Lawfare Comes to Ecuador

September 19, 2018

Harrison Karlewicz

As the fortunes of South America’s “pink tide” have turned and right-wing movements have recaptured power, conservative judiciaries and legislatures, egged on by elite-controlled media cartels, have engaged in dubious judicial procedures against various left-wing figures. In 2015, Argentina elected a right-wing neoliberal president, Mauricio Macri, and former left-leaning president Cristina Kirchner was charged with treason and other crimes. In Brazil, the Senate impeached sitting president Dilma Rousseff ? though her alleged crimes were dismissed by federal prosecutors ? and replaced her with the conservative Michel Temer. More recently, Lula, who polls suggest would easily win reelection, has been convicted of corruption and jailed, despite the absence of material evidence backing the charges against him. This decade has effectively become one of politico-judicial persecution ? lawfare ? against pink tide political figures, as right-wing movements try to ensure that their left-wing rivals won’t return to power.

Ecuador’s former president Rafael Correa appears to be the latest victim of lawfare against left-wing politicians. On July 3, 2018, a court in Ecuador ordered Correa’s arrest and extradition following his failure to serve a subpoena to appear in court. Judge Daniella Camacho of the National Court of Justice alerted Interpol to detain Correa if he tries to leave Belgium, where now resides with his Belgian wife. His offer to depose testimony at the Ecuadorian diplomatic mission in Brussels was rejected.

Originally subpoenaed to appear in court in mid-June, Correa was included in an investigation concerning the attempted kidnapping of lawmaker Fernando Balda in 2012. A former member of Correa’s Alianza PAIS party, and Correa’s supporter in his 2006 presidential campaign, Balda quickly became a political adversary of Correa after criticizing him over what Balda claims was “arbitrary and exclusionary management” of Alianza PAIS’ national board, as well as later accusing Correa of wiretapping his political adversaries and seeking campaign financing from Colombia’s FARC insurgent guerrilla force. By 2009, Balda had left Alianza PAIS and joined the Patriotic Society Party ? led by former army colonel and ex-president Lucio Gutiérrez, a leading figure in the 2000 Ecuadorian coup who oversaw neoliberal reforms as president from 2003 to 2005 until he was removed by Congress for the alleged abandonment of his constitutional duties.

Balda fled to Bogotá, Colombia in 2009 only to return briefly in 2010 (some have claimed he is responsible for the attempted coup against Correa in September of that year), and remained in Colombia until after the attempted kidnapping. At the time, Balda was facing charges for libel against President Correa. His extradition was being processed, and he would later be brought back to Ecuador and sentenced to a year in jail for threatening national security. Balda has since been released.

All this follows the presidential election victory of Correa’s former vice president, Lenín Moreno. Although his presidential candidacy received decisive support from Correa, the new president has dramatically distanced himself from Correa and worked to reverse many of Correa’s policies. Shortly after his election, he suspended the duties of his vice president ? Jorge Glas, a Correa ally ? and Glas was subsequently sentenced to a six-year sentence for alleged corruption in connection with the Odebrecht scandal. Moreno followed this with a push for a referendum on seven questions over term limits, the barring of officials convicted of corruption from office, the nature of the Council of Citizen Participation and Social Control (CPCCS, by its Spanish acronym), and more. The referendum was put to a vote, despite the absence of a response from the Constitutional Court ? which many have claimed was unconstitutional. Moreno prevailed on all seven questions, with more than 60 percent “Yes” votes. After this victory, Moreno moved to have new members appointed to the CPCCS for a transition period. This Transition Council is responsible for interim appointments of the attorney general and members of the Judicial Council, and later removed many Judicial Council members and then voted to remove all nine judges of the nation’s Constitutional Court. The Inter-American Commission on Human Rights opposed the referendum question on the CPCCS and the appointment of new members to the body, arguing that it jeopardized the principles of separation of powers and judicial independence.


After the National Assembly rejected a request to prosecute Correa on June 18, 2018, the National Court of Justice included Correa in the investigation concerning Balda’s attempted kidnapping, with newly appointed attorney general Paul Perez claiming new evidence had emerged in the case. The National Assembly returned the decision to Judge Camacho on the grounds that “it is not for parliament to authorize the prosecution of an ex-president,” asserting that the provision of the Ecuadorian Constitution requiring authorization from two-thirds of the National Assembly for “the criminal impeachment of the President…when the competent authority so requests it on substantive grounds” does not apply to Correa’s case. While there is no clear legal consensus as to whether the National Assembly must give approval for a former president to be criminally prosecuted for actions committed during a presidential term, according to high-level and former high-level Ecuadorian officials the precedent has been for the Court to request the Assembly’s go-ahead, as in the cases against former presidents Jamil Mahuad and Abdalá Bucaram. Correa is being investigated for actions he took in his official capacity as president, implying that the National Assembly should approve such prosecutions ? rather than return them to the court unresolved and “enabling the trial to happen,” as Correa’s former foreign minister Guillaume Long has described it.

The evidence linking Correa to the attempted kidnapping of Balda is shaky. Much of it relies on the testimony of a retired National Police sergeant, Luis Raúl Chicaiza Fuentes, and on letters that Fuentes supposedly sent to president Correa in 2012. Chicaiza claims that Correa called him several times using the alias “Carlitos,” saying he was giving Chicaiza and other alleged plotters “political, economic and institutional support” for their operation in Colombia. Strangely enough, Chicaiza also admits he never heard “Carlitos” mention Balda, and is unable to identify the call’s origin or what phone received it, due to the use of disposable phones for intelligence and counterintelligence purposes (burners, essentially). The prosecutors have used this weak evidence to make wild, unsubstantiated claims, including that these conversations implicate Correa in an assassination plot against Balda ? although they have yet to formalize these charges.

The prosecution also alleges that Correa authored the kidnapping attempt through the then head of the National Intelligence Secretariat (SENAIN), Pablo Humberto Romero Quezada. Sergeant Chicaiza indicates that Pablo Romero was corresponding with Correa, updating him on intelligence concerning Operation Wilson ? the alleged SENAIN operation to return Balda to Ecuador. Chicaiza claims to have met Romero at his office routinely over the matter, as well as in Portugal. Romero’s warning to Chicaiza and Jorge Espinoza (also involved in the attempted kidnapping) to “be careful not to be taken prisoner” by Balda and his associates is taken as evidence that Romero was telling them to conduct an illegal kidnapping, although Chicaiza says this was because of fear of Balda’s network and their own possible criminality. Romero has not returned to Ecuador for trial, and is instead residing in Spain, requesting political asylum.

Overall, the prosecution’s evidence is largely unsubstantiated and relies on the testimony of a former police sergeant. Evidence of the phone calls has not been provided since there is no record of them having occurred, and no proof has been presented showing that Chicaiza’s letters ever made it to Correa. Furthermore, Romero has yet to testify, so information on his purported actions comes from Chicaiza. Others involved in the case also have not testified. Whether Correa will be forced to return to Ecuador is uncertain. Many see the trial as an attempt to neutralize him politically while his reforms are rolled back.

The Lenín Moreno administration’s recent actions seem to fit this narrative. Relations between Moreno and Correa have soured considerably as the former continues to seek to marginalize the latter and his supporters. This fits a pattern seen across Latin America, as former pink tide heads of state and left politicians face political persecution. Whether these changes in Ecuador will effectively end the progressive reforms implemented by Correa and his supporters and usher in a new era of neoliberalism remains to be seen, although recent talks with the IMF indicate such a change may be coming. This also would follow a trend, as countries like Argentina sign new agreements with the IMF. As the pink tide recedes amid right-wing lawfare throughout the continent, Ecuador may be the latest to succumb to the recent neoliberal reaction rippling through Latin America.

Note: This post was corrected on September 25, 2018 to refer to the article of the Ecuadorian constitution pertaining to criminal prosecution of former presidents, not to Article 129 as previously mentioned. A previous statement referring to President Correa’s reported “appeal” to the IACHR has also been removed, as there is no available evidence that such an appeal or petition was ever made.

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