THIRD REPORT OF THE SECRETARY GENERAL OF THE ORGANIZATION OF AMERICAN STATES ON THE MISSION FOR THE TRANSITION PROCESS IN GUATEMALA AND RECENT DEVELOPMENTS IN THE COUNTRY

October 10, 2023 - Washington, DC

Introduction

First, we would like to thank the Government of Guatemala for its support in facilitating and hosting the work of the OAS General Secretariat's Transition Mission to Strengthen and Uphold Democracy and the Rule of Law.

We would also like to thank the Transition Committee and the citizens of Guatemala, as well as President-elect Bernardo Arévalo, and Vice President-elect Karin Herrera for requesting the Mission.

At all times, the OAS Mission has remained vigilant regarding ongoing events in Guatemala and has vehemently condemned the unjust and outrageous actions of interested parties seeking to delay the electoral processes, including the biased and irrational actions of some agents of the Public Prosecutors’ Office, which undermine the role played by secrecy of the vote and threaten democratic stability within Guatemala. The Government of Guatemala continues to be aware of our valuable efforts in the country to mediate conflict and dialogue; and Guatemala continues to be an important partner of this Organization, with its ongoing support for our work here.

The OAS maintains its presence above all to promote peace and the values of the Organization in Guatemala, for the benefit of Guatemala. Our doors remain open for dialogue with those seeking answers, as we are here to facilitate dialogue, provide technical assistance, and other institutional tools aimed at strengthening democracy and democratic institutions, as well as to observe and accompany democratic processes such as the electoral process in Guatemala.

Meetings held

The OAS Special Mission visited Guatemala again from September 27-29, 2023. The Mission was composed of the former Vice President of Panama, Isabel de Saint Malo, and the former Deputy Assistant Secretary of the U.S. Department of State, Ambassador Liliana Ayalde. The Mission was supported by the OAS Representative in Guatemala, Ambassador Diego Paz, and my advisor Franchesca Sterling.

During this visit, the Mission held meetings with the President of the Republic of Guatemala, Alejandro Giammattei; the Minister of Foreign Affairs, Mario Búcaro; the Vice Minister of Foreign Affairs, Karla Samayoa; the Minister of Labor and coordinator of the Presidential Transition Committee, Rafael Rodríguez; the Secretary General of the Presidency, María Consuelo Ramírez; the Secretary of Social Communication of the Presidency, Kevin Alberto López Oliva, as well as other members of the Presidential Transition Commission. The Mission also held meetings with President-elect Bernardo Arévalo; the President of the Constitutional Court, Héctor Hugo Pérez, with his plenary of magistrates; the President of the Supreme Electoral Tribunal, Irma Elizabeth Palencia Orellana and her plenary of magistrates; and the Chargé d'Affaires of the U.S. Embassy in Guatemala, Patrick Ventrell.

The Special Mission informed me that the central objective of all the actors interviewed was that democracy should prevail in the definition of the electoral process and that the transition process should develop accordingly. On September 27, 2023, President Giammattei announced that the transition process had officially resumed on that day after being paused for approximately two weeks at the request of President-elect Bernardo Arévalo, in protest at the raid on the Supreme Electoral Tribunal conducted by the Public Prosecutors’ Office on September 12, 2023, where electoral material was found, including ballot boxes from the first round of elections held on June 25, which were opened and searched by non-electoral commissioners, thus jeopardizing the integrity of the electoral process.

On September 12, 2023, the OAS Mission condemned these intimidation tactics against the Supreme Electoral Tribunal, stating that: "A democracy is measured both by its capacity to register the preference of the electorate and by its capacity to guarantee the peaceful transmission of power, without threats or acts that violate the constitutional principle of alternation of power. The Mission has analyzed the findings on which the allegations of alleged irregularities in the first and second round of elections are based and has verified that they are unfounded."

We welcome the resumption of the transition process, as it is important that the President-elect's technical team has access to key resources and briefings with government officials to ensure secure continuity of government on January 14, 2024. We therefore also wish to celebrate the commitment to cooperation between the government transition team and the transition team of the President-elect on October 4, 2023, followed by positive commitments between the Vice President of the Republic of Guatemala, Guillermo Castillo, and the Vice President-elect, Karin Herrera, reached on October 6, 2023. It is absolutely necessary for this dialogue to continue and, as President Giammattei told the OAS Mission during its last meeting on September 28, 2023: "The most important thing is that the dialogue does not break down." The President has emphasized that he wants to "establish a unique, transparent and orderly transition process, with the objective of delivering information to the new government team in a timely manner". It is vital for this process to continue and that it does so in an efficient manner and in the best way for the elected government.

Protests under way

Today marks almost ten days of peaceful protests in the country initiated by the authorities of the 48 Cantons of Totonicapán and ancestral communities on October 2, 2023, as a result of the persistent attacks against democracy in Guatemala.

These peaceful protest efforts have received support from human rights activists, students, businesses, workers, and religious leaders, including Cardinal Alvaro Leonel Ramazzini.

These peaceful demonstrations are in response to the recent raid on the Supreme Electoral Tribunal, in which the Public Prosecutors' Office and its Special Prosecutor's Office against Impunity seized electoral records -specifically minutes 4 and 8- on the morning of September 29, 2023, pursuant to an alleged order issued by a criminal law judge. To quote Cardinal Ramazzini, who participated in the peaceful protests on October 6, "what is legal is not always legitimate, especially when the stability of the country is at stake." We must also point out the dubious legality of this action, in either a constitutional context or in the framework of an electoral process.

We would like to draw the attention of this Permanent Council to the fact that we hope that the visit of these Missions of the Organization of American States will provide sufficient guarantees and will also serve in these cases as an instrument for denouncing actions such as those carried out by the Public Prosecutors' Office.

The confiscation of the electoral records of the Supreme Electoral Tribunal was condemned by national civil society groups and the international community. Specifically, the office of the Secretary General of the Organization of American States has been asked, through a formal letter drafted by the authorities of 48 Cantons, to "invoke the Inter-American Democratic Charter by those who oppose the current threats against Guatemala's democratic foundations as a result of the undue criminalization by the Public Ministry and its Special Prosecutor's Office Against Impunity of the elected President, the Supreme Electoral Tribunal, and all those who participated in the electoral process and who protected and guaranteed the legality of the elections."

The OAS has been firm in its condemnation of these actions, which are unjustified and devoid of any political or legal merit. The OAS issued a communiqué stating that the raid on the Supreme Electoral Tribunal was carried out without just cause, violating the independence and autonomy of the electoral body. For the OAS/EOM, this permanent harassment by the Public Prosecutors’ Office without basis or clear motive constitutes a political persecution reminiscent of that carried out by authoritarian regimes. An attack of this nature "is unprecedented in the electoral observations of recent decades and constitutes a shameful example for the Hemisphere." The Public Prosecutors' Office has chosen to ignore the numerous appeals of the international community and its behavior violates democratic norms. The will of the people has been declared and must be respected.

We also trust that calls by their organizers for the protests to be peaceful, for respect for the rules, for respect for the safety of citizens, and for reinforcement of a peaceful transition will be heard for the sake of democratic stability and to comply with the will of the people expressed at the polls. As in any protest, criminal and opportunistic agents seek or may seek to interfere with the political demonstrations taking place in the country which so far have not been marred by alarming acts of violence against individuals or entities. Demonstrations must remain peaceful, and we must all reject violence, be it repressive or practiced by hostile groups and infiltrators.

It is important to note that peaceful demonstrators can in no way be confused with criminal elements. In a communication I had with the leader of 48 Cantones, he pointed out to me that "we show our faces, we show our identity and the objectives we have and that we are trying to achieve." This can never be criminalized, nor can it be confused with people who seek to act anonymously and, as a result, generate destabilization for the very people who are seeking the best conditions for democracy in the country.

"We must continue demonstrating, we must continue exercising our sacred right to demonstrate -they point out- and identify the groups and request the National Civil Police to proceed to bring them to order, not allowing the coup perpetrators to tarnish the struggle for the defense of democracy; no one can tarnish this process."

At the request of the Government of Guatemala, on October 6, 2023, the OAS Mission was deployed to Guatemala and, on October 8, 2023, was asked to mediate and dialogue with the social actors involved in the protests taking place in the country, as well as to meet with government officials. The members of the Mission are the former Minister of Defense of Uruguay, former senator, and former congressman Luis Rosadilla; the OAS Secretary for Access to Rights and Equity, Maricarmen Plata; and the OAS representative in Guatemala, Diego Paz.

Our mandate, as stated, is to achieve an order of peace and justice, promote solidarity, strengthen cooperation, and defend the sovereignty, territorial integrity, and independence of countries; this is precisely our mandate and that is the mandate of the Mission deployed.

You know Maricarmen and, obviously, you also know Luis Rosadilla. He took part in negotiations carried out by the Organization of American States, jointly with the Vatican and the Red Cross, when 320 political prisoners were released in Nicaragua. Luis Rosadilla spent more than ten years as a political prisoner. He lives in Santa Catalina, in Montevideo, a humble neighborhood and a very unpretentious house. Luis Rosadilla can neither be bought or sold and he will not be indulgent; he will not ignore the current or structural problems that the country is experiencing. The Mission is in the most upright hands and, therefore, all those who have sought to cast a shadow of doubt on the Mission had better retract their statements.

The right to defense and due process must always be respected. We saw the resolution of the Constitutional Court issued on October 5 in response to the petition of the Supreme Electoral Tribunal that sought to determine whether a criminal judge has jurisdiction in electoral matters and more specifically whether he or she can suspend or cancel a party. The Constitutional Court noted that electoral and criminal prosecution functions are not exclusive; both are applicable depending on whether the reproachable acts involve an electoral administrative breach or a crime. This coexistence of competencies has its complexities derived from constitutional regulations, but does not mean that criminal prosecution can be exercised as a means of obstruction of the electoral process. Nor does electoral competence preclude the exercise of criminal action.

In any case, the criminalization of a political party, treating a political party as a subject of criminal law, is not acceptable. We said it in the previous presentation of the report, and we reiterate it today. Political parties are not subject to criminal law and their disqualification can only go through the procedures established in the framework of the electoral law and in that framework they can only be disqualified when they fail to comply with those matters in electoral terms. Competencies that may exist in criminal matters are practiced through other channels and entail another set of responsibilities.

The investigation of the Seed Movement (Movimiento Semilla) Party is very strange. In the last couple of months, we have witnessed how the party has repeatedly been investigated. How come we have not seen the same amount of diligent investigation into organized crime. We have not seen corruption paraded in front of courts. We have not seen drug traffickers or other organized crime leaders taken to jail. All the efforts of a prosecutor's office are concentrated on one political party. It is truly not admissible, tenable, or acceptable in any way.

The Court concluded that the matter of suspension and cancellation of a political party falls within the jurisdiction of the Courts only when it has been accused of offenses provided for in the law against organized crime. Decreeing it as a precautionary measure or provisional suspension of registration of the legal personality of political organizations falls under the strict responsibility of the person requesting it and the jurisdictional body that decrees it.

Likewise, we take note of the decision of the Constitutional Court of October 7, 2023, which stipulates that "in order to guarantee the effective and timely inauguration and exercise of the offices of the officials who were elected by universal suffrage in the current election year, the authorities within the change of their functions shall perform all necessary and pertinent acts and refrain from any action or omission to the contrary, in order to guarantee the effective inauguration on January 14, 2024."

Statements such as "possibly incurred" and "which must operate on the date foreseen in the Constitution, as of the electoral results (thus far) validated by the TSE" of the Constitutional Court, have fueled the atmosphere of uncertainty looming over the electoral process that was already conclusively defined by the electorate last June 25, 2023 and August 20, 2023. The popular vote prevailed, paving the way for Bernardo Arévalo and Karin Herrera to become the next President and Vice President of the Republic of Guatemala, collectively, on January 14, 2024.

President-elect Bernardo Arévalo and Vice President-elect Karin Herrera are not only members of the Seed Movement Party. They are now also focal points of the national unity of the State of Guatemala having been duly elected and they will be responsible for implementing its governance strategy with the objective of continuing to improve the socio-economic life of Guatemala.

Conclusion

On August 20, 2023, President-elect Bernardo Arévalo and Vice President-elect Karin Herrera obtained the equivalent of 60.91% of the total valid votes counted and certified by the Supreme Electoral Tribunal. The assessment of the OAS Special Mission at this time is that the Executive headed by President Giammattei is fully committed to the transition process and is taking all necessary steps to implement the mechanisms to facilitate it.

With respect to President-elect Bernardo Arévalo, he has worked and done his best to ensure that this process is also peaceful and achieves the result it should, ensuring and affirming the Constitution of Guatemala and ensuring and affirming the will of the people expressed at the ballot box.

However, obstacles remain, particularly on the part of the Public Prosecutors’ Office, which continues to take actions that appear to be designed to overturn the will of the electorate and erode the democratic process through its constant attack on the Supreme Electoral Tribunal and the Seed Movement Party. These are still very unfortunate facts.

The actions of the Public Prosecutors’ Office to confiscate electoral material are neither legally nor politically acceptable. This Organization does not recognize the Public Prosecutors’ Office as an electoral authority; it cannot and should not alter the constitutional conditions of the electoral process; it is not the chain of custody of the electoral material; its actions are improper, unwarranted, and unjustified. It cannot count the votes; it cannot change what the minutes say with amendments or without amendments. The investigation cannot and should not be done in this way, absolutely damaging the electoral process, because by damaging the electoral process it is damaging the sovereignty of the will of the people expressed at the ballot box. The members of the Public Prosecutors’ Office and the interested parties encouraging it should respect the will of the people expressed in the ballot box on June 25, 2023 and August 20, 2023.

At the same time, it is also very important in this context that all those who are committed to democracy in Guatemala and to the fairness and integrity of this electoral process, all political actors, from the Executive Branch to each individual actor, make it clear, very clear, that they distance themselves from unconstitutional actions, from the illegal actions of the Public Prosecutors' Office. It is untenable to claim that these actions are ambiguous or raise any doubts. All doubts, all ambiguities must be completely resolved with clear pronouncements on the matter.

Thank you, Mr. Chair.