The Amazon is burning while the emperor, or in this case President Jair Bolsonaro, is tweeting. The flames engulfing the rainforest for a quick buck are also consuming Brazil’s international reputation. Black marks left where trees once stood will also be left on history. What a difference a few years make.
In 2016, the Lava Jato (Car Wash) anticorruption investigation was heralded as the means through which Brazil would end its culture of endemic patrimonialism and elite impunity.
For the first time in Brazilian history, the investigation locked up captains of industry and political titans alike. Its protagonists — lead prosecutor Deltan Dallagnol and Judge Sérgio Moro, who is now the justice minister — became international anticorruption superstars.
Lava Jato was meant to drag the Brazilian state kicking and screaming into the 21st century. Instead, it proved to be the opposite — it has helped usher in a new age of barbarism. Without the help of Moro, Dallagnol and the rest of the Lava Jato team, Bolsonaro would not have been elected. Lava Jato ensured that Lula da Silva — who was leading the polls by a significant margin — was removed from contesting the 2018 election.
How will history judge Lava Jato? It brought a government into power that embraces nepotism, irrationality, genocidal fantasies, bloodlust and bigotry. Is the catharsis of locking up businessmen and politicians worth the immense cost to democracy and the economy when the economic damage inflicted by Lava Jato amounts to about $140-billion?
Lawfare in Mzansi
Lava Jato is the most prominent international example of lawfare — fighting political battles through legal means. In South Africa the courts, too, have increasingly become the battleground for our own Game of Thrones. Right now, both dominant factions in the ANC have taken up the mantle of “anticorruption”. Although Brazil’s legal system and judiciary differ significantly from our own, there are two primary lessons to be drawn from the ashes of Lava Jato. First, that the judicial fight against corruption cannot be divorced from politics, and second, that anticorruption itself can serve as a defence of corruption.
Unlike Brazil, our judiciary has been the strongest of our democratic institutions — acting to preserve democracy rather than to undermine it. The struggle to maintain the ANC faction associated with former president Jacob Zuma in alliance with the Economic Freedom Fighters has morphed into an attack on our Constitution and judiciary in the name of anticorruption.
While the narrative of Cyril Ramaphosa’s ascendance to the presidency claimed adherence to the mission of fighting corruption, forces aligned to Zuma regrouped. They have attempted to use anticorruption to undermine the moral high ground occupied by Ramaphosa and the legitimacy of the institutions tasked with rooting out corruption
The key to this strategy is the public protector, Busisiwe Mkhwebane, who has used her position to pursue factional politics through the courts. Her record losing streak is then portrayed as evidence that the judicial system has been captured by the Ramaphosa faction.
The recent spectacle of our beleaguered public protector — a public official of a secular republic — using her official channels to host a prayer session to beg the forces above for help in her fight against “corruption” underlines the messianic zeal that masks her factional politics. When judges predictably rule against the public protector and her allies, they are accused of being “corrupt” and in thrall to “white monopoly capital”. These tactics, albeit cynical, are effective because anticorruption is also a political battle.
From Lava Jato to Vaza Jato
Those who dared question the goals of the Brazil investigation and the means it used were labelled as conspiracy theorists or criminal supporters of corruption. It was beyond the pale to accuse the anticorruption superheroes of political bias against the Workers’ Party or point towards the patently illegal collusion between judges, prosecutors, investigators and the media.
Now, thanks to leaked messages and voice recordings and the good work of The Intercept and its media partners, we now have conclusive evidence of the widespread criminality and political bias at the heart of the investigation.
It has been obvious that Lava Jato was a political project rather than an objective anticorruption investigation ever since Moro had Lula hauled away in handcuffs after leaking illegal wiretaps to the media of Lula talking to then president Dilma Rousseff. But the majority of respectable opinion, both in Brazil and internationally, persisted in defending Lava Jato. Even if it remained unsaid, implicit in continued support for the investigations was that the ends justified the means. Fighting corruption was more important than the rule of law, the economy or democracy.
A small sample of the revelations include Moro colluding with prosecutors, flimsy cases based on flimsy evidence, open political bias, religious fervour, blatant profiteering, protecting key political allies such as former president Fernando Henrique Cardoso, protecting bankers from investigation, illegal investigations into Supreme Court judges to weaken those judges considered hostile to the investigation, collusion between Supreme Court judges and Lava Jato, and right-wing social movements taking orders from investigators.
What was Lava Jato?
Lava Jato may have once been an investigation, but through its own success — ably assisted by powerful media, corporate and political allies — it transformed itself through its successes into an influential faction among Brazil’s power brokers. Lava Jato, rather than the enemy of the corrupt political cliques that dominate Brazilian politics, is simply another faction. Anticorruption was reduced to simply locking wrongdoers up but — judging from the rampant corruption of both the Temer and Bolsonaro regimes, corruption has not been substantially reduced at all.
In retrospect, it was quite the achievement for journalists and commentators to transform the sleazy manoeuvres of the Brazilian elite — including Lava Jato and Moro, who was widely regarded to be a “liberal” — into evidence that Brazil’s institutions were functioning as normal, or even evidence of the strength of Brazilian democracy.
Lava Jato is the clearest example in recent years of the Brazilian practice known as para os Ingleses ver (for the English to see), referring to the masquerade you put on to placate foreigners with what they want to see to hide your real agenda. Moro told his friends in the West only what they wanted to hear. Rather than a lone voice of reason, Moro is — for now — part of the menagerie of grotesqueries that constitutes the Bolsonaro Cabinet, part of the new band of conspiracy theorists, cranks and flat-Earthers that populate the halls of power in Brasilia.
The mythology of Lava Jato, in large part, consisted of the narrative that pitted a highly educated, modern, young and honest group of judges and prosecutors against the compromised, ancient politicians that held Brazil back. The reality of Lava Jato is that, in effect, whatever its original intentions or self-mythologising, it became what it claimed to be destroying — another corrupt faction competing for power.
Lessons from Lava Jato
Currently two factions belonging to the ANC — a party riddled with corruption — are fighting for the moral high ground through anticorruption. By choosing to limit the struggle against corruption to the backroom internal battles of the ANC and the courts, along with the weakness and complicity of forces that could provide leadership in the struggle against corruption, the fightback forces have been able to claim the banner of the fight for redress and against inequality and portray this as in opposition to the judiciary and the Constitution.
It is all too easy for South Africans to assume that Brazilian judges behave like their counterparts in our country and adhere to some sort of universal standard of objective justice in defence of Brazil’s constitutional democracy. This is profoundly mistaken.
Brazilian judges are often overtly political actors, who act not only in their class interests — they constitute a privileged caste among Brazil’s public servants — but in conjunction with the complex and serpentine array of conspiracies that defines Brazilian politics. Judges belong to particular factions and represent these factional interests openly. Although this, thankfully, is not the case in South Africa, a more determined political effort is needed to counter the reduction of our politics to competing conspiracies.
As South Africans we need to draw lessons from this experience and not the one in which the EFF and the Zuptasphere claim that the judiciary is captured by white monopoly capital. Anticorruption is political. It is neither an objective judicial matter nor an essential moral calling: it is, in essence, a space of political contestation. We need to ensure that the vein that triumphs in South Africa is concerned with wider egalitarian social reforms that broaden democracy, rather than simply measuring the success by its body count in terms of locking wrongdoers up.
Benjamin Fogel is a PhD candidate in Latin American history at New York University, who is currently based in São Paulo. He is a contributing editor for Jacobin magazine and the Africa is a Country website