The Washington PostDemocracy Dies in Darkness

Mexicans will vote on whether to prosecute former officials. Is it transitional justice or political theater?

Mexican President Andrés Manuel López Obrador appears at a ceremony at the National Palace in Mexico City on July 1 to mark the third anniversary of his election victory. (Edgard Garrido/Reuters)

MEXICO CITY — At the outset, the idea for the nationwide referendum to be held here on Sunday might have sounded groundbreaking: Do Mexicans want former presidents to be prosecuted for alleged crimes?

In a country whose justice system rarely tries — and even less rarely convicts — those responsible for major crimes, President Andrés Manuel López Obrador proposed the referendum as yet another flourish in what he has described as a crusading, reformist agenda. Billboards began popping up in major cities with the faces of five former presidents and bold lettering encouraging citizens to “Break their historic pact of impunity.”

But as the referendum has neared, it has become less clear to many Mexicans what they’re actually voting for — or why the vote is happening at all. It has seemed yet another moment in which López Obrador — who calls his government Mexico’s “Fourth Transformation” — is using his skill as a showman to engage the country’s electorate without committing to any concrete action.

Amid covid-19, recession and violence, Mexico’s López Obrador takes aim at his predecessors

Mexico’s legal system already allows the government to investigate and convict former officials, including presidents, without any public referendum. The Supreme Court couldn’t agree on whether López Obrador’s suggested referendum was constitutional. Shocking many legal analysts, the court rephrased it entirely to something far more vague — and which will have no clear impact on prosecutions.

The new question, which will be posed to voters across the country on Sunday, asks: “Are you in agreement or not that appropriate actions in accordance with the constitutional and legal framework be carried out in order to undertake actions of clarification of political decisions taken in the past by political actors, aimed at guaranteeing justice and the rights of the possible victims?”

The rewording has made the point of the referendum even less clear. “Political actors” have been investigated for years in Mexico, including by the current administration. (Still, they’ve very rarely been charged, convicted and sentenced.)

“If you ask me, someone who has spent years working on these issues, what does the question mean, I’d tell you, ‘Nothing,’” said Juan Jesús Garza Onofre, a legal scholar at the National Autonomous University of Mexico. “It doesn’t mean anything aside from the narrative, the propaganda, the public discourse.”

Mexico’s López Obrador sees his power trimmed in midterm elections

It’s no secret that the government has the ability to prosecute former officials without the referendum. The former chief of Mexico’s powerful state oil company, for example, is currently awaiting trial on corruption charges, but has not been jailed and is now considered a protected witness.

Rosario Robles, the former secretary of social welfare, is currently in jail on allegations that hundreds of millions of dollars went missing during her tenure, but she has not yet been tried.

Mexican authorities this year exonerated a former defense minister, Gen. Salvador Cienfuegos Zepeda, whom U.S. authorities accused last year of protecting drug cartel leaders.

Still, López Obrador’s supporters have described the referendum as a key step in setting up a system of transitional justice — a process of accountability after large-scale abuses. Some have worn masks of former presidents and handed out pamphlets encouraging Mexicans to vote. Rock bands in Mexico City have performed in support of the vote. Damián Alcázar, one of the country’s most famous actors and a close friend of the president, said people who oppose the referendum “miss the authoritarian regime.”

There’s little doubt that the country is in need of a dramatic judicial strengthening, beyond the question of high-level prosecutions. Only about 1.4 percent of crimes result in a suspect being brought before a judge, according to the Washington Office on Latin America.

The country’s electoral commission has produced radio and TV spots encouraging people to vote. Officials have set up 57,000 polling places around the country. To pass, the referendum will have to attract at least 40 percent of eligible voters. López Obrador’s opponents have encouraged a boycott.

Bewilderingly, López Obrador, who began lobbying for the referendum shortly after he was elected in 2018, said he would not participate in the vote because he is “not vengeful.”

“But if I did,” he said this month, “I would vote against these trials because we need to look forward.”

Yet López Obrador’s administration has produced a lengthy point-by-point list of the reasons each of the past five presidents should be convicted, which the president himself presented at a news conference last year.

Legal experts have wondered aloud what a “Yes” vote would yield. In an interview with the Spanish newspaper El País, Chief Justice Arturo Zaldívar suggested that it might result in the creation of a “truth commission.”

Those commissions, he said, “in some cases, can be useful. There’s also a right for truth. Not everything is punishing people with prison time and not everything is criminal responsibility. There’s also political and ethical responsibility. That’s what the referendum aims for.”

López Obrador’s bid to alter Mexican Supreme Court seen as threat to judicial independence

In the midst of a third coronavirus wave and barely a month after the midterm elections, analysts say, it’s unlikely that 40 percent of voters will turn out for the referendum. If the referendum fails, it’s possible that López Obrador will present himself as an anti-corruption crusader stymied only by the country’s electoral opposition.

“He’ll have a new agenda topic, he’ll be able to manipulate it, he’ll be able to say whatever he wants,” said Ximena Medellín Urquiaga, a professor at the Center for Research and Teaching in Economics in Mexico City.

Some of the country’s former presidents have spoken out against the referendum.

The “request for a referendum to start a trial against ex-presidents is in violation of elemental guarantees,” former president Felipe Calderón tweeted before the Supreme Court changed the wording. Former president Vicente Fox labeled proponents of the measure with an epithet.

Activists who have long pushed for an end to impunity have mixed views on the vote. Some believe it could lead to more accountability.

Omar García, one of the survivors of the disappearance of 43 college students from Ayotzinapa in 2014, is among those who support it.

High officials “need to fall and be held accountable,” he tweeted. “That’s why we must vote Yes to the referendum.”

Read more:

It was a milestone for Mexico’s democracy. Now López Obrador wants to get rid of the country’s freedom of information institute

He’s running for mayor of his Mexican city. He’s also wanted by the DEA.

A general was the leading suspect in the biggest anti-corruption case in Mexico. Then he disappeared.