By Tomas Andino Menc
August 29 was a historical day. Resistencia Popular was reunited with itself in all its glory right there where it was born, in the streets. Thousands of people flooded downtown Tegucigalpa in a great demonstration called by president Xiomara Castro, surpassing the expectations of its organizers and shocking its critics. To understand the impact it has had and its relationship with the election process of the General and Deputy Prosecutor, it is necessary to analyze the context in which the latest events have taken place.
The conspiratorial offensive, in full swing
Undoubtedly, the economic and criminal power groups displaced from the government in the last elections have been working systematically to discredit Xiomara Castro’s administration, as part of a well-orchestrated conspiratorial strategy since before she took office. They have taken advantage of the disastrous economic situation left to her, as well as, it must be said, the mistakes the government has made.
Confident in this scheme, we have seen in the last months a feverish openly opposing activity of the National, Liberal and PSH parties; and also of a very conservative sector of the “civil society”, of the private businesses and of retired officers, which have gone from the media offensive to a material offensive with the perverse objective of boycotting the governmental activity, generating ungovernability and even making attempts against some officials.
This has been carried out in stages: the first one has been the softening of the media, in charge of the main mass media, which hold the government responsible for everything bad that happens in the country; and now, the second stage, which consists of disputing the Resistencia Popular in the streets and, on the part of the most stubborn sectors, forging a new Coup d’Etat.
Three facts which show the “emboldening” of the opposition bourgeoisie are the following:
The first was the “parliamentary insurrection” started in July by the National Party, with which they managed to semi-paralyze the work of the National Congress, delaying the approval of various decrees, such as the Tax Justice Law; but with the aim of preventing the election of the new Prosecutor General and Deputy State Prosecutor, so that Oscar Chinchilla and Daniel Sibrián, respectively, puppets of the most corrupt sector of the previous government and drug trafficking, would continue in those positions.
The second fact was the denouncement of a coup d’état being plotted by a sector of the military, allegedly headed by several retired generals. This denouncement is added to a recent precedent of the assassination attempt against the head of the National Congress, Luis Redondo, who, according to the National Police, was the target of an attempt to poison him; and to actions of physical sabotage against hydroelectric and educational facilities.
And the third was the demonstration carried out by the so-called Bloque de Oposición Ciudadana (BOC) last August 19, as a result of the alliance established between the National Party and a sector of the Salvador Party of Honduras, which managed to mobilize, by far, some 10 thousand people; an unequivocal sign that the forces linked to backwardness and corruption seek to initiate a process of political mobilization in the streets to harvest the social discontent induced in important sectors of the population, and thus give a social base to their conspiratorial attempts.
This led the government, in a defensive act, to organize a demonstration of force for August 29, summoning the LIBRE bases from the Presidency of the Republic, something that for the first time is done in this government, and to threaten the alleged neo-coupist military with legal actions.
The call for mobilization, contrary to what could be expected from a government that has been rapidly deteriorating, was very well received because it gave the Resistencia Popular base the opportunity to channel the condemnation and show its esprit de corps, even in spite of the discontent that a good part of it has against the leadership of its party due to employment problems, the high cost of living and its rejection of some of the practices of its leadership.
The people in the streets temporarily changed the correlation of forces
Was this demonstration of force effective and what real effect did it have? The bourgeois press minimizes it by affirming that it had no impact and that the demonstrators left “empty-handed”. But looking at the concrete results, it can be said that it had an important effect on the correlation of forces, which is expressed in aspects such as the following:
The National Party announced, a few days after the call for the demonstration, that it would suspend its “parliamentary insurrection” on the day of the election of the Prosecutor, and on that day, when tens of thousands surrounded the Legislative Palace, it did so for fear of popular reaction. This temporarily allowed the parliamentary game between the different political forces to take place without the pressure of the “insurrection cachureca”. On the other hand, the muscle shown by the people and the timely denunciation of the conspiracy of the generals, cooled the coup pretensions that had been manifesting with impunity in the media; complemented by the forceful expression of Gen. José Jorge Fortín, Chief of the Joint Chiefs of Staff of the Armed Forces, who expressed his support to Xiomara’s government and rejected those pretensions.
Today neither Nasralla nor the National Party nor any sector of the so-called “civil society” dares to call for a new opposition demonstration, to make public calls for a coup d’état or for a “parliamentary insurrection” out of fear of the reaction of Resistencia. Even private businesses have moderated their language, advocating for lowering the confrontation.
On the legislative level, the demonstration itself did not influence in changing the votes, but it gave the LIBRE bloc the opportunity to unify and feel it had the necessary political strength to stick to its proposal for Prosecutor General and Deputy Prosecutor General, refusing to negotiate its candidates with the other blocs. Likewise, Luis Redondo felt encouraged to “threaten” the owner representatives who have pending scores with the justice system -most of them from the Cachurecos- to prevent them from voting in the election of the new Prosecutor General, applying a prohibition established by the Organic Law of the Legislative Power. In compliance with said law, which both the United Nations (OHCHR) and the same “civil society” have demanded, the cachurequismo would be affected in their vote. That’s the way of life!
With what has been said, it can be said that, at least temporarily, the popular demonstration of August 29 has had the consequence of reversing the correlation of social forces, and now that correlation is on the side of Resistencia Popular and the governing party, which should be taken advantage of by the latter to take the initiative in an adequate manner -and when I say adequate it is also to correct the mistakes it is making- in all fields and not only in the issue of the election of the State Prosecutor General’s Office, as we propose further on.
This is the good news. However, we are obliged to make some reflections, as to whether this new correlation is being positively exploited, or on the contrary is being wasted.
Chinchilla fled and Sibrian must also leave
After the failure of the negotiations in the National Congress, the oligarchic forces initially intended that Oscar Chinchilla and Daniel Sibrian extend their term of office until their replacement was elected, surely to make sure that no evidence remains standing against their protégés, the corrupt ones of the former regime.
The main legal argument with which they intend to keep them in office is to invoke Article 80 of the Organic Law of the Legislative Power, according to which “the authorities elected by the National Congress shall continue in office until their substitutes are elected by this State body”. This law, elaborated during the narco-dictatorship to extend the term of these officials (both illegally imposed in those positions, as is public knowledge) contradicts what is established in the Constitution of the Republic, which defines the term of office for five years, which ended last August 31, without any mention that it could be extended in special cases.
In situations of conflict such as this, the Constitution itself establishes the path to follow in its Article 320: “In case of incompatibility between a constitutional norm and an ordinary legal norm, the former shall apply”. Therefore, Sibrian’s continuity has no constitutional legal basis and he must also leave. In his place should remain the Director of Prosecutors, for ordinary cases, and the Special Prosecutor of UFERCO, for high impact cases, i.e. corruption of high public officials.
However, Chinchilla’s escape to Nicaragua weakens this strategy, as they are left without their main pawn, while the former Deputy Prosecutor has become a nervous wreck in the face of the initiative that Redondo presented in the Congress to form an investigative commission on the performance of these officials. Therefore, I do not think he will last long in office. Anyway, we shall see.
In the last few hours, there is a rumor circulating that Chinchilla left as a result of a “negotiation” with the government, in which the government offered to collaborate in exchange for protection, for which there is still no evidence. But it is certainly suspicious that this official, who was in the spotlight of the whole country, has left Honduras just like that, without any accusatory process against him foreseeing that situation and without any authority having arrested him.
But what about the process of election of the Prosecutor General and Deputy Prosecutor General? What will all this come to?
The winding road to the election of the Prosecutor general and deputy Prosecutor general
Everything indicates that this ill-fated process is on its way to shipwreck and that it seems that it may have another solution outside the National Congress, about which, in the last part of this article, I make a proposal. But it is important to take a critical look at how it has been managed from the first stage by the Proponent Board, and later by the political parties in the National Congress.
As for the Proponent Board, it did not guarantee an impartial and objective process for the pre-candidates. We should remember that the majority of the Proponent Board excluded from the process with very weak arguments two of the candidates who, due to their merits and demonstrated social commitment, would have been an excellent head of the Public Ministry to fight institutionalized corruption: Luis Javier Santos and Mario Urquía.
Luis Javier Santos was excluded due to an unfair evaluation made by the IACHR of his role in the emblematic case of Janneth Kawas; a case that was reviewed by the MACCIH, who exonerated him of responsibility, since he was the only prosecutor who acted out of all those who heard the case, according to the renowned jurisconsult Joaquín Mejía. Mario Urquía was also unjustly excluded, in this case for having been president of the previous Nominating Board to appoint candidates to the Supreme Court of Justice, without this being a cause for disqualification, since the Public Prosecutor’s Office is an autonomous entity that is not part of any of the three branches of the State.
Both professionals filed appeals for injunction before the Supreme Court of Justice, which to this day have not been resolved prior to the election of the Prosecutor, as it should have happened. Why? Who knows? But what is clear is that “the stars” aligned in order to prevent them from occupying such high position.
In the final list were the five official candidates (in parenthesis, with their promotion grade): Jenny Gabriela Almendares Flores (95.55%), Mario Alexis Morazán Aguilera (87.98%), Marcio Cabañas Cadillo (84.36%), Johel Antonio Zelaya Álvarez (80.94%) and Pablo Emilio Reyes Theodore (75.26%).
However, the president of the National Congress, in an abuse of his powers, appointed a multiparty commission to make its own assessment of the candidates, without taking into account what was done by the Proponent Board (appointed by the same Congress according to the Law), he even granted it new qualifications. Although it is true that the process carried out by the Proponent Board was not entirely satisfactory, it was at least transparent; but for this other one, only the four walls of the Congress were witnesses of an “assessment” promptly carried out by the representatives and which, as seen, was made to justify their own proposals.
Proposals for a better Public Prosecutor’s Office or to “settle” among the corrupt?
In making their proposals, the political parties left out two of these five candidates. One of those excluded was the second best qualified by the JN, Mario Alexis Morazán Aguilera, member of LIBRE, professional with PhDs, Master’s degrees and extensive professional experience, who was recently honored by President Xiomara Castro for having been one of the professionals who defended the rule of law and democracy against the 2009 coup d’état; he only had one blemish in the selection process and he vanished. As a curious fact, Mario Morazán was left out because he was not nominated by his own party, LIBRE, not even as Adjunto.
The other excluded candidate was the cachureco Pablo Emilio Reyes Theodore, a man of confidence of the former director of the DEI, Miriam Guzmán, whom he served against the union of that institution. Similarly, this candidate was also not supported by his party, the National Party.
When these two were excluded, three were left to be considered in the proposals of the political parties: Marcio Cabañas Cadillo, Johel Zelaya Álvarez and Jenny Almendares Flores. The first two are liberals and the last one has no declared affiliation.
LIBRE proposes in its ticket Johel Zelaya Álvarez and Marcio Cabañas Cadillo (who were better evaluated by the commission appointed by the Congress); while the BOC proposes Marcio Cabañas Cadillo and Jenny Almendares Flores. As can be seen, both tickets have in common that they propose Marcio Cabañas Cadillo, liberal of the dark side, so it seems that the strategy of LIBRE and the BOC, in this first stage, was to flirt with the Liberal Party, leading their respective tickets with this professional to obtain their support in the vote, although for this they have sacrificed their own party colleagues, as already explained.
But are either of these two nominees qualified to lead the Public Prosecutor’s Office? It can be said that some of the candidates individually meet these conditions, but not in the proposed tickets. Let’s see.
Marcio Cabañas Cadillo, the candidate in whom all parties agree (he had the best score in his “quickie” evaluation of the representatives), is not exactly a white dove; in 2009 he benefited the owner of “Pronto”, the businessman Mauricio Gabriel Kattan Salem, in the notorious case of “Trafico Gris”, recommending the then Prosecutor General of Cachoeira, Leónidas Rosa Bautista, to close all investigative proceedings in the case; a case that so far remains unpunished. Having him in the Public Prosecutor’s Office, even as Deputy Prosecutor, is synonymous with the corrupt having a foot in the door of the Public Prosecutor’s Office.
That Cabañas Cadillo is recommended by the cachurecos and their allies is not strange, but the question is: how can LIBRE have the stomach to have sacrificed a good candidate of their party, such as Mario Morazán, and propose this other man who bears such a burden of questioning? The same LIBRE representative, Jari Dixon, who has known Cabañas Cadillo since the time of the then Prosecutor General, Leónidas Rosa Bautista, to whom he was an assistant, condemned this nomination. This means that, in order to reach compromises with the Liberals, LIBRE and the BOC are willing to put up as a candidate a person who is co-responsible for impunity. You be the judge.
As it was said, the parties’ coincidences end with this last character, because the proposals are divided with respect to the others. LIBRE proposes Johel Antonio Zelaya Álvarez at the head of its ticket and the BOC proposes Jenny Gabriela Almendares Flores as Deputy Prosecutor. What are their merits and demerits?
Johel Zelaya Álvarez, who came 4th in the Nominating Board’s evaluation (and 1st place in the “quickie” of the representatives) has the merit of being clean of unethical records; neither in this process nor when he was a candidate for the Supreme Court of Justice did he have any blemish, as far as I know, and he is also a recognised defender of his Lenca ethnic group in their struggle against the extractive industry that affects their communities, according to the Lenca organisation ONILH.
His detractors from the right wing of the media allege that he hid his status as a councillor in the municipality of Reitoca, but in reality he did not hide it in the file he submitted to the Proponent Board nor in his public interview, as testified by Odir Fernández and Julio Raudales, members of the Proponent Board. Furthermore, being a council member is not a cause for disqualification, according to article 20 number 4 of the Organic Law of the Public Prosecutor’s Office (according to the same law, it is a cause for disqualification to have been an “active director of a political party”, something of which nobody accuses him).
His weak side is his basic university academic level and his little experience; he has no postgraduate studies, even when he was a candidate for the Supreme Court he did not pass the written exam, and he has no experience as a prosecutor and no specialised knowledge of criminal law. So Johel Zelaya is a good candidate in terms of ethics and social commitment among the five finalists, but he is neither academically nor professionally the ideal candidate to head this ticket for a position of such high responsibility. This is the person that LIBRE is putting forward at the head of its ticket, in addition to the aforementioned Marcio Cabañas Cadillo, as Deputy Prosecutor.
As for Jenny Almendares, whose party affinity is unknown, she was the best qualified by the Proponent Board with 95.55%, although the “quickie” evaluation of the deputies lowered her score to 78%. She does not have a doctorate, but has master’s degrees and specialisations, with outstanding technical experience in the Public Prosecutor’s Office, where she worked for 20 years, and in human rights issues with non-governmental organisations. She has no ethical questions of any kind in all the time she has worked in the Public Prosecutor’s Office and it is known that she has dedicated herself professionally to the cause of the rights of those deprived of freedom, an activity to which her father, the respected Dr. Juan Almendares Bonilla, has also dedicated himself, which is why it is assumed that she has social sensitivity.
Her detractors spread rumours that she was on the side of the coup d’état in 2009, presenting subpoenas ordered by the Public Prosecutor’s Office against several officials of the Zelaya government, of which I have had no evidence in sight, only rumours on social networks. While that evidence is forthcoming, lawyer Almendares is one of the best positioned to occupy the coveted position.
For all these reasons, a ticket with the lawyer Mario Morazán, Jenny Almendares and Johel Zelaya Alvares from Adjunto, would be acceptable. But as we have seen, one was excluded and the others are accompanied by characters of dubious reputation in their tickets.
From the above it can be deduced that, even though there are good professionals participating, the proposals presented by both sides in the National Congress were organised with a view to reaching inter-party agreements to guarantee impunity for each other, rather than to give us a quality Public Prosecutor’s Office. Unfortunately, there is no openness to reconsider them, and this will only lead to more of the same in this institution of justice.
Real justice or a “sombrerazo” for a new round of negotiations?
As it is, negotiations in Congress on the election of the Prosecutor General have been temporarily suspended, and in the meantime, the President of the National Congress and President Xiomara have announced several measures that appear to be a complete turnaround in the strategy on this issue: 1) they have announced full support for UFERCO, increasing its budget and giving it all the support it needs to bring the corrupt to court, taking advantage of the fact that there is no obstacle of Decree 116-2019 to delay the processes; 2) Luis Redondo integrated a commission of representatives to investigate the performance of Chinchilla and Sibrián; and, 3) he threatens to apply the prohibition established in the Organic Law of the Legislative Power by which the representatives who have pending cases with the Public Ministry will not be able to vote in the election of the Prosecutor General and Deputy Prosecutor General. Is all this beauty true?
This, which seems to be a good sign of political will against corruption, leads me to the following reflections: UFERCO in the last two governments has cried out for support for its work, without being listened to. Why was it not given “all the support” before and now it is? Is it a real intention to do justice or is it just a tactical resource to condition another round of negotiations with liberals and cachurecos, and then forget about this noble prosecutor’s office again?
With all my heart I wish for justice to be done, but this path does not seem serious or sustainable. Everything seems to indicate that this is just a makeshift “justice fudge”, suddenly sacrificing one or the other, but with the aim of softening up the leaders and representatives of the National Party and the Liberal Party in order to subject them to a new round of negotiations on the election of the Prosecutor General, since this can only be done with 86 votes. If this path is followed, the result will have nothing to do with the interests of society, but rather with the interests of the leaderships of the party or coalition of parties that manages to impose their compromise tickets. For the sake of this country, I hope I am wrong.
Changing the political model through a Constituent Assembly
As we saw at the beginning of this article, the people who came to Tegucigalpa on August 29 to demand a new Prosecutor want and deserve something of quality. But they also deserve that the government in its three branches make structural changes so that we do not have to be “putting out fires”, as is the case today, but that they respond to the longing to live in a country with real democracy and inclusion. If we are going to mobilise again, let it be for a real, transcendent change, a change of structures; not to continue with more of the same.
And how can this change of structures be achieved?
Changing the structures means changing the cause of the problem, and this cause is the political model that governs us. A model is a systematic way of constantly organising and doing things. The political model that is behind the disappointing conduct of the representatives in the election of the Prosecutor General and Deputy Prosecutor, as in the past with the election of the Supreme Court of Justice, and tomorrow with the High Court of Auditors, among other key institutions, is a model of “representative democracy” of a capitalist kind, which is already exhausted, outdated and obsolete.
If this model were truly representative, the deputies would have to go to our communities to ask us what we want and they would surely come back with different decisions than the ones they usually take. But nothing forces them to do so. And it is not their fault because we have all been educated that this is the best system. The alienation of the people has reached such a point that it is seen as the most normal thing in the world that a handful of 128 representatives, under the command of the leadership of their parties, continue to decide for millions of Hondurans on everything that affects their lives.
Previously the crisis of this model was not evident because in the past it conformed to a two-party system that solved everything with friendly compromises between the oligarchs and the rich; they were the only ones “represented”. Any change that occurred did not jeopardise their deepest material interests, because they were related among equals. But today, after the emergence of the Popular Resistance, any selection process in which quotas of power are at stake, are kicked and scratched by the representatives of the conservative oligarchy of this country. This conflict takes place in the National Congress, the Supreme Court, as well as in municipalities, decentralised institutions, nominating and proposing boards, among others. Therefore, this model does not generate solutions for anything, but only generates conflicts and political crises that are beyond the control of the people.
The first solution to this problem is to abandon this model of “representative democracy”, since it represents only the businessmen and bureaucrats of the capitalist system; and, in its place, to adopt a model of “Direct Participatory Democracy”, truly socialist, in which the protagonist of decision-making is the Sovereign, i.e. the People themselves.
This means that in a model of Direct Participatory Democracy, it would be the People who would directly elect the magistrates of the Supreme Court, the Prosecutor General and Deputy Prosecutor General, the Superior Court of Accounts, or the Secretaries of State, from among those candidates who pass through the filter of the Nominating or Proposing Boards, through well-designed and audited processes with citizen participation, organised in such a way that citizen participation does not depend on their affiliation to a political party.
The second measure should be to introduce the figure of the Revocation of the Mandate of any public official or representative elected by direct and secret universal vote. This means that they could be removed from office when the people so decide, either because they are no longer satisfied with the decisions they make or because they consider that there is a better representative for the position. This would prevent officials from being eternalised and from believing that they are untouchable in the eyes of their constituents.
The third measure is that these officials must submit their plans, budgets and reports to citizens’ assemblies in the constituencies that elect them. In this way, appointed and elected officials will be obliged to do what the grassroots wants, and they will be able to make proposals, always subject to the will of the people.
The fourth measure is that their remuneration should be decided by the citizenry and not by themselves, thus avoiding the abuses of exorbitant self-increases that so outrage the citizenry.
The fifth measure is that nominating boards made up of citizens will make a pre-selection of candidates, who will investigate them to ensure their suitability for the positions, and from among the candidates, the people will elect their officials, thus avoiding the appointments of incapable people, corruption, links with criminal organizations, nepotism and problems derived from a poor selection of those appointed or elected.
Measures such as these, typical of Direct Participatory Democracy, would prevent the political elite of the parties from imposing their pawns, but rather the representatives elected in this way would respond to citizens’ assemblies and not to party political leaders.
Surely the people will make mistakes on one occasion or another, but they will learn to decide, and it is preferable for the people themselves to make mistakes, rather than 128 people making mistakes and dragging 9 million inhabitants down with their errors.
How to make this change?
Under the current constitutional order, it is not possible to replace the current political model with a better one. Although the Constitution states that “Sovereignty resides in the People” (art. 3), which is a nice statement, it does not allow the people to directly decide who they want their officials to be. This power is reserved for the executive branch for certain positions (ministries, etc.), and the legislative branch for others, such as the case at hand.
The principles of plebiscite and referendum, which should be maintained in the new model, do not solve this problem in the current model because, as they are designed in the respective law, they do not escape the approval of the National Congress, i.e. by that minority of “representatives”, and, furthermore, as they are formulated, they cannot be applied to the election of high-ranking State officials. In a new Model of Direct Participatory Democracy, they would be effective mechanisms of popular consultation.
Therefore, the only way to do so is through an original and inclusive Constituent Assembly, convened to completely reorganise the Honduran state; one that establishes more direct mechanisms for citizen participation, accountability, transparency and political tolerance.
A Constituent Assembly is the supreme democratic body of an electoral democracy and should not be feared to be referred to as such. It is not about a “constituent” as it suits the government of the day, let alone the oligarchy; it is about one that suits the people at the grassroots.
This does not mean the disappearance of the parties, but the subordination of these to the real power of the people, eliminating the prerogatives that grant disproportionate powers to caudillos, central committees or leaderships.
Now that the people in the streets have managed to change the balance of power in favour of change, and given the constant crisis generated by the failed mechanisms for electing public officials, such as the election of the Prosecutor General and Deputy Prosecutor General, is it not time to open the debate on the need for changes of this type and the Constituent Assembly mechanism proposed here?
Einstein rightly said that we cannot expect changes in our reality if we continue to do the same things as always. Daring to change is the key to progress.
September 4, 2023