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.

Two unofficial counts show MAS-IPSP winning dramatic first-round victory in Bolivian election

Shortly after Luis Arce Catacora confidently predicted his own victory, two major polling firms released their counts of today’s election, both of which projected a 20% margin of victory for the Movement Towards Socialism in an historic election. The current projected margin doubles the largest advantage (10%) estimated by any pre-election poll and is far more than needed for Arce to avoid a runoff. Indeed, they project Arce’s party winning a simple majority of all votes, something it has done in three prior national elections and which no other political party has done since the 1960s.

While data are preliminary, interim president Jeanine Áñez has congratulated her political opponents on their apparent victory:

Second-place finisher Carlos Mesa’s campaign retired from public appearances early in the night and he has not commented on the late-night vote estimates online. Technically the election is his to concede, and that might only come once the official results resemble the unofficial ones.

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Research paper: 2003 Gas War and 2019 crisis were deadly, exceptional periods in Bolivian democracy

My analysis, “Mass Protest and State Repression in Bolivian Political Culture: Putting the Gas War and the 2019 Crisis in Perspective,” has just been released as part of the HRP Research Working Paper Series by the Human Rights Program at Harvard Law School. The paper uses quantitative analysis based on a comprehensive database of deaths in Bolivian political conflict since 1982 and a qualitative examination of the range of protest tactics and political actors’ acceptance of or willingness to repress mass protest.

Overall, Bolivia has a political culture of frequent mass participation in disruptive protest, which is reflected in laws, legal precedents, traditions of tolerance, popular attitudes toward protest and repression, and the words and actions of politicians and other leaders. For nearly a century, many Bolivian government leaders have claimed their legitimacy as representatives of recent outbursts of mass protest, but this history has been interrupted many times by military and authoritarian rulers who cracked down on protest. During the shorter, but current period of electoral democracy (since 1982), politicians of various political stripes have contrasted their values and actions with those of the pre-1982 dictatorships, creating a certain space for protest and an incomplete but nonetheless real aversion to deadly repression of protest.

However, there are now two exceptional moments that burst the bounds on deadly repression: the 2003 Gas War and the 2019 political crisis that saw the overthrow of Evo Morales. The white paper examines each of them in detail. In 2003, President Gonzalo Sánchez de Lozada moved to criminalize longstanding forms of protest, and orchestrated a military response that directly killed at least 59 civilians. In 2019, three weeks of dueling protests over the October 20 election prompted Morales’ November 10 resignation under pressure from security forces. After Morales’ ouster both military commanders and interim president Jeanine Áñez presided over deadly repression.

Bolivia’s post-Evo crackdown broke limits on state repression

Regarding 2019, my quantitative analysis found:

  • At least 37 people were killed in this conflict, the first death was caused on October 29, and the last so far on November 19. This includes the deaths of two individuals after hostilities had ceased.
  • Four of the deaths were caused by civilian supporters of Evo Morales before he resigned, while one pro-Morales journalist suffered a likely fatal beating.
  • Seven civilians and two police officers died during two days of interim military rule.
  • Finally, twenty-three civilians were killed after the swearing in of President Jeanine Áñez, all but one of them by joint military-police operations in response to protests. The massacres at Sacaba (nine killed on November 15) and Senkata (11 killed on November 19) were the deadliest incidents of state violence since 2003, and of violence of any kind since 2008.
  • Overall, state security forces were responsible for at least 25, and as many as 28 deaths in the aftermath of Evo Morales’ ouster. In ten days, the police and military killed more protesters than they had in the final ten years of Morale’s rule (21), and nearly as many as in his entire administration (33).

These sharp differences in death toll reflect the importance of presidential decisionmaking, policing policy and human rights guarantees in human rights outcomes. The military leadership and President Áñez both decisively reversed the order given by President Carlos Mesa in January 2005 to restrict military involvement in policing protest. Áñez also signed Supreme Decree 4078, which exempted the military from criminal prosecution for actions carried out during the nationwide crackdown.

The 2003 Gas War was an exceptional episode of state repression

The bulk of the white paper presents and extends the results of a report I drafted as an expert witness for the plaintiffs in the Mamani et al v. Sánchez de Lozada and Sánchez Berzaín case before the United States Federal Court for the Southern District of Florida. My goal in that report was to examine and contextualize the Bolivian government’s use of repressive force in response to protest during the September–October 2003 mass mobilization, popularly known as the Gas War.

What follows is a summary of the argument:

  1. Bolivia has a highly contentious political culture marked by high levels of participation in protest, high levels of involvement in large grassroots organizations, frequent intervention of these organizations in matters of public policy, and the expectation that governments will negotiate with, rather than criminalize or physically disperse, protesters.
  2. Frequent, disruptive protest is the norm in Bolivia’s political culture. The September–October 2003 protests were largely comprised of common elements within Bolivia’s so-called repertoire of contention.
  3. Bolivian legal traditions authorize the country’s widespread unionization, its variety of civil society organizations, and these organizations’ unusually broad right to engage in disruptive strikes. Informally, policing and prosecutorial practice have usually respected these rights during the democratic period. When they occur, large deployment of force by the police or army may attract public criticism.
  4. The events of September and October 2003, while larger in scale than in prior years, generally involved the use of tactics within the Bolivian repertoire of contention, and were conducted in the expectation of negotiating with the Sánchez de Lozada government. Calls for the president’s resignation were also consistent with longstanding political traditions.
  5. The police and military response to the September and October 2003 protests is a quantitative outlier, far outside the general approach of Bolivian democratic governments in its lethality. This is true even though other democratically elected presidents have faced more frequent and more intense protests.
  6. In the current democratic era, other Bolivian presidents have responded to large-scale and highly disruptive protests by exercising greater restraint, avoiding or limiting bloodshed. The impulse to do so is an important part of Bolivia’s post-dictatorship democratic political culture.

The Evo Morales years saw far less direct state violence

Evo Morales, who was elected by a 54% majority in December 2005 in the wake of the political upheaval reflected in the 2003 Gas War, went on to become the longest-serving president in Bolivia’s history, serving for nearly 14 years. Ultimately, 138 people would die in social movement-related events during the Morales years, a close runner-up to Gonzalo Sánchez de Lozada’s fourteen-month death toll of 139. However, in nearly all other respects, the Morales years were quantitatively very different from Sánchez de Lozada, and more in line with the 1982–1999 period of limited violence in Bolivian political life. Under Morales (as well as under Carlos Mesa), state security forces killed less often and were responsible for a smaller share of deaths than even during the relatively calm 1982–2000 years. In no single incident did security forces under Evo Morales kill more than four civilians.

Partisan political conflict among civilians resulted in twenty-six deaths during the Morales years, many more than in prior decades. Responsibility for these deaths was evenly split between Morales’ supporters and opponents. The increased frequency of such violence set the stage for the seven civilian-on-civilian killings during the 2019 crisis. During the crisis, the Morales government exercised restraint over the security forces and publicly announced its refusal to confront mutinying police. After Morales’ overthrow, a different and more deadly situation would rapidly emerge.

Expanded Inter-American expert group to investigate human rights violations during Bolivia’s 2019 crisis

The Interdisciplinary Group of Independent Experts for Bolivia, a five-person team of human rights experts named by the Inter-American Commission of Human Rights (IACHR), has been formally cleared to begin the work of investigating all human rights violations during Bolivia’s 2019 political crisis (prior coverage|Wikipedia) and expects to start work in the country on October 2, 2020. The Group was authorized by agreement between the Commission and the Bolivian government on December 2 of last year, following a dramatic visit by IACHR members to the country in the wake of the Sacaba and Senkata massacres. While the IACHR quickly appointed four members of the Group back in January, its work has yet to start and the interim government Jeanine Áñez has raised objections to both its membership and methods.

On April 28, however, the IACHR and the Foreign Ministry announced their agreement to a full investigation of last year’s often-violent events. The IACHR describes the Group as

[my English translation:] an international investigation mechanism on the acts of violence that occurred in the country … with guarantees of autonomy and independence, to secure the right to the truth and to duly identify those responsible for human rights violations.

un mecanismo de investigación internacional sobre los hechos de violencia ocurridos en el país, específicamente un Grupo Interdisciplinario de Expertos Independientes (GIEI), con garantías de autonomía e independencia, para asegurar el derecho a la verdad e identificar debidamente a los responsables de violaciones de los derechos humanos.

http://www.oas.org/es/cidh/prensa/comunicados/2020/091.asp

The agreement between the Bolivian state and the IACHR guarantees the Group the right to conduct an elaborate investigation with full access to the files and records of the government. Its designated powers are reminiscent of a truth commission:

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Bolivia postpones elections after Áñez decrees a “total quarantine”

The Bolivian government of interim president Jeanine Áñez has decreed a sweeping “total quarantine” for 14 days to prevent the spread of the novel coronavirus and halt a small, but significant outbreak of COVID-19 in the country. (Prior coverage of COVID-19 in Bolivia|Wikipedia) There are just 19 cases confirmed in Bolivia, with known community transmission in urban Oruro and the municipality of Porongo, both of which were already under local quarantine measures. Nonetheless, municipal and departmental authorities, legislators, and presidential candidates had all called for a total quarantine in the past few days. The fourteen-day emergency restrictions immediately prompted electoral authorities to postpone the highly anticipated general election, previously scheduled for May 3.

The quarantine measures mandate Bolivians to stay in their homes except for trips for work, groceries, and medical care; shorten the working and shopping day; and suspend public transport. It enters into force at 12am on Sunday, March 22, just hours after being announced. Bolivians are encouraged to provision themselves today, but markets will remain open for the mornings under the quarantine.

After Áñez decreed the national quarantine, Bolivia’s Supreme Electoral Tribunal (TSE) suspends electoral preparations for 14 days, calls on all parties to agree on a new date for general elections, previously set for May 3. In recent days, six political parties supported postponing elections, but the largest, but Evo Morales’ MAS-IPSP opposed any delay. Both calculation are in part political, since the MAS-IPSP is leading in the polls and the Bolivian political Right has failed to consolidate around a single candidate.

The Tribunal had little choice but to propose some delay since the proposed quarantine will interfere with pre-election preparations, even if it ends on schedule on April 5. The Tribunal’s statement s very clear in seeking consent from the legislative branch, led by a MAS-IPSP majority for a new election date. It also points out the central and troubling challenge: “to resist the threat of the pandemic and to also organize a clean and transparent electoral process, which will reflect precisely the will of the citizenry and will permit the formation of a legitimate government.”

It remains to be seen whether Áñez decision was necessary or precipitous, and whether the quarantine will further militarization and political divisions within the country or allow Bolivians to supplant them. The fractures opened up during the 2019 political crisis remain gaping, as does the absence of an elected government. There are clearly signs of both a cross-party willingness to cooperate against the coronavirus, as evidenced by recent agreements in El Alto and the Chapare, as well as clear signs of political opportunism. As with the rest of the world, much also depends on whether or not the coronavirus spreads out of control over the next two weeks.

Top image: President Jeanine Áñez at the repurposed anti-imperialist military school, rapidly converted as a COVID-19 isolation site. From @JeanineAnez on Twitter.