Lawfare: Ecuador’s New Style of Governance?

Ecuador has achieved what most Latin American societies have been dreaming of for decades: a stable leftist government. Yet things did not turn out the way social movements had imagined them. In particular, the list of people accused of terrorism expands each day and things are about to worsen significantly.

Carmen Lozano, President of the Women's Organization at ECUARUNARI, facing the police blockade at the August 27th march for the Yasuni in  Quito, Ecuador.Ecuador has achieved what most Latin American societies have been dreaming of for decades: a stable leftist government. Yet things did not turn out the way social movements had imagined them. In particular, the list of people accused of terrorism expands each day and things are about to worsen significantly.

Until now, state censorship targeted mostly individual dissidents. Since June, however, Decree 016 forbids social organizations to disagree with the government. An Ecuadorian delegation of human rights leaders is travelling to Washington DC on October 28 to testify on the criminalization of social protest at the 149th Session of Public Hearings at the Inter-American Commission on Human Rights. Ecuador’s legal crackdown against all forms of political dissidence is so systematic that lawfare, the abuse of law as a weapon of war, is becoming a new style of governance. It unveils a government that is less popular than it claims and that feels threatened by the escalating contestation of civil society.

The expanding list of terrorists

The government’s most outrageous use of lawfare is perhaps the 12-year sentence given to Pepe Acacho in August. Acacho, a Shuar leader from the Amazon and a Pachakutik deputy, was accused of sabotage and organized terrorism for calling a protest in 2009 against the government’s proposed Water Law. A clash with the police resulted in the death of a Shuar professor, Bosco Wizuma, which the government blamed on Acacho and another Shuar leader, Pedro Mashiant. The court forged evidence and invented a witness in an abusive judicial process designed to paralyze indigenous contestation against official natural resource policy.

Next in line is another Pachakutik deputy who also proved too vocal for the government’s taste. Cléver Jiménez, who has criticized the government’s privatization of natural resources and denounced major corruption scandals, was accused of perjury and sentenced to 18 months in prison along with two other activists, Carlos Figueroa (General Secretary of Ecuador’s Federation of Medical Doctors) and Fernando Villavicencio (a former labor union leader and author of the 2013 released book Ecuador: Made in China). Their crime was to publicly criticize the President’s response to the police protests of September 30 2010.

The trial repeatedly broke legal procedures, notably ignoring Jiménez’s political immunity as a member of Congress (Article 128 of the Constitution). Supreme Court Judge Lucy Blacio bypassed constitutional procedures to rule in favor of the President. In April, she sentenced the defendants to 18 months in prison alleging violation of Article 494 of Ecuador’s penal code, which vaguely states that accusations or insults without factual basis can be punished by three months to three years in prison. In what has become all too frequent, arbitrary legal procedures were used to intimidate individual leaders and discourage further political opposition.

Intense threats seem to have inspired, more than deterred, Deputy Jiménez. He continues to decry the legal and financial inconsistencies of Correa’s administration with careful detail. When he stands on the Congress’s floor denouncing the illegality of the government’s proposed Mining Law, he rigorously refers to the dozen Constitutional articles being breached by Correa’s extractive policies. Most recently, he made public an insurance scheme within the government, irregularities in oil deals with China, and the illegal construction of roads on intangible areas within the Yasuni ITT Reserve. For many, the legal harassment of a member of the legislative branch like Jiménez encapsulates the widespread crackdown  by the government on all forms of opposition.

There are many more legal cases against people who fail to bend to the will of Rafael Correa, Ecuador’s presidential Summus Pontifex. The Prosecutor’s Office hired biologist Hugo Loza Paredes in 2010 only to accuse him of perjury two years later because his final report showed that two oilfields in the Palo Azul case were not geologically connected–as the government argued. He exposed a $5 billion (USD) corruption case (100 million oil barrels) involving the Brazilian oil giant Petrobras and many governmental officials, not least Ecuador’s current Attorney General (and former Minister of Oil and Mines), Galo Chiriboga. Loza’s expert report shows that the artificial unification of two independent oilfields in the Amazon province of Orellana permitted years of illegal oil ‘leakage’ from a state-owned oil block to benefit multinational oil companies. Correa’s government could sue Petrobras and other private parties to recover over $ 5 billion (USD) in stolen oil, which would be close to what the government hopes to get from the controversial drilling in the Yasuni ITT reserve. Instead, the government is suing its own messenger.

Legal intimidation has also been used to demobilize historically rebellious sectors such as students and teachers. Earlier this year, the criminal prosecution of a group of young high school students for protesting against decision by the Ministry of Education shocked the country.

In the criminal case against the ‘Cotopaxi Seven,’ dozens of charges were so opaque that the accused were not sure how to argue their own defense. In 2010, a university dean, two professors and staff gathered with provincial legislators in the Governor’s Office to demand funds for education. After almost three years of criminal prosecution, the only violation the judge could charge them with was invading a public building (Article 155 of the Constitution), yet this flimsy argument proved enough to convict them to one year in prison.

Legal intimidation is systematic in Ecuador and charges of terrorism have become commonplace. The international media has denounced legal abuses and international human rights watchdogs repeatedly warned against censorship. In Quito, the press watchdog FUNDAMEDIOS created a platform to defend people persecuted for their political views. It handled a list with over 30 cases to Ecuador’s representative to the Organization of American States, Pedro Vuskovic, denouncing political repression.

But instead of relenting in the face of criticism, resort to lawfare is intensifying.

Decree 016: censoring social organizations

What started as the judicial persecution of individuals is evolving into a broader institutional surveillance of all social organizations. Decree 016 is a bit like a Big Brother of civil society, monitoring their internal functioning and banning them from political life.

The controversial decree requires social organizations to register with the state, to meet a specific list of requisites, and publicly justify their budgets to receive legal recognition.  In addition to this administrative surveillance, the decree forbids political partisanship. Social organizations that participate in politics or disrupt the public order automatically become illicit.

Decree 016 impedes neighborhood associations from taking political stands on education and powerful national organizations from partaking in electoral debates. Labor unions, for instance, are now prohibited from making public political pronouncements or supporting political candidates.

According to this decree, the Confederation of Indigenous Nationalities of Ecuador (CONAIE) is now forbidden to work with its own political branch, the Pachakutik political party. Had such a decree existed in the 1990s, the historical uprisings that toppled corrupt governments and achieved the consolidation of a plurinational state would not have been possible. And Pachakutik, one of world’s most influential indigenous parties, would not exist.

Decree 016 is just a more elaborate attempt at paralyzing opposition. After criminalizing social protest and silencing the media, now Ecuador’s government seeks to demobilize political awareness by pushing social organizations into illegality. It seriously threatens Ecuador’s civil society. Yet it also indicates that President Correa is taking extreme measures to counter political awareness among his own constituency.

Lawfare as governance

The citizenry is fighting back, learning the legal ropes to trip up the government at its own game. In April, the highland indigenous organization ECUARUNARI elected lawyer Carlos Pérez Guartambel as its president, and in the process increased legal pressure on the government. In July, he sued the government for failing to consult indigenous peoples over the Mining Law; for violating constitutional rights of nature; and now for the unconstitutionality of Decree 016.

Two more charges of unconstitutionality have been advanced by Pachakutik legislator Lourdes Tibán and right-wing lawyers from FUNDAMEDIOS. They all accuse the government of using Decree 016 to infringe upon the constitutional right of social organizations to participate in public policy debates (Article 96).

For César Montufar, a well-known scholar and opposition politician, Decree 016 reveals Correa to be a leader who is (rightly) terrified by a dynamic civil society that challenges his own monologues of power. Dynamic mobilizations are spreading across social sectors. Yet civil society is inevitably at a disadvantage.

People who challenge the government risk becoming mired in lengthy, arbitrary trials staged by a judicial apparatus that is not only immensely more powerful, but also controlled by the executive branch. Cases of terrorism repeatedly linger in court for lack of evidence and judicial procedures are ignored with total impunity. Nepotism and clientelism are rampant, as symbolized by the president’s recent admission that Attorney General Chiriboga is a ‘distant relative.’

Furthermore, President Correa announced last month that he would try to push for indefinite reelection for all elected officials. Abolishing term limits and the principle of alteration obviously would simplify the government’s various strategies to silence political opposition. After decrying the “shameless lies” of reports by of the Special Rapporteurship for Freedom of Expression, Ecuador’s government reiterated threats of leaving the Inter-American Commission of Human Rights.

The Catholic Church created the Inquisition to censor dissidence. It declared Luther a heretic for not submitting to the authority of Roman Emperor (whom Luther denounced as unethical). Today, Ecuador’s government is employing similar legal tools to counter modern day political heresies. And those who do not submit to the authority of the Emperor are accused of  “terrorism” (the new heresy) because they too think their Pontific leader is unethical.

The Correa government uses lawfare strategically, and its victims are not limited to just the people being sued. The tactic consists in punishing a few dissenters to deter broader contestation, to instigate fear across society, and to mislead political opinion at large. All too frequently, intimidation works by intimidating people into silence, thus impoverishing political debate.

Manuela Lavinas Picq is a Professor at Universidad San Francisco de Quito (Ecuador) and a Member of the Institute for Advanced Study (Princeton).