Ex-president Jeanine Áñez arrested for 2019 coup d’ètat. Can the charges stick?

Former interim president Jeanine Áñez was arrested on Saturday, March 13, as part of an investigation into charges of “sedition, terrorism, and conspiracy” related to her sudden assumption of the presidency of Bolivia in November 2019. A judge ruled that Áñez is a flight risk and ordered four month of preventative detention while the investigation proceeds. The case, which began with a formal complaint by ex-legislator Lidia Patty in December, is grounded in the extraordinary way that an opposition leader in the Senate came to be Bolivia’s interim president. Áñez’s arrest came shortly after her defeat in the March 7 election for governor of her home department of Beni.

Inside Bolivia, Áñez’s arrest and the continuing investigations of members of her cabinet, former miltary officials, and opposition politicians have deepened the country’s political polarization. While members of the governing MAS-IPSP party and survivors of the Senkata massacre praised the arrest as a first step towards justice, other human rights groups have raised cautions about the perceived partiality of the country’s justice system, the need for due process, and the need to prioritize a truly independent accounting of abuses during the country’s 2019 political crisis.

Áñez’s responsibility

On November 12, 2019, Bolivian senator Jeanine Áñez convened a nearly empty chamber in the Plurinational Legislative Assembly. Evo Morales had proffered his resignation two days earlier, followed in short order by his vice president, numerous members of the cabinet. The leaders of the legislature—Adriana Salvatierra, president of the senate and Victor Borda, president of the chamber of deputies—also had given up these posts, but not their seats. Outside the government itself, chaos reigned: following a November 8 police mutiny, opponents of Evo Morales set fire to the party’s regional headquarters in Cochabamba, and numerous politicians across the political spectrum had their houses set alight. Where the bulk of this destruction was from the anti-Morales side between the mutiny and Evo’s resignation, his supporters began a concentrated wave of revenge afterwards in El Alto and La Paz after his resignation. Police and soldiers had remobilized in a crackdown and shot dead as many as six protesters and bystanders. Two policemen and a protester were dead from non-shooting incidents in La Paz.

While the heads of the chambers had resigned their leadership posts, the socialist party of Evo Morales, the MAS-IPSP, retained its majority in the legislature. Amid the chaos and the crackdown, these legislators pleaded for a guarantees of their security and freedom should they come to the legislative chamber. These requests were ignored. Meanwhile, a behind-the-scenes group of opposition leaders, among them Jorge Quiroga, debated who could become Bolivia’s next president.

And so Jeanine Áñez convened the legislature, first to proclaim herself president of the senate, and then as president of the senate, to proclaim herself interim president of Bolivia.

Was this legal? The Bolivian Constitution of 2009 only specifies three offices in the line of succession to the presidency: Vice President, President of the Senate, and President of the Chamber of Deputies (Article 169). It also describes presidential resignations as something to approved or denied by the legislature (Article 170). MAS-IPSP deputies could reasonably expect to convene to both review the resignation and to re-elect new a new President of the Senate, who would then assume the presidency on an interim basis. But they were locked out of the process. Without its majority, the legislature may also not have had quorum to meet in official session. Under a prior constitution, a court ruling had placed the vice presidents of the Senate in the line of succession, but it remains unclear whether this ruling still applied after 2009. After Áñez took power, a press statement from the Plurinational Constitutional Tribunal, Bolivia‘s highest ruling court accepted her succession, but this document’s legitimacy and legal force are now debated including by a member of the court itself.

Was this coercive? To the extent that President Morales and people in the line of succession were personally threatened to get them out of office, yes. Susan Rivero, then first vice president of the Chamber of Deputies (and who therefore expected to assume leadership of the chamber), reports feeling threatened with reprisals upon her family. The MAS-IPSP legislative leadership, she recounts, was told by Quiroga’s group, “Bueno, apúrense a hablar con su bancada porque con ustedes o sin ustedes tenemos un plan B. [Well, hurry up and talk with your [partisan legislative] bench, because with or without you we have a Plan B.]” Later that day, Áñez swore herself in without them.

Does this make Áñez criminally liable? The legal case against Áñez pursues uncharted waters for accountability in Bolivia, and the boundary between conspiracy to overthrow Morales and clandestine succession planning after his resignation depends on the degree of coordination and planning before the fact. (This is something I explored earlier about the ouster overall, when less information was available.)

The challenge of legitimacy

Will the current investigation have legitimacy across the political spectrum? All signs point to no. While there is a coherent case around Áñez’s responsibility, it is nowhere near as clear as her command responsibility for human rights abuses—chiefly the Sacaba and Senkata massacres, mass arrests, and torture in prison—during her first month in office, which was the bloodiest time in Bolivia since 2003 Bolivian prosecutors and the IACHR-formed Interdisciplinary Group of Independent Experts (GIEI) are pursuing separate investigations of these abuses. The latter investigations have promised to impartially examine the actions of all governments (Morales, the military interregnum, and Áñez) and of non-state actors on all sides during the crisis. Amnesty International’s statement on the arrest urged that this group should take the lead for accountability.

Parallel actions by Bolivian prosecutors, and statements by members of the governing party are also subtracting legitimacy from the arrest by putting it in a partisan context. Evo Morales and MAS-IPSP legislators are attempting to hold OAS Secretary General Luis Almagro accountable for the coup, which they blame on the OAS audit of the election. However, on the morning of Morales‘ resignation, the OAS auditors proposed that he should compete in an electoral runoff even as the Bolivian labor movement was urging him to resign. MAS-IPSP legislators have also suggested charges against human rights activist and anti-Morales organizer Waldo Albarracín for using his role as Rector of the Universidad Mayor de San Andrés to promote protests.

Amnesty International also points to the Arce government’s blanket amnesty (via Supreme Decree 4461 on February 18, 2021) to all people already under investigation for crimes committed during the crisis. While many of the charges and indictments issued during the Áñez government were politically dubious, not all were, and throwing them out collectively amounted to saying that only those on one side of the conflict will be held accountable, while those on the other side will not.

Finally, a slate of coincident accusations against opposition politicians have surfaced or advanced in the past week. These include proposals to charge Áñez criminally for four acts of policy during her administration, and allegations of financial mismanagement against Iván Arias, her minister of public works who was recently elected mayor of La Paz. (Arias also faces credible accusations of sexual harassment that first appeared in mid-2019.) Bolivian laws prior to and during the Morales administration make it possible to hold officials criminally accountable for acts such as “economic damage to the state.” Whether or not such crimes are a sensible idea, they provide nearly unlimited opportunities to prosecute political opponents. Only a rigorously independent prosecutor’s office and judiciary can manage such cases in a manner that preserves confidence that justice will be impartial. Unfortunately, neither of these offices have a tradition of independence, as was graphically shown by the investigation and jailing of hundreds of MAS officials and party members during the Áñez government. President Luis Arce recognized these flaws and set up a judicial reform commission tasked with restructuring the system, but its work is stalled.

For now, the Arce government will have to prioritize which forms of accountability to pursue, and provide extraordinary and convincing evidence of wrongdoing to both domestic and international audiences on the cases it does move forward. Prosecuting Áñez and other members of her government for massacres and human rights abuses is the clearest path. Setting some legal limits on executing a coup itself looks like more of a reach. Neither will retain international or domestic legitimacy if prosecutors simultaneously target political opponents for their policies or protests.

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