libro traducido

1. 87
ensure his or her post; and iii. The office seeker with progressive ambitions—whose goal
is to increase his or her public career prospects.
The Policy-Seeker Ombudsman
There are two kinds of possible situations for the policy-seeker ombudsman. The
first one is when he or she finds room to work with the government on relevant policy
areas (despite disagreement on other areas). In a context of institutional instability, an
ombudsman head officer that is driven exclusively by the desire to influence policy will
find more incentives for strategic cooperation when the government’s policy preferences
that are in conflict with the ombudsman head officer are not a priority for him or her. The
logic underlying this strategic choice is that removal from the ombudsman position
precludes the possibility of influencing policy in the future.
The situation changes when the head officer realizes that the degree ofdivergence
between the government’s and the ombudsman policy preferences makes it nearly
impossible for the ombudsman to influence government policies. In this case, the
ombudsman will resort to strategic resistance: the ombudsman will mobilize public
opinion and the international community on the policy issues he or she cares about,
resisting government, even at risk of removal from his or her post. To the extent that this
type of head officer cares highly about the institutional legitimacy of the ombudsman—
which is a key element linked to ombudsman effectiveness, as I said earlier—strategic
resistance will be a more likely choice when the government engages in abusive
behavior, and the ombudsman will be perceived as an independent head officer.

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The Office-Seeker with Static Ambitions
The main priority for this ideal type of ombudsman head officer is to maintain his
or her personal status. The professional head officer with static ambitions is probably the
most susceptible to the threat of removal, and therefore least likely to engage in strategic
resistance against the government. Similar to what happens in the case of judges
(Helmke 2005:33), in countries where the economy is highly volatile and where a state
senior position as ombudsman head officer ensures a substantial salary and attractive
perquisites, this kind of office-seeker will have very high incentives to follow a logic of
strategic alignment. Hence, the ombudsman head officer will not make public statements
or pursue investigations that could put the government in a difficult position, because that
could result in a removal risk that he or she is not willing to take.
When the ombudsman term in office does not match the Executive’s term, the
situation can change substantially towards the end of the President’s term. If the
ombudsman head officer is relatively certain that an upcoming new government has
different policy preferences and that his or her alignment with the current government
will not be appreciated by the next, the ombudsman head officer will engage in strategic
resistance against the pressures of the current administration. Of course, this logic
assumes that the head officer can be reasonably certain that the incumbent or his or her
party will not be reelected, and that the policy preferences of the new government are
substantially different from those of the incumbent.60
60
Helmke (2005) has developed a model of “strategic defection” to explain judicial behavior
under similar circumstances.

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The Office-Seeker with Progressive Ambitions
The main goal for this ideal head officer type is his or her personal career
advancement. For this kind of office-seeker, the costs of removal depend on the
subsequent career opportunities available for him or her. It can be assumed that when the
Executive is popular, the ombudsman head officer will follow strategic cooperation. But
when the government is weak, the ombudsman head officer will find high incentives to
confront the Executive.
Under what conditions will the ombudsman resist government pressures in a
context of institutional instability? When will an ombudsman choose to confront the
government where there are strong pressures from the Executive and even the threat of
removal? Table 3.4 shows the most likely cases for an ombudsman to engage in strategic
subservience, strategic cooperation or strategic resistance, according to head officer type.
As Table 3.1 shows, all three ombudsman types may actually have strategic
reasons to confront the government at different moments and under different conditions.
Empirically, of course, ombudsman head officers are not ideal types and they will be
considering many factors at the same time. Some of those factors will have to do with
the institutional strength their ombudsman institutions enjoy, such as elements related to
formal autonomy (especially a fixed tenure and immunities similar to those enjoyed by
Supreme Court members); degree of institutional financial autonomy (particularly the
involvement of international cooperation agencies); institutional capacity (especially
offices in many different cities); and a good relationship of mutual support with civil
society, especially with human rights NGOs.

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TABLE 3.4
OMBUDSMAN BEHAVIOR UNDER CONDITIONS OF
INSTITUTIONAL INSTABILITY
Type of Ombudsman Head Officer Type of Strategic Behavior
Strategic
Subservience
Strategic
Cooperation
Strategic
Resistance
Based on the headofficer’s
main personal motivations:
Remains completely
marginal in the public
arena and/or only comes
forwardto defendthe
government
Seeks to achieve change
through a conciliatory
approach, remaining
mostly as a critical but
cooperative partner
Confronts the
government onissues
the ombudsman
perceives as a human
rights violations
and/or breaches of
the rule of law
Policy-Seeker
Sees room for improvement in relevant
areas
if he or she disregards some politically
controversial issues
x
Sees cooperation is not effective and/or it
implies alignment withgovernment (onkey
policies the ombudsman opposes),
compromisingombudsmancredibilityand
institutional legitimacy
x
Office-Seeker with Static Ambitions
Suffers pressure from government and/or
sees risk of removal
x
Sees that cooperationwith current
government mayweakenhis/her position
with the upcomingnewgovernment
x
Office-Seeker with Progressive Ambitions
Strong, populargovernment x
Weakened, unpopular government x

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Based on these deductions, the following hypotheses can be outlined:
1. In his or her relations with the Executive, the Policy-seeker Ombudsman will
a) Engage in strategic cooperation, disregarding some politically controversial
issues, as long as he or she sees change can be effected on relevant issues.
b) Engage in strategic resistance, when he or she realizes that cooperation is not
effective and/or it implies alignment with the government, which compromises
ombudsman credibility and institutional legitimacy.
2. In his or her relations with the Executive, the Office-seeker with Static Ambitions
will
a) Engage in strategic subservience, remaining fairly irrelevant in the public arena
or even defending the government (instead of citizens), when he or she suffers
pressure from the government and/or sees risk of being removed from his
position.
b) Engage in strategic resistance only if he or she thinks that cooperation with the
incumbent may weaken his or her position with the upcoming new government.
3. In his or her relations with the Executive, the Office-seeker with Progressive
Ambitions will
a) Engage in strategic cooperation the incumbent is strong, enjoying substantial
popularity among the population, and will tend to avoid getting involved in hot
political issues that are divisive.
b) Engage in strategic resistance when the government is unpopular and therefore
weak.

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Limited Information
To assume that ombudsman head officers have complete information in a context
of institutional instability would be too problematic for under such conditions,
uncertainty is the norm, not the exception. Consequently, a model for exploring the
dynamics of ombudsman-Executive relations must necessarily presuppose limited
information.
While all three types of ombudsman head officers have to deal with the problem
of imperfect information on different issues—for instance, whether the president will be
willing to remove them or Congress will get enough votes to impeach them, or how civil
society and public opinion in general will react concerning an ombudsman statement or
act of public confrontation against the Executive or Congress, etc—the problem of
limited information is likely to be more prominent for the office-seekers than for the
policy-seekers because ombudsman head officers of the last type tend to be substantially
more concerned about effecting policy changes. While this problem can become
particularly complicated for all three ombudsman types in a context of high political
polarization, high political polarization could locate the office-seeker with progressive
ambitions in nearly impossible situations, i.e. when choosing to cooperate with the
government may imply losing, for instance, the support of the human rights community;
while choosing to confront the government (strategic resistance) may cost the
ombudsman the support from key government officials and especially, a considerable
sector of the population. The dilemma will be solved in each case, but the specific
ambitions of this kind of office-seeker (for instance, if he or she is considering a future as

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an elected officer, he or she will most likely pay attention to the preferences of the
median voter). Notwithstanding the challenged of limited information, in many cases
ombudsman head officers can have just enough information to be able to make strategic
decisions. First, an ombudsman can have access to the results of public opinion polls—
some ombudsman offices even hire agencies to do surveys for them—which they
constantly examine. Second, the existence of mass demonstrations in the streets about
legal and political issues has become a common practice in many cities of Latin America.
In Peru between 1998 and 2000 (I have to find out if it is still happening), the third block
of Jr. Ucayali—the street where the ombudsman headquarters is located in Lima—
actually became a “meeting point” or key stop for diverse groups of demonstrators in
their marches towards Congress or the Palace of Government. The demonstrators did this
to express their demands before the ombudsman on issues that ranged from protesting
against Fujimori’s third presidential campaign, to opposing concessions to foreign
capital, to demanding reposition in the jobs from which they had been fired.
As Helmke has argued concerning the members of the judiciary, we can also
assume that the very fact that ombudsman head officers face such high stakes in these
contexts “may lead them actively to seek out information” (2005:35) about the potential
support they could find on particularly controversial issues. They may find that they
need to foster support from key actors before openly confronting the government, or to
educate the population about those particular issues through a national campaign, for
example, before issuing a resolution that publicly confronts the government.

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As long as an ombudsman head officer faces uncertainty about the preferences of
the median citizen and, in the case of office-seekers of the incoming government—
especially at periods when the incumbent’s power is just beginning to decline—the
question remains whether the head officer might pursue a safer course by avoiding
engagement in controversial political issues, or will be willing to take a risk and confront
the government. The decision to confront the Executive on particularly sensitive issues
will be more likely, the higher the ombudsman institutional capacity is.61
In situations when the ombudsman institutional capacity is low and the office-
seeker ombudsman faces problems of information over knowing the median citizens’
preferences, the head officer will choose strategic cooperation rather than resistance.
And during the last months of a presidential term, it is very likely that the strategy
followed by all ombudsman officers will be “to wait and see” until the new government
is already in place (the policy-seeker most likely would rather wait than risk his post,
given that there would be no opportunity to influence policy if he or she were to be
removed from the post by a hostile executive who is finishing the term). This theoretical
reasoning parallels Helmke’s arguments concerning the behavior of members of the
judiciary in Argentina (2005: 36); and Alt’s propositions concerning central bank’s head
officer’s behavior in the United States (1991: 65).
Obviously, the office-seeker with static ambitions is the type who will be most
cautious of all and will avoid engagement in high profile political cases, until he or she is
61
I use the expression “institutional capacity” to refer to a combination of indicators of formal and
financial autonomy, legal attributions, cooperation with the human rights community, etc. of the specific
ombudsman office.

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relatively confident of knowing the line of the candidate most likely to be elected. This
kind of head officer will tend to be irrelevant in the public arena when risky situations
arise and therefore will be mostly perceived as a politically non-independent ombudsman.
Institutions and Veto Players
Institutional arrangements can increase or limit the ability of ombudsman head
officers to engage on controversial political issues. While chief executives seem to be
all-powerful vis à vis ombudsman head officers, yet it does not mean that in all cases the
government will be a unitary actor capable of removing an “uncooperative” ombudsman
head officer. While the government may harass the ombudsman in different ways, a
Congress or a Judiciary that is trying to play a more significant role could become a “veto
player” (Tsebelis 2002), minimizing the ability of the government to threaten the
ombudsman head officer with removal. Therefore, in countries where Congress is a
stronger political actor, and/or judiciary is substantially independent from the other
powers, following the main deductions of separation of powers approaches, ombudsman
head officers will enjoy more relative freedom to confront the government. According to
the central proposition on veto players literature, the greater the number of players, the
harder it is to change the status quo. Therefore, we can conclude with respect to the
ombudsman that increasing the number of political players required to sanction the
ombudsman potentially increases the ombudsman head officer’s incentives to choose
strategic resistance, by reducing the pressures that would otherwise make him or her
engage in strategic cooperation.

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The institutional rules that govern sanctions against the ombudsman are quite
important. When institutions are respected, they shape actors’ expectations about the
range and the strength of the constraints they face. Arguably, the greater the number of
votes required to impeach an ombudsman, the more incentives the ombudsman head
officer will have to engage in strategic resistance when the government is following
policy preferences not shared by the ombudsman.
Another important element for determining if ombudsman head officers are
exposed to formal sanctions is whether the president’s party controls the legislature or
not. Obviously, Executive control of the legislature creates many more incentives for
office-seeking ombudsman head officers to strategically cooperate with the government.
Even when these reflections mainly include a single actor (i.e. chief executive)—
who may decide to punish the ombudsman head officer when he or she decides to
confront the Executive’s abuses—corresponding to empirical cases of hyper-
presidentialism and delegative democracy in some countries of Latin America, the
assumptions underlying the logic of strategic subservience, cooperation or resistance
should be adjusted according to the empirical conditions in each case, in order to include
additional veto players. In contexts where more than an single actor decides the
sanctions of the ombudsman head officer, the issues on which ombudsman head officers
will face the strongest incentives to engage in strategic cooperation are likely to be
reduced to those where all of the relevant actors hold preferences opposed to those of the
ombudsman head officer.

11. 97
Conclusion
In this chapter I have shown that rather than the normative approach commonly
used by legal scholars to refer to the behavior of ombudsman head officers, the decisions
these officers make can be better explained by applying a rational choice framework.
The rational choice model I have presented in this chapter assumes that ombudsman head
officers are individuals that decide what they consider to be their best course of action
according to stable preferences (effecting policy change; maintaining his or her personal
status; or advancing his or her personal career) and the constraints they face. Based on
those personal motivations, I have presented three ideal types of ombudsman head
officers and hypothesized about how they will respond to the government’s pressures in a
context of limited information and institutional instability. I have also explained
additional assumptions on limited information and the role of veto players. While I do
not claim that this model is a complete description of reality and of all ombudsman head-
officers’ internal motivations, I think that it provides a very helpful way to analyze the
behavior of ombudsman head officers in their relationship with the government, under
conditions of institutional instability, conditions that unfortunately are prevalent in the
political environment of several Latin American countries.
Ombudsman head officers are not unsophisticated decision-makers who make
choices based merely on their ideology or apolitical commitments to human rights
defense. While several of them may be truly interested in effecting public policy changes
in order to promote citizens’ fundamental rights, ombudsman head officers are strategic
actors who realize that their capacity to attain their institutional and/or personal goals

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depends on the choices they expect others to make and on the institutional environment in
which they perform.
Treating ombudsman head officers as strategic actors, I have deduced a set of
assumptions concerning their options in relation to hostile executives. Applying veto-
player theory, I have also considered how a more institutionalized environment may
affect ombudsman’s choices to cooperate or resist the government, finding an direct
relationship between the number of actors required for the application of formal sanctions
against the ombudsman and the range of issues on which ombudsman head officers will
find incentives to confront the Executive, assuming ombudsman’s preferences are
different from those of the Executive.

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CHAPTER 4:
HUMAN RIGHTS OMBUDSMAN PERFORMANCE IN THE CENTRAL ANDES:
EXPLAINING VARIANCE IN THE PERCEPTION OF OMBUDSMAN
EFFECTIVENESS IN BOLIVIA, ECUADOR AND PERU
As shown in Chapter 3, most Latin American countries established human rights
ombudsman agencies in the 1980s and 1990s. These ombudsman institutions are in place
but their operation varies widely across the region. My study tries to contribute to our
general understanding of why certain ombudsman head officers are perceived as
significantly effective while others are seen as completely irrelevant for the defense of
human rights and the rule of law in their countries and tend to be regarded with cynicism
by the population. The main argument of the study is that the variation of ombudsman
head officers’ effectiveness is better explained by the head officer’s demonstrated
political independence vis à vis the government and the political forces of the country
than by formal arrangements of autonomy, legal attributions or amount of funding
available to the office. Secondly, the demonstrated political independence of the
ombudsman head officer is both cause and effect of the support of the international donor
community and of civil society in his/her country.
The main premise of neo-institutionalist theories is that institutions play an
autonomous role and that they shape outcomes by influencing beliefs and actions and
structuring individuals’ preferences. Yet by analyzing a wide range of factors, from

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formal institutions of autonomy and legal attributions to public funding, from the support
of international cooperation agencies to the relations between the ombudsman and civil
society, this study shows the limits of focusing only on institutional arrangements to
explain ombudsman effectiveness and highlights the crucial importance of actual
ombudsman head officer’s political independence and the role of civil society and the
international donor community in supporting human rights ombudsman agencies.
The return to democracy in several Latin American countries has shown a very
tense relationship between rule of law and political decisions of incumbents. Rule of law
means that there are limits over the decisions that democratically elected leaders can
make and that all laws are imposed in equal terms over all citizens, including those who
are in government. O’Donnell (2004) has noted that while several new democracies in
Latin American as well as elsewhere have been successful in guaranteeing voting rights,
the enforcement of civil and social rights in those countries is still unsatisfactory with
respect to the poor. Similarly, the little or no accountability of the government to the
population and the absence of legislatures and judiciaries capable of restraining the
executive power and the high degree of social authoritarianism (O’Donnell 2001:604)
show the rather low quality of democracy in many of those countries.
The social science literature on Latin America has paid substantial attention to the
role of the judiciary as the primary check on the government and defender of the rule of
law (Brinks 2007, Dodson and Jackson 2003, Magaloni 2003, Pásara 2000, Popkin 2000,
Prillaman 2000, Méndez, O’Donnell and Pinheiro 1999, Hammergren 1998, among
others). While it has become apparent that strengthening the judiciary is crucial, it is also

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clear that a strong judiciary is not enough to promote the rule of law not all persons have
access to the judiciary (Rose-Ackerman 2007, Carothers 1999). Maybe because of the
difficulty in assessing its effectiveness, our field has given almost no attention to the
human rights ombudsman and its impact on the defense of the rule of law in Latin
American countries. Yet, because of the ombudsman’s mandate to defend the
fundamental rights of individuals, and to supervise the state administration and public
services provided to the citizenry, several human rights organizations and ombudsman
head officers62 have reported consistently that their efforts are aimed at reinforcing the
rule of law in their countries.63 The Andean Commission of Jurists has consistently
identified the ombudsman and the Constitutional courts as key institutions for the
strengthening of the rule of law in the Andean countries.64
The Challenge of Measuring Ombudsman Effectiveness
The human rights ombudsman is an agency that enjoys unique qualities that make
it distinct from public prosecutors, accounting offices and the judiciary. Probably the
most important of these are accessibility and freedom of action. To file a complaint at
62
Personalinterviews with Ana María Romero, first Ombudsman head officer of Bolivia (La Paz,
November 15, 2007) and Jorge Santistevan,first ombudsman head officer of Peru (Lima, November 30.
2007).
63
See for example, Defensoría del Pueblo (1998:4); Defensoría del Pueblo (1999:12; 17; 124). In
her most recent AnnualReport, Ombudsman Merino (Peru) has stated “(…) the celebration of the first ten
years of our institution represent the commitment of the Ombudsman office for the strengthening of
democracy (…)”. (Defensoría del Pueblo 2007: 12, my translation).
64
See for example, the written statement submitted by the Andean Commission of Jurists before
the 55th Session of the UN Commission on Human Rights. E/CN.4/1999/NGO/28. 29 January 1999. Pp.1-4.
http://www.unhchr.ch/Huridocda/Huridoca.nsf/TestFrame/ac3b3f5ecefa5b5480256739003826e7?Opendoc
ument Retrieved Sept. 1, 2007.

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the ombudsman office is easy and free of cost and, unlike judicial procedures,
ombudsman investigations do not demand active plaintiff’s participation. Currently,
however, it is not possible to assess how effective this agency has been in handling
individual complaints.
If the Ombudsman office had a follow up system that recorded the results of its
interventions at the individual complaint level, success would be relatively easy to
measure. Unfortunately, while some ombudsman offices keep a relatively good
statistical record of the individual complaints filed by the citizens, the Ombudsman does
not have a systematic way to identify the specific results of its intervention in individual
cases.65 The Ombudsman ignores how effective it is unless it receives a letter from the
public servant who is handling the case saying what he or she is planning to do about the
complaint. But even then, there are no guarantees of behavior change on the part of the
bureaucrat that has received the ombudsman recommendation. Despite the claims of
ombudsman officers about their own effectiveness, as Uggla has asserted, “In most cases,
it is simply impossible to judge the impact of the ombudsman’s resolutions.” (2004: 441)
Even if the ombudsman office had an appropriate follow up system for individual
complaints, the data from this system would provide information concerning only what
happens at the individual level. While this is undoubtedly a very important aspect that
deserves attention, the dimension I am most interested in looking at cannot be caught by
the study of ombudsman intervention in individual cases. My main interest has been to
65
This is true for all the human rights ombudsman offices in Latin America. I recently learned
that Beatriz Merino, current ombudsman head officer ofPeru, has the plan ofsetting up a team that will be
dedicated to devising a follow up systemfor individual complaints. (Personal interview with Eugenia
Fernán-Zegarra, head of the Ombudsman Lima Office. Lima, November21, 2007).

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assess the effectiveness that the institution has had in the political arena, and its impact in
defending the rule of law and strengthening democracy across different head officers’
terms, under different chief executives.
Theoretical Framework
The dependent variable in this study is ombudsman effectiveness. Effectiveness
is understood as the ability to defend human rights and the rule of law by each
ombudsman head officer in his/her country. For the purposes of this empirical study, and
considering the difficulties inherent to the assessment of ombudsman resolutions, I use a
subjective measurement of ombudsman effectiveness based on the arithmetic mean
obtained by each head officer in an elite survey I carried out in Ecuador (Guayaquil and
Quito); in Bolivia (La Paz, Santa Cruz de la Sierra, and Cochabamba); and Peru (Lima).
In order to avoid response bias current workers of the ombudsman office in the
countries under study did not answer the survey. I also carried out in-depth interviews
(see Appendix, Table 1) which provided assessments that were very consistent with the
opinions given by the participants in the survey, except in the case of Ecuador, which I
explain later.
The independent variables are ombudsman’s formal autonomy, legal attributions,
political independence, financial autonomy, international cooperation support and civil
society support. The hypotheses are the following:

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H1: Greater formal autonomy facilitates ombudsman effectiveness.
According to the neo-institutionalist literature, formal institutional rules shape
outcomes in the political arena (North 1990). When the Executive plays a formal role in
the appointment or over decisions of administrative nature such as the determination of
the ombudsman’s salary, hiring of staff, promotions, etc. the ombudsman lacks the
autonomy to investigate abuses performed by the government or its allies and therefore,
cannot exercise its function in an effective way. On the other hand, when the
ombudsman head officer is not under the direction of another public authority but he or
she enjoys de jure independence, he or she will be more effective in accomplishing the
ombudsman mandate of defending the human rights and the rule of law.66
Measurement:
Following studies on formal autonomy of judicial independence (Moreno et. Al
2003) and of electoral bodies (Schedler 2003), I have codified each formal regulation
relevant for ombudsman autonomy, assigning different weights to specific rules
according to their significance in promoting more or less ombudsman autonomy. Then I
added up the points for each ombudsman office in order to compare them.
66
Schedler (2003) follows this logic in his study of electoral management bodies in Latin
America.

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H2: Greater legal attributions facilitate ombudsman effectiveness.
Legal attributions establish the range of authority the ombudsman has over the
entities under its supervision. Therefore, ombudsman offices with greater legal
attributions should be expected to have greater effectiveness.
Measurement:
I codified each legal attribution of the ombudsman in the countries under study,
assigning different weights to specific attributions according to their significance in
facilitating effectiveness. Then I added up the points for each ombudsman office in order
to compare them.
H3: Greater ombudsman head officer’s political independence facilitateseffectiveness
In Latin America, even when ombudsman agencies may rank fairly well in terms
of formal autonomy, they may do differently in terms of actual political independence
while performing their functions and that is likely to affect their effectiveness. As
Maxfield has argued, ‘‘De jure independence is a questionable proxy for behavioral
independence.’’ (1999: 286) Consequently, the ombudsman head officer behavioral
independence from the government and the political parties –and not mere formal
institutions of autonomy—is a factor that deserves separate attention when analyzing
ombudsman effectiveness. The logic here is that an ombudsman officer that behaves
with independence vis à vis the government will intervene with more effectiveness than
one that is loyal to the government, despite the legal attributions the head officers may

20. 106
have. Ombudsman behavioral independence of political parties is also important,
because if the ombudsman is perceived as a biased institution against the government, it
loses credibility among the public officers and the population.
Measurement:
Real independence is a rather evasive empirical phenomenon, as Schedler has
argued, the true independence of public institutions is “a particularly difficult variable to
measure.” (Schedler 2003: 9) I therefore had to rely on subjective perceptions of
ombudsman independence, based on the surveys I carried on in Bolivia, Ecuador and
Peru in 2007. While subjective, I think that my indicator is valid, following Pastor’s
conclusion on institutions of electoral supervision, “the establishment of independent
[election commissions] is not sufficient to assure successful elections. [They] must also
be perceived as independent and competent.” (1999: 18)
H4: Ombudsman’s greater control over funding facilitates ombudsmaneffectiveness.
Control over the office funding is a key element for ombudsman autonomy.
Where the funding for the ombudsman office is under the control of the Executive, a
common way to threaten or actually sanction an ombudsman head officer that is too
problematic to the government is to freeze or halt the office’s funding. Because of the
government’ possibility of attempting to restrict the autonomy of the ombudsman through
the budget process, I hypothesize that where the ombudsman head officer has greater
control over funding, he or she will be more effective.

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Measurement:
I track the evolution the evolution of ombudsman public funding and the support
of international donor agencies and compare them both in terms of relative and absolute
terms. I also identify all of the international sources of financial support to the
ombudsman offices since their creation and observe the implications of different two
types of donations: project-specific international cooperation and basket funding. Finally
I calculate the per capita amount of international funding received by each ombudsman
office and the number of cooperation agencies that have supported the ombudsman office
under the leadership of each head officer.
H5: Greater cooperation with civil society facilitates ombudsmaneffectiveness
Peruzzotti and Smulovitz (2003, 2006) have stressed the importance of paying
attention to the role of civil society organizations in exposing wrongdoings and activating
horizontal mechanisms of accountability (2003:311-314). Organizations of civil society
can represent a great source of information and other resources in cooperative efforts
with the ombudsman office. Taking into consideration that ombudsman offices tend to
have severe limitations of human and material resources, it is expected that an
ombudsman office that enjoys good cooperation relations with civil society will tend to
be more effective.

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Measurement:
While it was very difficult to track the exact number of organizations from civil
society that have maintained relations of collaboration, mainly because of the rather
informal ways in which such cooperation takes place, during my interviews with human
rights advocates and ombudsman officers it became clear which ombudsman offices
maintained high levels cooperation with civil society and which one had very low ones.
Methodology
I have tried to obtain as much objective information as possible concerning the
ombudsman office in the countries under study. Unfortunately, as I explained earlier,
information concerning the effectiveness and the independence of ombudsman head
officers beyond formal institutions was practically impossible to obtain. In the absence
of reliable information to develop appropriate indicators of effectiveness and
independence, the best method I found was to identify knowledgeable individuals who
had had substantial contact with the ombudsman office in their respective country.
Whose opinions are relevant to assess ombudsman effectiveness and political
independence? This is a very important question I kept in mind throughout my research.
In order to minimize the possibility of getting a biased sample, I decided to select my
interviewees from a wide range of careers and political persuasions.
Using contact information available at the Kellogg Institute, I initially contacted a
group of 3 social scientists in each country, who in turn referred other informants.
Through these personal and institutional references, I was able to identify a broad range

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of “experts” whom I surveyed during my visit to Ecuador (from October 19 trough
November 7), Bolivia (from November 8 through 18), and Peru (from November 19
through December 2) in 1997. Besides those 50 semi-structured elite surveys of social
scientists, human rights advocates, experts in Constitutional law, and politicians who
were familiar with the accomplishments and struggles of the human rights office in their
respective country, I conducted in-depth personal interviews with individuals who work
in areas related to the rule of law and who know about the work of the ombudsman
office. Table 4.1 presents the distribution of professions and backgrounds among
respondents. A complete list of names, positions, backgrounds and date and place of the
interviews of all participants in my study appear in Table 1 of the Appendix.
I also carried out field research at the ombudsman headquarter offices in each
country, which allowed me to read their documents, review their financial reports (where
available) and interview ombudsman head officers and commissioners. In order to
minimize bias in my sample, no current ombudsman workers answered the survey.

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TABLE 4.1
DISTRIBUTION OF SURVEY RESPONDENTS AND INTERVIEWEES
PER CAREER BACKGROUND AND COUNTRY
Survey Respondents Interviewees
Career Background Bolivia Ecuador Peru Total Percentage Bolivia Ecuador Peru Total Percentage
Social Scientists 3 2 2 7 14.29 3 3 3 9 11.11
Legal Scholars 1 4 1 6 12.24 1 6 3 10 12.35
International Cooperation Officers 4 1 2 7 14.29 4 1 2 7 8.64
Members of Civil Soc. Organizations 3 4 12 19 38.78 4 4 12 20 24.69
Former Members of Congress 2 2 0 4 8.16 2 2 0 4 4.94
Former Ministers 0 3 1 4 8.16 0 3 1 4 4.94
Ombudsman Head Officers 1 1 0 2 4.08 2 167
2 5 6.17
Other Ombudsman Officials 0 0 0 0 0.00 3 9 10 22 27.16
Total 14 17 18 49 100.00 19 29 33 81 100.00
67
Ombudsman Trujillo was not evaluated in the survey with respect to ombudsman effectiveness because he resigned his position b efore the
establishment of the ombudsman office in his country.
110

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Cases
I have selected as cases for this study the terms served by head officers of the
ombudsman agencies of Bolivia, Ecuador and Peru because of the high institutional
instability these countries have experienced in the last 15 years. This is an important
criterion because—differently from well established democratic systems—in contexts of
institutional instability, the rule of law is under constant challenge from those who hold
power. These conditions make the human rights ombudsman role more relevant in the
public arena and therefore particularly appropriate to test my hypotheses about
ombudsman effectiveness.
The 10 head officers’ terms included in this study constitute the total universe of
ombudsman head officers in the countries of Bolivia, Ecuador and Peru. Table 2
provides the names, status, terms of office and presidents under whom the ombudsman
head officers served.
The first case is the term of Ana María Romero de Campero, who served from
1998 to 2003 at a time of high political instability and social turbulence in Bolivia. The
second case is the term of Carmen Beatriz Ruiz. Even when Ruiz served twice as acting
ombudsman of Bolivia in 2003, I considered her term as acting ombudsman as only one
case because of the short periods in which she served (first for 6 months after Romero
finished her term and then for 1.5 months after Zegada’s resignation) and especially
because her interim status did not change. The very brief term in which Iván Zegada
served as ombudsman head officer constitutes the third case in this study. The fourth
case is the term of Waldo Albarracín, who currently serves as ombudsman of Bolivia.

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TABLE 4.2
HEAD OFFICERS’ STATUS, TERM OF SERVICE AND PRESIDENTS
Head Officer Status Term President(s)
Bolivia
1. Ana María
Romero
Formally appointed by
Congress (99 votes of 145
legislators present)
04/01/1998 –
03/30/2003
Hugo Banzer
(05/05/1997 – 08/06/2001)
Jorge Quiroga
(08/07/2001 – 08/06/2002)
Gonzalo Sánchez de Lozada
(08/04/2002 – 10/16/2003)
2. Carmen Acting Ombudsman 04/01/2003 – Gonzalo Sánchez de Lozada
Beatriz Ruiz 10/03/2003
and
10/23/2003 – Carlos Mesa
12/10/2003 (10/17/2003 – 06/09/2005)
3. Iván
Zegada
Formally appointed by
Congress (99 votes of 141
legislators present in the
session)
10/4/2003 -
10/22/2003
Gonzalo Sánchez de Lozada
Carlos Mesa
4. Waldo
Albarracín
Formally appointed by
Congress (76 votes of 91
legislators present)
12/11/2003
to date
Carlos Mesa
Evo Morales
(01/21/2006 to date)
Ecuador
Julio César
Trujillo
Formally appointed by
Congress
04/97-06/97 Fabián Alarcón
(02/11/1997 – 08/10/1998)
5. Milton
Alava
Formally appointed by
Congress
09/09/98 –
05/20/2000
Jamil Mahuad
(08/10/1998 – 01/21/2000)
Gustavo Noboa
(01/22/2000 – 01/15/2003)
6. Claudio
Mueckay
Acting Ombudsman 05/21/2000 –
07/13/2005
Gustavo Noboa
Lucio Gutiérrez
(01/15/2003 – 04/20/2005)
Alfredo Palacio
(04/21/2005 – 01/15/2007)
7. Claudio
Mueckay
Formally appointed by
Congress
07/14/2005
to date
Alfredo Palacio
Jorge Correa
(01/15/2007 to date)
Peru
8. Jorge
Santistevan
Formally appointed by
Congress
04/10/1996 –
11/28/2000
Alberto Fujimori
(07/28/1995 – 11/22/2000)
9. Walter
Albán
Acting Ombudsman 11/29/2000 –
11/15/2005
Valentín Paniagua
(11/22/2000 – 07/28/2001)
Alejandro Toledo
(07/28/2001 – 07/28/2006)
10. Beatriz
Merino
Formally appointed by
Congress
11/16/2005 to
date
Alejandro Toledo
Alan García
(07/28/2006 to date)

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In Ecuador, I do not consider Julio César Trujillo as a case for the study of
ombudsman effectiveness because he was appointed but never assumed the position of
ombudsman head officer, although his situation is useful to understand some things and I
occasionally refer to him during this chapter and the next. Milton Alava’s term from his
appointment in 1998 until his impeachment in 2000 is the fifth case. I consider Alava’s
successor Claudio Mueckay’s terms as two separate cases because of the length of the
assignments (he served five years as acting ombudsman and then was formally appointed
head officer in July 2005 for another five year term), but especially because of the change
in his status, in order to observe whether formal appointment had any effect on the
perception of his effectiveness as ombudsman head officer.
The eighth case in this study is the term of Jorge Santistevan de Noriega, first
ombudsman of Peru. Acting ombudsman Walter Albán’s term is the ninth; and Beatriz
Merino, current ombudsman head officer of Peru, is the tenth. Table 4.2 provides the
head officers’ status, terms of service and presidents under whom they performed
functions.
Results on the Dependent Variable: Perceived Effectiveness of the Ombudsman Head
Officer
After explaining that by ombudsman effectiveness I was mostly interested in the
ombudsman’s political impact in terms of his or her ability to defend human rights and
the rule of law, I asked the participants in my survey to rate each ombudsman head
officer according to a 0 to 4 scale. In this scale, 0 meant no effectiveness and 4 meant

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very high effectiveness. Julio César Trujillo was not included in this question because he
resigned his position before the ombudsman office was established in Ecuador “because
of the lack of support from the government and Congress.”68 Table 4.3 presents the
results on the dependent variable.
According to the results of my survey, the most effective ombudsman head
officers in the study were: Jorge Santistevan (Peru); Ana María Romero (Bolivia); Walter
Albán (Peru); Beatriz Merino (Peru); Waldo Albarracín (Bolivia); and Carmen Ruiz
(Bolivia).
TABLE 4.3
OMBUDSMAN HEAD OFFICERS’ EFFECTIVENESS
Question No. 1: In a 0 to 4 scale, where 0 = no effectiveness and 4 = very high
effectiveness, how do you assess the effectiveness of the following human rights
ombudsman head officers?
Country Head Officer Mean Respondents
Peru Jorge Santistevan 3.61 18
Bolivia Ana María Romero 3.38 13
Peru Walter Albán 2.89 18
Peru Beatriz Merino 2.72 18
Bolivia Waldo Albarracín 2.08 14
Bolivia Carmen Ruiz 2.00 14
Ecuador Claudio Mueckay 1.39 18
Ecuador Claudio Mueckay
(acting)
1.22 18
Ecuador Milton Alava 0.94 18
Bolivia Iván Zegada 0.36 14
68
Author’s personalinterview with Julio César Trujillo. Quito, November 6, 2007. For a
discussion ofthe factors that motivated Trujillo’s designation, see Chapter 5.

29. 115
In order to make sure my respondents were thinking of effectiveness in terms that
were relevant to my study and were not answering according to personal sympathy or
other criteria, after discussing other things, I asked them to rate the ombudsman officers
considering their contribution to the defense or strengthening of the rule of law; and their
role in the defense of civil and political rights; and of economic, social and cultural
rights. As Table 4.4 shows, the results for these three other questions were very
consistent with the question that inquired expressly about their perceptions on
ombudsman effectiveness.
The scores obtained by Jorge Santistevan (Peru); Ana María Romero (Bolivia);
Walter Albán (Peru); Beatriz Merino (Peru); Waldo Albarracín (Bolivia) and Carmen
Ruiz (Bolivia) for their contributions to the defense of the rule of law were fairly
consistent with their respective rates on the question of general effectiveness. These 6
head officers were perceived as having made substantial efforts to defend the rule of law
in their country. A similar tendency is observed concerning the defense of civil and
political rights, except in the case of acting head officer Carmen Ruiz (Bolivia) who
received a score of 1.86 compared to scores of 2.00 and 2.43 on effectiveness and defense
of rule of law respectively. This can be explained by the difficult situation that Ruiz had
to face as acting head officer, after Romero decided to be a candidate for reelection.69
69
In Bolivia, according to the Ombudsman Law No. 1818, in order to be a candidate for
reelection, the head officer must leave the position to his/herfirst deputy.

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TABLE 4.4
OMBUDSMAN HEAD OFFICERS’ ROLE IN THE DEFENSE OF
THE RULE OF LAW AND HUMAN RIGHTS
Question No. 5: In a 0 to 4 scale, where 0 = no contribution and 4 = very important
contributions, how do you assess the contribution of each human rights ombudsman head
officers to the following:
Country Head Officer Defense of
the Rule of
Law
Defense of
Civil and
Political Rights
Defense of
Economic,
Social and
Cultural Rights
Respondents
Peru Jorge
Santistevan
3.39 3.39 1.89 18
Bolivia Ana María
Romero
3.36 2.79 2.07 13
Peru Walter Albán 2.94 2.94 2.00 18
Peru Beatriz
Merino
2.61 2.44 2.50 18
Bolivia Carmen Ruiz 2.43 1.86 1.36 14
Bolivia Waldo
Albarracín
2.36 2.00 1.57 14
Ecuador Claudio
Mueckay
(acting)
1.33 0.94 0.94 18
Ecuador Claudio
Mueckay
1.28 0.83 0.89 18
Ecuador Milton Alava 0.78 0.39 0.44 18
Bolivia Iván Zegada 0.07 0.21 0.14 14
According to Guido Ibargüen, United Nations High Commissioner for Human
Rights National Officer and former Ombudsman advisor, Romero decided to tempt
reelection “at the insistence of many civil society organizations.” (Ibargüen)70
70
Author’s personal interview with Guido Ibargüen. La Paz, November 13, 2007.

31. 117
asegurar su puesto; y iii. El aspirante a un cargo con ambiciones progresistas, cuyo objetivo es
aumentar sus perspectivas de carrera pública.
El buscador de políticas - el ombudsman
Hay dos tipos de situaciones posibles para el defensor del pueblo que busca políticas. La primera es
cuando él o ella encuentra espacio para trabajar con el gobierno en áreas de política relevantes (a
pesar de los desacuerdos en otras áreas). En un contexto de inestabilidad institucional, un funcionario
jefe del ombudsman que esté impulsado exclusivamente por el deseo de influir en la política
encontrará más incentivos para la cooperación estratégica cuando las preferencias políticas del
gobierno que estén en conflicto con el funcionario jefe del ombudsman no sean una prioridad para él
o ella. La lógica que subyace a esta elección estratégica es que la remoción del cargo de ombudsman
excluye la posibilidad de influir en la política en el futuro.
La situación cambia cuando el jefe de la oficina se da cuenta de que el grado de divergencia entre las
preferencias políticas del gobierno y del ombudsman hace casi imposible que éste influya en las
políticas del gobierno. En este caso, el ombudsman recurrirá a la resistencia estratégica: el
ombudsman movilizará a la opinión pública y a la comunidad internacional sobre las cuestiones de
política que le interesan, resistiendo al gobierno, incluso a riesgo de ser destituido de su cargo. En la
medida en que este tipo de jefe se preocupa mucho por la legitimidad institucional del ombudsman -
que es un elemento clave vinculado a la eficacia del ombudsman, como dije antes- la resistencia
estratégica será una opción más probable cuando el gobierno adopte un comportamiento abusivo, y el
ombudsman será percibido como un jefe independiente.
El funcionario con ambiciones estáticas
La prioridad principal de este tipo ideal de jefe de ombudsman es mantener su estatus personal. El
funcionario jefe profesional con ambiciones estáticas es probablemente el más susceptible a la
amenaza de destitución y, por lo tanto, el que menos probabilidades tiene de oponer una res istencia
estratégica contra el gobierno. Al igual que ocurre en el caso de los jueces (Helmke 2005:33), en los
países en los que la economía es muy volátil y en los que un puesto de alto nivel en el Estado como
jefe de la oficina del ombudsman garantiza un sueldo considerable y unos requisitos atractivos, este
tipo de persona que busca un puesto tendrá incentivos muy altos para seguir una lógica de alineación
estratégica. Por lo tanto, el jefe de la oficina del ombudsman no hará declaraciones públicas ni
realizará investigaciones que puedan poner al gobierno en una posición difícil, porque ello podría dar
lugar a un riesgo de eliminación que no está dispuesto a asumir.
Cuando el mandato del ombudsman no coincide con el del Ejecutivo, la situación puede cambiar
sustancialmente hacia el final del mandato del Presidente. Si el jefe del ombudsman está
relativamente seguro de que un nuevo gobierno tiene preferencias políticas diferentes y que su
alineación con el gobierno actual no será apreciada por el siguiente, el jefe del ombudsman se
enfrentará a una resistencia estratégica contra las presiones del gobierno actual. Por supuesto, esta
lógica supone que el jefe de la oficina puede estar razonablemente seguro de que el titular o su partido
no será reelegido, y que las preferencias de política del nuevo gobierno son sustancialmente diferentes
de las del titular60.
60 Helmke (2005) ha desarrollado un modelo de "deserción estratégica" para explicar el
comportamiento judicial en circunstancias similares.

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El oficialista con ambiciones progresistas
El objetivo principal de este tipo de jefe ideal es el avance de su carrera personal. Para este tipo de
oficial, los costos de la remoción dependen de las oportunidades de carrera que se le ofrezcan. Se
puede suponer que cuando el Ejecutivo es popular, el jefe de la oficina del ombudsman seguirá la
cooperación estratégica. Pero cuando el gobierno es débil, el jefe del ombudsman encontrará grandes
incentivos para enfrentarse al Ejecutivo.
¿Bajo qué condiciones resistirá el ombudsman a las presiones del gobierno en un contexto de
inestabilidad institucional? ¿Cuándo elegirá el ombudsman enfrentarse al gobierno cuando haya
fuertes presiones del Ejecutivo e incluso la amenaza de destitución? En el cuadro 3.4 se indican los
casos más probables en que un ombudsman puede participar en una subordinación estratégica, una
cooperación estratégica o una resistencia estratégica, según el tipo de funcionario principal.
Como se muestra en el cuadro 3.1, los tres tipos de ombudsman pueden en realidad tener razones
estratégicas para enfrentarse al gobierno en diferentes momentos y en diferentes condiciones.
Empíricamente, por supuesto, los funcionarios jefes de los ombudsman no son tipos ideales y
considerarán muchos factores al mismo tiempo. Algunos de esos factores tendrán que ver con la
fortaleza institucional de que gozan sus instituciones de ombudsman, como los elementos
relacionados con la autonomía formal (especialmente una titularidad fija e inmunidades similares a
las que gozan los miembros de la Corte Suprema); el grado de autonomía financiera institucional (en
particular la participación de los organismos de cooperación internacional
Traducción realizada con la versión gratuita del traductor www.DeepL.com/Translator