Colombia's Legal Minefield Threatens Its Future
WHY YOU SHOULD CARE
Popular culture often portrays Colombia as lawless. Its big challenge may actually be too much law.
By John Paul Rathbone and Gideon Long
For the past 10 months, Luis Andrade has suffered a baleful daily routine. Every morning, the former McKinsey consultant has breakfast in his Bogotá apartment, works out at the downstairs gym, then goes online, watches movies or scans the news. He has little else to do. By law, Andrade cannot leave his building overlooking the Colombian capital. His enforced isolation is far from the days when he jetted between clients in New York, São Paulo and Bogotá. It is also an abrupt fall from grace from his recent job.
Until last year, Andrade ran a $20 billion portfolio of projects at the National Infrastructure Agency (ANI), and was so well regarded that Juan Manuel Santos, the then president, described him as an “impeccable” public servant. Now the mild-mannered 58-year-old is under house arrest for alleged corruption.
Andrade’s charges stem from the Odebrecht scandal that has rocked Latin America and that the U.S. Department of Justice has called the world’s biggest bribery scheme. The probe into the Brazilian construction firm has felled a Brazilian and a Peruvian president, and led to the conviction of scores of business leaders and government officials across the region. Popular anger over the scandal has also helped make corruption many voters’ main concern during the marathon of Latin American elections held this year, including in Colombia. Iván Duque, the center-right president who began his term on Aug. 7, has said he wants Colombia to be “a shining example of law.” There will even be a referendum about corruption this month.
The Colombian legal system is Kafkaesque.
Luis Andrade, former infrastructure don now under house arrest
What makes Andrade’s case unusual, though, is that many people regard him as honorable and say he did not accept bribes from Odebrecht. The attorney general’s office has said there is no evidence of that, a view that gels with testimonies of those who have admitted to paying bribes.
“The Colombian legal system is Kafkaesque,” Andrade says.
“This is an extremely legalistic country,” notes Rodrigo Uprimny, a former Constitutional Court magistrate and member of the International Commission of Jurists. “It’s the most legalistic in Latin America and one of the most legalistic in the world.”
Indeed, such a legalistic culture highlights not only Andrade’s curious situation but also the challenges Duque faces over the next four years, many of which have a legal basis. These range from implementing Colombia’s controversial 2016 peace process with Marxist FARC guerrillas to Venezuela’s crisis to the fate of Duque’s political mentor — the polarizing figure of Álvaro Uribe, the former president.
A key factor across all these issues is whether Colombia’s legal traditions can help restore confidence in national institutions, or be manipulated by the powerful to save themselves and attack their enemies.
The notion of Colombia as legalistic may seem counterintuitive given its reputation for extreme illegality — as dramatized in the Netflix series Narcos. Popular lore even celebrates the rule-bending culture of the vivo, or street sharp. “The vivo lives off the fool, while the fool lives off his work,” runs the refrain. There is also the tragic illegality of a six-decade civil conflict that left a quarter of a million people dead.
Yet extreme legalism is as strong a Colombian tradition. It dates from the 19th century and Francisco de Paula Santander, a founding national father known as the “man of laws.” Victor Hugo later mocked the country’s 1863 constitution as written for “a nation of angels.” But the lofty quality of Colombian jurisprudence is renowned — as is the bravery of many of its judges, who stood up to drug lords such as Pablo Escobar, and who still exercise judicial independence today.
“Most judges take a deep pride in their work, and often risk their lives — which is interesting as they operate in such a violent and corrupt country,” says José Miguel Vivanco, the head of Human Rights Watch and a Chilean lawyer who has worked in Latin America for 30 years. “Colombia probably has the region’s most sophisticated approach to legal principles; it goes far beyond formulaic debate.”
The flip side of that coin, however, is a complex legal system. There are five higher courts: a Constitutional Court; a Supreme Court; a State Council, which adjudicates on public/private disputes; an Electoral Court; and a National Judicial Council to investigate judges.
Furthermore, as of this year, Colombia has yet another court system, the Special Jurisdiction for Peace tribunals, or JEP. It will rule on war crimes from the civil conflict, and has been hailed by some as a model for peace processes elsewhere. “Colombia is a paradise for lawyers,” says Fernando Carrillo, the state ombudsman.
Adding further complexity to the system are tutelas — legal complaints launched by individuals if they believe constitutional rights are infringed.
Néstor Osuna, professor of constitutional law at Bogotá’s Externado University, says a staggering 7 million tutelas have been lodged since the 1991 constitution launched the system. One recent tutela judged that the 1 million Venezuelan refugees in Colombia can have access to the national health system.
“Often [all] these courts end up working at cross-purposes,” says Ramiro Bejarano, a leading civil and commercial lawyer. “On the one hand, that creates a system of checks and balances as the courts balance each other out. The problem, though, is that the system has become corrupt, often because the judges are appointed via a political process.”
This politicization of Colombia’s legal system is essentially why Andrade believes he is under arrest.
In 2011, he gave up his McKinsey job to work in Colombia’s public sector with a specific task: cleaning up the National Concessions Institute (Inco), a notoriously mismanaged institution. Cost overruns on Inco projects were often huge, with the extra cash allegedly shared among corrupt beneficiaries. Such illicit payments are colloquially known as “marmalade,” and are often spread around to fund political campaigns.
Rather than reform Inco, Andrade created the National Infrastructure Agency. Roads and bridges were built as investment flowed in. In 2014, P3 Bulletin, a specialist journal, voted ANI the best public-private partnership agency in the Americas. Under Andrade, it awarded more than 30 contracts without any legal complaint.
However, the ANI also had some infrastructure contracts with Odebrecht left over from Inco. When the Odebrecht scandal erupted in 2016, Andrade was dragged in.
As elsewhere in Latin America, the scandal had a political dimension. It emerged that Odebrecht provided funding toward not only the 2014 presidential re-election campaign of Santos but also that of his rival, Óscar Iván Zuluaga. Further complicating matters is an apparent conflict of interest that reaches to the heights of Colombian politics and finance.
The investigation is led by the office of the attorney general. He is Néstor Humberto Martínez, a former legal adviser to Luis Carlos Sarmiento, Colombia’s richest man. Sarmiento, who has an estimated $11 billion fortune, is the founder and chairman of financial conglomerate Grupo Aval, which controls a subsidiary, Corficolombiana, an Odebrecht minority partner. Grupo Aval says it is a “victim” of Odebrecht’s fraud and strongly denies any involvement in corruption. Martinez denies any conflict of interest, saying he has withdrawn from the case due to his past links with Aval and has handed it to another prosecutor.
Caught in the crosshairs, meanwhile, is Andrade, who faces charges of “undue interest in the awarding of a contract” — a nebulous term that essentially means he was influenced by others who took bribes. Andrade believes that he is being “punished for getting in the way of the interests of the most corrupt company in Latin American history [Odebrecht]” as well as “the corrupt political establishment.”
Last week the attorney general’s office levied fresh charges against Andrade, including destruction of evidence. Andrade, who has called for an independent investigation, could be sentenced to 30 years. For its part, Odebrecht says it has spent 18 months seeking a reparations settlement, as it has done elsewhere in Latin America. But Colombia “seems to be the one country where we have struggled to reach such an agreement.”
It is not just big business and civil servants that have become entangled in such legal and political controversies but also senior judges and even former president Uribe. Their tangle of interests goes to the dark center of Colombia’s civil conflict, and traumas that the country seeks to heal. Last year, the country’s anti-corruption chief, Luis Gustavo Moreno, was arrested for corruption after the U.S. Drug Enforcement Administration taped him accepting a bribe in Miami.
In a plea bargain, Moreno said several Supreme Court judges had accepted payment from politicians in exchange for favorable verdicts during investigations into their alleged ties to paramilitary death squads.
The scandal, which became known as the “Cartel of the Robes,” a reference to judges’ flowing gowns, shocked the country. “There was full, eventual disclosure,” and nothing was swept under the carpet “as might happen in Mexico or Central America,” Vivanco notes. Still, the scandal sapped Colombians’ confidence in their institutions. According to a Gallup Poll, only 11 percent now have a positive view of their judicial system compared with 50 percent a decade ago.
That faith will be tested as the JEP tribunals hear inevitably controversial war cases, and Uribe himself comes under the legal spotlight. A divisive but popular politician, Uribe heads the largest right-wing party, which provides Duque with crucial congressional support. He also has a long history of brushes with the law. Over the past decade, he has been dogged by claims of links to death squads and that he has bribed witnesses. Uribe vehemently denies the accusations, which supporters say are politically motivated, and he has never been charged. But in July, the Supreme Court placed him under formal investigation for bribery and perverting the course of justice.
The case puts Duque in a tricky position. Does he stand by his political patron and defend him from the accusations, which Uribe denies, or does he distance himself and let justice run its course? For many, the outcome will be the biggest test yet of the judiciary’s independence.
“The Supreme Court may well be incapable of standing up to a government backed by Uribe,” says Bejarano, reflecting a widespread sense that, even in this highly legalistic country, power and money often trump justice.
If Bejarano is right, it would be of a piece with Andrade’s situation, where a thorny case involving powerful men has apparently been kicked into the long grass. More important, it will mark whether Colombia can move on from war and prove that it really is a “country where the law shines bright.”
A model peace process?
Somehow, the mundanity of the setting only emphasized its importance. Earlier this month, in a makeshift courtroom on the 12th floor of a nondescript Bogotá office building, retired Army Col. Gabriel de Jesús Rincón begged for forgiveness.
“I ask for pardon from every one of the victims … of this awful internal conflict that has caused so many Colombians so much pain,” he told the court and the mothers of five peasant farmers assassinated in 2008 by the army unit that Rincón once commanded.
Rincón’s case, and that of 13 other soldiers, is one of the first of tens of thousands that will be heard over the next decade under Colombia’s transitional justice scheme, or JEP.
The scheme, which is central to the country’s 2016 peace process with Marxist FARC guerrillas, will probably form a constant and controversial backdrop to Iván Duque’s administration.
That is because under the JEP, anyone who pleads guilty and confesses fully receives only light sentences. That is a red flag for many of Duque’s conservative supporters in Congress, who claim the JEP will let former leftist guerrillas off the hook for human rights atrocities.
However the JEP scheme also holds for members of the military or civil society who may have been involved in rights abuses. Duque was elected on a platform that promised, in part, to change or “perfect” the peace process.
The JEP tribunals are unusual as they go beyond punishment to include reparations and victims’ rights. Although hailed by some jurists as a model for peace processes elsewhere, they are also something of a test of international criminal law.
Unlike South Africa’s transition from apartheid, Colombia’s peace process is the first transitional justice scheme undertaken by a signatory to the Rome Statute — the 1998 treaty that created the International Criminal Court and forbids impunity for war crimes.
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