ROADBLOCKS MANY TO GUTIERREZ RETURN

UNCLAS SECTION 01 OF 02 QUITO 001507

SIPDIS

E.O. 12958: N/A
TAGS: PGOV KCOR PREL PHUM EC
SUBJECT: ROADBLOCKS MANY TO GUTIERREZ RETURN


1. SUMMARY. Former Ecuador President Lucio Gutierrez has
announced his intention to return to Ecuador to confront
those who deposed him. An imminent Gutierrez return appears
unlikely, however, owing to the myriad of charges, criminal
and otherwise, filed against him. The ex-president's
political enemies -- to include Palacio Administration
officials, members of Congress, and human rights leaders --
accuse Gutierrez of human rights abuses, corruption, and even
"crimes against humanity" (before the International Criminal
Court). Working in Gutierrez's favor is Ecuadorian law,
which provides presidents limited immunity, and the absence
of a Supreme Court, the correct venue to try the former chief
executive for acts committed while in office. Hurting hopes
for a homecoming, Minister of Government Mauricio Gandara
claims Gutierrez has "attacked the security of the state"
with his recent anti-Palacio rhetoric. A final impediment,
Quito's "forajidos," middle-class street protesters who
chased Gutierrez from power, aren't likely to welcome the
ex-president like MacArthur to the Philippines. End summary.

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Pick a Charge, Any Charge
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2. From the United States June 8, Gutierrez proclaimed his
desire to return to Ecuador and "reclaim what was taken from
me." Following last week's appearance at the InterAmerican
Dialogue, however, Ecuador's latest ex-president has lowered
his profile, and we have heard nothing regarding upcoming
southbound travel.


3. Disincentives over a Gutierrez return are many.
Ecuador's Attorney General office (Fiscalia) is tracking 22
cases against Gutierrez administration officials regarding
alleged police repression of protesters April 19-20. Just
one, however, targets the former president directly, accusing
Gutierrez of complicity in the death (by heart attack) of
Chilean forajido Julio Garcia. In connection with this case,
current Administration Secretary General Luis Herreria Bonett
claims a detention order against Gutierrez exists; according
to Ecuador's criminal procedures code, he continues, police
must obey it. Other Fiscalia cases reference embezzlement
within the Social Welfare Ministry during Gutierrez's tenure,
poor police protection provided to the president's political
opponents, and Gutierrez cousin/confidant Renan Borbua's
supposed incitement of riotous counter-marches during the
administration's dying days.


4. Members of Congress are not silent, either. They claim
the ex-president misused public funds in support of his
Patriotic Society Party's 2004 electoral campaign, contracted
Coastal thugs to combat the forajidos in Quito streets, and
personally benefited from funds generated during Ecuador's
hosting of the 2004 Miss Universe pageant. They have
demanded the Fiscalia take action and have debated
legislation changes prohibiting "constitutionally" removed
presidents from again assuming public office.


5. The Latin American Association for Human Rights
(ALDHU),a left-leaning NGO, accuses Gutierrez of 70 cases of
violation of human rights in connection with forajido
"suppression." Ecuador's Anti-Corruption Commission (CCCC)
alleges the ex-president utilized public funds to support
Zero Corruption, a violent, pro-Gutierrez group whose members
briefly stormed the offices of USG-funded electoral NGO
Citizen Participation. The CCCC also claims Gutierrez
benefited from "irregularities" in government oil contracts.


6. Not to be outdone, the Foreign Minister Antonio Parra has
launched an internal investigation into allegations that
Gutierrez administration co-opted ministry staff into
offering several presidential relatives positions in the
GoE's overseas missions. Concurrent MFA inquiries concern
the alleged sale of over 6000 Ecuadorian visas to unqualified
candidates. The Fiscalia is cooperating with the latter
investigation.


7. Gutierrez even faces legal problems originating outside
Ecuador. NGOs and Monsignor Luis Alberto Luna, a prominent
Gutierrez opponent, have gone before the ICC in Brussels,
accusing the former president of crimes against humanity.
Said crimes include his "systematic attacks on peaceful
civilian demonstrators," "destruction of judicial
independence in Ecuador," "attempts to squelch freedom of
expression and assembly," and "policy of denying indigenous
populations their full rights."

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Quito "Street" Not Amused
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8. Middle-class Quitenos assembling en masse in the
capital's streets played a great role in Gutierrez,s April
20 downfall. Demanding that "todos se vayan" ("all must
go"),these forajidos demanded of the Palacio government
swift change and more direct democracy. There has been
little of either, however. While the forajidos'
dissatisfaction has yet to manifest itself it renewed street
protests, a Gutierrez return undoubtedly would prove a
catalyst for action. Lynch mobs demanding the former
president's head are not unimaginable.

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Former President not Unarmed, However
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9. Gutierrez's legal team likely sees hope in Ecuadorian
law, which confers numerous privileges to chief executives.
Legal experts note that prosecuting an ex-president for acts
committed in office requires Congressional authorization, for
example (while the current legislative lineup leans decidedly
against Gutierrez, potential turncoats are many). Similarly,
the absence of a Supreme Court works in Gutierrez's favor.
Although Ecuador's highest law is mute on the point,
constitutionalists assert that only the Supreme Court can try
presidents, sitting or former. Despite quick legislative
action to craft a process to fill the Court, predictable
infighting has made progress so far glacial, and Ecuador's
justice system will remain headless for months.

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Leaving Office Uncovers Achilles Heel
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10. Aware that convicting Gutierrez for "crimes" committed
while in office appears difficult, Mauricio Gandara,
Ecuador's current minister of government (interior
minister-equivalent) and a long-time Gutierrez-basher, has
focused on the ex-president's recent activities. Gandara
argues Gutierrez "attacked the security of the state" when,
in comments made in the United States, the former president
asserted he was deposed in a coup. Citing Article 130 of
Ecuador's criminal code, the government minister June 13
filed a complaint against Gutierrez at the Fiscalia.


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COMMENT
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11. While in office, Lucio Gutierrez regularly floated
poorly staffed political trial balloons (his volunteering of
Ecuadorian territory for GoC-FARC negotiations comes
immediately to mind). Announcing his "imminent" return
appears the latest in the series. Other than stoking his
minuscule base in hometown Tena, deep in the Amazon, the
former president's "I shall return" provoked little positive
groundswell. And regardless of presidential immunities or
the non-existence of the Supreme Court, we'd wager Gutierrez
would be staring through bars )- or worse, lying in a
hospital bed -- if he showed up soon in Quito. END COMMENT.
Kenney