Countries at the Crossroads
Following the January 2012 presidential inauguration of retired general Otto Pérez Molina, Guatemala stands at a democratic crossroads. The country’s political leadership faces enormous and overlapping political challenges. Organized crime—increasingly tied to drug trafficking—has thoroughly penetrated the country. Security, judicial, and political institutions are weak and often corrupt. Guatemala’s large indigenous population remains excluded and marginalized, as well as mired in tense conflicts over land and natural resources with the state, the domestic elite class, and international corporations.
At the same time, however, positive elements exist, especially an increasingly active and engaged civil society, a reformed Public Ministry, and the continued presence of the International Commission against Impunity (CICIG), the UN-sponsored hybrid institution established in 2007 (whose mandate was in June 2012 extended through 2015) and charged with uncovering and dismantling clandestine security networks. These actors have heightened public awareness of the scope of the problem and enhanced pressure to pursue necessary political, social, economic, and institutional reforms. Yet there are grounds to fear that the pace of reform will not match the spread of violence. The resulting frustration and despair could heighten the appeal of militarized solutions—which were embraced by outgoing president Álvaro Colom, endorsed by Pérez Molina and much of the electorate that voted for him in the 2011 elections, and became central components of the new president’s early agenda.
Furthermore, even if Pérez Molina’s force-based approach succeeds in curbing violence, it risks a return to the kind of authoritarianism associated with Guatemala’s brutal four-decade long internal armed conflict (1960–1996). An (over)emphasis on militarized solutions also ignores the ways in which violence is both rooted in and tears at the weak fabric of Guatemalan democracy. Deepening Guatemalan democracy requires addressing the embedded poverty and inequality that nurture organized crime and violence; reforming state institutions so that they guarantee security, justice, and representation; and enacting policies and transforming attitudes with a view toward producing a social contract that generates trust between the Guatemalan government and all its citizens.
Every four years Guatemala holds open and competitive elections that are overseen by a Supreme Electoral Tribunal (TSE) and monitored by local and international observers as well as, increasingly, by Guatemalan citizens through social media sites. In the most recent general elections held on September 11, 2011, 18 politically diverse parties and coalitions contested congressional seats, and 14 competed for the presidency. Pérez Molina’s conservative Patriotic Party (PP) coasted to victory in a November 6 run-off round, defeating populist businessman and Renewed Democratic Liberty (LIDER) party founder and standard bearer Manuel Baldizón, by roughly eight percentage points.
During the Colom administration, 1.3 million Guatemalans registered to vote, raising the total number of voters to 7.3 million. Women comprise 51 percent of the electorate and also constitute 74 percent of newly registered voters, a result of programs administered by the Social Cohesion Council headed by outgoing first lady Sandra Torres, which required beneficiaries to register as voters. In a move designed to ease access, the TSE set up 2,500 voting centers and 17,000 polling booths, representing 21 and 13 percent increases, respectively, since the 2007 elections. Such efforts yielded substantially increased turnout: 69 percent of eligible voters cast ballots in the first round and 61 in the second, a significant rise from the corresponding rates of 60 and 47 percent in 2007, which were more typical of previous Guatemalan voting patterns.
In keeping with recent tradition, a new party assumed the presidency in January 2012. The disqualification of the governing Unity of Hope (UNE) party candidate, Sandra Torres, who divorced her husband in an attempt to circumvent a constitutional proscription against incumbents and their immediate relatives seeking a consecutive presidential term, significantly eased the PP’s path to victory. After a July 2011 Constitutional Court ruling disqualified Torres’ bid, the coalition comprised of UNE and the Grand National Alliance (GANA) grouping opted out of the presidential race, though it still captured secured 48 of 158 legislative seats, second to the PP’s 56.
The elections exhibited troubling signs of violence and irregularities committed by political contenders, party activists, and the TSE itself. Social media users documented widespread vote buying, the TSE reneged on its promise to provide free transportation to rural polling centers in the second round, and the PP allegedly secured control of the rural transportation network, enabling the party to shuttle its supporters to voting centers on a massive scale. Although the November 6 ballot was mostly peaceful, the general election campaign and first round were marred by violence. Between January and November 2011, an estimated 40 people were killed, 39 wounded and 65 threatened—the vast majority local candidates, their relatives, and party activists. Election observers also reported harassment and threats, and ballot boxes were burned in five rural municipalities in a show of anger directed chiefly at the TSE’s failure to disqualify mayoral candidates facing pending corruption charges.
Campaign finance regulations contained in the 2007 revisions to the Electoral and Political Parties Law are routinely disregarded. Parties spent almost US$7.4 million prior to the formal launching of the campaign season on May 2, 2011. During the first round alone, the three largest parties each exceeded spending limits of US$6.18 million. Several parties, including UNE, failed to provide requisite funding reports. Those received were often inaccurate, partly because large contributors tend to break apart donations into smaller increments to circumvent rules requiring disclosure of the identity of individuals donating over US$10,000.
In the run-up to the elections, the TSE made good-faith efforts to strengthen its monitoring capacity, notably by signing agreements with government agencies to verify party records and hiring an outside firm to monitor spending on publicity. Nevertheless, the entity remains powerless to enforce party and electoral laws. Charges of electoral misconduct would need to be prosecuted by a judicial system that demonstrates little interest in pursuing such cases. With the TSE thus reduced to issuing directives and levying a derisory fine of US$125 per infraction, campaigns make a mockery of regulations. In response to the TSE’s demand that the PP refrain from further spending on publicity during the second round, the party instead disbursed an additional US$530,000.
Spending correlates closely with electoral performance. The three largest parties accounted for roughly two-thirds of all campaign spending and won 119 of the 158 congressional seats and 265 of the 332 mayoralties contested in the first round. Conversely, with one exception, parties with least access to funding also fared worst at the polls. Furthermore, electoral financing patterns stymie the institutionalization of political parties; instead, the parties serve as personalist electoral vehicles constituted to enable ambitious and wealthy individuals—increasingly tied to organized criminal networks including drug traffickers—to gain unfettered access to political power. The need to accumulate large campaign chests also reinforces the parties’ tendency to sell spots on their lists to the highest bidder, with the cost of a safe seat widely reported to go for roughly US$130,000, obviating the need to develop a coherent or consistent policy platform and recruit candidates who are skilled technocrats and reflect the country’s gender balance and ethnic diversity.
This political opportunism also contextualizes the wave of desertions that follow each campaign. During the Colom administration (2008–2012), 56 of 158 elected deputies abandoned their original parties to join rival organizations, constitute new political movements, or sit as independents. Nineteen broke with UNE and 20 departed from the GANA, with a majority of these deserters joining together to form the LIDER movement. No sooner had the 2011 electoral season concluded than the UNE-GANA coalition dissolved, and UNE itself fractured, with eight deputies forming an independent bloc under the leadership of the outgoing congressional president.
A 2010 public opinion survey indicated that only a minority of Guatemalans are satisfied with democracy. Congress and political parties obtain the lowest approval ratings among all institutions, garnering 37 and 29 percent approval, respectively. These data display a persistent downward trend, as positive perceptions of parties had already declined from a high of 40 percent registered in 2004 to 34 percent in 2008. By contrast, the military’s approval rating increased from 49 percent in 2004 to 55 percent in 2010.
Separation of powers is formally established within Guatemala’s democracy. The judiciary, though weak and corrupt, is nominally independent, and the legislature exerts substantial control over law and policymaking. While Congress therefore serves as a more substantial check on executive power than in many Latin American countries, the fecklessness of many parties and their leaders allow private interests and unaccountable legislators to undermine executive attempts at enacting policies critical for governance improvements. While the Colom government was able to work with Congress to pass some key laws, many important bills remained in purgatory throughout the Colom administration (see Civil Liberties and Anticorruption and Transparency).
The country’s civil service poses yet another impediment to democratic governance. An estimated 80 percent of public servants are not covered by regulations established by a woefully deficient Civil Service Law. The appointments process and the subsequent behavior of public servants are politicized, corrupt, and lack transparency, while management practices are excessively centralized.
Civil society organizations and the media monitor government activities, including allegations of corruption, in an environment mostly free of legal impediments but constrained by resistance, intimidation, and fear. Civic groups, especially social and human rights-focused nongovernmental organizations (NGOs), actively push for institutional and political change, but their suggestions are often disregarded by the executive and the legislature, and civic demands frequently must be channeled through CICIG or influential foreign governments to have an impact.
The media is subject to significant constraints. Libel laws remain on the books as criminal offenses subject to five-year prison terms, although they are rarely invoked. More importantly, the government fails to protect journalists from intimidation and violence. In 2010, reporters probing allegations of government corruption, especially in connection with cash transfer programs, were reportedly intimidated on several occasions. The Human Rights Ombudsman (PDH) reported 3 journalists killed and another 41 intimidated, harassed, or attacked during 2010, with another 19 similar incidents registered during the first half of 2011, including the assassination of a local television personality. While these numbers actually represent a decrease in outright aggression towards reporters in recent years, the climate of insecurity has worsened as a result of the spread of organized crime. Guatemalan journalists increasingly engage in self-censorship, limiting their reporting on drug trafficking operations in particular. Lest they relax self-imposed controls, there is no shortage of reminders—for example, a warning issued by the feared Mexico-based Zetas gang that journalists should refrain from investigating the macabre massacre of 27 peasants in the northern department of Petén in May 2011.[17
The media remains tightly controlled by Guatemala’s small, powerful traditional elite class as well as, increasingly, by politicians. Broadcast licensing requirements are onerous and involve public auctioning that favors entrepreneurial groups; meanwhile, there is little legal security for community radio stations. Guatemalan television continues to be monopolized by Mexican media tycoon Ángel González, an ally of outgoing President Colom, who owns the country’s four major free-to-air stations. The Colom administration consistently favored González’s network in distributing official publicity, and the network has been criticized for allegedly transforming nightly television news bulletins into free publicity.
Internet usage has increased significantly in Guatemala over the past decade, from less than 1 percent of the population enjoying access in 2000 to roughly 17 percent today. Despite the increase, which is primarily due to the spread of cybercafés, usage is disproportionately concentrated among educated, male, urban, high- or middle-income earners. Rural populations enjoy limited access as a result of lower literacy rates, poverty, and an inadequate telecommunications network.
Guatemala’s rates and patterns of violence have become increasingly reminiscent of the killings perpetrated during the armed conflict. Although the homicide rate declined from a high of 46.3 per 100,000 inhabitants killed in 2009 to 41.4 in 2010 and 39 in 2011, Guatemala it remains among the world’s most violent countries. Corpses increasingly bear signs of torture and mutilation, and 373 Guatemalans, including women and children, died in 26 massacres recorded through the first nine months of 2011. Criminal street gangs and more organized drug cartels, whose members frequently have ties to elements of the security forces active during the armed conflict, are responsible for much of the violence. In perhaps 10 percent of cases, however, “social cleansing” groups—purportedly formed to rid communities of gang members and other undesirables—also perpetrate brutal violence against innocent civilians. Impunity remains entrenched; less than 2 percent of all crimes reported to the Public Ministry result in convictions and sentences. In sum, Guatemala remains today much as the United Nations Special Rapporteur on extrajudicial, summary, or arbitrary executions described it in 2007: “a good place to commit murder because you will almost certainly get away with it.”
The Guatemalan prison system suffers from severe budget constraints, overcrowding, understaffing, inadequate facilities, and poor management. The prison population of 11,140 far exceeds official capacity of 6,974 inmates. Despite the rapid and sustained rise in violent crime, only seven percent of prison facilities are high security, while the average ratio of one guard per twelve prisoners falls well short of the internationally recommended average of one per five. Hardened criminals are housed with pretrial detainees, and violence is commonplace, with 27 inmates reportedly killed in 2010. In addition, 46.5 percent of the inmate population queried by the PDH claimed mistreatment during the six-hour window between arrest and arraignment, including more than three-quarters of the female inmates surveyed. Conditions within prisons also continue to deteriorate. Inmates complain of degrading and cruel treatment, including unsanitary conditions and inadequate food, lack of access to health care, and denial of visitation rights.
Attacks on human rights defenders continue unabated, despite the inclusion of prominent human rights activists in the Presidential Commission on Human Rights. The nongovernmental Unit for the Protection of Human Rights Defenders (UDEFEGUA) documented 329 violent attacks against human rights defenders during the first ten months of 2011, equivalent to an 8 percent increase since 2010. The vast majority of these attacks involved various forms of intimidations and arbitrary detention, but 17 murders and 7 attempted murders were also registered. Impunity is the norm: only 5 of the 56 cases of aggression reported to a special unit charged with investigating crimes against human rights defenders were resolved.
Porous borders, widespread poverty and discrimination, and organized crime’s increasing penetration into the political, judicial, and security spheres all generate a climate conducive to human trafficking. The chief victims are children, adolescents, women, and migrants trafficked for the purposes of sexual exploitation, forced labor, and illegal adoption. Though a welcome addition, investigative units within the Civil Police Force (PNC) and Public Ministry dedicated to human trafficking are severely understaffed, with just eight specialized agents serving in the PNC and 16 in the Public Ministry. Of the 1,283 reported cases of human trafficking between 2000 and February 2010, only 116 resulted in the arrest and convictions of perpetrators, with 42 remaining behind bars. Despite the December 2007 passage of an adoption law rendering Guatemalan practices consistent with The Hague Conventions and a promising September 2011 conviction of seven individuals linked to illegal adoption, proceedings remain flawed. The CICIG expressed fears of possible irregularities in 60 percent of cases in which children are declared eligible for adoption, and in 2010 the commission rebuked the Public Ministry for investigating only 50 of the 360 pending cases that presented serious irregularities.
According to the constitution, Guatemalan women enjoy the same rights as men. In practice, however—and even as they come to comprise the majority of the electorate—women remain severely underrepresented in politics. Although the run-off round featured two female vice-presidential candidates and women secured a modest increase in their congressional representation, only 12 percent, or 19 of the 158 newly elected deputies, are female. Moreover, just seven of the 333 incumbent mayors are women, a number that remains virtually unchanged since 2003, when eight female mayors were elected. In response, the Congressional Women’s Commission has reiterated its call for a quota governing national party lists, a move that continues to be resisted by male political party leaders. In addition, women still suffer workplace discrimination. According to a 2010 International Labor Organization (ILO) study, on average women earn wages one-third lower than those of men, and 42 percent of young women lack access to both employment and educational opportunities, as contrasted with 10 percent of young men.
The passage of the Law against Femicide and Other Forms of Violence against Women in 2008, followed by the February 2010 establishment of specialized judicial courts to hear cases of violence against women in three departments, constitute critical legal initiatives enacted to combat violence against women. In September 2010 Thelma Aldana, the magistrate most responsible for pushing these initiatives, was also appointed president of the Guatemalan Supreme Court. These advances notwithstanding, official data recorded an increase in cases of femicide from 602 in 2009 to 695 in 2010. Domestic abuse remains an equally entrenched and serious problem. Some 180,000 women have filed complaints over the past three years, with 18 percent of all women estimated to be victims of intrafamilial violence. Impunity again prevails: only 218 convictions resulted from the 15,375 complaints filed in 2010; lack of funding forced the Unit for the Defense of Indigenous Women in the department with the highest incidence of violence to close in August 2011; and budget constraints threaten to shutter the newly established specialized judicial courts.
The Guatemalan constitution recognizes indigenous peoples and their cultures, and governments have passed legislation criminalizing discrimination and established institutions dedicated to the protection of indigenous rights. However, more than three-quarters of all Guatemalans consider their society discriminatory against an indigenous (mostly Mayan) population that constitutes between 38 percent of the country’s population (according to government sources) and 60 percent
(as claimed by indigenous organizations). Indigenous inhabitants account for 80 percent of the country’s poor (with poverty levels twice those registered among the non-indigenous population), and one-quarter live in conditions of extreme poverty. Three of every five indigenous children are chronically malnourished, the indigenous infant mortality rate hovers at 51 per 100,000 live births (as contrasted with 33 for the non-indigenous population), and maternal mortality is three times higher among indigenous women. Although the education gap has diminished over the past decade, and the educational system is relatively free of corruption, indigenous students still represent only 13.2 percent of post-secondary students, and 20 percent of indigenous Guatemalans aged 15-24 are illiterate, as opposed to 8 percent of the non-indigenous youth population. Workplace discrimination also persists. Indigenous Guatemalans are paid roughly one-third less than non-indigenous, an estimated 70 percent earn less than the minimum wage, and 27 percent receive no remuneration whatsoever.
Mayan Guatemalans are largely excluded from the formal political sphere. Only 19 indigenous deputies (two more than in 2007) were elected, accounting for less than 12 percent of congressional seats. Pérez Molina appointed a single Mayan cabinet member—once again to the largely ceremonial position of Minister of Culture—and the Supreme Court has no indigenous justices, despite many highly qualified potential candidates. This lack of political representation contributes to the continued denial of indigenous peoples’ political and civil rights. Despite laws banning discrimination, indigenous women wearing traditional clothing are regularly denied jobs in the private sector. As of 2010, the scant resources allocated to bilingual education permitted the employment of approximately 7,000 bilingual teachers for Guatemala’s 900,000 children of Mayan descent, and allowed few opportunities to study in a Mayan language beyond third grade.
Legislation intended to improve conditions remains stalled in Congress. A Rural Development Law that would heighten indigenous access to productive resources and strengthen food security has been bogged down for over 10 years. A proposed Law for Consultation of Indigenous Peoples, which would provide communities greater voice in decision making regarding extractive industries projects in their territories, has been stuck for six years. And the Law of Indigenous Jurisdiction, which would recognize indigenous cultural institutions and authorities, also awaits approval after being presented in 2008.
Guatemalan society is also highly intolerant towards sexual minorities. Since 2007, 29 violent hate crimes against homosexual and transgender individuals have been reported, including 13 murders in which the corpses were also mutilated. However, the real numbers are undoubtedly much higher, as members of the gay, lesbian, and transgender communities avoid reporting crimes and generally live in the shadows, fearful for their own safety at the hands of a homophobic police force. While international assistance underwrites efforts to combat the spread of HIV-AIDS, the state has neither contributed its own resources nor paid attention to protecting the rights of those infected with the disease, whether by enhancing access to treatment or introducing educational initiatives designed to transform prevailing hostile attitudes.
Legislation has been introduced to protect the rights of disabled people. There remains a need, however, for complementary measures that would enhance the use of sign language and provide educational and vocational training (the illiteracy rate of disabled Guatemalans is twice the national average) as well as adequate medical care. Activism on the part of the Guatemalan Collective for an Independent Life and the National Council for Disabled Peoples—comprised of some 56 nongovernmental associations and 6 government entities—has enhanced awareness of discriminatory practices and generated promising solutions. Two examples are efforts to ease access to public transportation and measures to increase participation in the 2011 elections, including the provision of access ramps to polling stations, along with information in sign language and Braille ballots.
The state respects the constitutionally sanctioned right of its citizens to hold the religious beliefs of their choice and to freely practice their faith. Nonetheless, legislation designed to recognize, preserve, and guarantee access to Mayan spiritual sites, as pledged in the country’s peace accords, has also been stalled in Congress for over 13 years.
The gap between theory and practice is even more glaring with respect to officially guaranteed rights to organize and demonstrate for peaceful purposes. Roughly three-quarters of the workforce is employed in the informal sector, where workers lack standard labor protections. Anti-union policies include a 25 percent union registration requirement for collective bargaining within a company; a stipulation that strikes need to be supported by 51 percent of the workforce, as well as a broad definition of the “essential services” sectors within which strikes are barred; and extremely weak protections for workers fired for organizing. Trade unionists also continue to suffer numerous violent attacks: with at least 10 unionists were killed in both 2010 and 2011—a decline from the 16 murdered in 2009—Guatemala is considered one of the world’s most dangerous countries for union activity.
Although protests are common, politicians increasingly seek to criminalize peaceful protest, including via legislation that provides for up to five-year prison sentences for “persons carrying out acts aimed at paralyzing or disrupting enterprises that contribute to the country’s economic development.” The political leadership has also shown resolve in using force to break up protests—recent graduates of the police academy received special training in disrupting protests through psychological and physical tactics.
Reform of the Public Ministry represents the most promising contribution to enhancing the rule of law. CICIG’s efforts have greatly enhanced the investigatory and prosecutorial capacities of the Public Ministry and its sustained pressure (in collaboration with civil society organizations and other international actors) helped facilitate the December 2010 appointment of Attorney General Claudia Paz y Paz, widely hailed for her diligence, competence, commitment, and integrity. Drawing upon the expertise of the human rights community and information contained in police and military archives, she launched a process of criminal accountability for human rights violators linked to the armed conflict. She has also supervised investigations that resulted in the capture of key drug traffickers and continues to investigate and prosecute cases of corruption—most recently, in December 2011, charging Sandra Torres’s sister, Gloria, and her two nieces with the theft of US$3.36 million from municipal coffers.
Nonetheless, political meddling, undue elite influence, and ties to organized crime continue to gravely compromise the administration of justice. The twin pinnacles of the judicial system are the autonomous, five-member Constitutional Court and the Supreme Court of Justice (CSJ). Constitutional Court appointments are divided between the president, Congress, the CSJ, and civil society organizations. Current policies allow dominant political parties in Congress to control key judicial appointments, including to the 13-member CSJ—which in turn controls other judicial appointments—even when they are required to select from a nominee list forwarded by committees comprised of civil society organizations. The selection process also permits corporate law firms, often tied to organized crime and to politicians, to finance judicial campaigns, thereby creating a corps of judges beholden to elite and criminal interests. These same groups are also known to remove qualified and impartial magistrates, by carrying out smear campaigns against judges deemed “too independent.” In a select few instances, however, advocacy by civil society and CICIG hastened the departure of corrupt judicial officials. In June 2010 the election of Attorney General Conrado Reyes was annulled after Reyes was accused of ties to drug trafficking and illegal adoption rings. Similarly, Erick Álvarez was relieved of his duties as CSJ president in August 2010 after CICIG presented evidence of meetings between Álvarez and a suspected member of an organized crime syndicate.
Aside from political interference, the judicial system suffers from an overall lack of professionalism, a situation aggravated by limited resources, and one which could worsen if anticipated budget cuts in 2012 are imposed. Poor supervision and work habits as well as obsolete technology exacerbate chronic delays in the administration of justice, and less than seven percent of the cases presented between 2008 and 2011 were resolved. The Unit for Institutional Training, which is responsible for training judicial personnel, is perpetually understaffed and underfunded. A 2010 investigation uncovered evidence of magistrates being appointed prior to completing their required training. Appeals and Supreme Court justices have not been evaluated since 2003, and only 16 justices of the peace and lower court judges were reviewed between January and August 2011, a precipitous drop from the 174 evaluated in 2010. Existing evaluations place undue weight on quantitative markers, such as caseload and numbers of convictions, at the expense of critical qualitative assessments such as impartiality and compliance with existing legislation. Between 2008 and May 2011 fewer than 3 percent of the 2584 formal complaints against judges were investigated, and only three judges were removed.
Criminal defendants are presumed innocent until proven guilty. They are legally guaranteed a fair, public, and timely hearing, and the right to independent counsel. Over the past several years, legal proceedings have been accelerated, although an estimated 56 percent of male detainees and 67 percent of female inmates languish in pretrial detention.
With respect to investigations and prosecutions of powerful figures, there have been some qualified judicial successes in recent years through the collective efforts of the CICIG and a corps of highly-trained investigators and lawyers at the Public Ministry. Jointly, they shepherded 20 cases through the court system and secured convictions in five key cases involving organized crime and corruption. Furthermore, a series of arrests and (in some cases) convictions for abuses perpetrated by the military have raised hopes that Guatemala will achieve some measure of justice on behalf of the thousands of civilians massacred during the armed conflict. One notable success occurred in August 2011, when a court handed down long sentences to five soldiers convicted in connection with the 1982 massacre of over 200 inhabitants of the village of Dos Erres. These successes are tempered, however, by setbacks and delays in genocide cases involving former president José Efraín Ríos Montt and former generals Héctor Mario López Fuentes and Óscar Humberto Mejía. Additional disappointments included the acquittal of former president Alfonso Portillo (2000–2004) on embezzlement charges and frustration in efforts to secure trials for officials in the Óscar Berger administration (2004–2008) CICIG linked to the operation of death squads, all of which were abetted by abuse of the amparo, a procedural injunction intended to protect defendant’s rights that has become the favored tool used to delay judicial proceedings.
Increasing the effectiveness of the military and the police, as well as establishing effective civilian control over each institution, remain vexing issues in Guatemala’s democratic development. The PNC desperately awaits implementation of the reforms called for in Guatemala’s peace accords. Its budget has contracted by 27 percent since 2008, exacerbating longstanding problems of limited capacity and manpower. A financially starved police academy is unable to provide adequate educational and training programs, and officers interested in pursuing security studies offered at several Guatemalan universities must finance their own education. There is little transparency and no clear management structure or strategic planning within the broader organization. The force is comprised of only 24,000 officers, equivalent to roughly one officer per 700 inhabitants—less than half of what observers believe is needed to safeguard Guatemalan citizens—and just 800 investigators, far too few to resolve the high incidence of crime.
The police are more likely to obstruct security and justice than to guarantee it. Although the force has been purged of officers with ties to organized crime, replacements often repeat the patterns. Problems of corruption are exacerbated by low salaries: as part of a 2010 campaign to justify a modest increase in wages that had remained flat since 1997, the Ministry of the Interior reported that 70 percent of police officers lived in conditions of poverty. All levels of the force are affected by criminal infiltration. CICIG’s investigation into the May 2009 assassination of Guatemalan lawyer Rodrigo Rosenberg led to the arrest of four retired and six active police officers performing double duty as guns for hire. Since 2010, the former head of presidential security during the Berger administration was arrested and charged with misappropriating PNC funds and engaging in arms trafficking and two police chiefs have been detained on accusations of ties to drug traffickers, while a third was removed based on alleged ties to hitmen.
In 2010 evidence surfaced of death squads operating within the police during Colom’s presidency, while CICIG exposed a sophisticated operation involving the PNC, the Ministry of the Interior, and the leadership of the country’s prison system under President Berger in carrying out extrajudicial executions, including the massacre of prison inmates. In addition, police join with retired and active military officers, drawn from elite shock troops, in providing logistical training and weapons, gathering intelligence and laundering money for the Mexican Zetas—the network that increasingly controls the Guatemalan drug trade.
Prevailing insecurity and injustice elicits two responses: support for authoritarian solutions and an increasing tendency for citizens to take justice into their own hands. Popular confidence in the police has dropped from 40 percent of the population surveyed in 2008 to just 31 percent in 2010, while support for a military coup in some circumstances reached 46 percent in 2010, a figure significantly greater than the 33 percent regional average, and an 8 percent increase from 2008. Those with the means to do so also hire private security guards, which presently number an estimated 120,000, five times the numbers of police officers; two-thirds of these guards are believed to work for unlicensed companies without rigorous training programs. Impoverished rural areas, meanwhile, have witnessed a 500 percent increase in lynching since 2004, with 131 incidents reported during the first nine months of 2011.
Growing distrust of the police generates popular pressure and political willingness to increasingly involve the military in internal politics and security. In January 2010, the Colom administration appointed Helen Mack, a leading human rights defender, to head a commission charged with police reform while simultaneously resorting to more militarized policies to combat crime and violence. The government imposed a state of siege in two rural departments and increased military funding beyond the budget ceiling of .33 percent of gross domestic product stipulated in the peace accords. Pérez Molina’s victory portends an intensification of militarized security policies. His election prompted Mack to resign as head of the police reform commission. The new president and former general named an ex-intelligence officer, Colonel Mauricio López Bonilla, as Minister of Interior, with responsibilities for tackling the escalating criminality. Moreover, Pérez Molina endorsed the heightened use of special forces in combating drug trafficking, despite the objections of regional human rights organizations and the Inter-American Commission on Human Rights (IACHR), who fear the civilian population will be vulnerable to rights violations.
Property rights are protected by law, but the weakness of the judicial system can make contracts difficult to enforce. The most socially fraught property rights questions involve land disputes and the expansion of natural resource extraction projects on indigenous lands, which simultaneously constitute and trigger violations of the economic, social, cultural, and political rights of indigenous peoples. In June 2011 the Ministry of Agriculture tallied 1,367 ongoing land disputes, two-thirds of which concern ownership affecting almost 290,000 hectares—territory eight times the size of Guatemala City—and 1.2 million people, roughly 6 percent of the national population, the vast majority of whom are indigenous. In another ominous reminder of the brutal violence associated with Guatemala’s armed conflict, in March 2011 private security forces joined with the army and the police in evicting some 800 peasants occupying land in an ongoing conflict with a sugar company, burning their subsistence crops in the process. Similarly, 398 mining licenses have been granted since 1997, with 262 of these already in the exploitation phase, despite the lack of either environmental impact assessments or the prior consent of indigenous communities, as stipulated in ILO Convention 169, ratified by the Guatemalan government in 1996.
Communities’ struggle to claim their rights generates serious abuses. Between January and October 2011, there were 175 violent attacks on environmental and peasant activists in the department of San Marcos (more than half the total 329 attacks recorded against human rights defenders during that same period). San Marcos is home to the Marlin Mine, a major gold mining venture that continues to function despite an IACHR request that it suspend operations to allow investigation into its environmental impact and human rights violations.
Corruption constitutes a chief concern both for businesses operating in Guatemala and for the country’s citizenry. Three-quarters of Guatemalans surveyed in 2010 view their political system as corrupt, while Transparency International’s 2011 Corruption Perceptions Index ranked Guatemala 120 of 148 countries. The Heritage Foundation’s Economic Freedom Index, conversely, ranks Guatemala a more favorable 17 out of 29 Latin American and Caribbean countries and gives the country a score of 60.9, slightly above the world average. Among the primary investor complaints graft in the distribution of state contracts and cumbersome and time-consuming bureaucratic procedures, including complex and unclear laws that are inconsistently applied and obstruct the acquisition of permits and licenses.
The government’s role in the economy has declined significantly in recent years, although the state retains holdings in telecommunications, banking, and electricity. In addition, weaknesses in regulation and oversight, particularly in customs control, often raise corruption concerns. Tax administration is another area of concern, with nearly a quarter of firms identifying tax administration as a “major constraint” on business. Guatemala’s extremely low rate of tax collection has been a primary cause of perennially scarce government resources for many years. Preliminary 2011 data from the Superintendence of Tax Administration indicate that income tax collection registered a 31 percent increase and customs collection 7.5 percent over the same period, bringing estimated taxation levels to 11.5 percent of GDP, more in line with the 12 percent stipulated in the country’s peace accords. Evasion on value added taxes has declined from 36 to 32.5 percent in 2010. Nonetheless, the private sector remained steadfast in blocking Colom administration efforts to pass fiscal reform that would raise income taxes and enhance auditing procedures in order to combat customs fraud and smuggling.
The Office of the Comptroller General is the chief provider of auditing and financial oversight of the expenditure of government funds. While the office has become increasingly professionalized in recent years, its independence is compromised by meager budgets as well as the fact that Congress selects the comptroller from a list of six nominees, creating a degree of dependence on the political parties responsible for a given nominee’s selection. In addition, while the comptroller can impose economic sanctions, it must refer criminal matters to the overburdened Public Ministry.
Demands for greater transparency in the social cohesion program My Family Making Progress (MIFAPRO) established by outgoing First Lady Sandra Torres fell on deaf ears during the first two years of the Colom administration. In 2011 the Constitutional Court sided with civil society and Congress and required these conditional cash transfer programs to comply with freedom of information laws by opening their books. In contrast to a comptroller general’s audit that found anomalies in the records and financing of MIFAPRO, a civil society social audit discovered relatively little evidence of corruption. These results suggest that greater institutionalization and enhanced oversight will ensure that programs serve their intended constituencies.
In an effort to separate public and private interests and prevent conflicts of interest, the president and his cabinet, as well as all other public servants, are legally required to file regular asset disclosure forms. However, the forms are confidential, and independent auditing units struggle to serve their broader probity function due to imperfect information, poor coordination, and a lack of political will to uncover potential conflicts of interest. On the occasions when violators are caught, they face administrative, civil, and criminal sanctions.
Some legislative gains have occurred in recent years. The 2009 Government Procurement Law created an improved regulatory environment and a simplified and more transparent bidding process for government contracts. In December 2010, despite the opposition of private sector interests, sustained pressure from the international community and civil society led to the approval of an Asset Recovery Law that aims to combat crime and impunity. The legislation orders the seizure of illicitly acquired goods and assets for crimes including embezzlement, fraud, and misappropriation of public funds, as well as drug and human trafficking, extortion, kidnapping, and murder, with assets to be transferred to the Ministry of the Interior, Public Ministry, and judiciary. Guatemala continues to lack a law guaranteeing whistleblowers’ rights, but the country’s witness protection program has been somewhat strengthened in recent years, with the introduction of a dedicated police unit, currently comprised of 90 specialized officers, although its effectiveness has yet to be demonstrated.
The media and civil society organizations use the landmark 2009 Law for Free Access to Public Information to investigate and expose alleged incidents of corruption. While the extent of openness and responsiveness varies among government agencies, the legislation has improved transparency, including reporting on expenditures. In 2008, 70 percent of requests for information from public offices went unanswered; by 2010 that number had dropped to only 22 percent.
As next steps, the CICIG and the comptroller general’s office in December 2011 signed an agreement to collaborate in strengthening the capacity of government institutions to root out corruption. The Public Ministry also urged the imposition of stiffer criminal penalties (the current maximum being three-to-ten year prison terms) for embezzlement. Proposed reforms are contained in anticorruption legislation currently bogged down in congressional wrangling. Also awaiting legislative impetus is action on behalf of the 21 percent of Guatemalans who report being victims of corruption but have few means of seeking redress from an inefficient and corrupt judicial system.
The International Budget Partnership, a nongovernmental watchdog organization, deems Guatemala’s budget-making process more transparent than the processes of its neighbors and scores the country above the global average. While there is comprehensive accounting of expenditures, the pre-budget process is less transparent: the proposed budget fails to set out clear policy parameters, objectives, and fiscal goals or allow for ample discussion of priorities by an informed public. Similarly, the government fails to provide mid-year reports and the information contained in end-of-year reports is incomplete, limiting both legislative and public oversight.
- Adopt political party reforms and campaign finance regulations aimed at limiting private spending, securing greater transparency and oversight, and enhancing female and indigenous political representation.
- Prioritize passage of the series of proposed laws addressing the exclusion of the country’s indigenous communities, including the Rural Development Law, the Law for Consultation of Indigenous Peoples, and the Law of Indigenous Jurisdiction.
- Reform of the justice sector should focus on enhancing the autonomy and professionalizing the training of personnel, including both judges and auxiliary staff, including through the provision of greater resources managed with transparency and oversight.
- Reforms enhancing the capacity of the police force, including additional training in operational effectiveness and civilian outreach, salary increases, and more transparent disciplinary procedures, should be enacted as a central security pillar in a struggle to combat crime and violence.
- The passage of further fiscal reform is desperately required to raise tax revenue required to combat crime and violence through an integral effort, focused on institutional reform of security and justice institutions as well as the introduction of policies addressing the unequal political and economic structures generative of violence.
 See Mirador Electoral, http://www.miradorelectoralguatemala.org/ushahidi-new/ (accessed November 11, 2011) and Organismo Naleb’, http://www.naleb.org.gt/index.php/noticiasguatemala (accessed November 15, 2011).
 Mirador Electoral, Segundo Informe de Observacion, accessed November 14, 2011http://www.miradorelectoralguatemala.org/pdf/II_INFORME_MIRADOR-_ELECTORAL.pdf, 7.
 Mirador Electoral, Primer Informe de Observacion, accessed November 14, 2011, http://www.accionciudadana.org.gt/Documentos/Mirador2011/Primer%20Inform..., 11.
 Tribunal Supremo Electoral, Resultado Elecciones Generales y al Parlamento Centroamericano, accessed at November 10, 2011, http://resultados2011.tse.org.gt/primeravuelta/index.php.
 Agencia Guatemalteca de Noticias, Observadores denuncian falta de transporte en el interior, November 6, 2011, accessed November 14, 2011, http://elecciones.noticias.com.gt/noticias/observadores-denuncian-falta-....
 Taken from Procurador de los Derechos Humanos, Panorama Electoral, no. 9, September 2011, http://www.pdh.org.gt/index.php?option=com_phocadownload&view=category&d.... There is some variation in these figures from source to source and depending on reporting. Also see Mirador Electoral, La Semana Negativa De Baldizon, November 5, 2011, http://miradorelectoralguatemala.org/pdf/XVIII_Informe.pdf; Prensa Libre, “Violencia electoral lleva 35 muertos en el país a 40 días de comicios,” August 2, 2011, accessed November 11, 2011, http://www.prensalibre.com/decision_libre_-_actualidad/Violencia-elector... .
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 Congreso de la Republica, Ley Electoral y de Partidos Politicos, decreto numero 1-85, January 2007.
 Mirador Electoral, Primer Informe, 13
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 Ibid, p. 11; Mirador Electoral, Reporte de la estimacion de gastos de campana: Periodo 16 de Julio al 15 de agosto de 2011, August 30, 2011, accessed November 12, 2011, http://miradorelectoralguatemala.org/pdf/GASTOSCAMP16JUL15AGO.pdf, Table 4 and p. 6.
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 http://www.state.gov/e/eb/rls/othr/ics/2012/191158.htm; and Heritage Foundation.
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 For instance, the current comptroller received the lowest score during the public concourse to select the list of six nominees sent to Congress. See http://accionciudadana.org.gt/images/pdf/informemesicic_cuarta_ronda.pdf, p. 45
 Manuel Hernández, “Contraloria General de Cuentas Castiga a Mi Familia Progresa,” Prensa Libre, June 1, 2011, http://www.prensalibre.com/noticias/CGC-castiga-Familia-Progresa_0_49135... and “Informe de Auditoria Social a Mi Familia Progresa 2010, Percepiones Ciudadanas,” Accion Ciudadana, accessed October 30, 2011, http://www.mifamiliaprogresa.gob.gt/joomla/images/descargas/InformeAccio...
 “Scorecard: Guatemal 2010,” Global Integrity Report, accessed October 15, 2011, http://www.globalintegrity.org/report/Guatemala/2010/scorecard; Ley de Probidad y Responsibilidades de Funcionarios y Empleados Publicos, Articles 4 and 5, http://portalgl.minfin.gob.gt/Descargas/Documents/Reglamento%20de%20la%20Ley%20de%20Probidad%20y%20responsabilidades%20de%20fucninarios%20y%20empleados%20p%C3%BCblicos.pdf; Informe Independiente de Seguimiento, pp. 79-83
 “Enterprise Surveys, “Guatemala 2010”; Heritage Foundation, 2011 Index of Economic Freedom; and “Corruptions Perception Index 2011,” Transparency International, accessed November 30, 2011, http://cpi.transparency.org/cpi2011/results/,.
 Congreso de La Republica, “Ley de Extincion de Dominio, Decreto numero 55-2010,” http://www.oj.gob.gt/es/QueEsOJ/EstructuraOJ/UnidadesAdministrativas/CentroAnalisisDocumentacionJudicial/cds/CDs%20leyes/2010/pdfs/decretos/D055-2010.pdf; Danilo Valladares, “Guatemala: New Law Hits Drug Cartels, Corrupt Officials Where They Hurt,” Global Issues, December 30, 2010, accessed September 3, 2011 http://www.globalissues.org/news/2010/12/30/8061.
 Global Integrity Report; and “Fortalecen la oficina de Protección a Testigos con 19 nuevos oficiales,” Prensa Libre, April 9, 2011, accessed September 22, 2011, http://www.prensalibre.com/noticias/justicia/Fortalecen-oficina-Protecci....
 “Indice de Aceso a la Informacion Publica del Organismo Legislativo,” Accion Ciudadana, October 2010, accessed August 22, 2011, http://www.accionciudadana.org.gt/Documentos/accesoinfo/Indice%20de%20ac... Gramajo, Aceso a la informacion y seguridad en Guatemala, Secretaria Tecnica del Consejo Nacional de Seguridad, Presidencia de la Republica, March 2010, http://www.fodigua.gob.gt/LAIP/29/Acceso%20a%20la%20informacion.pdf.
 CICIG, Informe de la Comision Internacional Contra la Impunidad en Guatemala con Occasion de su Cuarto Ano de Labores, 13-19; CICIG, “lucha hombro a hombro contra la corrupcion en el estado,” October 7, 2011, http://cicig.org/index.php?page=0047-20111007; “Cicig y CGC en contra de la corrupción,” Prensa Libre, October 7, 2011, http://www.prensalibre.com/noticias/politica/Guatemala-Cicig-CGC-conveni... Guoz, “Fiscalia pide ley anticorrupcion,” el Periodico, December 6, 2011, http://www.elperiodico.com.gt/es//pais/14805; “Presionan por tipificar enriquecimiento ilícito,” Siglo21, April 12, 2011, http://www.s21.com.gt/nacionales/2011/04/12/presionan-tipificar-enriquec... Wendy Moctezuma, “Dall’Anese: primordial es la depuración del OJ,” Siglo21, August 23, 2011, accessed December 7, 2011, http://www.s21.com.gt/nacionales/2011/09/23/dall-anese-primordial-depura....
 “Open Budget Index 2010: Guatemala,” International Budget Partnership, accessed September 12, 2011, http://internationalbudget.org/wp-content/uploads/2011/04/OBI2010-Guatem... Global Integrity Report.