COVID-19 Reports on Latin America and the Caribbean: No. 70
Participants on this panel, which took place on Sept. 23, 2021, described the means and degrees to which the governments of Panama, Costa Rica, Honduras, and Nicaragua have institutionalized and protected citizens’ access to public information, including in the context of the COVID-19 pandemic. Governments have taken advantage of the health crisis to suppress access to information and intentionally disseminate misinformation to maintain social control, rig elections, and/or have relied on corruption to ensure continued governance and enrichment of those in power. Together, these four cases point to key factors supporting access to information, including laws and the integrity and efficacy of the governments and legal apparatuses that enable and enforce them, and the existence and functionality of a free press.
In Panama, the “Ley de Transparencia,” introduced as an Executive Decree (124, on May 22, 2002) to address various cases of corruption occurring in 2001, is central to protecting access to public information. The law was proposed by the Panamanian Chapter of Transparencia Internacional in collaboration with other private and public actors, and was approved by the National Assembly like any other law. It established that anyone can seek information from the government. When such requests are denied, one can use Habeas Data to petition Panama’s Supreme Court. Accompanying political institutions were created to provide the oversight necessary for just practice of this law, including the Autoridad Nacional de Transparencia (ANTAI), charged with presenting irregularities to the Court.
Yet several examples show that in Panama the existence of such laws and established legal procedures do not ensure that they are used or enforced. Laws can be created to represent government intentions that do not actually exist and legal wording is often (even intentionally) vague and open to interpretation, leaving the practice and protection of laws dependent on authorities’ willingness to abide by, utilize, and defend them. In other words, the existence of laws is important but do not ensure lawful behavior, as laws are part of an legal ecosystem that can only function with true commitment to function properly. In reality, authorities have many ways use to get around being held accountable to legal behavior.
One such strategy is to defend legal procedure while neglecting to exercise that right. For example, once a concerned party requested information on legislative expenditures because of concerns of nepotism and corruption. In spite of the fact that proper procedures were followed by all relevant authorities (including the President of the National Assembly and Autoridad Nacional de Transparencia), only some of the information was provided after significant delay. The process was compromised especially by the Supreme Court’s refusal to apply sanctions on the Assembly President for the delay, declaring that although Assembly had not, ultimately provided the information, there was no contempt of Court and therefore even though it [the Court] was entrusted with imposing sanctions against legislative deputies – it would not due so. Thus, the court defended its right to sanction the Assembly, but did not exercise that right, resulting in impunity.
Another method used in Panama to weaken the law was the introduction of a legal reform that conformed with the law but altered its application. On Aug. 4, 2021, the President issued Via Resolution 71 restricting access to acts of cabinet for a period of ten years. Since the Ley de Transparencia gives appropriate authorities the right to restrict access to acts of cabinet, stating that if they choose to do so, it will be for a period of 10 years, the Resolution did not violate the law. Furthermore, although it was “legal,” the resolution contradicted President Cortizo’s agreement to the “Reto por la transparencia de 2019” when he was still a candidate, pledging to conform to ensure access to information during his term.
In the context of COVID 19, Panamanians are particularly resentful of the lack of transparency, concluding that information is the pandemic-induced “state of emergency” is used to withhold information and they are being manipulated to maintain social order. Rejection of requests for information on transportation and mining (two critical economic sectors) as well as vaccine purchases and distributions are examples. Furthermore, this denial of information occurs alongside obvious use of bribery for people to acquire vaccines before others who have been identified as priority groups.
Costa Rica is one of three countries in the Americas without a Law of Access to information, This has, however, been tempered by the fact that Costa Rica has the Sala Constitucional (https://salaconstitucional.poder-judicial.go.cr/), which exists to defend reasonable requests for information while also preventing the distribution of unauthorized/confidential information. Citizen activists have drawn heavily on the Sala Constitucional (increasing its power) to solicit information about public expenditures, granting of licenses, patents, contracts, debt, education, political party finances, and services to address the pandemic. In fielding and arbitrating such requests, the Sala has helped define what constitutes information of public interest and when denial of information is justified. Via the Sala Constitucional, jurisprudence exists in the absence of law. Furthermore, in response to appeals to the Sala Constitucional, an executive decree was issued on April 27, 2017 guaranteeing access to public information to be a basic human right. Thus, in Costa Rica, Judicial – not just Executive or Legislative –power acts as a mechanism to defend and arbitrate access to information. The organization Costa Rica Integra (https://costaricaintegra.org/nuestra-organizacion/) has been defending and monitoring the Sala Constitucional to hold it accountable.
Like Panama, Honduras demonstrates that the existence of law alone does not ensure access to information or prevent corruption. A few years ago, a law was introduced following the first Marcha de las Antorchas (inspired by Honduras’ extreme poverty and social inequality coupled with corrupt party-funding ensuring the election of Juan Orlando Hernandez to his first term as Honduran president in 2013 – now in his second administration) and the arrival of an OAS-supported Mission to support the Fight against corruption and Impunity in Honduras (MACCIH). Nonetheless, despite the law’s existence, requests for public information are often stymied or denied.
At the same time, in some cases it is possible, via persistent efforts drawing on existing (albeit not always the most conventional or direct) channels, to acquire information. An example of this is found in the Asociación para una Sociedad Justa’s (https://www.asjhonduras.com) (the national chapter of International Transparency) success gathering information about direct, unregulated government purchases made in the context of COVID. On Feb. 10, 2020, via executive Decree 05, Honduras, declared that because the country was in a state of emergency, some government institutions had the authority to make direct (unregulated) purchases to address the pandemic. Through its tenacity, the Asociación acquired (and made available on its website) information revealing hugely expensive, overvalued direct purchases of mobile hospitals, with no oversight by elected officials or the people. Such transactions rested on deals made “underneath the table” involving not only the public but also the private sector, as the latter became the main provider of services to the state. Without any significant research or vetting of such hospital providers, Honduran state turned over millions of dollars to a US company that turned out to be a sham, and to date, Honduras only has 2 out of 7 purchased mobile hospitals in operation. Furthermore, the medical equipment included in the purchase was used, out of date, and would have been insufficient even if it were state-of-the-art. This case indicates that some of the time it is possible for civil society to acquire documentation and extract important facts from it. In this case, an additional factor aiding access to this information was collaboration with the press – including international news channels – to make the information public. Thus, a free press is critical to the acquisition and dissemination of information. However, despite this success, the Asociación has failed to acquire information in other cases. For example, they have not been able to find out IF the Honduran state has purchased vaccines from Pfizer, and if so, how much they cost.
The situation in Nicaragua demonstrates dramatic differences from the other three countries, both because there is no national chapter of Transparency International and because Nicaragua is in the midst of an acute political crisis. Nicaragua’s military-backed authoritarian regime has intentionally hampered access to information – especially that produced by the opposition — via censorship. Only two weeks after this presentation, on Nov. 7, 2021 incumbent Daniel Ortega secured authorization for his fourth consecutive (and fifth overall) presidential term, in what critics worldwide have called a sham “election.”
Only months before the recent election, Cristiana Chamorro, the journalist daughter of Ex-President Violeta B. de Chamorro – who unexpectedly defeated Daniel Ortega after his first presidential term (1985-1990) to govern Nicaragua between 1990 and 1997, had her home raided and was arrested on money laundering charges. The murder of Violeta’s late husband and Cristiana’s father Pedro (also a journalist) had set off the Sandinista Revolution, and Violeta Chamorro and Ortega were both members of the post-revolutionary governing junta that led into Ortega’s first presidential term. By the time she was elected, however, Chamorro’s sympathies lay with the opposition to Ortega’s increasingly radical and autocratic Sandinista government, which had taken control of television and radio stations and censored newspapers. As president, Chamorro ended the civil war that had raged for the past 10 years between Sandinistas and US-backed Contras, ended the military draft, downsized the military, and carried out a weapon-buying campaign to reduce violence significantly. This has been her enduring legacy, and her work continues via the Fundación Violeta de Chamorro for reconciliation and democracy, directed by Cristiana. In addition to being a journalist and directing the Fundación, Cristiana Chamorro was one of many candidates running against Ortega for the presidency.
When COVID took the Western Hemisphere by surprise in March 2020, Rosario Murillo – in her capacity as Vice President and head of the cabinet – launched a campaign under the slogan “Love in the Time of COVID,” calling on Nicaraguans to ignore WHO recommendations such as physical distancing and calling on regime sympathizers – including a significant number of Health Workers – to march in the streets. The government intentionally disseminated false information, attributing deaths to non-COVID causes, dismissing and even maligning vaccinations as causes of health problems, and threatening imprisonment to anyone who spoke out in dissent including doctors, journalists, peasant, student, and feminist organizers. Repression of activists has been prevalent since 2018, when opposition to President Ortega exploded into the streets. Leading up to recent elections the government has fortified control over all powers of state and introduced new penal laws facilitating accusation and punishment of anyone identified as an enemy of the state. Such laws include the Ley de Ciber-Delitos or Ley Mordaza al Periodismo because of its focus on journalists, and a law increasing the period that a person can be detained without proven cause for up to 90 days and allowing the monitoring of foreigners with the goal of criminalizing NGOs. Such laws have put hundreds of people in jail, including six presidential candidates, and have led to assassinations, deaths, the destruction of media headquarters; and thousands of Nicaraguans – including journalists – fleeing the country seeking asylum elsewhere. Thus currently, Nicaragua has none of the avenues to access information existing in the other three countries.
In conclusion, together, these four cases show that various factors can make it possible for citizens and activists to secure public information. By identifying such factors, citizens can build on them to create institutions to advocate for and secure pathways to information and organize effective action to hold the government accountable. This kind of knowledge and action is essential because people have a natural tendency to become discouraged and complacent. It is easy to become afraid of pushing for reform out of the fear of losing limited rights that already exist and ending up with an even worse situation. Historical experience tends to lead people to stop expecting or demanding the full range of rights to which they are entitled as human beings and citizens, and instead, to act on the assumption they need to request and even beg for the services they need – including accessing public information which should be freely available. In order to claim rights that are already guaranteed by law, it is necessary to replace “transparencia rogada” with transparencia activa”, which accepts that all information is available without the need to request it. Today’s methods and technology of information organization, storage, and preservation, alleviate any hurdles on this front. In order to preserve the ability to access public information, citizens need to truly embrace the idea of their entitlement to this right, to identify and know who has the information, to ask for it firmly and without apology, and to effectively intervene when requests are denied or delayed. Civil social organizations, activists and journalists must remain vigilant, leverage opportunities when they arise, and defend their achievements to ensure continued public access to information.
Monitoring the Legal Response to COVID-19 in Latin America and the Caribbean 