“Those who are innocent have no reason to flee”… unless you are a threat to the country’s elite? Latin America has a long history of “lawfare” – that is, resorting to the law to achieve political ends, often (ab)used to prosecute or eliminate political opponents. Rafael Correa, the former president of Ecuador, faces more than 20 allegations of such lawfare, representing a potentially far-reaching inquiry into the longstanding issue. It puts into question the separation of powers and the independence of the judiciary in Ecuador, while posing a real danger to the country’s future of constitutional democracy with elections looming in February 2021. 

THE RISING THREAT OF NEO-LIBERALISM AND RIGHT-WING GOVERNANCE

Ecuador’s current president, Lenín Moreno, entered the presidential office with the support of Correa, promising the electorate to continue the latter’s progressive reforms, which have brought two million people out of poverty; reclaimed the oil revenue for investment into health, education, and infrastructure; and offered asylum to Julian Assange. Nevertheless, in a U-turn, Moreno chose to lead the country in a manner geared towards the interests of its old political and economic elite, strengthening incidentally the influence of the United States (US) and the International Monetary Fund (IMF), raising the danger of selling the country to foreign powers. 

The agreement with the IMF in 2018 was riddled with unconstitutional details, the government having bypassed the National Assembly and the Constitutional Court in violation of Articles 419 and 438 of the state’s constitution – thereby also lacking any democratic legitimacy. While banks have, as a result of the administration’s policies, experienced record profits in 2019, the country has also experienced a significant rise in poverty. Allowing the US to use the Galapagos islands as a military airfield, authorising the delivery of Assange, and withdrawing from the Union of South American Nations (UNASUR) have further strengthened Ecuador’s relationship with the US. As such, the US has likely garnered greater influence over the South American country’s internal political decision making. 

A referendum authorised in 2018 without the approval of the Constitutional Court allowed Moreno to create a handpicked body – the “transitory CPCCS” (Council of Citizen Participation and Social Control) – that later removed all nine Constitutional Court judges. This move threatened the country’s separation of powers and the independence of the judiciary. Further, media freedom is almost non-existent in the state, and protests in October 2019 ended in numerous allegations of illegal detentions, the use of torture, and trials carried out in military quarters. 

A POLITICAL WITCH-HUNT

The legal proceedings against Correa arose against this background. The goal of the proceedings is not (necessarily) to imprison Correa but to bar him from appearing on the ballot papers for the presidential and parliamentary elections in February 2021. There are two main cases against him: the “Caso Soborno” and the “Caso Balda” – the former alleges corruption, and he has been found guilty by the court of first instance; the latter alleges involvement in the attempted kidnapping of lawmaker Fernando Balda. Whether he is guilty of this crime is undetermined; however Interpol rejected the request to issue a ‘red notice’ calling for the arrest of Correa, which indicates a lack of material evidence. Furthermore, the continued urgency underlying the proceedings, during a time when the country’s justice system is almost shut down, hints toward a political motive – that is: barring him from entering the elections in 2021. 

According to Ecuadorian law, once on the ballot papers, a candidate receives immunity until the votes are done with. It is only if Correa’s conviction is confirmed at second instance that he will be barred from entering the ballot in September for the February elections. Although Correa can no longer appear as candidate for the presidency, since a 2018 constitutional amendment forbade officials from running more than once for the same elected office, he could still run for the vice-presidency or a seat in the National Assembly. His winning either position could prove disastrous for supporters of the current government’s policies, given that Correa still enjoys huge popularity within the country.

COMBATTING THE CORRUPTION

Correa is by no means the first major Latin American figure subject to a political witch-hunt. Former Brazilian president Luiz Inácio Lula da Silva’s conviction, and the current proceedings against Evo Morales – former president of Bolivia – are two recent examples.  

Clearly, fighting corruption has to be a priority in a continent riddled by it. There are, however, strong indications that many of these legal proceedings, and in particular those against Rafael Correa, are about something else. Arguably, the real “crime” Correa is now being prosecuted for is simply having acted in the interests of the majority – i.e. contrary to the interests of the old, economic elite. Moreno’s administration has followed many of its neighbouring states in implementing a neo-liberal agenda, selling the country step-by-step to foreign powers. Fair elections in 2021 are therefore paramount to ensure that the people can choose a candidate reversing the current trend before it is too late – otherwise it will be the most vulnerable that suffer most, as always.

Luca is a student at King's College London, studying English Law & Spanish Law. He is currently a mooting officer at the KCL Bar & Mooting Society and a copy-editor at the King's Student Law Review. His research interests include public law, public international law and (international) human rights law. 

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