeted for extrajudicial killings. Indigenous activists
continued to speak out about these dangers in 2018. From May 1st to May 10th,
2018, UN Special Rapporteur on the Rights of Indigenous Peoples, Victoria Tauli-
Corpuz, visited Guatemala to examine the situation of the indigenous people
and meet with some activists. They reiterated the four types of pervasive racism
facing Guatemala’s indigenous population: legal, interpersonal, institutional,
and structural. The report starts with the statement:

The Special Rapporteur notes that the situation of the Maya, Xinka
and Garifuna peoples is characterized by serious structural problems,

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particularly the lack of protection for their rights to their lands, territories
and resources and the racial discrimination that pervades all areas of
life. She expresses her deep concern at the resurgence of violence, forced
evictions and the criminalization of indigenous peoples that defend
their rights. Impunity, corruption, institutional weakness, the failure
to implement the Peace Agreements and extreme economic and social
inequality are the main obstacles. It is imperative that the Government
of Guatemala identify the structural problems as a matter of urgency and
work towards their resolution. (UN General Assembly, 2018)

As stated in the report, one of the main issues is land and mineral rights.
Because indigenous groups have not been granted control of their lands and
protection of existing land rights is extremely weak, they are frequently pushed
off of their land or have it destroyed by the effects of mining or hydroelectric
dams.When this happens, they often have no feasible legal recourse. One of
the requirements that the Guatemalan regulatory bodies should be enforcing
for the construction of large hydroelectric projects is free, prior, and informed
consent for local stakeholders. According to the Commission on Human Rights,
Sub-Commission on the Promotion and Protection of Human Rights, Working
Group on Indigenous Populations, “Free, prior and informed consent recognizes
indigenous peoples’ inherent and prior rights to their lands and resources and
respects their legitimate authority to require that third parties enter into an
equal and respectful relationship with them, based on the principle of informed
consent”.1 Guatemala is a signatory to the 1989 Indigenous and Tribal Peoples
Convention, also known as the International Labour Organization’s (ILO’s)
Convention 169, which calls on governments to consult indigenous peoples
before permitting exploitation of natural resources on their lands.

Guatemala, like other Central American states, has encouraged the construction
of hydroelectric dams, which improve energy independence and reduce carbon
output. However, in reality, the cost in terms of land use, access to clean water,
and loss of cultural landmarks is borne by the most vulnerable populations
in Guatemala: the indigenous. Many of these hydroelectric projects involve
incursion on lands that have traditionally been occupied by the indigenous
and may involve the destruction of local ecosystems. Fights over mining
and hydroelectric dams are not unique to Guatemala; however, the lack of
designated comarcas, such as exist in Panama, leave Guatemala’s indigenous
even more vulnerable.

This year’s continued struggle over dams needs to be understood in the context
of the 1982 government massacre of indigenous residents connected to the
construction of the Chixoy hydroelectric dam, supported by the World Bank
and the Inter-American Development Bank (Aguirre 2004). The indigenous

1 Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, Wor-
king Group on Indigenous Populations, Twenty-second session, 19 -13 July 2004, 5.

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have organized to struggle against this type of event happening again. Groups
like Resistencia Pacifica de Cahabón (Peaceful Resistance Cahabón), which was
formed in 2015 in Guatemala to defend the land, water, and rights of indigenous
peoples, continued to protest in 2018. Supporters of the mines have responded
with violence and by imprisoning protestors. In November of 2018, Bernardo
Caal Xól, a representative of the q’eqchí’ communities in Santa Maria Cahabón
municipality, was sentenced to seven years and four months imprisonment.
He was found guilty, based on the testimony of affiliates of the company, of
stealing a drill, a tool box, and some fiber-optic cable. He had been representing
the indigenous in their efforts to stop hydroelectric projects on the Oxec and
Cahabon for which they had not provided consent and which effectively left
them without access to water (OHCHR 2018).

Mining is the other major threat to indigenous land rights. Guatemala has
been in violation of its obligations under International Labour Organization’s
Indigenous and Tribal Peoples Convention (ILO 169) by not consistently
consulting with indigenous populations. However, in 2018, the courts reaffirmed
the 2017 decision to suspend mining operations for several mines after finding
a lack of consultation with the Xinca communities. Many people in those
communities believe that the mine would be a threat to their ancestral land and
water rights. On July 12, 2018, indigenous activist, Ángel Estuardo Quevedo, a
member of the Peaceful Resistance in Casillas, which had been advocating for
the permanent closure of the Escobal silver mine, was murdered while traveling
in Santa Rosa de Lima (Rivera 2018). In September of 2018, the Constitutional
Court ruled operations of the Escobal project would remain suspended until
the Ministry of Energy and Mines completes a consultation with the local Xinca
communities (Garcia 2018). The Escobal mine, which began operations in 2014
is one of the largest silver mines in the world, producing a record 21.3 million
ounces of silver in 2016 (Woodin 2018). The controversial Fenix nickel mine also
remained closed throughout 2018.

While many of the protests in 2018 by indigenous groups had to do with land
and cultural rights, indigenous community leaders have also been focusing
more broadly on the rule-of-law and democratic norms. On September 13th,
a coalition of “survivors of the internal armed conflict” issued a statement
denouncing what they called the re-militarization of Guatemalan society after a
press conference in which Morales was surrounded by military officers (NISGUA
2018). They seek to see a strengthening of the rule-of-law that would lead to
respect for the rights granted to them under the peace accords and constitution.

Protests by both indigenous and non-indigenous human-rights defenders
continued throughout 2018, and were increasingly met by a show of force from
the police or the military. For instance, the Unit for the Protection of Human
Rights Defenders (UDEFEGUA) reported that a heavy police presence was
deployed to human-rights offices in early September, including the Human
Rights Office of the Archdiocese of Guatemala (ODHAG), the Association for the
Promotion of Security and Democracy (SEDEM), the Committee for Campesino

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Unity (CUC), the Myrna Mack Foundation, and UDEFEGUA (El Observatorio
and UDEFEGUA 2018). This police presence is particularly worrisome to
human-rights defenders, given the reality of assassinations of human-rights
workers over the last several years.

Indigenous leaders sought justice for those recently killed while still awaiting
justice for the crimes perpetrated during the civil war. There were a few
successes in 2018. On May 23rd, four former military officials were sentenced to
long prison sentences for the disappearance of 14-year-old Marco Antonio, for
crimes against humanity, and for aggravated sexual violence committed against
Antonio’s sister, Emma Guadalupe (CERIGUA 2018). Also, in November of 2018,
former soldier Santos López Alonzo, now 66, was found responsible for 171 of
the deaths in the Dos Erres massacre of 1982. He was sentenced to 30 years
for each; although the total maximum sentence one can serve in Guatemala is
50 years (Soto 2018). While this was good news for survivors and indigenous
activists, the time it took to reach this stage was very frustrating, especially
given that others who have been accused have died of natural causes before
having to face justice. According to a United Nations truth commission, about
200,000 people were killed and 45,000 disappeared during the conflict.

Along with the murder of human-rights activists, there have been deep concerns
with the murder of journalists. Guatemala was ranked 116th in the world, in
terms of press freedom by the Reporters without Borders World Press Freedom
Index. The year began with the arrest of lawmaker, Julio Antonio Juarez Ramirez,
for contracting out the murder of two journalists in 2015: Danilo Zapón López, of
Prensa Libre, and Federico Salazar, of Radio Nuevo Mundo (Nalvarte 2018). On
February 1st, the bodies of Laurent Ángel Castillo Cifuentes and Luis Alfredo
de León Miranda were discovered in Guatemala’s southwestern Suchitepéquez
department (Morales and Miranda Rolando 2018).

V. VOLCANO RESPONSE

Another major event that led to social discord was the eruption of the Fuego
Volcano on June 3rd. Small eruptions of this volcano are common and a larger
one was not unexpected. However, in the aftermath there were questions about
preparation, evacuation, response, shelter, and recovery of bodies.The number
of dead from the eruption is uncertain. By the end of 2018, official numbers
were at 159 people, with 260 still missing. These numbers are hotly disputed by
volunteer groups like Antigua al Rescate, who believe the death toll was much
higher. In July 2018, this group argued that the total number of people killed
or missing was closer to 2,900 (Dominguez 2018). Whatever the true numbers
are, the large gap in estimates illustrates the lack of precision and trust on the
ground.

While the government’s response to the volcano eruption has not gotten a lot
of attention outside of Guatemala, it is an intense issue within Guatemala,

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particularly in affected areas. Groups like Antigua al Rescate and even local
firefighters found ways to send aid directly to the survivors because they did
not trust that any goods or money collected by the government would ever
make it to them. This distrust is in line with the perception of corruption in
Guatemala in general. According to Transparency International’s Corruption
Perception Index, Guatemala’s score is 27 out of 100 and it ranks 144th out of 180.
One of the major points of contention besides the number of victims was why
the government had not evacuated the area in time to prevent the high death
toll.Thousands of people protested in the streets the next week, demanding an
investigation (RTVE 2018).

Another major issue was the quantity and quality of help available to survivors.
Less than a quarter of the people were housed in the shelters, and those shelters
did not meet international standards. Most of the food and water came from
individual volunteers and groups.

Jimmy Morales made matters worse when he announced “I’m ashamed of
saying this again, but according to our budget law, we can’t have a single penny.
The budget law doesn’t allow the state to spend a penny on emergencies”
(Telesur 2019). The National Coordination for Disaster Reduction of Guatemala
(CONRED) and the local firefighters are grossly underfunded. Most firefighters
are volunteers and most stations get a very small stipend from the government
and rely on donations collected on street corners and larger donations from
abroad.

VI. ECONOMY

Guatemala’s economy, which is the largest in Central America, grew by 3.0
percent in 2018 marking a 3.0 growth rate since 2012. The World Bank predicts
this will continue into 2019 (World Bank 2019). However, there are underlying
problems that indicate that this will not lead to greater societal wellbeing and
coherence. The World Bank also reports that more than half of the population
is below the national poverty line, with 23% living in extreme poverty. Poverty
among indigenous groups, which make up more than 40% of the population,
averages 79%, with 40% living in extreme poverty. Nearly one-half of
Guatemalan children under age five are chronically malnourished—one of the
highest malnutrition rates in the world. Guatemala also has one of the highest
inequality rates in the region with no indication that reform is on the way. It
ranks 127th out of 189 on the 2018 Human Development Index (Congressional
Research Service 2019).

A continuing problem is the lack of investment in infrastructure and social
programs. Part of the problem is that Guatemala has the lowest tax-to-GDP
ratio in the region. This is due in part to the high rate of employment in the
informal economy—the Instituto Nacional de Estadística reports 71% of the
population held informal employment in 2018 (Instituto Nacional de Estadística

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Guatemala 2019). The IMF noted in its report in June 2018 that Guatemala
needed to increase spending on infrastructure and social issues to 15% of GDP
to lift more Guatemalans out of poverty. It notes this would require tax reform
(IMF 2018). However, efforts to reform taxes have been stymied by corruption
and the President’s hostility to supporters of CICIG. The crisis around CICIG
and Morales has mean that tax reforms and infrastructure projects have been
put on hold despite initial efforts by Morales appointees. For example, Juan
Francisco Solórzano, leader of the tax administration, was working to reform
the administration and to bring in more money but was fired by Morales in
January 2018 (Dudley 2018).

In addition, long-term economic security is threatened by continuing violence
and crime. Tourism could be much stronger considering that Guatemala has
many areas which are natural tourist attractions. However, warnings and travel
advisories like the one the US State Department published in 2018 discourage
tourism from the U.S. In 2018 the US State Department travel warning advised,
“Exercise increased caution in Guatemala due to crime” and recommended
that people reconsider travel to the departments of: Guatemala, Escuintla,
Chiquimula, Quetzaltenango, Izabal and Petén.

Guatemalan officials have had some success in keeping tourist areas such as
Antigua, Sololá, and Lake Atitlan safe for tourists. According to the National
Board of Tourist Assistance (PROATUR), there were 195 recorded instances of
crimes against tourists in Guatemala in 2018 out of the 2.4 million registered
tourists who visited the country during the year (OSAC 2019). Antigua attracts
more than 500,000 people for its Holy Week processions. Lake Atitlan also
attracts people from all over the world. However, even tourism in safe areas is
damaged by Guatemala’s overall reputation.

VII. POLITICS

The underlying but always present political schism between status-quo and
reformist actors came to the surface in 2018 and dominated the political scene.
Despite the efficacy of some of CICIG’s efforts, or perhaps because of that
efficacy, the Jimmy Morales administration, which had become increasingly less
cooperative even in 2017, began to actively oppose its work. The president’s desire
to put an end to CICIG’s prosecutions was shared by the Comité Coordinador de
Asociaciones Agrícolas, Comerciales, Industriales y Financieras (CACIF). Many
members of this powerful group of private-sector supporters were targets of
the investigation or had relatives who were. On August 10th, prosecutors called
for Congress to strip the President’s immunity so that he could be prosecuted
for corruption and for challenging the Maduro regime in Venezuela. Morales
accused CICIG of “selective criminal prosecution on ideological grounds,
using a distorted interpretation of national norms and of its own mandate.”
(Guatemalan presidents cannot be prosecuted unless the Supreme Court and

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two-thirds of Congress give their consent.). Congress voted against stripping
his immunity. A few weeks later, on August 31st, Morales, already angered by
investigations of his family, announced that the CICIG charter would not be
renewed when it expires in September 2019.

The real political crisis came on September 4th, when President Morales banned
CICIG Commissioner, Ivan Velasquez, from reentering the country. He made
the announcement surrounded by military officials, which attracted a great
deal of commentary in the press. As one Nomada commentator wrote, “He
resurrected all the ghosts of the military state coups and sent military vehicles to
the streets to intimidate citizens, civil society organizations, the CICIG and the
US Embassy” (Woltke 2018). One of Morales’s ministers resigned rather than
carry out the order (Congressional Research Service 2019). On September 16th,
the constitutional court ruled that Ivan Velasquez had to be let back into the
country. However, the Morales administration ignored the order, thus creating a
constitutional crisis.This breech of Guatemala’s constitution has brought about
condemnation from both domestic and international bodies. The condemnation
been met with defiance from the Morales administration. (Pellecer 2018) On
September 17th, Enrique Antonio Degenhart Asturias, Minister of the Interior
and Home Affairs, reiterated the administration’s position, stating in a press
conference that “Colombian citizen Ivan Velasquez will not enter the country”
(Pérez 2018).

The situation worsened from there. On December 18th, 11 other CICIG
employees were ordered to leave the country within 72 hours (Menchu 2018).
Later in December, the attacks against those that supported CICIG continued
with threats to use corruption law as a way to actually attack those supporting
the fight against corruption. At the end of the year, on December 26th, 2018, there
were threats from the State’s attorney’s office to take away the judicial immunity
of three Constitutional Court justices who had ruled against Morales on CICIG
cases. They presented a pre-trial request to begin the process (NISGUA 2019).

President Morales also withdrew police protection from CICIG officials. In total,
since 2017, the Guatemalan government has withdrawn almost two-thirds of the
police officers originally assigned to the international commission (El Periódico
de Guatemala 2019). The other main area of attack has been the use of social
media trolls or “netcenteros” who were part of a campaign against CICIG.
Despite the potential dismantling of CICIG, some of its court cases continued in
the autumn of 2018. On …