Visit to Peru: IACHR Notes Risks for Democracy, Calls on Institutions to Exercise Their Mandates in Compliance with Legality and Due Process

October 19, 2022

Washington, D.C. ? The Inter-American Commission on Human Rights (IACHR) conducted a working visit to Peru over the period October 10?13, 2022, with two goals: monitoring the state of the country?s democratic institutions and observing the effects of oil spills on human rights.

The IACHR delegation was led by Commission Vice-President and Rapporteur for Peru Stuardo Ralón and included Special Rapporteur for Economic, Social, Cultural and Environmental Rights Soledad García Muñoz and members of the Executive Secretariat?s technical team. During the visit, the delegation held a total of 24 meetings in Lima and Callao, with authorities of Peru?s electoral system and representatives of the different branches of government. The delegation also met with civil society organizations, international organizations, and representatives of indigenous peoples affected by oil spills. The IACHR team conducted an on-site visit to Ventanilla, Callao, where it got to listen to representatives of fishing communities and associations.

The Commission commends the Peruvian State on its openness and good disposition to host the delegation. In particular, the IACHR thanks civil society organizations and international organizations for providing important information, and communities, survivors, and victims for providing their testimony on various rights violations.

I. Democratic institutions

The Inter-American Commission notes that, in recent years, Peru has gone through several political crises due to various factors. One of these factors involves the repeated use of three constitutional concepts that have the capacity to weaken the separation and balance between the different branches of government, as well as to paralyze the country?s governance without objective descriptions. These concepts are: (i) constitutional impeachment; (ii) presidential impeachment based on the permanent moral incompetence of the individual holding the presidency; and (iii) the dissolution of Congress once the legislature has refused to approve two proposed councils of ministers. These three concepts have led the country to have five presidents and three parliaments since 2016.

The activation of these concepts confirms a strong, constant clash between public powers. This was evident during the working visit, which took place over a period that saw a raid on the home of the president?s sister, the Peruvian attorney general?s decision to file a complaint against the president, and the vice-president?s statement before a Congressional committee in proceedings that could lead to her dismissal and disqualification from holding public office. There were also reports of a constitutional complaint being filed against the attorney general by a government minister.

The delegation was informed of constant changes in the authorities in charge of designing and implementing public policies that could protect vulnerable individuals and groups, and these sources denounced that the changes prevent progress regarding concrete initiatives to ensure protection against all forms of discrimination. This situation has had direct effects on the full enjoyment of human rights including the rights to life, humane treatment, health, and education, particularly for women, children and adolescents, LGBTI persons, indigenous peoples, Afro-descendant persons, and migrants.

Further, officials and authorities of technical teams, among others, expressed their concern about interruptions of their workflow given that democratic instability constantly requires that they prioritize political processes rather than processes linked to their own roles and mandates.

The IACHR noted that these interruptions happen in a context that is rife with conflict between the different branches of government that has made the country?s governance difficult, eroded legislative agendas, and led to questioning of the independence of the judiciary. This joined constant allegations of corruption and fraud among authorities that have weakened trust in public institutions.

The IACHR is aware that each State has its own institutional design and its own mechanisms to fight corruption. However, corruption must be fought ensuring the rule of law and respecting human rights, particularly due process and the legality principle, as noted in the report Corruption and Human Rights.

We will therefore examine?though not exhaustively?the three constitutional concepts mentioned above, considering the central role they have played in weakening Peru?s democratic institutions in recent years.

a. Constitutional impeachment

Constitutional impeachment, based on Article 99 of the Peruvian constitution, enables Congress to investigate, try, and punish high authorities of the State, including the president and high court judges, for violations of the constitution. During the visit, the IACHR was informed of at least six recent activations of this procedure, targeting the country?s president and vice-president and the president of the National Electoral Court.

This concept has not been objectively defined, because neither the relevant legislation nor the constitution precisely state the actions that may be punished or the consequences of such punishment. This paves the way to an arbitrariness that weakens the separation and independence of public powers, democratic stability, and the legitimate exercise of power.

Constitutional impeachment may conflict with other constitutional provisos, like Article 117, which says that, while in office, the president may only be charged with four concrete crimes. Alleging conventionality control, the attorney general asked Congress to interpret this concept, while that role should in principle have been played by the Constitutional Court in judicial proceedings.

The IACHR notes that, while in some cases legislative institutions may be the institutions of competent jurisdiction in the context of the balance of power and the system of checks and balances, their decisions must incorporate the legality principle. This requires that punishable conduct be pre-established in strict, unequivocal terms that clearly restrict the acts that may be punished and their components.

b. Presidential impeachment based on the permanent moral incompetence of the individual holding the presidency

Presidential impeachment is held in Article 113 of the constitution. This concept allows Congress to declare the permanent moral incompetence of the individual holding the presidency, and to dismiss that individual. In Peru, six presidential impeachment motions alleging the permanent moral incompetence of the individual holding the presidency have been filed since December 2017.

The constitutional rule that establishes this concept does not mention punishable behaviors or the consequences of the applicable punishments. It therefore?like constitutional impeachment?poses a risk to the separation of powers and to political rights, both for the elected official involved and for their voters.

During the visit, the IACHR delegation was informed of a bill that was developed to eliminate this concept, which was allegedly shelved by Congress. The delegation was also told of a Constitutional Court decision asking Congress to legislate on this concept, requiring a two-thirds majority among members of Congress.

The IACHR stresses that, while in some cases legislative institutions may be the institutions of competent jurisdiction in the context of the balance of power, their decisions must incorporate the legality principle, and the list of punishable behaviors and the consequences of their punishment must be pre-established.

c. Unilateral dissolution of Congress

The unilateral dissolution of Congress once the legislature has refused to approve two proposed councils of ministers is held in Article 134 of the Constitution. This article enables the president to dissolve Congress once the legislature has refused to approve two proposed councils of ministers, forcing a call to early legislative elections. This concept was last used on September 30, 2019, during the government of President Martín Vizcarra, who was later removed from office in a presidential impeachment procedure that declared his permanent moral incompetence.

The IACHR considers that the use of this concept by the executive effectively entails a rejection of the popular vote, damages the political party system, and facilitates breaches in the democratic order. It is therefore urgent that it should be removed from Peru?s legal framework or at least restricted to extremely exceptional cases.

d. Risks for democratic institutions

Peru is currently immersed in a constitutional crisis, given the unprecedented events of recent weeks which have included a constitutional complaint filed before Congress by the attorney general against the president and a constitutional impeachment filed before Congress against the attorney general. A complaint against the country?s attorney general is also currently being assessed by the National Board of the Judiciary. According to the available information, Congress and the National Board of the Judiciary are set to issue decisions on those proceedings, and those decisions are expected to be broadly grounded in the principles of legality and due process and subjected to constitutional court oversight.

The IACHR notes that the Constitutional Court has not publicly expressed an opinion about the constitutional status of permanent moral incompetence, even in cases of its competent jurisdiction. The Commission finds that this failure to express an opinion has contributed to legal uncertainty concerning the interpretation of this concept. This means that, for this crisis to be overcome in a way that does not endanger democratic institutions, the Constitutional Court must act as a referee to prevent arbitrariness and other abuses that violate the principles of legality and due process. Failing to enforce these principles may affect democracy in Peru.

II. Oil spills

The IACHR delegation also gathered information about the effects on human rights?particularly economic, social, cultural, and environmental rights?of oil spills in Peru. The Commission noted the State?s mostly administrative responses to the spills. The delegation met in Lima with representatives of indigenous peoples, State officials, and civil society organizations. It also visited Los Delfines Beach, in the Ventanilla district, and toured the area around Ancón harbor in a boat, verifying that oil products are still visible in the area, as are the effects of these spills on communities and on the natural environment. The IACHR delegation also met in Ancón with local fishing communities and heard testimonies of people affected by the oil spill that happened in January 2022.

The IACHR and its Special Rapporteurship on Economic, Social, Cultural, and Environmental Rights stress testimonies that highlight the challenges faced by efforts to investigate and punish spills and to provide adequate, effective reparations to the individuals and communities affected by them. These testimonies also showed concern about spills? effects on economic, social, cultural, and environmental rights. In particular, some mentioned a severe impact on the rights to health, a safe environment, food, drinking water, and employment of the affected communities, which, together with the lack of an immediate response to the spills, has made those communities very vulnerable.

Representatives of these fishing communities stressed the need to base all decisions to re-open the affected beaches on scientific research that ensures the safety of these communities and protects these communities? rights to information and to be involved in any procedures that are relevant for them. Local communities also highlight the need for adequate social protection to address the indefinite loss of income and livelihoods of the affected communities, especially given the inequality that is prevalent between the affected communities and the businesses involved in Peru?s extractive industries.

These effects are particularly worrying considering the poverty and inequality that are rife in the affected communities. Ship owners and individuals active in fishing spoke of the differentiated impact of oil spills on the lives of women, girls, and female adolescents. According to the available data, a similar situation has happened on Peru?s northern shores.

Representatives of indigenous peoples in the Amazon rainforest and other areas affected by oil spills stressed the need for the State to provide an effective response to these events, with an intercultural perspective that enforces the standards applicable to the rights of indigenous peoples and other groups who have historically suffered discrimination. Beyond these communities? severe vulnerability, the delegation heard allegations of a stigmatization and criminalization of indigenous leaders, environmental defenders, and other opponents of extractive projects in the country. The IACHR and its Special Rapporteurship on Economic, Social, Cultural, and Environmental Rights note that, while the State has said it is trying to mitigate the damage caused by oil spills, civil society organizations stressed that negligence and omissions in the maintenance of the northern Peruvian oil pipe are the main cause of the spills, although most of these events have been blamed on third parties (and sometimes even on members of the affected communities).

Oil spills happen repeatedly in Peru and must be a priority, to ensure the enforcement of the applicable inter-American standards and recommendations held in the report Business and Human Rights: Inter-American Standards. There is an urgent need to protect the people affected by oil spills?particularly concerning their economic, social, cultural, and environmental rights?and to provide reparations to them. It is also crucial to ensure that environmental defenders and others who oppose extractive projects are protected and not criminalized, and to conduct in-depth investigations to ensure companies are held accountable for their actions. Measures need to be taken to ensure due diligence in business activities, including the participation of the affected communities.

The IACHR and its Special Rapporteurship on Economic, Social, Cultural, and Environmental Rights urge the State of Peru to conduct a comprehensive diagnosis of the economic and social impact of oil spills, with a human rights approach that takes into special consideration their severe effects on the health of the affected individuals. This aspect and the creation of an emergency fund to address environmental damage and the impact on affected communities are crucial elements to ensure an effective response to the effects of oil spills on local residents. All these actions must protect and ensure the rights to participation, information, and justice concerning the environment. The Commission and its Special Rapporteurship therefore urge the State to protect and ensure the applicable inter-American standards and to ratify the Escazú Agreement, an additional measure to further promote the protection of these rights.

Finally, the Commission stresses that democracy is closely linked to human rights. The Charter of the Organization of American States and the Inter-American Democratic Charter, along with various other international instruments, stress that respect for human rights, access to and the exercise of power in strict compliance with the rule of law, the holding of periodic, free, and fair elections, and the separation of powers and independence of the branches of government are all essential elements of democracy, crucial to achieve stability, peace, and development in the Americas.

The IACHR therefore asks the State of Peru, and particularly the country?s Congress and Constitutional Court, to regulate and restrict the three constitutional concepts mentioned above, in order to ensure objectiveness and impartiality, as well as respect for the legality principle and the separation and balance between the different branches of government. The Commission also urges all branches of the Peruvian State to refrain from calling for an arbitrary use of force or for violations of the institutional order.

A principal, autonomous body of the Organization of American States (OAS), the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote respect for and to defend human rights in the region and acts as a consultative body to the OAS in this area. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.

No. 233/22

5:41 PM