Brazil: Lula’s re-election prompts renewed focus on rule of law

Ruth GreenWednesday 14 December 2022

It was Latin America’s most hotly contested run-off for decades. Yet despite his corruption convictions, Former Brazilian President Luiz Inácio Lula da Silva defeated the incumbent Jair Bolsonaro in the second round at the end of October, winning 50.9 per cent of the vote compared with Bolsonaro’s 49.1 per cent.

‘They tried to bury me alive, and yet here I am,’ announced Lula triumphantly in his victory speech. It was a remarkable turnaround in fortunes for the Workers’ Party candidate, who, just three years earlier, was serving a 12-year prison sentence over charges linked to Brazil’s infamous Car Wash corruption investigation.

Allegations of vote-buying, political sabotage and tax evasion tarnished the reputation of the former president and his party, but Lula was released from prison after 580 days in November 2019. His convictions were annulled in 2021 by Brazil’s Supreme Federal Court, which ruled that Sérgio Moro – the judge who presided over the investigation that put Lula in prison and later became Bolsonaro’s justice minister – was not impartial. A UN Human Rights Committee also concluded in 2022 that Lula’s original trial violated due process.

This paved the way for Lula to seek re-election. His dramatic comeback comes as Brazil’s economy remains stagnant and society deeply polarised, scarred by the Bolsonaro administration’s mishandling of the pandemic that led to close to 700,000 deaths. Many Brazilians yearned to return to the economic prosperity and social gains that characterised Lula’s presidency between 2003 and 2010 as Brazil rode high on the commodity boom.

Lula’s inclusive policies and ability to forge strong political alliances were also crucial to him winning the run-off, says Julia Cani, a PhD candidate in law at the University of São Paulo and Fox International Fellow at Yale University. ‘When Bolsonaro won four years ago, he said that the minority should band to the majority, which meant a government directed towards the majority of the people,’ says Cani. ‘When Lula won this year’s election, he said he would govern for all, meaning he would govern not only the ones who voted for him, but also those who voted for the defeated candidate.’

Although many of his policies are still to be determined, international environmentalists have welcomed Lula’s pro-climate pledges. The president-elect used COP27 to reassert his commitment to tackle deforestation and highlight plans for a rainforest preservation partnership with Indonesia and the Democratic Republic of the Congo. He’s also expected to re-appoint Amazon-born environmentalist Marina da Silva as environment minister and establish a separate ministry to represent the interests of Indigenous peoples.

There is a widespread fear that the new government will start a witch-hunt to intimidate prosecutors and civil society

Leopoldo Pagotto
Partner, Freitas Leite e Avvad Advogados

The election result has clearly divided the country, however, hundreds of Bolsonaro’s supporters blocked roads in protest following the outcome, stoking renewed fears that his allies would stage a coup reminiscent of the January 6 storming of the US Capitol Building that followed President Donald Trump’s 2020 electoral defeat.

Bolsonaro, who made several allegations of electoral fraud early in the election cycle, challenged the result at the country’s Superior Electoral Court, alleging ‘signs of malfunction’ in some electronic voting machines. However, the court rejected the allegations and the parties in Bolsonaro’s coalition were fined $4.3m for ‘bad faith’ litigation. Both the Brazilian Bar Association and Brazil’s Defence Ministry also concluded in separate inquiries that there was no evidence of irregularities throughout the two rounds of voting.

Like previous Brazilian administrations, the new government will face the challenge of convincing the electorate that corruption is a thing of the past. ‘I believe that corruption will continue to be in the spotlight for the next four years,’ says Leopoldo Pagotto, a partner at Freitas Leite e Avvad Advogados in São Paulo and Co-Chair of the IBA’s Anti-Corruption Committee. ‘The question is whether the prosecutors will have power to investigate as they did in the past. There is a widespread fear that the new government will start a witch-hunt to intimidate prosecutors and civil society.’

Misinformation, disinformation, censorship and online harassment of journalists cast a dark shadow over the election and will pose a huge challenge for the president-elect. Transparency International has already called on the incoming administration to ‘restore oversight institutions over political interests and ensure transparency in governmental decision-making to rescue anti-corruption efforts, democracy and the fight for human rights.’

Lula’s relationship with the Supreme Court will also be under close scrutiny, particularly given its key role in overturning his corruption convictions in 2021. Lula, who will assume office in January, will be entitled to appoint judges to replace Rosa Weber, the court’s current Chief Justice, and Ricardo Lewandowski, who will both reach the court’s mandatory retirement age of 75 in 2023.

These appointments will mark a critical opportunity for Lula to embrace both diversity and judicial independence, says Cani. ‘Among the eleven justices who are members of the Brazilian Supreme Court, only two are women and all of them are white. It would be great to have a more diverse decision-making environment. In the end, however, whoever is chosen, the most important concern is that the decision is motivated by the legal knowledge, professional experience, ethical posture, and impartiality of the candidate.’

Image credit: Feydzhet Shabanov/