Countries at the Crossroads 2007 - Peru
|Publication Date||25 September 2007|
|Cite as||Freedom House, Countries at the Crossroads 2007 - Peru, 25 September 2007, available at: http://www.refworld.org/docid/47386929c.html [accessed 6 May 2016]|
(Scores are based on a scale of 0 to 7, with 0 representing weakest and 7 representing strongest performance.)
On July 28, 2006, Peruvian President Alejandro Toledo concluded his five years at the helm of Peru's frail democracy. As the successor to authoritarian ruler Alberto Fujimori, Toledo was expected to lead Peru toward enactment of the deep reforms necessary to raise living standards and consolidate democracy. Unfortunately, by the end of his term Toledo had narrowly avoided impeachment and had long since lost the ability to set the political agenda. Despite nearly five full years of economic growth averaging over 5 percent, poverty rates had fallen only slightly and job growth was weak. Toledo had been given a difficult task. Structural, historical, and political factors make governing Peru difficult and unpredictable. Social tension is ever-present, institutions are underdeveloped, and political culture is anomic. While Toledo's commitment to democracy was largely unquestioned, his leadership abilities were widely criticized. Despite economic gains, some notable reforms, and the maintenance of democracy, the foundations of Peruvian stability remained unsteady.
Toledo's successor, former president Alan Garcia, was not at first glance the obvious candidate to prosper in a campaign atmosphere dominated by disillusionment with government. After all, during his first term, from 1985 to 1990, the economy collapsed, a medium-intensity civil war reached its peak, and corruption and human rights abuses were rampant. However, during his subsequent years out of office Garcia remained a masterful politician, projecting an image of authority that appealed in comparison to the indecisive Toledo. Having finished second to Toledo in the 2001 race, Garcia found in the 2006 campaign an ideal foil in the person of Ollanta Humala, a fiery anti-system candidate who emerged as the voice of discontented Peruvians. Although Humala secured a first-round victory, the fear of instability – or even authoritarianism – he inspired allowed Garcia to assume the unlikely role of safe choice, which was enough for him to win the presidency with 52 percent of the vote.
The ineffectiveness of the Peruvian state at performing the fundamental tasks of governance, from carrying out justice to tackling entrenched poverty, is a primary cause of the discontent that Peruvians unfailingly express when polled regarding attitudes toward democracy. Problems of day-to-day life, including crime, joblessness, and corruption are ever-present reminders of the state's failures. However, less tangible concerns are often voiced as well. The broadest is the theme of exclusion, which in the Peruvian context essentially describes the lack of integration between historically excluded sectors (both socioeconomic and ethnic) and the relatively modern, largely urban portion of the Peruvian state, society, and economy. Humala's outsider candidacy – and near victory – in the 2006 election was a symptom of the dissatisfaction with not just the candidates but the overall political model offered by the contemporary ruling class.
Nevertheless, in 2007 Peru finds itself in a position of real opportunity. Although economic growth has not brought many jobs and is largely based on high commodities prices, six years of expansion capped by 8 percent GDP growth in 2006 have filled state coffers, thus providing for the novel possibility of strategic planning. Decentralization, a potentially powerful tool for closing the distance between citizen and state, has received a new focus and has been greeted enthusiastically by citizens. President Garcia's approval ratings remain above 50 percent, even though in a March 2007 poll nearly 80 percent of Peruvians responded that the president had demonstrated little or no compliance with his campaign promises.1 On the surface, the Garcia government has as good an opportunity as any administration in recent decades to improve the lives of Peruvian citizens.
There are sound reasons, however, to be wary of the new government. Despite substantial overall improvements since the end of the civil war and the fall of Fujimori, institutions remain feeble. President Garcia's inauguration speech was notable for the absence of any mention of human rights or anticorruption issues, leading to doubts about the government's will to confront entrenched impunity. The detailed recommendations of the Comision de la Verdad y Reconciliacion (Truth and Reconciliation Commission – CVR) remain largely unimplemented. Furthermore, members of Garcia's American Popular Revolutionary Alliance (APRA) party have demonstrated little patience with civil society and only a grudging inclination to cooperate on the resolution of past human rights abuses. Even Prime Minister Jorge del Castillo, regarded as a moderate, referred to victims' lawyers as "useful idiots of Shining Path-ism." President Garcia's personalist tendencies are well established, and his overall vision for the next five years remains unclear; the lack of a coherent opposition means that checking his populist instincts or forcing issues onto the agenda that APRA would rather not confront could be difficult.
Accountability and Public Voice – 4.30
Free and fair electoral laws and elections: 5.50
Effective and accountable government: 3.50
Civic engagement and civic monitoring: 3.33
Media independence and freedom of expression: 4.88
Both the first and second rounds of the 2006 Peruvian elections for congress and the presidency generally fulfilled international standards regarding free and fair elections. Suffrage is universal and obligatory, and turnout in each of the two rounds was close to 90 percent. The Organization of American States characterized the April election, which comprised both legislative and first-round presidential balloting, as "strongly positive" as well as "orderly and dignified,"2 while June's second-round presidential vote was deemed "calm, orderly, and transparent."3 The main problem noted by observers was the persistent problem of Peruvians lacking identity documents, which may have diminished the electorate by up to 1 million voters.4
Elections are conducted by a tripartite system of electoral entities. The National Registry (RENIEC) is responsible for voter registration; the National Office of Electoral Processes (ONPE) administers the electoral process; and the National Electoral Board (JNE) resolves election-related legal questions and challenges. Although many analysts support the separate organs as more specialized and effective, others – especially the JNE – argue that the system leads to duplication of efforts and cost inefficiencies and that the ONPE (and possibly the RENIEC) should be merged into a body headed by the JNE. During the 2006 elections, tensions between the JNE and ONPE emerged over ballot design as well as party and candidate registration. As of early 2007 the congress was considering a plan, submitted with the support of President Garcia, that would merge the two.
Congressional elections are held concurrently with the first round of the presidential election. Congressional voting is carried out through open-list proportional representation, with the number of representatives for each department determined by population. No party won a majority in the 2006 elections; the single largest legislative grouping corresponded to the on-again, off-again alliance of the Peruvian Union (UPP) Party and Humala's Peruvian Nationalist Party (PNP), which gained 45 seats. APRA was second with 36; other important shares went to National Unity (UN) with 17 seats and the pro-Fujimori Alliance for the Future with 13 seats. The election represented the first in which parties were required to reach an electoral hurdle of 4 percent of the national vote. If no candidate wins a first-round majority in the presidential contest, a second round is held between the top two finishers; in 2006 this meant Humala and Garcia.
Serious violence was associated with the local and regional elections conducted on November 18, 2006. Nearly two dozen districts were rocked by protests in which election offices were ransacked and ballot boxes burned. Much of the violence was blamed on voters angry about the effects of "votos golondrinos," or ballots cast by voters who had transferred their place of registration in the midst of the campaign. The ONPE later acknowledged that there had been insufficient time to properly analyze the addresses listed on voter rolls.5
Campaigning opportunities are unhindered for Peruvian political parties. Limitations on campaigning in Peru are more likely to be self-imposed, as few parties have the geographic reach, organizational structure, and ideological coherence to appeal broadly throughout the country. However, the rise and fall of parties generally occurs organically, and a rotation of parties in power is the rule. Peruvian ruling parties have been largely personalist vehicles for many decades; with the partial exception of APRA, once a given party leader is no longer president, that party's strength dwindles. Toledo's Peru Possible party is a good example: in 2001 it captured 47 seats; in 2006, just 2. Fujimori's series of "instant" parties and the failure of APRA to compete seriously for the presidency without Alan Garcia on the ticket further illustrate the problem. Generally, the weakness of Peruvian parties is regarded as a major reason for Peru's political instability and inability to build momentum toward institutional consolidation.
Campaign finance laws have been strengthened, with all candidates and parties now required to list all donations. The electoral office lacks sufficient resources, however, to investigate all filings adequately, and the use of testaferros (third parties) is considered common. In the 2006 campaign Humala was accused of receiving funds from the Venezuelan government, although the accusation has not been confirmed. Money from sources linked to drug trafficking led to the exclusion of several candidates in the local and regional elections. With resources generally scarce, parties often recruit candidates on the basis of their ability to self-finance and contribute to the party; those who can contribute most are placed higher on the party list.6
Although Peru is a strongly presidential system, the executive does not exercise absolute control over the legislative and judicial branches. While presidents have historically been granted broad decree powers by the congress, during Toledo's term the percentage of legislature passed by decree declined significantly.7 The weakness of political parties, however, often limits their effectiveness as a check on the executive. Furthermore, congressional oversight of the executive corresponds to a large extent with political point-scoring potential rather than a consistent vision of the limits and standards of the executive's role. The judiciary is constitutionally autonomous (but troubled; see Rule of Law), and the Constitutional Tribunal, in particular, has shown a willingness to rule against other branches of government as well as the military.
State hiring practices remain inefficient and politicized. Provisions for formal, meritocratic selection processes exist but are time-consuming. Therefore, an increasing number of public employees are hired on a temporary basis; Peruvian labor law provides little precedent or guidance as to the rights of these workers.8 Legally mandated projects to improve job descriptions and establish incentives programs have not been implemented. There are also discrepancies between the perceived high caliber of personnel in "technical" agencies such as the Finance Ministry and the lower quality of those in "social" agencies.
Peruvian civil society is highly active. NGOs saw their ability to work freely greatly expanded in the wake of Fujimori's downfall. Cooperation between government and civil society reached a high point under the Valentin Paniagua-led post-Fujimori transitional government and in the first year of Toledo's term. In some respects consensus within civil society has continued to expand; for instance, business groups, previously focused on narrower market and economic themes, have started to emphasize social issues as well.9
There are several realms of conflict, however, between the state and civil society. Cooperation between the state and NGOs has diminished significantly under the APRA government, which is perceived as wary of NGO motivations. Given the lack of a coherent opposition in congress, NGOs are seen by the government almost as opposition political parties. This puts them in a difficult position: the more vigorously they oppose government actions, the more the government view that they are political entities is validated. President Garcia has also expressed his disapproval of the tactics used by groups protesting operations in the extractive industries, suggesting they hinder economic development and encourage violent conflict.
More controversially, in December 2006 final amendments were passed to a new law that imposed new registration rules on all NGOs operating in the country. The law, which technically updated the charter of the Peruvian Agency for International Cooperation (APCI), requires that all NGOs register with APCI and divulge details of the provenance and intended use of all donated funds. For money channeled through APCI, the agency – which as an arm of the foreign affairs ministry is an executive branch institution – will have the ability to "prioritize" spending in line with national development goals, as well as impose sanctions on organizations that are deemed noncompliant with the new regulations.
The government argued for the need for transparency in NGO operations, while also noting that most of the new rules were already on the books but were unenforceable. NGOs, however, see the law as unconstitutional in its terms and chilling in its message. Many NGOs believe the law will result in less criticism from groups that fear being arbitrarily targeted by the government. They also note that in the international competition for donor aid, Peruvian groups will be less likely to receive assistance if the donors perceive the government role as overly intrusive. With respect to the law's legality, NGOs and their congressional allies argue that the measure violates freedom of association and the right to free contract. Moreover, the coalition behind the law's passage rang alarm bells. The law was presented by Congressman Rolando Souza, Fujimori's former lawyer, and supported by APRA, the Fujimori bloc, and National Unity. Some observers suggest that Garcia continues to worry about investigations into human rights practices during his first administration and is also attempting to maintain cordial relations – or even an outright alliance – with legislators aligned with Fujimori, who are adamantly opposed to the activities of many Peruvian human rights and anticorruption NGOs.
In the final passage, the law's structure was changed to exempt aid not channeled through the state from the prioritizing clause. However, this did not satisfy NGOs, who collected the 10,000 signatures necessary to challenge the measure before the Constitutional Tribunal, a process unresolved at the time of writing.
Freedom of the press is constitutionally protected in Peru, and the media is vibrant and active, especially at the national level. Bribe-induced media support was one of the pillars of the Fujimori regime. Although the press recovered strongly under Toledo, the media has not fully regained Peruvians' trust, and controversies related to Fujimori's media control continue to resurface occasionally. In 2005, for instance, the Wolfenson brothers, who had been convicted of accepting bribes from Vladimiro Montesinos, Fujimori's shadowy right-hand man, were set free after a law was passed allowing house arrest to count toward prison sentences.10
Libel and defamation remain classified as criminal offenses in Peru, and journalists continue to be prosecuted, receiving large fines and jail sentences, although the jail terms are often suspended. While abuses occur, not all accusations of defamation can be regarded as attempts to intimidate the press: journalistic ethics in Peru remain a work in progress. Many journalists, especially low-paid provincial ones but also those based in Lima, are willing to accept bribes in return for favorable coverage.11 Additionally, unsubstantiated stories regarding corruption and other official malfeasance, as well as stories linking individuals to criminals or other unsavory characters, remain a problem.
Especially at the local and regional levels, journalism is a dangerous profession in which reporting on local scandals can lead to intimidation, harassment, and serious attacks. The number of alerts issued by IPYS, a local press watchdog, increased dramatically from 2005, when 60 alerts, including 31 attacks and death threats, were registered, to 2006, when the 96 total alerts included 56 attacks and threats. In March 2007 journalist Miguel Perez was murdered in the northern department of Cajamarca after reporting on local corruption. Indeed, allegations of corruption against local officials and coverage of drug trafficking are the themes most commonly linked to attacks on the press. In the days after Perez's death thousands marched to demand justice in the case, and at the time of writing an ongoing investigation had already led to several arrests. Impunity for threats and aggression, however, remains the norm.
The Peruvian government refrains from direct and indirect censorship of the media; most outlets are privately owned. Both print and broadcast media remain reliant, however, on advertising dollars from limited sources such as government (at the local level) and a few large companies (especially retailers) at the national level. Media concentration has also increased at the national level; for example, the El Comercio group now owns four of Lima's most prominent newspapers. Internet access is unhindered and is widespread in the cities, although it remains rare in rural and jungle areas. Freedom of cultural expression is generally unrestricted.
- Congressional elections should be changed from open-list to closed-list in order to strengthen the decision-making power of parties and diminish the competition for candidates with high name recognition but little ideological coherence.
- In order to standardize selection mechanisms and limit patronage opportunities, the Law of Public Employment should be passed and implemented without delay.
- The changes in registration requirements for NGOs should be rescinded immediately and measures taken to improve dialogue between civil society and the government.
- The government should increase the resources devoted to protecting threatened journalists and investigating attacks against the press.
Civil Liberties – 4.43
Protection from state terror, unjustified imprisonment, and torture: 3.71
Gender equity: 3.75
Rights of ethnic, religious, and other distinct groups: 3.50
Freedom of conscience and belief: 6.00
Freedom of association and assembly: 5.20
The Toledo government used the momentum of the transition to make important advances in the sphere of human rights. Most crucial was the work of the CVR. In August 2003 the final report was released, shocking Peruvians with its finding that 69,000 citizens perished between 1980 and 2000. More than half of the deaths were attributed to the terrorist group Shining Path, but state security forces were deemed responsible for large-scale human rights violations as well. Since then the detailed recommendations contained in the report have been considered the touchstone for human rights efforts in Peru. In addition, a comprehensive National Human Rights Plan for 2006 to 2011, formulated with significant input from civil society, was approved in December 2005. Implementation during 2006 was weak, however; just one of the envisioned series of regional meetings was held, and the Garcia government announced its intention to revisit the plan by widening civil society consultations, a move that was seen as a delaying tactic.12
Overall, despite a few advances, the Garcia administration so far has shown hostility toward the process of coming to terms with past human rights violations. The behavior of the APRA and Fujimori blocs in the congress has provided substantial support to analysts who claim that an "alliance for impunity" exists between the two groups. An early sign was Garcia's taking action on his popular (and populist) campaign vow to apply the death penalty to child rapists and terrorists, an action that would clearly violate the Inter-American Convention on Human Rights.
In December 2006, the Inter-American Court of Human Rights ruled that the state owed reparations and a public apology to victims of the massacre of 42 inmates at the Castro Castro prison in 1992. Fujimori sympathizers and ex-military members presented the ruling as a victory for terrorists and restated the call for renunciation of the San Jose pact. Only after the boiling controversy drew significant international outcry did Prime Minister Jorge del Castillo and, eventually, Garcia explicitly state that Peru would not pull out of the system. These incidents, however, as well as the overall aggressive posture by accused human rights abusers during the administration's early months, have led the human rights community to worry that the frustrating impunity for abuses – some of which now date back two decades or more – will strengthen under Garcia.
Another worrying sign is the increase in threats and intimidation against Peruvian human rights defenders (including the war's victims as well as members of the human rights community), a phenomenon that in 2006 drew the attention of the Inter-American Commission on Human Rights. According to the National Human Rights Coordinator (CNDDHH), incidents of threats and intimidation increased from 16 in 2005 to 36 in 2006.13 In September 2006 the congress began to consider a measure to strengthen the pre-existing Effective Collaboration Law and extend its protection to vulnerable human rights defenders, but the project remains pending.14
Torture by state security forces remains an occasional problem in Peru. Members of the CNDDHH reported at least 16 cases of torture in 2006, declaring that this most likely reflected only a small portion of the true number.15 Most observers agree, however, that torture is no longer practiced in a systematic way. Prosecutions for reported cases continue to occur only sporadically and affect only low-level officers.
The Peruvian prison system has not improved in recent years. Prisons are overcrowded by 75 percent,16 facilities are falling apart, corruption and disease are rampant, and violence is frequent. The idea of rehabilitation is nearly nonexistent; instead, politicians speak of toughening rules, especially by reopening Challapalca prison, an unheated facility at roughly 15,000 feet altitude that was closed in 2005 on the recommendations of the Truth and Reconciliation Commission and the IACHR.
As with torture, arbitrary arrest is a problem that has decreased by orders of magnitude since the end of the internal conflict. After a December 2006 attack by Shining Path remnants in Machente, Ayacucho, killed five police officers and three civilians, eight peasants were arrested and charged with both the crime and being members of a subversive group. Although doubts were quickly raised about their culpability – the men had alibis and police accounts were inconsistent – national politicians trumpeted the arrests as reflecting a successful police investigation. Only several weeks later, after the intervention of the human rights ombudsman known as the People's Defender (DP), were the accused liberated. This case served to show that in high-profile cases, procedural abuses remain possible.
Long-term pretrial detention is an ongoing issue in Peru. According to the prison institute's statistics, nearly 70 percent of jailed Peruvians are held under pretrial detention. Indeed, a significant number of Peruvian arrestees never serve time under formal sentence, as the maximum pretrial detention period of 24 months (36 for serious crimes) is reached with no formal verdict, and prisoners are released.17
Remnants of the Shining Path, now associated with cocaine producers, continue to attack security forces sporadically in coca-growing zones, resulting in repeated extensions of the states of emergency in these areas. In December 2005, 13 police officers and civilians were killed in 2 attacks,18 while the Machente attack was the most severe in 2006. Ominously, Mexican cartels are now operating in Peru. In August 2006, a judge presiding over the trial of accused members of the Tijuana cartel was assassinated at a cafe in Lima. Notably, in October 2006 Shining Path leaders Abimael Guzman and Elena Iparraguirre received life sentences in retrials held to atone for the undemocratic trial procedures used during the Fujimori era.
Crime has steadily increased in Peru, although it is still far below the level found in many Latin American countries. Indeed, according to analysts, the perception of lack of safety is growing much faster than crime itself. A general sense of discontent, along with institutional fragility, the legacy of political violence, and the rising visibility of street gangs all contribute to this perception. Despite sensationalistic media coverage of murders, burglary and muggings are far more common. The response of the police in recent years has been deficient. Various plans have been enacted; most recently a policy of "districtization," intended to put more police on the streets and in stations easily accessible to citizens, was put into effect. However, a strategic vision is lacking, and crude, ineffective tools of repression continue to be emphasized over sustained, community-based efforts.19
Peruvians whose rights have been violated have an important tool of redress in the institution of the DP. Constitutionally autonomous, with a highly regarded staff, the DP accepts complaints about alleged rights violations ranging from torture to no-show teachers. Although findings are not binding, DP reports carry an important moral weight. The CNDDHH notes that the DP's intervention was decisive in getting the accused campesinos liberated after the incident in Machente.20
One of the most important advances in recent years related to applying the CVR recommendations occurred in July 2006, when the government issued implementing regulations for victims' reparations. In order to postpone resolving the politically fraught issue of which individuals are to receive compensation, initial reparations will be communal in nature, focusing on infrastructure, monuments, and other civic benefits.21
Peruvian men and women are guaranteed equality under the constitution. In practice, however, Peruvian women suffer from many of the ills associated with machista culture and underdevelopment. Domestic abuse is rampant, affecting an estimated 50 percent of Peruvian women.22 Women living in rural areas face particularly difficult obstacles. Health infrastructure is extremely deficient, and a lack of cultural sensitivity and indigenous language ability among health workers results in a reluctance on the part of rural indigenous people to visit clinics. For pregnant women, this results in a vicious circle: babies are born outside of clinics and therefore do not receive birth certificates, which leads to further marginalization from social services as they grow up. The Garcia government has established consultative councils with civil society groups, but it remains unclear whether the goodwill gesture will translate into action.
Peru, like many countries in the region, has been designated a source country for trafficking in women. Laws against trafficking comply with international norms, and some prosecutions have occurred. Sexual abuse of domestic employees is also a serious problem, although in January 2007 the government increased penalties for rape of domestic workers.
On March 9, 2007, President Garcia signed the Law of Opportunities, which is intended to combat discrimination in employment, including the 30 percent pay differential between men and women.23 Implementation will be a challenge, however, as the Ministry of Women's and Social Development (MIMDES) remains underfunded. Another bright spot is national political representation; the congress elected in 2006 included 35 women, or 30 percent of the total, which fulfilled the intended electoral quota.
Deeply ingrained discrimination remains a massive stumbling block in Peru's attempts to achieve a more developed and equitable society. Racial identity is not as strong in Peru as in neighboring Bolivia and Ecuador, due in part to the centrality of class-based ideologies in Peruvian history.24 This has slowed efforts to confront the pervasive phenomenon of discrimination against Quechua and Aymara speakers, Afro-Peruvians, Amazonian indigenous groups, and citizens with Andean features. In recent years, consciousness about the need to confront racism has been growing. Efforts, however, are still largely led by civil society rather than the state. When the government is involved, it is often at the municipal rather than the national level.
The state has enacted some measures, however. Laws against discrimination, which is already a criminal offense in Peru, were tightened in August 2006. Fines have been issued to establishments that discriminate with regard to clientele. In February 2007 the DP, for the first time, suggested criminal prosecution against four teachers who had refused to teach a young girl with a disability.25
Peru is a signatory to ILO Convention 169, which requires consultation with indigenous groups when legislation affecting them is passed. Indigenous groups argue that the state has not complied with its duties. In particular, conflict related to natural resource exploitation has surged along with investment and exploration. As of March 2007, the congress was considering a measure to halt resource exploitation in zones populated by isolated tribes.26
The Peruvian government has been diligent about ratifying international charters, forming commissions, and enacting laws regarding the rights of people with disabilities. In 2006 Peru formulated its second Plan of Equal Opportunities for Disabled Persons, which will guide efforts from 2007 to 2012. The new plan is meant to create mechanisms to ensure that government agencies comply with Peruvian laws guaranteeing access to public buildings. Currently, compliance is greatest among federal agencies, while municipalities lag far behind, with a mere 1 percent achieving accessibility.27 Access to education has increased, and mild affirmative action exists: Peruvians with disabilities are granted a 3 percent quota in public agencies and a 15 percent benefit on civil service tests. However, CONADIS, the agency in charge of disabled rights, is underfunded and lacks data regarding the number of disabled Peruvians. Furthermore, the fusion of CONADIS, which had been independent, into MIMDES in December 2006 disappointed disabled rights activists.
Most Peruvians are Catholics, although the popularity of evangelical faiths has grown in recent years. Freedom of religion is strong in Peru, despite the special relationship that the state has with the Catholic Church, the result of a concordat signed with the Vatican in 1980. The Catholic Church and its clergy receive special tax benefits and subsidies from the state. Since 2004 other faiths have been eligible to register for similar benefits, but the process is designed to accommodate the structural and doctrinal qualities of the Catholic Church. Religious discrimination is not considered a problem, interference in religious observance is rare, and the state does not interfere with internal organizational processes or the naming of leaders of any faith.
The once-strong Peruvian labor movement has weakened considerably in recent decades; the unionization rate declined from 18 percent in 1980 to just 3 percent in 2007.28 Increasing this rate would be challenging, as Peruvian law requires a minimum of 20 workers to form a union, a number that excludes 98 percent of Peruvian businesses. Although it is formally difficult to obtain permission to strike, work stoppages occur with great regularity. The teachers' union, which is the most active and radical group, has been demonized by the government and the media as Marxist-dominated and uncaring about the education of Peruvian children. In both the public and private sectors businesses have increasingly circumvented rigid labor laws by hiring temporary workers.
The Peruvian state generally recognizes freedom of association and assembly, rights that Peruvian citizens are not shy about exercising. Mobilizations and protests are a daily occurrence throughout the country. These range from peaceful demonstrations by a wide range of civic and political groups, which generally occur without incident, to more radical protests that sometimes transcend a single issue and become protests against the nature of the Peruvian state. Violence on the part of both protesters and the authorities is common, with dozens of injuries to protesters and police and several protester deaths reported in both 2005 and 2006. The protests that most often result in violence are generally those conducted by coca growers, although demonstrations against extractive industries companies have increased in militancy in recent years.
- The government should overhaul prison management, placing all prisons under the authority of the National Penitentiary Institute, and greatly increase the resources devoted to rehabilitation programs inside all jails and prisons. The government should also refrain from reopening Challapalca prison.
- The justice ministry should heed the recommendation made by the People's Defender in October 2006 and create a unit specializing in the provision of defense for victims of human rights violations.
- The state should systematically implement the recommendations of the CVR in the areas of reparations and prosecution of human rights abuses. The proposed expansion of the Effective Collaboration Law should be approved.
- The state should greatly increase its efforts to provide essential services in areas such as health and justice in Quechua and other non-Spanish languages.
Rule of Law – 4.07
Independent judiciary: 4.00
Primacy of rule of law in civil and criminal matters: 4.00
Accountability of security forces and military to civilian authorities: 4.00
Protection of property rights: 4.33
Equal treatment under the law: 4.00
The institutions responsible for administering and upholding the rule of law in Peru suffer from extremely low credibility in the eyes of the public. Opinion polls consistently show the judiciary and the police as the two most distrusted national institutions. The sheer magnitude of problems makes legal reform one of Peru's most vexing issues. For most of the past few years the perception was that improvement was slow to nonexistent. In early 2007, however, signs appeared of an increased determination within the judicial branch to curb some of the worst abuses and root out bastions of corruption. However, the profound systemic and cultural changes that are necessary for the judiciary to regain citizens' confidence will take significant time, resources, vigilance, and political will.
Serious structural, economic, and cultural problems hinder the independent and impartial administration of justice. The system is generally underfunded; administrative workers, in particular, are viewed as susceptible to corruption. Jurisprudence, especially in lower-level courts, is unpredictable and excessively formal. The caseload far outstrips judicial capacity.
In recognition of this, overhauls are periodically proposed. The most comprehensive and ambitious of these reforms was the Special Commission on General Justice Reform, known as CERIAJUS. The project, which brought together civil society, judges, and policymakers, was presented in August 2004. As with so many other best-laid plans, however, political will to implement the project was not sustained over the next two years. Nonetheless, CERIAJUS provided the architecture for a thorough transformation of Peruvian justice. In January 2007, incoming Supreme Court President Francisco Tavara (who is also administrative head of the Judicial Power – PJ) announced a 49-point plan to initiate judicial reform that was based substantially on CERIAJUS. The early stages of the new plan emphasize reducing corruption and increasing transparency. The judiciary's investigative unit, the Office of Judicial Control (OCMA), has increased its activity in 2007, suspending dozens of judges suspected of improprieties. The judicial financial secrecy privilege has also been lifted for judges under investigation. Furthermore, in March 2007 the Supreme Court began the process of publishing all decisions on its website.
One of the harmful legacies of the Fujimori era was the damage he inflicted on the independence of the judiciary. Hundreds of judges were sacked and replaced with provisional appointees lacking job security and, therefore, independence. Partially as a result of Peru's history of interference in the judiciary, the PJ zealously guards its autonomy. While history, as well as doubts about the APRA government's commitment to a depoliticized judiciary, dictates that watchfulness is warranted, autonomy has sometimes served as an excuse to prevent reform efforts and protect powerful vested interests.
The one judicial organ that has a demonstrated history of independence from other branches is the Constitutional Tribunal (TC), which is independent of the PJ. This court has issued a series of decisions in recent years that have been applauded for checking questionable executive and legislative branch decisions. Frictions exist, however, between the TC and the Supreme Court and the JNE, which all see themselves as courts of maximum instance. Additionally, four of the seven TC members' terms expire in June 2007; as new judges are selected by a two-thirds vote of the congress, whether the next court will demonstrate similar independence is unpredictable. Early signs in 2007 pointed to a less than fully transparent selection process.
Compliance with judicial decisions usually occurs but can be inconsistent and slow at times. In late 2006, however, the congress blatantly disregarded a TC ruling stating clearly that members of the military charged with human rights violations were to be tried in civilian courts.29 The abuse of tools such as the amparo, a legal stay that prevents decisions from entering into effect, has harmed the judiciary's ability to have its decisions enforced. The amparo is widely viewed as inviting corruption; on multiple occasions, judges have issued a decision, only to see another judge, often not even in the relevant jurisdiction, issue an amparo that prevents the original decision from taking effect. One of Tavara's early moves was to rein in this abuse by requiring that all judges notify a superior when issuing an amparo.
The National Council of Magistrates (CNM) is constitutionally charged with the appointment, promotion, and dismissal of judges, while training is the domain of the Judicial Academy (AMAG). By the end of Fujimori's term over 70 percent of all Peruvian judges were provisional. In recent years, the proportion of provisional judges has fallen and currently is less than 15 percent.30 In 2006 the CNM implemented new, improved regulations for judicial hiring. The Supreme Court, however, contains a large number of provisional judges, a fact that received renewed attention in August 2006 with the arrest of a provisional Supreme Court justice caught accepting a $300 bribe from a policeman.
All Peruvians charged with a crime are considered innocent until proven guilty. The difficulty, especially for poor or rural citizens, lies in navigating the justice system.
Poor Peruvians often find that there is little place to turn when adjudication or punishment is required. Occasional lynchings and the frequent outbreaks of social conflict are only the most dramatic examples of the lack of judicial intermediation in many parts of Peru. In recent years the state has attempted to increase the numbers of community-selected justices of the peace, as well as hire additional translators and exempt the poor from legal fees, but resources for such projects remain scarce.
Most observers consider the gradual introduction of a new code of criminal procedure to be the most important reform in many years. The new system, which replaces the traditional inquisitorial system with an adversarial, oral testimony-based trial procedure, will be implemented gradually throughout the country. According to the CNDDHH, the early signs are positive; in the first province where it was implemented, pretrial resolution has been achieved in 40 percent of cases under the new system, 10 times the rate in 2005.31 Citizens have the right to independent counsel, but the resources provided for legal assistance are meager. Prosecutors function out of the Public Ministry, which is a branch of the PJ. Like judges, their independence is affected by a significant rate of provisionality. In November 2006 human rights groups were angered when the attorney general's office dismissed Cristina Olazabal, a human rights prosecutor in Ayacucho who was considered to be one of the most effective investigators of war-related human rights violations.32
Despite the high-level corruption cases aired publicly following Fujimori's fall, prosecution of public officials and ruling-party actors for abuse of power remains weak. Corruption prosecutions do occur but are somewhat arbitrary and very slow. Impunity for human rights violations in the 1980 to 2000 period is a critical unresolved issue in Peru. In its final report the CVR identified 47 emblematic cases; another 260 have been added through subsequent investigation. Resources have been limited, however, and the vast majority of cases remain stuck in the investigation phase. Indeed, for all the thousands of dead, only one middle-ranking and no high-ranking military officials have been convicted and sentenced.
Civilian control over the military has been consolidated in Peru; security forces do not unduly interfere in the political process. Garcia's choice for Minister of Defense, Allan Wagner, is seen as having a modernizing vision, centered on the idea of fortifying the defense minister's office in relation to the generals and increasing management capacity through specialized vice-ministries.
Another important project is to achieve a clearer delineation of the military role in internal security. Currently, the military can, under certain circumstances, be deployed to support the police even without the declaration of a state of emergency. This works to the advantage of politicians, who can send in the armed forces without assuming the political cost of declaring a state of emergency. The military, however, is increasingly conscious of its public image and wants clearer rules in order to avoid being placed in tense situations at little cost to politicians.33 One other important achievement in recent years was the October 2005 adoption of new code of military ethics, which fulfilled one of the CVR's recommendations.34
There are several caveats to the military's basically positive agenda. One is the continuing issue of military corruption, which surfaced several times in 2006, most notably when a massive scheme involving ordering and selling surplus gasoline was uncovered. The other major caveat is the military's intransigence in the face of investigations and judicial processes against soldiers accused of human rights violations in the 1980s and 1990s. In March 2006 Human Rights Watch wrote President Toledo a letter deploring the lack of cooperation by the military in providing investigators with useful information, above all regarding the names behind the aliases commonly used by soldiers during the conflict.35 Additionally, in November 2006 the military announced that it would henceforth pay the legal costs of servicemen facing investigation for abuses during the conflict, a provision that human rights groups found frustrating in the face of the state's miserliness with assistance for victims of the conflict. Finally, Garcia's naming of Luis Giampietri as his vice-president was viewed as a signal that the military's unease about exposure to prosecution would not be ignored. Giampietri is accused of ordering a violent response to unrest at El Fronton prison in 1986; he was considered a fierce defender of the military's role in the fight against Shining Path and has been at the forefront of verbal attacks on Peru's human rights community.
All of the aforementioned complications regarding past justice come in the context of the possible return to Peru of former President Fujimori, who arrived in Chile in November 2005 and announced his intention to return to Peruvian politics. At the request of Peru, Chile arrested the fugitive leader and held him while Peru prepared the case for extradition on 10 counts of corruption and 2 counts of human rights violations related to the death squad known as the Colina Group. Although he was barred from participating in the 2006 presidential elections, the strong possibility of Fujimori's return has contributed to the polarization regarding resolution of past human rights issues. While most advocates of human rights and democracy relish the possibility of seeing Fujimori in a Peruvian jail cell, Garcia and APRA have been notably ambivalent regarding the efforts to achieve his extradition.
Property rights are semi-predictable in Peru. The country was an early innovator in land titling, and efforts continue to regularize new urban settlements as well as agricultural lands. Contract enforcement in Peru remains problematic due to the erratic functioning of the legal system. The Commercial Court system, however, which began operation in 2005, has significantly increased the speed and predictability of contract dispute resolution. Most citizens are protected from unjust deprivation of property. Laws safeguarding indigenous territories are considered fairly strong, but these lands can be bought and sold, and loopholes in the regulations have contributed to the environmental conflicts noted above.
- The judiciary should work with congress and the president to implement the reforms proposed by CERIAJUS while maintaining a regular dialogue with civil society groups regarding the pace and sequencing of reforms.
- The government should provide the necessary resources to implement the new penal code on the originally proposed schedule, with the entire country covered by 2011.
- The military should provide, without delay, all requested information regarding aliases used by military officers during the 1980 to 2000 armed conflict and cooperate with ongoing human rights trials in the civilian courts.
- The state should dramatically increase the resources allocated to the preliminary investigation phase of cases of human rights violations.
Anticorruption and Transparency – 3.49
Environment to protect against corruption: 3.40
Laws and ethical standards between private and public sectors: 3.25
Enforcement of anticorruption laws: 3.75
Governmental transparency: 3.57
The massive scale of the corruption that occurred during Fujimori's decade in power remains unprecedented and unsurpassed in Peruvian history. However, despite efforts to prosecute high-level civil and military officials from the 1990s and improve government transparency, as well as a heightened level of citizen and media vigilance, there is little question that corruption remains a serious problem in Peru.
The Peruvian web of regulations and bureaucratic errands vastly increases the opportunities for petty corruption. Nevertheless, there has been some simplification; for instance, the state has attempted to cut the number of steps needed to open a business. The World Bank's annual Doing Business report boosted Peru from 78th place in 2005 to 65th in 2006, with improvements in the ease of starting a business and getting credit accounting for much of the change.36 In comparison with regional neighbors and other developing countries, the Peruvian state is not excessively involved in the economy. Foreign investment is generally welcomed, and although the pace of privatization has slackened considerably since Fujimori's selling spree, both the Toledo and Garcia governments have eagerly promoted privatization and concessions when they are politically feasible.
The state has some mechanisms to separate public office from the personal interests of officeholders. All functionaries are required to fill out asset declarations, which are submitted to the Comptroller General's office for scrutiny. These forms, however, are often incomplete, and only summaries are available to the general public. One notable step occurred in March 2007, when a candidate for the Supreme Court was ruled ineligible because he had filed for bankruptcy recently.
The effort to formulate and enforce an effective process to detect, investigate, and prosecute public officials for corruption is a major issue in Peru, given the nature of the Fujimori/Montesinos regime. The process is highly politicized and, to a substantial degree, media-driven, although the comptroller's office also investigates possible acts of corruption. Efforts to investigate and prosecute ministers, members of the congress, and members of the judiciary are harmed by attempts by these officials to hide behind immunity rules for public functionaries. In February 2007, for instance, a number of members of congress attempted to block a regulation that would deny immunity for investigations initiated prior to entry into public office.
Victims of corruption generally assume that they have few mechanisms to pursue their rights. According to anticorruption NGO Proetica's yearly poll, in 2006, 94 percent of Peruvians said they do not report bribery solicitations, and 78 percent characterized the results of corruption denunciations as "little" or "not at all" effective.37 With weak confidence in institutions, Peruvians are apathetic, perceiving that there is little to be gained by reporting corruption.38
SUNAT, the national tax agency, is generally viewed as having increased in efficiency and transparency. Tax collection has improved and has achieved a broader base in recent years. The primary independent auditor in Peru is the Comptroller General of the Republic (CGR), who is appointed by the president for a seven-year term and must be approved by the congress. The comptroller's office is legally, although not constitutionally, autonomous and is responsible for scrutinizing everything from state purchases to asset-declaration forms. The CGR lacks sanctioning power, however, relying instead on the agencies concerned to take action when improprieties are found.
The effectiveness of the investigation and prosecution system at combating corruption is questionable. Impunity, however, is not universal, including for high-level officials. The current anticorruption legal subsystem was set up during the transitional Paniagua government. Efforts to trace money illicitly acquired during the Fujimori administration continue, although the pace of convictions and reclamation of money has slowed. Many analysts have criticized the Garcia government for a lack of zeal regarding corruption since entering office. One of the few investigations that have received official attention is the inquiry into corruption and wasteful spending by Toledo and his wife, Eliane Karp, and many see this as largely political theater.
The Peruvian news media is perhaps the primary driver of discussion about corruption-related issues. National newspapers and television programs, as well as some regional and local media, constantly unearth new instances of corruption. Some of the most significant recent scandals, including the early 2007 purchase of overpriced police patrol cars that resulted in the resignation of interior minister Pilar Mazzetti, came to light after being reported in the media. The return of APRA to power has reinvigorated the watchdog instinct within the press. The absence of whistleblower laws in Peru inhibits the willingness of public employees to speak out about corruption within the government. A measure originally proposed in 2003 nearly passed the congress in 2006 but has fallen off the agenda.39 More generally, anticorruption activists can be subject to intimidation, especially at the local level.
The Peruvian government, although still often opaque, has measurably improved its transparency in recent years. The Law on Transparency and Public Information has been valid since 2002 and imposes significant transparency obligations on the state. Citizens may petition the state for information, and compliance is slowly improving as knowledge of the law spreads. The process is highly bureaucratic, however; according to an investigation by Article 19, functionaries continue to delay the handing over of documents due to fear of being punished by their superiors.40
The Peruvian executive's budget-making process is rated as a model for developing countries in terms of transparency and timeliness. The 2006 Open Budget Index ranked Peru 7th out of 59 countries evaluated, ahead of such industrialized nations as Sweden, South Korea, and Norway.41
The publication of expenditures is handled at the agency level. Compliance with the law, which requires that websites be fully updated quarterly, varies by agency. The Peruvian Press Council (CPP), which monitors compliance with the law, reported in January 2007 that 27 out of the 41 state institutions it evaluated had not adequately updated relevant financial information; in particular, the presidential web portal lacked detailed spending information.42
The awarding of government contracts and concessions is an area of vulnerability in Peru. Laws governing research on market prices are unclear, although the CGR has proposed introducing a more transparent price-filtering tool known as the "witness price." The Mazzetti affair was just one of the numerous scandals to emerge in relation to government purchases. The government has taken some actions to improve state contracts. Transparency has increased, and technology is being gradually implemented to facilitate reverse-auction and other mechanisms intended to maximize efficiency.
- The constitution should be amended to guarantee permanently the autonomy of the Comptroller General of the Republic by making it an independent organ.
- As suggested by CERIAJUS and Supreme Court President Tavara, the statute of limitations should be lifted for crimes involving public corruption.
- The proposed whistleblower law should be passed and steps taken to assure that repercussions against whistleblowers are investigated and punished.
- The state should formulate and enact an effective system of research for all state purchases in order to guarantee market prices and quality control.
Jake Dizard is a Research Analyst at Freedom House and is the Assistant Editor of Countries at the Crossroads. He also serves as the Andean region analyst for the Freedom House publications Freedom in the World and Freedom of the Press.
1 Maria Elena Castillo, "El 58% aprueba a Garcia, pero mayoria senala que no cumple con sus promesas," La Republica, 9 February 2007, www.larepublica.com.pe/content/view/142364/483
2 "Electoral Observation Mission of the OAS Presents Preliminary Report on Second Round of the Presidential Election in Peru" (Washington: Organization of American States [OAS], OAS Press Advisory, 6 June 2006), www.oas.org/OASpage/press_releases/press_release.asp?sCodigo=EOM-PE-04.
3 "Electoral Observation Mission ... Preliminary Report ..." (OAS, 6 June 2006), www.oas.org/OASpage/press_releases/press_release.asp?sCodigo=MOE-PE-5E.
4 Lack of identity papers caused many other problems related to rights as well. See Civil Liberties. The 1 million number is disputed. See "Peru Election 2006" (Vancouver: University of British Columbia, Department of Political Science, 9 June 2006), http://weblogs.elearning.ubc.ca/peru/archives/027810.php for a useful dialogue regarding its validity.
5 Interview with Dra. Magdalena Chu, Chief of ONPE, 26 March 2007.
6 Interview at Institute of Legal Defense, Lima, 2 April 2007.
7 Cynthia Sanborn and Eduardo Moron, "The Pitfalls of Policymaking in Peru: Actors, Institutions, and Rules of the Game" (Washington, D.C.: Inter-American Development Bank [IADB], Research Network Working Paper, April 2006), 46. Garcia, however, received decree power on tax and security issues in the first year of his term.
8 Koldo Echebarría, ed., "Informe sobre la situación del servicio civil en América Latina" (IADB, May 2006), 423.
9 This newfound interest in social issues is mainly the result of fear that if social exclusion is not ameliorated, the 2011 election could result in the victory of Humala or some similarly populist candidate.
10 Ramiro Escobar, "Crime: Public Starting to Lose Faith in Peru's Corruption Battle," IPS Inter-Press Service (Lima), 15 July 2005, Lexis-Nexis.
11 Interview with Adriana Leon of the Institute for Press and Society, Lima, 26 March 2007.
12 Interview at Asociacion Pro-Derechos Humanos (APRODEH), Lima, 28 March 2007.
13 Bajo el signo de un gobierno con pasado: Informe Anual 2006 (Lima: Coordinadora Nacional de Derechos Humanos [CNDDHH], April 2007, 44, www.dhperu.org/index.php?link=24&pag=4.
15 Ibid., 104.
16 Interview at Defensoria del Pueblo, Lima, 30 March 2007.
17 Interview at Institute of Legal Defense, 2 April 2007.
18 "Sendero Kill Eight in Ambush," Latinnews Daily, 21 December 2005, Lexis-Nexis.
19 Interview at Institute of Legal Defense, Lima, 30 March 2007.
20 Informe Anual 2006 (CNDDHH).
21 "Terapia Colectiva," Caretas 1969 (29 March 2007): 38.
22 This figure includes both physical and psychological abuse. Interview with Cecilia Olea of Flora Tristan Women's Center, 27 March 2007.
23 Antonio Zapata, "Educacion y trabajo de la mujer en el Peru," La Republica, 7 March 2007.
24 The leftist-nationalist military government initiated by Juan Velasco in 1968 discouraged the use of the word "indigena," instead preferring the more class-relevant "campesino." See Wilfredo Ardito, "Racismo en el Peru Republicano," Revista Aportes Andinos (Quito: Universidad Andina Simon Bolivar, April 2004), www.uasb.edu.ec/padh/revista9/articulos/wilfrido%20ardito.htm#pasado.
25 Ardito, "Primer Juicio Penal por Discriminación," Reflexiones Peruanas 135, 28 February 2007, http://reflexionesperuanas.blogspot.com/2007/02/rp-135-primer-proceso-penal-por.html.
26 Ardito, "Y usted ... no sera tambien indigena?" Reflexiones Peruanas 137, 10 May 2007, http://reflexionesperuanas.blogspot.com/2007/05/reflexiones-peruanas-137-y-usted-no-ser.html.
27 Interview with Ricardo Zevallos of Risolidaria, Lima, 28 March 2007.
28 Interview at Centro de Asesoria Laboral de Peru (CEDAL), Lima, 27 March 2007.
29 Informe Anual 2006 (CNDDHH), 41.
30 Interview with Dr. Francisco Tavara, President of Peruvian Supreme Court, Lima, 29 March 2007.
31 Informe Anual 2006 (CNDDHH), 47.
32 "APRODEH Lamenta y Cuestiona Destitucion de Fiscal Cristina Olazábal" (Lima: APRODEH, press release, 3 November 2006), www.aprodeh.org.pe/notapress/notas/03nov06.htm.
33 Interview at Institute of Legal Defense, Lima, 2 April 2007.
34 Informe Anual 2006, 36.
35 Jose Miguel Vivanco, "Letter to President Toledo on the Military's Failure to Cooperate with Investigations" (New York: Human Rights Watch [HRW], 16 March 2006), http://hrw.org/english/docs/2006/03/13/peru13045.htm.
36 "Peru" in Doing Business (Washington, D.C.: The World Bank, 2006), www.doingbusiness.org/ExploreEconomies/Default.aspx?economyid=152.
37 Cuarta encuesta nacional sobre corrupcion (Lima: Proteica, October 2006), www.proetica.org.pe/Descargas/PPT/presentacion.ppt.
38 Interview at Proetica, Lima, 30 March 2007.
39 Interview at Contraloria General de la Republica, Lima, 29 March 2007.
40 Javier Casas, "A Legal Framework for Access to Information in Peru," in Time for Change: Promoting and Protecting Access to Information and Reproductive and Sexual Health Rights in Peru (London: Article 19, 2006), 48.
41 Open Budget Index 2006 (Washington, DC: Center on Budget and Policy Priorities, 2006), 37, www.openbudgetindex.org/SummaryReport.pdf.
42 Alejandra Nieto, "CPP: Gobierno no cumple con la Ley de Transparencia," La Republica, 25 January 2007, www.larepublica.com.pe/content/view/140168/483.