Juan Cepeda, an alumnus of the LLM in Corruption, Law & Governance at the Centre for the Study of Corruption, looks at the Odebrecht case in Mexico.  He assesses whether the unique profile and features of the case will make it a rare example of justice triumphing over politics – concluding that international pressure may be the deciding factor.

The scandal involving Brazilian construction company Odebrecht might prove to be a game changer in the Mexican political system. The transnational nature of the case means there is a chance to break the cycle of corruption and impunity in politics and the administration of justice which all too often characterise the system in Mexico.

Odebrecht has already been convicted in multiple jurisdictions of paying bribes to gain contracts and influence. The action has now moved to Mexico, where the company is accused of paying multiple bribes to companies including Mexican oil company Pemex, some of which were then used to fund the 2012 election campaign of former President Pena Nieto.

Since we are dealing with a major transnational bribery scheme, interest in this scandal is not simply domestic. The international community will be watching closely the Odebrecht trial and will have an interest in seeing that due process is followed.  After all, Mexico was one of the earliest countries to ratify the OECD Anti-Bribery Convention, and the OECD’s influential Anti-Bribery Working Group will certainly be following the progress of this high-profile trial.  External pressure may be needed to push for the Mexican state to prioritise justice over politics.

Odebrecht represents perhaps one of the most sophisticated, transnational bribery strategies ever disclosed to the public. It involved one construction firm, twelve countries from two different continents (Africa and America), and more than USD 700 million delivered to high ranked officials in order for a considerable number of bids to be illegally awarded to the company.  Apart from Mexico and Venezuela, all Latin American countries have taken legal action against presidents, former presidents, ministers, vice-ministers, and other relevant public officers.

With the legal action now moving to Mexico, it appears that we might finally be witnessing an earthquake that could shake the Mexican political system. The movement of tectonic plates started with Emilio Lozoya, former CEO of Pemex (2012-2016) and head of the foreign affairs office during Enrique Peña Nieto’s presidential campaign in 2012. Lozoya was arrested in Spain in 2019 after being accused of money laundering, bribery and criminal association linked to Odebrecht’s bribery scheme. Three weeks ago, he arrived in Mexico after being extradited to face criminal trial in Mexico City.

From the moment Lozoya arrived from Spain after spending months incarcerated, the criminal process has been highly irregular and of questionable legality.

According to the Mexican law, Lozoya should have appeared before the judiciary immediately after landing in Mexican soil. Nevertheless, the Attorney General took him directly to a hospital, arguing health issues, such as anaemia and a hernia that needed to be urgently treated. Assuming that Lozoya was in fact in such an urgent need of medical care, the law allows a judge to pay a visit to the hospital to confirm the alleged health situation of the indicted person. This didn’t happen. The prosecutor -acting irregularly- never involved the judiciary. Lozoya spent 11 days in a private hospital in Mexico City and afterwards he appeared before a judge via a Voice over IP platform, which might also constitute a violation of due process.

Furthermore, pursuant to Mexican Law, the trial must be public. However, the judiciary decided to hold the initial hearings privately. The only information available was a series of WhatsApp messages sent to the media, allegedly with substantial information from the hearings.

Additionally, the judiciary has announced that the whole process will remain closed to the public, contravening the new criminal justice system in Mexico, which, amongst other reforms, enforces public oral trials. The argument behind this decision is the COVID-19 pandemic.

“Leaks” to the media – which may themselves be grounds for contesting the result of the trial – point to a corruption scheme that involves former ministers of state, the former presidents Enrique Peña Nieto and Felipe Calderón, and several congress people. Mexico is therefore facing what could be the biggest corruption trial in its history. The question for the country and its politicians is whether justice will this time predominate over politics. The track record is not encouraging: as a general rule, Mexican politicians make use of corruption scandals for electoral purposes, for revenge against the opposition or to deter certain actors in their quest for power.  Corruption and impunity for politicians have been more common than the administration of justice in the form of fair and effective law enforcement.

Odebrecht is a milestone in the study of corruption due to the scale of the corruption, the multiple prosecutions that have happened across Latin America, and the direct lines that can be traced to the very top of politics. It is an opportunity for Mexico to prioritise the rule of law over political advantage – although the situation is complicated further by the desire of the current government to use the case to damage the opposition. The world’s attention is elsewhere at present, with Covid-19 and a US election amongst other distractions.  However, external scrutiny, and diplomatic pressure, could do a great deal of good in reinforcing democratic values and the rule of law. This is the time for the international community to step up to the plate.