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Pardon me? Presidential clemency and impunity for grand corruption

Recent events in Brazil and Peru have shone a spotlight on the issue of presidential pardons in cases of grand corruption.

On 24 December 2017, President Kuczynski of Peru pardoned the country’s former ruler Alberto Fujimori, 79, who had served eight years of a 25-year prison sentence for charges of corruption and human rights violations committed during his ten-year rule in the 1990s.

The move is widely considered to be linked to Kuczynski’s own efforts to avoid impeachment over his connections to Odebrecht, a Brazilian corporate giant at the heart of the Lava Jato corruption scandal that has continued to reverberate across Latin America and beyond, since first breaking in 2015.

Days earlier, politicians loyal to Fujimori had saved Kuczynski from being impeached.

Meanwhile in Brazil, President Michael Temer issued a decree on December 21 that expanded the scope of the traditional Christmas pardon for non-violent prisoners who have served part of their sentence. If future decrees follow the same rules, criminals convicted in the Lava Jato bribery trials could be pardoned as early as next year.

Previous presidential clemency decrees in Brazil have also benefited corrupt individuals. Many of those convicted for their involvement in the 2005 Mensalão vote-buying scandal have benefitted from pardons since 2012.

Pardons are not and cannot become an instrument of impunity.

Brazil’s justice ministry said that this year’s decree was a traditional humanitarian gesture and not an attempt to limit anti-corruption efforts. But prosecutors in the Lava Jato case disagreed, and Brazil’s Supreme Court stepped in to suspend the controversial parts of the decree.

José Ugaz, the former chair of Transparency International who prosecuted Fujimori in Peru, recently wrote in an op-ed that pardons should only be used in cases of grand corruption under extraordinary circumstances, saying “exceptional forgiveness cannot be used to encourage grand corruption and impunity.”

Justice Cármen Lúcia Antunes Rocha, the head of Brazil’s Supreme Court made a similar statement as she temporarily blocked parts of Temer’s decree, “Pardons are not and cannot become an instrument of impunity.”

Transparency International agrees. Governments must not allow impunity to be consolidated through judicial clemency.

So what are the best practices that legislators can use to ensure that pardons are not abused for political purposes, either to take the teeth out of anti-corruption prosecutions, or simply let the corrupt off the hook for their crimes?

In November 2017, the Transparency International Research Helpdesk looked into the issue of Judicial Clemency and Corruption.

While recognising that pardons are an important part of many countries’ legal systems and can provide a check on judicial power or correct systemic issues in the justice system, our research found that they may be open to abuse.

A number of countries have introduced reforms and restrictions on pardons in order to limit the risk of corruption. Some aim to increase the number of actors that participate in clemency decisions; others aim to limit the power to issue pardons; while some reforms aim to add transparency and accountability to existing systems.

Examples of good practice include:

Clemency boards. Some countries, and some states in the USA, employ clemency boards to provide additional consultation or approval of clemency decisions. If used, these should be independent from the government, and should have enough technical and resource capacity to be able to undertake their task properly.

Multi-branch reviews. Sharing information – and accountability – across parliament, the judiciary and the executive branch can reduce the scope for abuses and unpopular decisions.
Transparency. Simply publishing official justifications for clemency decisions can increase accountability.

Limits. Powers to grant pardons can be limited when other accountability measures don’t apply. Kenya, for example, prohibits the issuing of pardons and clemency during officials’ final days in office, or if they cannot stand for re-election. Liberia, Tonga and Malawi explicitly prohibit pardons for charges such as corruption, impeachment or abuse of office.

Citizen participation. This can be incorporated into clemency processes to provide more accountability, but also presents a challenge: how to avoid pardons from becoming an electoral tool in which they are promised in exchange for votes? One practice, adopted by the US state of Utah, establishes that any pardon must go through a three-stage process: first it is published, then the state congress is informed, then public hearings are held to outline the justifications for granting the pardon.

In February, Brazil’s Supreme Court will decide whether to permanently block Temer’s decree.

Add your voice to our message to the court: Judicial pardons must not grant impunity to the corrupt!

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