Partisan judges, a lack of evidence, and a right-wing government on the offensive: the ingredients of Lula’s recent trial highlight a worrying undemocratic trend in Brazil.

All roads lead to Lula: A state prosecutor demonstrates wide-reaching allegation, attempting to link the former president a broad array of criminal offences.


By Valesca Lima

Seven years since the end of his presidency, the figure of Luis Inácio “Lula” Da Silva still looms large over the Brazilian political landscape.


According to academic Perry Anderson, Lula is “the most successful politician of his time”. Photo by Agência Brasil.

Over his eight years at the helm of Latin America’s largest economy, Lula virtually eradicated hunger, enacted a wildly popular social support system, and increased minimum wage over inflation – all to the acclaim of ordinary Brazilians and International Financial Institutions alike. At the same time, he crafted an impeccable public persona, using his humble background as a factory-worker and his natural charisma to become far and away Brazil’s most popular politician.


This is what makes the January 24th decision of the regional court of appeal to uphold Lula’s dubious corruption conviction all the more worrying. Arriving on the heels of 2016’s “Parliamentary Coup” against Lula’s ousted successor, Dilma Rousseff, and the subsequent rise of the Brazilian right, it is hard not to see this move as little more than the next step in the politicisation of Brazil’s judiciary, whose actions play a vital role in shaping democratic politics in the country.


The most controversial point of the prosecutors’ case is the allegation that Lula accepted a bribe from OAS – a Brazilian construction firm currently under prosecution in the wide-reaching Lava Jato (Carwash) corruption investigation. At the centre of the case are its ties to a multi-million dollar scheme that exchanged massive bribes for lucrative contracts with the state oil company Petrobras.


According to the prosecution, OAS furnished Lula with a luxury beachside apartment in the city of Guarujá, São Paulo state, in exchange for contracts with Petrobras. However, the prosecution has been unable to provide documentary proof that either Lula or his late wife Marisa ever accepted the apartment or even tried to accept it.


Paulo Roberto Costa, ex-director of the notoriously corrupt Petrobras state oil firm was one of the first casualties of Lava Jato. Photo by Senado Federal.

Despite the scarcity of evidence – their argument was based primarily on the testimony of an OAS executive as part of a plea bargain – the prosecution argues that the lack of material evidence is actually further proof of guilt, alleging that Lula was able to hide the traces of his involvement and benefit only indirectly from the scheme.


As inconceivable as it sounds, these shaky grounds provided Judge Sérgio Moro the foundation to sentence Lula to nine and a half years in jail last July. Lula and his lawyers appealed the ruling, and the appeals court not only upheld the decision, but actually increased the sentence to 12 years. The judges’ unanimous ruling against Lula seriously complicates his presidential prospects, although his defence has not yet exhausted their options for appeal, and in Brazilian politics nothing is certain.


Nevertheless, the case against Lula gives rise to numerous concerns.


Foremost is the arbitrary nature of the decision by the judges and prosecutors to break with standard legal practice by ‘reversing’ the burden of proof. In other words, Lula and his lawyers were forced to prove his innocence instead of prosecutors having to prove his guilt. This is particularly worrying given the significance of this decision for Brazilian democracy. Regardless of political affiliation, numerous Brazilian jurists have come forward to state that the rules of due process have been clearly circumvented to ensure Lula’s conviction.


The explanation for these apparent legal short cuts is clear: it has been done in an attempt to prevent Lula from running in the 2018 presidential election in October of this year.


A conviction on corruption charges will disqualify Lula from running for office on the basis of the Lei da ficha limpa – Clean Slate Law – which makes convicted politicians ineligible for the presidency for a period of eight years. Lula’s absence from the list of candidates would open the door to those that otherwise would not stand a chance of defeating him. Lula has emerged as the clear favourite in consecutive opinion polls, which predict his victory in any electoral scenario.


Jair Bolsonaro has emerged as a “law-and-order” candidate – going so far as to say that “A policeman who doesn’t kill isn’t a policeman”. Photo by Gustavo Lima/Zeca Ribeiro/Agência Brasil.

Running in second place in the polls is the ultra-conservative demagogue Jair Bolsonaro, who has drawn both contempt and admiration for his support of the military dictatorship, his hardline stance on crime, and his frequent racist and misogynistic comments (he once remarked that Afro-Brazilian women “are not even good for breeding anymore”).


It is not easy to predict the consequences of Lula’s conviction on Bolsonaro’s political pretensions. Once referred to as “the most misogynistic, hateful elected official in the democratic world”, Bolsonaro’s campaign has been largely based on criticising Lula and the Workers Party he founded, while failing to present any credible policies and fiscal solutions. On the other hand, Lula’s absence from this election could make Bolsonaro less appealing to conservative voters.


The day after the results of the appeals court, the Worker’s Party launched Lula as their official candidate. While Lula’s case has not yet reached its final stages, the 7th October election date is fast approaching, and it remains to be seen whether he will be able to run. Other candidates, such as the Brazilian Socialist Party’s Ciro Gomes, could gain momentum as a potential frontrunner; however this would mean uniting Brazil’s fragmented and demoralised left-wing opposition.


In any event, an electoral scenario where Lula is not a candidate would have little legitimacy and expose the weak state of democracy in contemporary Brazil.

 Valesca Lima is a postdoctoral research fellow specialising in governance, participatory democracy, housing policies, social movements and Latin America politics in UCD. Valesca holds a PhD in Politics and International Relations from UCD and has lectured on Comparative Local Government and Latin America Politics. Prior to her graduate studies, Valesca worked in the public sector as a social worker and as a consultant related to social housing.
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