The Fight against Corruption: Sowing Now to Harvest Later

The new attorney general discusses Nicaragua’s justice system and assesses the fight against corruption he pioneered as special attorney three years ago, which helped raise Nicaragua’s expectations and hope.

Alberto Novoa

Let’s briefly outline why we are where we are today and why, as soon as possible, we have to come up with our own regulatory and juridical framework that will enable us to improve our social coexistence. If we talk about law in Nicaragua, we’re talking about the aspirations of an enormous majority of poor people who have no access to the justice system. It’s not just that they don’t have access today; they’ve never had it. The Spanish conquest and the colonial era destroyed our ancestors’ system of justice and we never again achieved a model that was as inclusive as it was before that cultural collision. Today’s Nicaragua includes at least three Nicaraguas (the Pacific, brought into post-modernity without ever going through modernity; the central region, still with its semi-feudal structures; and the Caribbean Coast, with almost tribal structures). Only in the Caribbean region can we observe the persistence of a community justice system applied by the inhabitants themselves that contains references to and features of that original model.

We imported institutions, laws and ideas
not based on our own social contradictions

The law we culturally inherited from Europe is an exclusionary one. But even within this legacy, we run up against a bipolarity of cultural traditions, and history has shown us that we inherited more from Pedrarias Dávila than from Friar Bartolomé de las Casas, that our culture was more influenced by the violence of Rodrigo de Contreras than the spirit of Friar Antonio Valdivieso. Thus, throughout our history we have been trying to resolve—or have been resolving—our problems outside the law, even outside of canonical law and the Laws of the Indies.

When the province of Nicaragua gained its independence from Spain in 1821, it lacked a national identity. We were included in Central America, in the territory of the Captaincy General of Guatemala, as the result of the geographical and administrative division made by the Spanish crown without taking our identities into account. We weren’t born as nations; Nicaragua wasn’t born as a nation expressing the evolution of our own social contradictions. We were born administratively and then had to import political and administrative institutions, laws and norms from Europe. These regulated the life of Europeans, but were foreign to our society, because we lacked any accumulated experience and hadn’t learned to recognize or resolve our own contradictions. We not only imported institutions, laws and ideas, we also implemented them without assessing them, without reflecting on whether or not they were suitable to Nicaraguan society at that particular moment. As Andrés Pérez Baltodano demonstrates in his recent book, Del Estado Conquistador al Estado Nación, our illustrious enlightened ones “acted mimetically.” They copied.

This tendency has generated a regulatory system in our country that is a carbon copy of those in European countries such as Spain, France and Italy. Any law student who reads the footnotes of any page of our law codes discover that the norms contained there are carbon copies of the Spanish, French and Italian codes and their expressions in the Americas, such as the Chilean and Argentine codes. There’s nothing specifically native; our norms aren’t the result of a critical observation of our social contradictions, nor do they reflect our own proposals for resolving them. They are the result of the mimetic extrapolation of norms created by legislators from other countries who did critically observe their own societies and considered those norms to be the right way to resolve their contradictions. We’ve never “tropicalized” the law, never “Nicaraguanized” it. All we’ve done is apply and interpret it in a way that parroted others. And that, naturally, has only generated new contradictions.

Our society has never had a
legal footing on which to establish itself

After 1821, we sought elements that would forge a new identity, but we didn’t find them in justice or in law; we assumed other values, above all military ones, in the construction of our national consciousness. Law was never considered a value.

The United Provinces of Central America produced their first Constitution in 1824, and the Province of Nicaragua produced its first individual one in 1826. By the time Central America split up in 1838, Nicaragua was already on its second Constitution. We’ve had 13 in all in our independent history—including the 1911 one, which was drawn up but never promulgated—to which 160 reforms have been made. All of these Constitutions and constitutional reforms have been little more than a frame of reference for the power groups. All were drawn up to resolve the immediate problems facing the power groups dominating the political stage at the particular moment. This is one indicator that our society has never had a legal footing on which to establish itself, that the ruling classes have always been molding reality, seeking to infuse it with a formality adjusted to their own narrow interests.

Logically, this way of proceeding has bequeathed us the only thing possible: great distrust of something that is utterly useless and great confidence in something that has been known to work; in other words, a great distrust of laws, of law, and great confidence in arms. This confidence is why we’ve always tried to resolve our contradictions through the barrel of a gun, through palace coups, barracks rebellions, uprisings, wars, right up to the armed insurrection of 1979.

The minority power groups use the law
to oppress the powerless majorities

It is clear that norms and laws neither create social contradictions nor can they resolve them. Social contradictions require objective, material solutions. And the law is only a means for channeling contradictions in order to achieve peaceful coexistence. But Nicaragua has always kept law in the train’s caboose, the house’s basement, the out-of-sight place you toss everything that doesn’t work but that you can’t throw away completely. The law never vindicated the most dispossessed classes; first it represented only the peninsular Spanish, then only those of Spanish descent born on the Central American isthmus, and since then only the predominant power groups during each particular period.

The law we now have circulates in the country like national currency, even though it wasn’t coined nationally. Those with power interpret it every day, so that it serves their minority power groups to oppress the powerless majorities. All of this explains the great distrust of the law by those with no power, because the only relationship the poor have with it is when they are subjugated, judged and jailed by it. When it comes to demanding their rights, they have absolutely no access to the legal system.

We have to resolve our contradictions
within the framework of the law

Only very recently, during the present stage of our history, has a new vision, an understanding of how law can serve us, appeared in the national consciousness. Why now? Perhaps because we’re the only Latin American country that has been all the way around the racetrack and ended up back at the starting point. We’ve experienced all the systems: we’ve had wars, a revolution and are now administering a democracy, no matter how imperfectly. What’s left to us? On some level, we’ve reflected as a society and are now saying we can’t take up arms again, we have to go forward, not because we want to, but because it’s a categorical imperative for our survival. And the only framework within which we can discover the possibility of advancing is that of the law. We have no other choice left. Now we understand that we can’t resolve our contradictions the same old way as always, the way we did 25 years ago. Not any more. We have to resolve them within the legal framework.

And now, precisely when this framework, our existing judicial system, has this new weight, this responsibility thrust on its shoulders, we can see that it was neither morally nor institutionally prepared to assume it. We see that it’s foundering! We’re all starting to look for ways to go forward with this judicial system, but as it doesn’t have its own identity and has never sought one (because up until now it hasn’t needed one, as law was always an object and never a subject), leaks have began to appear everywhere. At the same time the political/party and economic contaminators of the judicial system, which have no vision of the future, have borne down on it, seeing it as a game preserve in which to defend their power quotas or bag new ones. And the judicial system is very vulnerable to such contamination by those power groups that want to manipulate it to continue exercising their unfettered power. It’s a myopic, crude vision. They don’t realize that Nicaragua’s only possibility of reaching a peaceful and respectful coexistence is with an independent, autonomous, impartial judicial system with its own identity and scope. A judiciary based on bias, be it economic, religious or party-based, is anything but a branch of state power, but it must be a branch of power, of independent power. The essence and at the same time apparent incongruence of Nicaragua’s judiciary is precisely that it’s a state branch without the power of social representation, and without that it cannot provide any constraints on or equilibrium among the different groups of real power in our society.

More foreign intervention
and a fictional state of law

A very serious problem at this strategic moment of our history is the intervention of foreign powers in our judicial system. Having inherited and mimetically copied the European models, it is now the United States that is putting the most pressure on our system, trying to impose its own model on us. It is in this context that USAID has just announced that it’s providing millions of dollars so that the Judicial Career Law will finally be formulated. We’ve already seen how it provided millions of dollars for the formulation of the Penal Procedures Code, drafted by experts from the University of Florida and basically copied from the Florida Code with the idea that what’s good for Floridians must also be good for Nicaraguans, which isn’t actually true. No matter how good the intentions, these codes and laws being financed from outside lack an essential component: a critical vision of the contradictions of Nicaraguan society. If we carry on like this, we’re going to create an increasingly atrophied regulatory scheme that will generate new contradictions in our already identityless judicial system.

Nicaragua has approximately 16,000 laws; many of them are obsolete, or are laws that we aren’t even aware exist. In this tangle of norms, we don’t know which are useful, which aren’t or what they might be useful for. Yet despite this, we keep creating more and more of them. But who knows about them? Only 900 copies of the official government’s La Gaceta—in which the country’s laws are officially published—are printed for the whole country. Of these, 700 copies are sent out to public offices, 100 are placed in the archives and only 100 are put on sale. Yet the powers that be insist that nobody can plead ignorance of the law, and having said that, they then insist that they can apply the law even if you don’t know it. Yet they only put 100 copies of the official government publication of new legislation on sale. And who buys them? Doesn’t it seem like we’re living in an absurdly fictitious rule of law?

How long will it take us
to come up with our own identity?

We’re in a transitional stage—and I for one hope this transition reaches an end one day, because everything is always being justified as transitional—and the question is: what price will Nicaraguan society have to pay for its history, for the history of its judicial system and the lack of vision displayed by those who have run it? It will be a very high price. I think there’s still a long way to go before we look for and find our own identity and genuinely become a nation state with laws that are really adapted to our own social reality.

I once read that jurists are those who observe and analyze reality then adopt and formulate norms that help resolve the contradictions contained in that reality. You have to differentiate between jurists and decipherers, those who learn each article by rote and can recite them like litanies without understanding whether or not they resolve particular social problems. Nicaragua has many lawyers, and in my opinion most are only decipherers. We have very few jurists who critically observe reality, reflect on it and can encapsulate it in laws with a social scope.

Given this situation, how long will it take us to come up with our own identity? Nicaragua’s contradictions are so profound that it’s difficult if not impossible to calculate how long it will take. What I can discern is that the transition will go much faster if the citizenry denounces and criticizes, and if civil society makes demands of the judicial branch, employing what I’ve termed “juridical guerrilla tactics.”

There was no strategy for developing
The fight against corruption

And this is the point at which to outline the fight against corruption so far and what it has left us. In 2001 my services were contracted as a lawyer to act as special prosecuting attorney on two cases: the Channel 6 case, which involved former President Alemán, and the SUV scam, involving former tax office head Byron Jerez. I wasn’t a state official, a member of the Attorney General’s Office. In this sense, I wasn’t party to the thoughts of the other officials who started or designed the fight against corruption.

During the Athens Olympics, I watched Félix Sánchez of the Dominican Republic win the 400-meter hurdle. And watching him, my thoughts went back to the start of the fight against corruption in 2001. We all have our limits, we all know how far we can or want to go. Each individual says, I’m going to run 100 meters... or 200... or 400. I was ready to go the whole distance. But over time I’ve reflected on the matter and I believe that when judge Gertrudis Arias announced that emblematic sentence in the Channel 6 case, and when they saw what I was doing, some said, “Those people are acting independently, and that’s dangerous.” The powers that be don’t like independence, they like to be in control. I don’t know what the goals of the power group that hired me were or if they even had any targets regarding how far I should take things. All I can say is what I said when they cancelled my services in 2002: there was no strategy for developing the fight against corruption. What was done was done “al bolsazo” as we say in Nicaraguan Spanish: on the run, each with his or her own idea and goals. Everyone was mentally calculating their her own idea of how far to take this thing.

From special attorney to attorney general:
Fighting corruption with ethics and moral values

So now I’ve been appointed to head up the Office of Attorney General. As I make my way forward, I know I’ll come up against what Don Quixote did when he said, “Halt, Sancho, here comes the Holy Inquisition!” Quixote wasn’t stopped by windmills or millers, but he did stop for the Spanish Inquisition. I knew then and I know now that sooner or later in this job I’m going to come up against the “Holy Inquisition,” in its religious, political and above all economic forms. How can they be avoided? They can’t. The only formula is to meet them head on.

In the fight against corruption, I’ll also find myself facing the financial system. I recently told the bankers: “Don’t throw up your hands in horror now, because the financial system is one of the reasons the judicial system is so rotten. The lawyers acting for the banks arrive at the courts with big dossiers and brazenly pay off the judges to have them resolved quickly and in their favor. And that’s corruption. Who are the people affected by those dossiers, those whose properties will be foreclosed, confiscated? A few may be rich people who invested their fortune badly, but the vast majority are the excluded people who have worked hard, earned little and lost their social rights.”

The only thing that allows me to work in this post and face these obstacles is that I don’t want the job and I’m not bothered if I lose it. It’s a matter of principles. I don’t want to be rich; I’m not interested in money. Economic power is a drug, but not aspiring to it is a good antidote. The only way to fight corruption is with ethics, with moral values; there’s no other way. Legally speaking, my hands are pretty well tied by a politicized, party-oriented judicial branch through which the politicians exercise their power. Only through ethics can I make any progress. The only possibility of facing the two-headed or three-headed monster currently controlling power in Nicaragua is by arming ourselves with ethical and moral values. I haven’t come across any other way in my many years as a lawyer and now as attorney general.

Dismantling the corruption apparatus
and recovering the stolen money

One day the ambassadors of the European Union donor countries said to me, “We’ve given who knows how many millions of dollars to the anti-corruption struggle, and how many prisoners have we got?” I reminded them that we just have one. So they said, “What a lot of money for such meager results!” But I replied, “Don’t look at the results in terms of one, two or even three prisoners. One immediate, practical and very important result of this struggle has been that those who were stealing at that moment stopped and those who were thinking about stealing didn’t do it. And that’s a lot. You can’t see that result, but it’s very important. And I assure you that through the fight against corruption we’re getting to the heart of the fraud network installed in the state by the previous government and are dismantling it. The bureaucratic apparatus that was organized to facilitate corruption, embezzlement, has been dismantled. I’m not saying destroyed, but it has been dismantled. And that’s a very important achievement.”

Journalists sometimes ask me, “But where’s all the money that was stolen? When will we get it back?” It’s very hard to know where all that money is. We’ve lost track of it and even the international organizations that have helped us have found it impossible to pick up its trail. That network had created over 35 “paper” companies in Panama, in Grand Cayman, even one in the Philippines. But I know that the issue of recovering the stolen money is very important for the population.

How much can we currently expect to get back? There’s a case in the United States against the Alemán family over seven savings certificates in the state of Florida that are suspected of being the result of money laundering. One of the certificates has been returned to one of Alemán’s daughters but the others are frozen or have been confiscated. If the US government wants to give that money back to Nicaragua, then we’ll recover it. We could recover another US$3 million from a condominium that Byron Jerez bought in Miami, minus US$300,000 that has to be paid in legal costs and the commission, and we also have another US$700,000 from a helicopter that Alemán bought. In addition, around US$2 million is frozen in Panama, which is still tied up in the case being proved in court and will only be returned to us when there’s a definitive sentence against Alemán. That all adds up to around US$6 million, which is all we know about that could be returned to the country from among everything stolen.

The most important intangible results

Recovering all of the money stolen would be a tangible result of the fight against corruption. But I believe that there are intangible results of even greater value. The most important in my opinion—which is attributable not only to the current government, but to the whole of Nicaraguan society—is the new awareness we’ve acquired through this effort. The people, society, have shaken the law awake. During that first stage we experienced, we in fact brought about a genuine legal insurrection. Everyone was following the process, understanding for the first time, entranced by the new task; everybody wanted progress to be made. And that’s a great achievement. What was being debated at the time wasn’t whether two people would pay, or three or a million, but rather ethical values. And the fight against corruption is an ethical, a moral fight.

I believe that the people of Nicaragua have already reaped great benefits from this effort. People clearly identify their leaders and know which ones act ethically and which ones don’t, who has a right to talk and who doesn’t. That’s the biggest success of the fight against corruption: values, new values have been awakened. And this is very important in a war being waged between those who say that stealing is normal, is good, and those of us who say that it isn’t good, that it’s a crime. It’s a cultural war, because the popular philosophy has always said, “My God! You’ve got power and you’re not stealing anything? You’re a jerk, a fool!” But we’ve made a great effort to attack these ideas so deeply rooted in our culture, and now many people say, “Just a minute! If he’s stealing from the state then he’s stealing from me!” Because up to now everyone believed that if you were stealing from the state you weren’t stealing from anyone. The state as booty is very deeply ingrained in the popular mentality, but that’s starting to change in terms of both actions and awareness.

Corruption is just the most visible peak of a broader kind of social behavior, marked by the inequity of a few who have a lot and a lot who have nothing. Regardless of its meager visible and tangible results, this struggle against corruption is going to shake—is already shaking—the foundations of a state that is not yet a national state. I don’t know if we’re all aiming for the same goals in this struggle, or how many of us will reach our goals. I do know that many will be left along the way. But I’m encouraging you not to give up, to fall by the wayside, knowing that this struggle will be a long one. The successes created by these changes will have a great effect, but we will only see them in five, ten, twenty years, or even many years later, when we finally build a society with better qualities than this one, although it will always still have its contradictions. We are sowing now, to harvest later.

Alberto Novoa was named the special prosecutor in the Channel 6 embezzlement case, then dismissed by President Bolaños, who has now appointed him attorney general.

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