Why many countries have prosecuted former leaders

In mature democracies, prosecutions that hold leaders accountable can solidify the rule of law. South Korea investigated and convicted five former presidents starting in the 1990s, a wave of political prosecutions that culminated in the 2018 impeachment of President Park Geun-hye and, soon after, the conviction and imprisonment of her predecessor, Lee Myung-bak.

Did these prosecutions deter future leaders from wrongdoing? For what it’s worth, Korea’s two most recent presidents have so far kept out of legal trouble.

Overzealous prosecution versus rule of law

Even in mature democracies, prosecutors or judges can abuse prosecutions. But overzealous political prosecution is more likely, and potentially more damaging, in emerging democracies where courts and other public institutions may be insufficiently independent from politics. The weaker and more beholden the judiciary, the easier it is for leaders to exploit the system, either to expand their own power or to take down an opponent.

Brazil embodies this dilemma.

Ex-President Luiz Inácio “Lula” da Silva, a former shoeshine boy turned popular leftist, was jailed in 2018 for accepting bribes. Many Brazilians thought his prosecution was a politicized effort to end his career, but Lula was elected in October, 2022.

A year later, the same prosecutorial team accused the conservative former President Michel Temer of accepting millions in bribes. After his term ended in 2019, Temer was arrested; his trial was later suspended.

Both Brazilian presidents’ prosecutions were part of a yearslong, sweeping anti-corruption probe by the courts that has jailed dozens of politicians. Even the probe’s lead prosecutor is accused of corruption.

Depending on the perspective, Brazil’s crisis reveals that nobody is above the law or that the government is incorrigibly corrupt – or both. With such confusion, it becomes easier for politicians and voters to view leaders’ transgressions as a normal cost of doing business.

For Lula, a conviction didn’t end his career. He was released from jail in 2019 and the Supreme Court later annulled his conviction. Lula won the 2022 presidential race against Jair Bolsonaro, with Bolsonaro now indicted related to fraud in his dealing with the pandemic.

Stability versus accountability

Historically, Mexico has taken a different approach to prosecuting past presidents: It doesn’t.

During the 20th century, Mexico’s ruling Institutional Revolutionary Party, or PRI, established a system of patronage and corruption that kept its members in power and other parties in the minority. While making a show of going after smaller fish for petty indiscretions, the PRI-run legal system wouldn’t touch top party officials, even the most openly corrupt.

Impunity kept Mexico stable during its transition to democracy in the 1990s by placating PRI members’ fears of prosecution after leaving office. But government corruption flourished, and with it, organized crime.

That may be changing, though. In early August 2022, Mexican federal prosecutors confirmed that it had several open investigations into former PRI President Enrique Peña Nieto for alleged money laundering and election-related offenses, among other crimes, which appear to remain active.

Mexico is far from the only country to overlook the bad deeds of past leaders. Our research finds that only 23% of countries that transitioned to democracy between 1885 and 2004 charged former leaders with crimes after democratization.

Protecting authoritarians – including those who oversaw human rights violations – may seem contrary to democratic values, but many transitional governments have decided it is necessary for democracy to take root.

That’s the bargain South Africa struck as apartheid’s decades of segregation and human rights abuses ended in the early 1990s. South Africa’s white-dominated government negotiated with Nelson Mandela’s Black-led African National Congress to ensure outgoing government members and supporters would avoid prosecution and largely retain their wealth.

This strategy helped the country transition to majority Black rule in 1994 and avoid a civil war. But it hurt efforts to create a more equal South Africa. As a result, the country has retained one of the world’s highest racial wealth gaps.

Corruption is a problem, too, as former President Zuma’s prosecution for lavish personal use of public funds shows. But South Africa has a famously independent judiciary. Despite delays and appeals, Zuma’s prosecution continues, and he was prevented from contesting the presidency this year.

How mature is mature?

Israel is partly a testament to the rule of law – and partly a cautionary tale about prosecuting leaders in democracies.

Israel didn’t wait for Netanyahu to leave office to investigate wrongdoing. But several court processes were fraught with delays, in part because Netanyahu used state power to resist what he called a “witch hunt.”

Netanyahu tried unsuccessfully to secure immunity and stall while his Likud party cried foul. He was even reelected while under indictment. In December 2023, judges limited the number of trial days per week because of the war in Gaza, but the cases are ongoing.

With Trump’s Manhattan jury verdict, the process has revealed something fundamental about American democracy. As its repercussions play out, the verdict will likely be seen as both a matter of law – and politics.

This is a substantially updated version of an article originally published on March 16, 2021.

The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.

Source: The Conversation